Re kN
[2020] VSC 35
•14 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0018
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by KN |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 February 2020 |
DATE OF JUDGMENT: | 14 February 2020 |
CASE MAY BE CITED AS: | Re KN |
MEDIUM NEUTRAL CITATION: | [2020] VSC 35 |
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CRIMINAL LAW – Application for bail – 15 year old child applicant – Three successive robbery-related offences with co-offenders – Succeeding offences in breach of bail – Whether exceptional circumstances exist justifying bail – Whether the applicant is an unacceptable risk – No prior convictions – Good history at school – Prospects of resuming education – Good family support – Support from Youth Justice - Likely sentence – Bail granted with conditions – Bail Act 1977 ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R de Vietri | Victoria Legal Aid |
| For the Respondent | Mr G Carr | Legal and Prosecutions Specialists Branch, Victoria Police |
HIS HONOUR:
Introduction
The applicant is a 15 year old child. He applies for bail in respect of three sets of offences alleged to have occurred between 16 November 2019 and 31 January 2020, as follows:
(a) Informant Bolitho (offending date 16 November 2019, charged on 9 December 2019)(‘the Bolitho charge’)
Robbery[1]
[1]Crimes Act 1958, s 75(1) (‘Crimes Act’).
(b) Informant Macdonald (offending date 22 December 2019, charged on 14 January 2020) (‘the Macdonald charges’)
Robbery;
Committing an indictable offence while on bail
(c) Informant Munro (offending and charge date 31 January 2020) (‘the Munro charges’)
Attempted robbery;
Committing an indictable offence while on bail (two charges)
Affray; and
Unlawful assault
It is common ground between the parties that bail must be refused unless the applicant can satisfy the court that exceptional circumstances exist that justify the grant of bail. That is because the applicant is accused of committing Schedule 2 offences while on bail for Schedule 2 offences.
Procedural history
Addressing the procedural history briefly, the applicant was charged and released on police bail in respect of the Bolitho charge on 9 December 2019. On 14 January 2020, while on bail, he was charged with the Macdonald charges. He was remanded overnight in that matter and granted bail the following day, on 15 January 2020, in the Dandenong Children’s Court. On 31 January 2020, the applicant was charged and remanded in respect of further alleged offending (the Munro charges). An application for bail in that matter was refused in the Dandenong Children’s Court on 3 February 2020, on the basis that the applicant was an unacceptable risk of committing an offence while on bail, endangering the safety and welfare of any person and failing to surrender in accordance with conditions of bail. In addition, that same day, bail was revoked in relation to the outstanding matters of Bolitho and Macdonald.
The law
Section 1B of the Act reads as follows:
(1) 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;
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
Section 3B(1) of the Act reads:
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.
Section 4 of the Act reads:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
Section 4AA of the Act sets out circumstances in which a 2-step test applies to the consideration of a grant of bail. Subsection (2) dictates that the ‘exceptional circumstances’ test applies to a decision whether to grant bail to a person accused of a Schedule 2 offence if that offence is alleged to have been committed while the accused was on bail for a Schedule 2 offence.
Therefore, as indicated, because the applicant has been charged with a Schedule 2 offence while on bail for a Schedule 2 offence, the exceptional circumstances test applies to the current application.
Section 4A of the Act has application where the ‘exceptional circumstances’ test applies. Subsection (1A) reads:
The bail decision maker must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
Subsections (2) and (3) of section 4A indicate that the applicant bears the burden of satisfying the bail decision maker as to the existence of exceptional circumstances, and that the bail decision maker in considering that question must take into account the surrounding circumstances.[2]
[2]Defined in s 3AAA of the Act.
Section 4E of the Act reads:
(1)A bail decision maker must refuse bail for a person accused of any offence if the bail decision maker is satisfied that –
(a) there is a risk that the accused would, if released on bail –
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(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; and
(b) the risk is an unacceptable risk.
(2) The prosecutor bears the burden of satisfying the bail decision maker –
(a)as to the existence of a risk of a kind mentioned in subsection (1)(a); and
(b) that the risk is an unacceptable risk.
