Re KL
[2021] VSC 170
•8 April 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0074
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by KL |
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JUDGE: | Priest JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 April 2021 |
DATE OF JUDGMENT: | 8 April 2021 |
CASE MAY BE CITED AS: | Re KL |
MEDIUM NEUTRAL CITATION: | [2021] VSC 170 |
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CRIMINAL LAW – Bail – Child aged 15 years – Applicant charged with Schedule 2 offences whilst on bail for Schedule 2 offences – Charges of affray and committing an indictable offence whilst on bail – Bail refused by Children’s Court – Whether exceptional circumstances justifying grant of bail – Whether unacceptable risk that applicant would commit further offence, endanger person or fail to answer bail – Bail refused – Bail Act 1977, s 3AAA, s 3B, s 4A, s 4AA, s 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Naomi Low | Victoria Legal Aid |
| For the Respondent | Mr Paul Collins | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The child applicant, ‘KL’, is aged 15 years. He has been in custody for about ten days. Having previously been refused bail by the Children’s Court he seeks bail from this Court. For the reasons that follow, bail will be refused.
The charges and alleged offending
KL was arrested on 29 March 2021 by Detective Senior Constable Alicia Thorp, and charged with a number of serious offences arising out of two incidents which took place respectively on 24 February and 29 March 2021. The charges include:
· Affray (two charges – charges 1 and 5);
· Intentionally causing injury (charge 2);
· Assault by kicking (charge 3);
· Assault in company (charge 4);
· Assault in company with an edged weapon (charge 6);
· Assault with an edged weapon (charge 7); and
· Committing an indictable offence whilst on bail (charge 8)
In very brief summary, charges 5 to 8 relate to events on 24 February 2021. It seems that there was an organised fight at the Ringwood Skate Park between two boys. The applicant and five others intervened, kicking, punching and stomping on one of the boys involved in the fight. I have viewed video footage of the attack. It shows the applicant twice savagely stomping on the victim’s head.
Charges 1 to 4 relate to events which occurred at about 3.30 pm on 29 March 2021. It appears that the applicant and two co-accused got into an argument in a bottle shop in Croydon with the 57 year old victim. The shop attendant heard the victim tell the applicant’s group to ‘fuck off’. (According to the applicant’s account in his record of interview, the victim made racist comments towards him.) The applicant’s group left the bottle shop shortly before the victim. Upon leaving, the victim was attacked by the applicant’s group and was punched, kicked and stomped on by the applicant and four co-accused. The attack lasted about 15 seconds and was captured on CCTV footage.
It is clear to me that, as has been alleged, the applicant was ‘the primary participant’ in the assault outside the bottle shop. The footage, which I have viewed, unmistakably shows KL kicking the victim to the head three times, stomping on his head twice and punching him twice, all while the victim is helpless on the ground. The applicant and co-accused then ran away, but were arrested in the area shortly afterwards. A particularly distasteful aspect of the applicant’s subsequent conduct is that he returned to the scene of the attack whilst the bleeding victim was being attended to by concerned onlookers and taunted him. A video on the applicant’s phone, seized by police, shows the victim on the ground being comforted, whilst the applicant says, ‘Oh nigger! You got knocked the fuck out bro!’. Medical advice to police later that day was that the victim had suffered a nose fracture, a facial fracture and three rib fractures to the right-hand side of his body.
Police allege that the applicant and co-accused are members of a gang, ‘ABZ36’. Although he provided a largely ‘no comment’ record of interview in relation to both incidents, the applicant admitted to being at the bottle shop and told the informant about the racist comments the victim had allegedly made towards him. As I have said, I have viewed the CCTV footage. One must, of course, avoid having a visceral or emotional response to what is depicted. It is, however, chilling. The applicant’s attack was vicious. And for the most part, the victim was defenceless against the joint onslaught of the applicant and his confederates.
The Bail Act regime
Section 4 of the Bail Act 1977 (‘the Act’) makes plain that KL — a person accused of, and being held in custody in relation to, an offence — is entitled to be granted bail unless the Act requires this Court to refuse bail.[1] In the circumstances of this case, however, s 4A(1A) requires this Court to refuse bail unless satisfied by the applicant ‘that exceptional circumstances exist that justify the grant of bail’. The parties agree that the exceptional circumstances test is attracted by reason of s 4AA(2)(c)(i), since, when he allegedly committed the offences embraced by charges 5 and 8 — both Schedule 2 offences — the applicant was already on bail for a Schedule 2 offence.
[1]See 346(6) of the Children, Youth and Families Act 2005, which provides that the Bail Act 1977 applies to an application for bail by a child (save to the extent of any inconsistency with the provisions of that section).
When considering whether exceptional circumstances exist, the Court is required by s 4A(3) to ‘take into account the surrounding circumstances’. Thus, by reason of s 3AAA of the Act, this court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused—
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
(f)whether there is in force—
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
(m) whether the accused has publicly expressed support for a terrorist act or a terrorist organisation or for the provision of resources to a terrorist organisation.
