Re KL (No 2)
[2024] VSC 741
•29 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0271
| IN THE MATTER of the Bail Act 1977 (Vic) |
| AND |
| IN THE MATTER of an application for bail by KL |
---
JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 November 2024 |
DATE OF RULING: | 29 November 2024 |
CASE MAY BE CITED AS: | Re KL (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 741 |
---
CRIMINAL LAW – Bail – 13 year old child – Presumption of doli incapax – Charges of motor vehicle theft, aggravated burglary, armed robbery, theft, threats to kill and false imprisonment – Further charges and breaches of conditions during 1 week grant of bail – Requirement to show exceptional circumstances – Exceptional circumstances established – Unacceptable risk established – Bail refused – Bail Act 1977 (Vic), ss 3AAA, 3B, 4E, 12.
---
APPEARANCES: | Counsel | Solicitors |
| For the applicant | T Marsh | Victoria Legal Aid |
| For the respondent | P Murphy (solicitor) | Victoria Police |
HIS HONOUR:
A. Introduction
Last Friday, 22 November 2024, a 13 year old child who turns 14 in approximately 2 weeks (“KL”)[1] was granted bail for a limited period of 1 week.[2] At the time bail was granted, KL was told directly that it was necessary for him to comply strictly with the conditions of his bail and that any breach would be treated with the utmost seriousness.[3]
[1]A pseudonym has been used to protect the identity of the applicant and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).
[2]Re KL [2024] VSC 734.
[3]Ibid, [71].
Regrettably, KL has failed to heed the clearest of warnings and again finds himself on remand with respect to further charges, namely:
(1)Armed robbery, contrary to section 75A(1) of the Crimes Act 1958 (Vic).
(2)Theft of a motor vehicle, contrary to section 74(1) of the Crimes Act.
(3)Theft, contrary to section 74(1) of the Crimes Act.
On 27 November 2024, KL was remanded in custody to appear at the Children’s Court of Victoria. At the hearing yesterday in the Children’s Court, KL did not make an application for bail. Instead, the matter was adjourned until after the hearing and determination of the application for bail in this court listed at 9.30am today.
KL now seeks bail again in respect to the charges the subject of the application made last Friday.
For the reasons to follow, the application for a further grant of bail is refused.
B. Background
B.1 Alleged offending
The previous charges laid against KL are set out in the reasons delivered last week. Without repeating the specific details, those charges include aggravated burglaries, thefts of motor vehicles and other items, unlicensed driving, false imprisonment, armed robbery, threats to kill, assault with a weapon and possession of a prohibited weapon.[4] It is alleged these offences were committed between late July 2024 and late August 2024.
[4]Ibid, [9], [16], [21], [26].
On 19 September 2024, the Children’s Court granted bail, subject to conditions.[5] After a number of alleged breaches, on 13 November 2024 KL’s bail was revoked.[6] He spent 9 days in custody before again being granted bail in this court last Friday.
[5]Ibid, [41].
[6]Ibid, [2], [42]-[44].
The following account of the most recent charges against KL is based on the prosecution case and only comprises allegations at this stage.
It is alleged that following his grant of bail last Friday, KL left his family home at approximately 3.30pm and did not return until the next day, in breach of the curfew condition of his grant of bail. KL’s mother reported him missing to police. Over the course of the weekend, KL failed to present himself at the front door of his residence during his curfew on 3 separate occasions.
It is alleged that late on Sunday evening, KL and 3 others robbed another boy at knifepoint. KL allegedly stole a jumper and a set of AirPods from the boy. Having read the statements of the victims, the alleged circumstances of the incident may properly be described as deliberate, threatening, prolonged and involving extremely anti-social behaviour.
During a curfew check at 6.45am on Monday, KL’s parents informed police that KL had not returned home overnight. Later that day, at approximately 4.34pm, KL was allegedly seen exiting a stolen Porsche bearing stolen registration plates at a service station in Springvale. KL was allegedly in the company of a co-accused he was prohibited from associating with pursuant to his conditions of bail.
At 7.30pm that night, KL, his co-accused and 3 unidentified young people were allegedly captured on closed-circuit television exiting the stolen Porsche in Berwick. Approximately 20 minutes later, the group returned to the vehicle and drove away. The Porsche had reportedly been stolen the day KL was released on bail.
At approximately 8.00am on Wednesday morning, KL was arrested in relation to the theft of the Porsche and was conveyed to his local police station for interview.