(3)In considering whether a risk mentioned in subsection (1)(a) is an unacceptable risk, the bail decision maker must –
(a) take into account the surrounding circumstances; and
(b)consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Exceptional circumstances
The meaning of exceptional circumstances has been rehearsed in a number of decisions of this Court. Kaye J (as he then was) in DPP v Muhaidat[3] stated the relevant principles as follows:
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail.[4]
[3][2004] VSC 17.
[4]Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
In the context of an application for a bail by a child, Forrest J in Re JO[5] noted:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[6]
[5][2018] VSC 438.
[6]Ibid [14].
This passage was cited with approval in a number of the decisions drawn to my attention by Mr de Vietri during the application.
The alleged offending
Informant Bolitho
Shortly prior to 9.00pm on 16 November 2019, the applicant and approximately 15 associates were captured on CCTV walking towards a bus stop in the vicinity of Dandenong Plaza. At approximately the same time, KM[7], the victim, who was known to the applicant through mutual attendance at a school in Narre Warren, exited the Dandenong Plaza and commenced walking on the opposite side of the street to the applicant and his associates.
[7]Name anonymised to protect identity.
It is the prosecution case that the applicant approached the victim and demanded his mobile phone and money. The victim refused to accede to those demands, resulting in the applicant summoning his associates who then allegedly proceeded to punch and kick the victim to his face, head and jaw.
During the course of the assault, which was partially captured on CCTV, the applicant allegedly reached into the victim’s pocket and stole his mobile phone. The victim provided the passcode to the phone and was told by members of the group not to ‘snitch’ because they knew his home address. The group decamped from the scene and the applicant reported the incident to police. He suffered red marks, scratches and bruising to his face as a result of the assault.
On 18 November 2019, the victim advised police that he had identified the applicant on Facebook. It followed that, on 9 December 2019, police executed a search warrant at the applicant’s premises in Pakenham and identified a distinctive colourful ‘WGM’ jacket matching the description of one of the offenders observed in the CCTV footage of the incident.
The applicant was arrested and largely provided a ‘no comment’ record of interview, with the exception of stating that the ‘WGM’ jacket was not his and that he had borrowed it from a friend. He was released on bail.
Informant Macdonald
By way of background, there are four co-accused in this matter, namely – LW, CA, DJ and RR[8], each aged between 15 and 17 years old.
[8]Names anonymised to protect identity.
At approximately 5.00 pm on 22 December 2020, it is alleged that the applicant and the co-accused exited a train at Officer Railway Station and began to follow the victim in this matter, BS[9]. It is further alleged that one of the group members stole the victim’s jacket from behind as the others surrounded him and demanded his phone.
[9]Name anonymised to protect identity.
It is the prosecution case that the victim surrendered his phone but could not successfully enter the passcode due to him ‘shaking with fear’. He was consequently punched to the face by a member of the group. On a second attempt, the victim unlocked his phone and disabled his passcode, before being advised that he must not report the incident or the group would ‘run through’ his house. This incident was captured on CCTV.
At approximately 10.00pm, the applicant and three co-accused were located by police at McDonald’s in Berwick and observed to be wearing clothing similar to that of the offenders captured on CCTV at the Officer Railway Station. Police asked the applicant and co-accused about a phone that was located on a table in between them and were told by the group that the phone did not belong to them. Police seized the phone and subsequently confirmed that the phone belonged to the victim.
Police executed various search warrants in relation to this incident, including at the applicant’s premises in Pakenham on 14 January 2020. No items were seized, but the applicant was arrested and remanded in custody overnight. Separate to the record of interview, the applicant purportedly conceded that he was at the Officer Railway Station but stated that he ‘did nothing wrong’.
On 15 January 2020, the applicant was granted bail in the Dandenong Children’s Court.
Informant Munro
On 31 January 2020, the applicant appeared at the Dandenong Children’s Court in relation to the above matters pursuant to undertakings of bail. The further hearing of the matters was adjourned to 27 March 2020.