If the applicant manages to clear the exceptional circumstances hurdle, by reason of s 4E of the Act this Court nevertheless must refuse bail if the ‘prosecutor’ satisfies the court that there is an unacceptable risk that KL would, if released on bail:
(i)endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In this Court, the respondent relies on the first, second and third of those putative risks.
In considering whether any relevant risk is unacceptable, s 4E(3) once more requires the court to take into account the ‘surrounding circumstances’, and to consider ‘whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk’.
Furthermore, since KL is a child, the Court must also have regard to the provisions of s 3B:
3B Determination in relation to a child
(1) In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act)—
(a) the need to consider all other options before remanding the child in custody; and
(b) the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e) the need to minimise the stigma to the child resulting from being remanded in custody; and
(f) the likely sentence should the child be found guilty of the offence charged; and
(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
(2) In making a determination under this Act in relation to a child, a bail decision maker may take into account any recommendation or information contained in a report provided by a bail support service.
(3) Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
Finally, when interpreting the Act, the Court is required by s 1B to take into account (among other things) that:
The Parliament recognises the importance of —
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; …
Prior history
On 30 March 2021, at the Ringwood Children’s Court, KL made an application for bail, in the course of which a Youth Justice Supervised Bail Progress Report (‘the Bail Report’), dated 1 March 2021, was relied on. The Children’s Court refused bail on the basis that the applicant had not demonstrated that exceptional circumstances existed justifying the grant of bail. The Magistrate also stated that, even had he found the existence of exceptional circumstances, he still would have refused bail on the basis that KL posed a relevant unacceptable risk. As part of his reasoning, the Magistrate relied on the following matters:
· the evidence is strong;
· KL has a history of offences of affray and is subject to a court order;
· the matters are extremely serious;
· it is not ‘beyond the pale’ that a custodial sentence will be imposed;
· the applicant poses a significant risk; and
· there is nothing exceptional about the application.
The matter is due to return to the Children’s Court for mention on 14 April 2021.
I pause to note that, although the applicant has no convictions or findings of guilt, he has a number of previous charges, including for multiple offences of violence. Hence:
· On 4 June 2020 KL was charged on summons by Senior Constable David Grey with affray (two charges); attempted robbery (two charges); assault (two charges); trespass; and behaving in a riotous manner in a public place.
· On 7 July 2020 the applicant was charged on summons by Constable Hadrian Prest with unlicensed driving and stating a false name.
· On 13 November 2020 the applicant was charged by Detective Senior Constable Jessica Surace with theft and affray. He was granted conditional bail by police, including curfew, residential and non-association conditions.
· On 30 December 2020 the applicant was charged by Detective Senior Constable Tracey Van Den Heuvel with armed robbery; robbery; attempted robbery; affray; intentionally causing injury; recklessly causing injury; recklessly endangering serious injury; theft; other offences of violence; and committing an indictable offence whilst on bail. He was granted conditional bail the next day by the Ringwood Children’s Court, including curfew, residential and non-association conditions.
Although not yet finally determined, the charges laid by police officers Grey, Prest, Surace and Van Den Heuvel have been the subject of preliminary resolution. Thus, at Ringwood Children’s Court on 3 March 2021 the applicant accepted responsibility for the following charges:
· Informant Grey — affray and trespass
· Informant Prest — unlicensed driving and stating a false name
· Informant Surace — theft
· Informant Van Den Heuvel — affray
All other charges were withdrawn. On the basis of a plan put forward by the Children’s Court Youth Diversion Service, the Magistrate granted diversion which required KL to do a number of things (including continuing with drug and alcohol counselling; continuing with education; writing a letter of apology to victims; completing a ‘reflective’ worksheet; and engaging in reflective discussion pertaining to offending behaviour. The matter was then adjourned until 5 May 2021 for Diversion Return.[2]
[2]See s 356D of the Children, Youth and Families Act 2005.
I pause to note that, despite having been before the Children’s Court on 3 March 2021 for offences of violence, fewer than four weeks later KL was involved in the violent attack at the Croydon bottle shop which left his hapless victim with significant injuries.
Evidence and submissions
KL’s application is supported by an affidavit affirmed by his solicitor, Josh Cunningham, on 30 March 2021, in which several factors are relied upon in combination in an endeavour to establish exceptional circumstances justifying the grant of bail. Those factors include that:
· the applicant is aged 15 years;
· he has no criminal history;
· he has been in custody since 29 March 2021;
· it is unlikely that the applicant will receive a custodial sentence;
· refusing bail so as to impose a form of preventative detention is unjustified;[3]
· KL is not before the Children’s Court until 14 April 2021, and further delay may be anticipated;
· the applicant demonstrated previous positive compliance with Youth Justice Bail Support Service;
· although previously found unsuitable for Youth Justice Supervised Bail Program at the time of his application, Youth Justice have committed to reassessing his suitability;
· the applicant remains connected with his secondary school for education;
· he has casual employment at a restaurant four nights a week; and
· the effects of the COVID-19 pandemic.[4]
[3]Citing HA (a pseudonym) v The Queen [2021] VSCA 64, [63]–[64] (Maxwell P and Kaye JA).