KL is under investigation in respect to a number of other indictable offences allegedly committed over the past week including an aggravated burglary in Clyde, an attempted aggravated burglary in Clyde North, an attempted theft of a motor vehicle and an attempted aggravated burglary in Cranbourne North, as well as a further aggravated burglary in Cranbourne North.
B.2 KL’s personal circumstances
KL’s personal circumstances have been summarised previously as follows:[7]
KL is a 13 year old boy born in Australia and of Australian and Cambodian descent. Prior to being remanded in custody, he resided with his mother, father and 3 siblings at their family home in the suburbs of Melbourne.
KL is currently subject to a child protection family preservation order. He has no prior criminal history and his current experience on remand represents his longest period of incarceration to date.
He has been assessed as a suitable candidate for the Youth Justice supervised bail program and his mother has expressed support for his proposed involvement in the program.
In a preliminary assessment report dated 21 November 2024 filed in support of KL’s application for bail, a clinical neuropsychologist provided a preliminary assessment that there was “clear, valid, clinical evidence” that doli incapax was available to KL.
[7]Ibid, [45]-[48].
In a Youth Justice supervised bail progress report filed with the court in advance of today’s hearing, it was noted that KL’s compliance with the Youth Justice supervised bail program over the past week has been poor. He failed to attend his initial Youth Justice intake appointment on Monday and failed to attend school this week as required in accordance with the conditions of bail. In addition, KL failed to attend an appointment with his allocated outreach worker from the Youth Support and Advocacy Service, as required in accordance with his Youth Justice supervised bail plan.
It was noted that KL has been unable to demonstrate a positive and meaningful level of engagement with Youth Justice, his care team and his family. In light of his non-compliance with the conditions of his further grant of bail, and his alleged further offending, Youth Justice found that KL was no longer suitable for the Youth Justice supervised bail program.
C. Submissions
The legal principles relevant to this further application for bail have already been set out in detail.[8] It is not necessary to repeat them here.
[8]Ibid, [49]-[60].
The submissions made by KL were largely a repetition of the submissions made last Friday. In seeking to establish exceptional circumstances that justify the grant of bail, KL relied upon the following:
(1)His special status under the law as a child.[9]
(2)The presumption of doli incapax enshrined in the Bail Act 1977 (Vic).[10] In this regard, evidence of a further report prepared by the clinical neuropsychologist who prepared the preliminary assessment report was relied upon, though the further report itself was not tendered.[11] Instead, evidence was adduced from the clinical neuropsychologist concerning (amongst other things) her finding of doli incapax.
(3)His particular vulnerability as a child, including as a child from a culturally and linguistically diverse background and as a child involved in the child protection system.
(4)The likelihood that the time KL spends on remand will exceed any sentence imposed (if he is not acquitted of all charges).[12]
(5)The availability of stable accommodation and family support.
(6)The potential availability of support from Youth Justice in future, noting that it is not presently available.
(7)The availability of education as he is still enrolled at his current school.
[9]Particular reference was made to ss 3AAA(1)(h)(ii) and 3B of the Bail Act.
[10]Meaning incapable of crime. The presumption at common law is that a child who is 10 years of age or over but under 14 years of age cannot commit an offence: Bail Act, s 3B(1)(c). See also R v ALH (2003) 6 VR 276, 281 [20] (Callaway JA, with whom Batt JA relevantly agreed).
[11]KL’s counsel submitted that the report detailed some of KL’s history and current functioning that elicited a very emotional response from him. It was submitted that for this reason, it would not be in KL’s best interest to tender the report. In these circumstances, no adverse inference was drawn from the fact that the report was not tendered.
[12]In this regard, reference was made to HA v The Queen [2021] VSCA 64, [64] (Maxwell P and Kaye JA).
In response, the prosecution again accepted that KL had established exceptional circumstances. However, unlike on the previous occasion, it was now contended that KL posed an unacceptable risk of endangering the safety or welfare of any other person, whether by committing an offence that has that effect or by any other means,[13] as well as interfering with a witness or otherwise obstructing the course of justice in any matter.[14]
[13]Bail Act, s 4E(1)(a)(i).
[14]Ibid, s 4E(1)(a)(iii).
The prosecution submitted that KL’s conduct over the past week demonstrated his total disregard for his conditions of bail and the authorities more generally. The prosecution further submitted that despite the best efforts of the Victoria Police Crime Reduction Team and other support services, KL continued to place the community at risk, and that there are no conditions of bail that could be imposed to mitigate the risk he represents.