At approximately 7.10 pm that evening, it is alleged that the applicant approached the victim in this matter, MP[10], at the Noble Park Aquatic Centre and asked to know his shoe size. The applicant was told to leave the victim alone.
[10]Name anonymised to protect identity.
Some thirty minutes later, the victim was again approached by the applicant, this time in the company of a number of co-offenders who allegedly demanded the victim’s mobile phone and shoes. The prosecution case is that, following the victim refusing to provide these items, the applicant punched him to the side of the face and stated, ‘give me your phone or the other guys will be waiting outside’.
The victim attempted to retreat, but was allegedly pursued by the applicant and co-offenders, who continued to assault the victim by kicking and punching him. The applicant is said to have been the ‘primary instigator’ of this incident, which was partially captured on mobile phone footage.
The applicant and co-offenders left the scene prior to police arrival, but the applicant was subsequently arrested at the Sandown Railway Station while attempting to dispose of a distinctive red jumper. CCTV footage is said to show the applicant wearing distinctive clothing items (presumably, including the aforementioned jumper).
The applicant made a ‘no comment’ record of interview and was remanded in custody.
Co-accused
It is noted that only one of the co-offenders, MW[11], has been identified and charged in relation to this matter. He is 16 years old and faces the same charges as the applicant. At the time of the alleged offending, the co-accused was on bail for handling stolen goods and dealing with property suspected of being proceeds of crime. He was charged and remanded in custody in relation to this matter on 1 February 2020. Two days later he was granted bail by Magistrate Burns in the Children’s Court.
[11]Name anonymised to protect identity.
The applicant’s contentions
In support of the application for bail, a combination of background facts and circumstances is relied upon to constitute exceptional circumstances within the meaning of the Act. These matters may be summarised as follows:
1. The fact that the respondent has acknowledged that it would be open to the court to conclude exceptional circumstances are established;
2. The age and vulnerability of the applicant. He is only 15 years old, and an age such as that has often enough been considered sufficient of itself to establish exceptional circumstances;
3. The fact that he has no prior convictions, albeit that there was one theft matter which was subject to diversion. In that context, it was submitted that the current alleged offending arose from what could be termed a ‘bad summer’. For some reason, the life of the applicant took an unfortunate turn, but he can turn that around;
4. This is the first time the applicant has been in custody, save for one day on remand, which was really only for a matter of hours. He has found being in custody a shocking experience, made all the worse by the fact of his having been the victim of an assault in recent days. Some apparent facial injuries to the applicant were evident in Court during the application;
5. The availability of educational opportunities to the applicant. This was quite a compelling consideration of itself. The applicant has had a positive educational history, as evidenced by the letter of Stephen Mahoney, the Assistant Principal of the school, and the accompanying school report from Semester 2, 2019.
6. The availability of supervisory and support services should bail be granted. The involvement of Youth Justice is a new thing, and provides the additional possible support of a Supervised Bail Program. Mention was also made of the involvement of the Youth Support Advocacy Service (‘YSAS’);
7. The family supports and stable residence of the applicant. In that regard, the family is now fully aware of the seriousness of the position in which the applicant finds himself, and would be able to both support the applicant, and report any non-compliance with bail conditions;
8. The likely sentence the applicant would receive should he be found guilty. He would be unlikely to receive a custodial sentence. Mr Carr agreed with this assertion.
In respect of unacceptable risk factors should I come to consider them, Mr de Vietri relied on the matters raised in respect of exceptional circumstances. He submitted that there is undoubtedly a risk, but that the risk would be rendered acceptable by a combination of factors which he outlined. Those factors included the anticipated involvement of Youth Justice, the fact that this first time in custody has taught the applicant a salutary lesson, and the likely sentence if he is found guilty.
In connection with the issue of consistency of decision making, one of the aims of the Act, Mr de Vietri provided a folder of cases concerning bail applications by children, many of them concerning more serious offending than that before the Court.[12] I have read all of these cases. In some cases, even a high level of risk has been considered to be acceptable in the case of young children.