[4]Citing Re JB [2020] VSC 184, [40] (Kaye JA) and Re JK [2020] VSC 160, [23] (Hollingworth J).
Notwithstanding that in a Youth Justice Bail Service Report, dated 7 April 2021, the applicant had been found to be unsuitable for supervised bail, the legal practitioner appearing for KL in this Court called one of the authors of that report, Mr Peter Robertson, a Youth Justice Court Advice Officer, to give evidence. Among other things, Mr Robertson confirmed that, should the Court — contrary to the finding as to KL’s unsuitability — order that Youth Justice supervise KL, that would be done. He also outlined the kinds of services and intervention that could be put in place as part of any court-ordered supervision.
The applicant’s mother also gave sworn evidence. She gave evidence that KL was the second oldest of six children. If KL was granted bail, he would live at home where, she said, ‘I will make him stay under my eye’. She said the applicant had called her from custody and promised her that he would behave, saying: ’Mum, because I didn’t listen to you I followed the wrong path’. KL’s mother said that she would take him to work and appointments, and would advise the police if he did not comply with bail conditions.
The respondent opposed bail. An affidavit sworn on 7 April 2021, Grant Carr, a solicitor with Victoria Police, sets out the grounds of opposition. The respondent asserts that exceptional circumstances do not exist; and that, in any event, the applicant poses an unacceptable risk of endangering the safety or welfare of any person as evidenced by the extremely dangerous and violent offending for which he seeks bail; committing an offence while on bail as evidenced by the current offending having occurred while on bail; and interfering with a witness or otherwise obstructing the course of justice.
Discussion
In my view, none of the matters urged in support of the application — alone or in combination — establish that exceptional circumstances exist that justify the grant of bail.
In particular, I disagree with the contention that it is unlikely that the applicant will receive a custodial sentence. Even paying due regard to the fact that the applicant is aged 15, and will be dealt in the Children’s Court where general deterrence is not a primary sentencing consideration, having considered the extreme violence of the applicant’s joint attack on his victim on 29 March 2021, and its consequences, I would regard a non-custodial sentence as being remarkably lenient — if not manifestly inadequate — even for a child, particularly when the circumstances of his earlier attack go a long way towards demonstrating that the applicant has a disturbing propensity in the company of like-minded individuals violently to stomp on and kick the heads of supine defenceless victims, with no apparent regard for the potentially harmful effects of so doing. In my view, a sentence that did not involve some form of custody would not be ‘appropriate’.[5]
[5]See s 361 of the Children, Youth and Families Act 2005.
But even were I satisfied that exceptional circumstances had been established, I would still refuse bail since I consider that there is an unacceptable risk that, if released on bail, the applicant would endanger the safety or welfare of any person, or commit an offence while on bail.
As to that, the applicant is not required to show an absence of unacceptable risk, the burden of establishing an unacceptable risk in one or more of the prescribed ways resting with the prosecutor. Determination of whether an applicant poses an unacceptable risk therefore requires an evaluation of the suggested risk (or risks). Moreover, the Act recognises that there are some risks which may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.
Ultimately, the respondent has persuaded me that the putative risks cannot adequately be addressed, even by the imposition of strict conditions.
I have already referred to the applicant’s disturbing propensity to stomp on the heads of defenceless individuals when in the company of others. So much presents a manifest danger to the safety and welfare of members of the community. And given that the bottle shop attack occurred so soon after being dealt with by way of Diversion for violent offending — and whilst he was on bail — I consider that there is a palpable risk that, if released, the applicant will commit similar offences on bail. These risks are unacceptable.
In my view, these unacceptable risks are incapable of being rendered acceptable, even by strict conditions. I have no doubt that the applicant’s mother is well-intentioned, and that her evidence was sincere, but I have real doubts that she would be capable of exercising any meaningful control over her son. Further, I do not consider that Youth Justice will be able to provide the level of supervision that would sufficiently ameliorate the unacceptable risks posed by the applicant’s release.
Undeniably, it is a serious thing to consign a child to custody pending the resolution of a criminal charge (or charges). Indeed, in my view, the custody or detention of a child should be avoided unless unavoidable.[6] Having considered all other options — including releasing him on bail on very strict conditions — I consider that the applicant should be remanded in custody until his next court date in less than a week’s time.
[6]See s 3B(1)(a) of the Act.
The application for bail is refused.
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