In a nutshell, the prosecution submitted KL’s breaches of bail have given the court no option but to refuse bail.
Quite properly, KL’s counsel accepted that if bail were granted again, there would be a very high likelihood of future offending and non-compliance by KL with any conditions of bail.[15] However, it was submitted the assessment of unacceptable risk did not turn solely on the numerical likelihood of him offending, rather, other countervailing factors also informed the assessment. In particular, it was submitted that the risks posed by KL could not be regarded as unacceptable in circumstances where his ongoing incarceration would essentially amount to preventative detention and would expose him to anti-social behaviours within the youth justice system.
[15]It was observed by KL’s counsel that, except for the fact that he had not left the State of Victoria, it appeared KL had breached nearly all of the conditions of bail that were ordered last Friday.
D. Consideration
I am again satisfied that KL has established the existence of exceptional circumstances that justify the grant of bail, having regard to his age and lack of criminal history.
On the last occasion, the supports available to KL were also recognised as a contributing factor in establishing the existence of exceptional circumstances.[16] Unfortunately, as a result of KL’s own conduct, support from Youth Justice for KL’s involvement in the supervised bail program has been withdrawn. This change in position is understandable given KL’s complete lack of engagement over the last week. In light of the change in circumstances, I am of the view that the supports available to KL if he were released on bail would now be less than satisfactory.
[16]Re KL [2024] VSC 734, [66].
I propose to say very little about any weight that might be attached to the clinical neuropsychologist’s finding of doli incapax. It is important for present purposes to observe that the prosecution has not had the opportunity to obtain an expert opinion on the application of doli incapax, and it would appear the clinical neuropsychologist’s findings will be very much in issue.[17] However, I have taken into account the clinical neuropsychologist’s evidence, including as to the likely adverse impact of incarceration on someone as young as KL if bail were refused. I have also taken into account her evidence as to why this adverse impact is so likely in light of KL’s particular circumstances.
[17]The clinical neuropsychologist was cross-examined during the hearing and the issues raised demonstrated there was substance in the questions put about her findings.
As to the question of unacceptable risk, KL has demonstrated an inability to comply even remotely with his conditions of bail. It is unnecessary to make any determination about the reasons for his non-compliance.[18] The irrefutable conclusion to draw from KL’s past conduct (including in the last week) is that if he were granted bail again, he would be highly unlikely to comply with almost all conditions imposed.
[18]FT v The King [2024] VSCA 90, [96] (Beach, McLeish and Niall JJA).
Leaving aside the further charges laid this week, the charges the subject of this application are very serious and there is a real prospect that KL will be sentenced to a term of imprisonment if found guilty. Observations previously made of attendant risks in relation to children stealing and driving cars warrant repetition.[19]
[19]Ibid, [44], [79].
Further, in circumstances where the presumption of doli incapax appears likely to be in issue, the evidence presently before the court does not establish that KL’s ongoing incarceration could be properly characterised as a form of preventative detention. In any event, the very high level of risk posed by KL of endangering the safety or welfare of any other person in our community is such that the prosecution has established it is unacceptable.[20] In short, no conditions of bail are capable of ameliorating the risk to a level that remotely approaches an acceptable risk.[21]
[20]In light of this finding, it is not necessary to determine whether KL poses an unacceptable risk of interfering with a witness or otherwise obstructing the course of justice in any matter.
[21]Compare Re Dip [2019] VSC 11, [57]-[59] (Lasry J).
As has been observed elsewhere,[22] depending on the circumstances, some risk of reoffending on bail, even a high risk, may not be properly characterised as unacceptable. An assessment must be made of the probability of the risk eventuating and the likely harm if it does.[23] Here, both integers weigh heavily against KL.
[22]FT v The King [2024] VSCA 90, [96]. See also, HA v The Queen [2021] VSCA 64, [62]-[63] (Maxwell P and Kaye JA).
[23]Ibid, [96].
Accordingly, having closely considered the surrounding circumstances[24] and the matters that must be taken into account in relation to any determination in relation to a child,[25] the attendant risk is such that it must be found to be unacceptable.
[24]Bail Act, s 3AAA(1).
[25]Ibid, s 3B.
E. Conclusion
For the reasons stated, KL’s application for a further grant of bail is refused.
Pursuant to section 12(4)(a) of the Bail Act, and subject to further order, KL is remanded in custody to appear before the Children’s Court on 5 December 2024.
---
0
5
0