[12]Re JO [2018] VSC 438; Re DB [2019] VSC 53; Re LT [2019] VSC 143; Re DR [209] VSC 151; and Re JM [2019] VSC 156.
The respondent’s contentions
It was submitted on behalf of the respondent that it is open for the Court to find that the exceptional circumstances test has been satisfied in the present case. However, the respondent opposed bail on the basis that the applicant is deemed to be an unacceptable risk of:
(a) endangering the safety and welfare of any person, in view of the fact that the alleged offending involves unprovoked and violent attacks against members of the public while in company; and
(b) committing an indictable offence while on bail, given the circumstances of the present alleged offending occurring while the applicant was subject to both police bail and court-ordered bail with strict conditions. It was noted that the informant Munro offending is alleged to have occurred only 16 days after the applicant was granted bail and hours after that bail was extended on 31 January 2020, demonstrating a complete disregard for his bail undertaking.
Further, in response to the applicant’s material, the respondent raised the following issues:
(a) in relation to the adverse impact of the applicant’s exposure to negative peer influences in custody, the respondent submitted that the applicant has already been exposed to negative peer influences in the community as evidenced by all three of the matters for which the applicant is on remand which relate to offending in a group setting;
(b) while it was conceded that the alleged offending in the Munro matter occurred some distance from the applicant’s home, and that concerns relating to that location in that matter could be mitigated with appropriate conditions, it was noted that the offending in the Macdonald matter occurred within close proximity to the applicant’s home and further that the alleged offending in the Bolitho matter occurred against a person known to the applicant.
Mr Carr pointed out that the only differences in the position of the applicant now and at the time of the second, successful bail application, after which he allegedly offended again, were the fact that he has spent a period in custody, and the fact that Youth Justice is now involved.
Whilst the applicant does have family support and a stable residence, that was also the case when he allegedly committed all three of the offences. He has had the ability to conceal his offending from his family, and may do so again. The respondent expressed concerns as to the applicant’s mother’s ability to supervise him if bail were to be granted. In support of this, the respondent noted that the applicant’s mother has previously been unaware of the applicant leaving the house during curfew hours and has otherwise been uncontactable when the applicant has been arrested in the past.
Mr Carr submitted, in conclusion, that it would still be open to me to conclude that the risks posed to the community by the applicant were he to be released on bail would be unacceptable. His past alleged offending has been violent and concerning. Whilst the likely sentence he may receive was a factor to be taken into account in considering unacceptable risk, is was not conclusive as to the outcome.
Analysis
The seriousness of the alleged offending, the repeated and escalating nature of it in spite of multiple undertakings of bail, the strength of the case against the applicant, and a number of other matters, would dictate that were it not for the young age of the applicant, a grant of bail would be highly improbable.
In determining whether or not exceptional circumstances exist which would justify a grant of bail in this case, I have considered all of the surrounding circumstances as I am required to do, using the considerations in s 3AAA as a guide, albeit, not an end point.
A number of the circumstances, including the seriousness of the offending, the apparent strength of the prosecution case, and the notable fact of the applicant having allegedly continued to offend in violent fashion in spite of the imposition of multiple bail undertakings, would speak strongly against exceptional circumstances being established here.
On the other hand, many facts, including, centrally, the young age of the applicant, his lack of prior convictions, his previous good history at school, his strong family background, and the likelihood that he would not receive a custodial sentence if found guilty of the charges he faces, point in the other direction.
I heard evidence from Ms Hayley Ellis, an Advanced Case Manager from Youth Justice. She assessed the applicant prior to the most recent bail application on 3 February 2020 and found him suitable for involvement in the Supervised Bail Program which was explained to me. I understand that if the applicant was released on bail, by the next working day, he would commence receiving supervision from a case worker, something to which he has not had access during previous grants of bail.
Ms Ellis provided an undertaking to the Court that were the applicant to be released on bail with a condition that he comply with all lawful directions of staff members of Youth Justice, any failures to comply or other known breaches of bail would be reported to the respondent Senior Constable Bolitho as the Dandenong Police Station.
I also heard evidence from NN[13], the 18 year old sister of the applicant about his background and the level of support he can expect to receive from his family if released on bail. She undertook to report any breaches of curfew or bail conditions should the applicant be released on bail.
[13]Name anonymised to protect identity.
I was informed that there is still a place for the applicant at Narre Warren South College and that, in effect, he would be welcomed back there with open arms. He would be in Year 10, which as of now, is only in its very early days. The prospect of the applicant being able to resume his education is a very important one to my mind.
Taking into account all of the circumstances, including, importantly, the fact that the respondent has conceded that it would be open to the Court to be so satisfied, I am satisfied of the existence of exceptional circumstances in this case.
Turning to the second step of the test, I have given very anxious consideration to the question of whether the respondent has discharged the onus of proving that there is an unacceptable risk in this case of the applicant endangering the safety or welfare of the public, and of committing offences while on bail. That there is a significant risk is obvious. Whether that risk is unacceptable or not was the battle ground in this application, although it must be acknowledged that whilst the respondent did maintain that it would be open to me to be satisfied the risk was unacceptable, Mr Carr, very fairly, did not argue the point as forcefully as would sometimes be the case. No criticism is intended of him in so saying.
I have real concerns that the applicant may commit further offences if released on bail, and that were he to do so, the community may be endangered. He has seemingly, in recent months, shown a disturbing inclination to engage in violent offending in which sometimes large groups of offenders including himself have robbed and applied gratuitous and dangerous violence to defenceless individuals in public places. Furthermore, no material has been placed before the Court to explain the apparent marked change in his behaviour over that period. The risk of his continuing down this path is very real to my mind.
However, in the end, it has weighed heavily on my mind, in considering the unacceptable risk test, that the applicant may be at a critical juncture in his life. He is 15 years old with what could be a promising life in front of him. A reasonable education and the opportunities that may present are still things within his grasp. He has not been in trouble in the past. He has the prospect of turning things around. The law would require that he be given every opportunity to do so.
With considerable hesitation, and taking account of all of the circumstances, I have concluded that there are stringent conditions of bail which will be such as to ameliorate the risk posed by the applicant to an acceptable one.
Accordingly, I will grant bail on the following conditions:
1 . The applicant is to attend the Dandenong Children’s Court on 21 February 2020 and then surrender himself, and must not depart without the leave of the court and, if leave is given, must return at the time specified by the court and again surrender himself into custody.
2 . The applicant is to reside at [address redacted] (‘the premises’), and not change his place of residence without first having provided 24 hours’ notice in advance to Senior Constable Bolitho of Dandenong Police Station.
3 . The applicant is to remain and be present at the premises between the hours of 9.00 pm and 6.00 am each day (‘the curfew hours’) for the duration of the bail, with the qualification that the applicant may be absent from the premises during the curfew hours if in the company of his mother, his sister NN[14], a Youth Justice officer, or a YSAS worker.
[14]Name anonymised to protect identity.
4 . The applicant is to present himself at the front door of the premises during the curfew hours if and when called upon to do so by a member of Victoria Police or an officer of Youth Justice.
5 . The applicant is to report to Youth Justice within two working days after this order comes into force.
6 . The applicant is to attend the Youth Justice Supervised Bail Program and
i. Comply with all lawful directions of any officer of Youth Justice;
ii. Attend all appointments as directed by any officer of Youth Justice.
7 . The applicant is to attend and remain at Narre Warren South P-12 College every school day between the hours of 8.45 am and 3.00 pm unless a medical certificate is obtained and provided to the College.
8 . The applicant must not contact, directly or indirectly, any co-accused with the exception of DJ[15].
[15]Name anonymised to protect identity.
9 . The applicant must not contact, directly or indirectly, any witness for the prosecution except any one of the informants.