Re kN (No 2)
[2020] VSC 490
•6 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0172
| 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 |
DATES OF HEARING: | 3 and 5 August 2020 |
DATE OF JUDGMENT: | 6 August 2020 |
CASE MAY BE CITED AS: | Re KN (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 490 |
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CRIMINAL LAW – Application for bail – 15 year old child applicant – Robbery, attempted robbery and related offences – Alleged offending occurred while on bail and subject to youth supervision order - Previous grant of bail to applicant on similar charges by Supreme Court – Failure to abide by conditions – Failure to fully engage with Youth Justice – Still assessed as suitable by Youth Justice for supervised bail – Family supports – Importance of education – Onerous conditions of remand due to COVID-19 pandemic – Positive cases of COVID-19 within youth justice centre but not acquired within the centre - Likely sentence upon finding of guilt - Whether exceptional circumstances exist justifying bail – Whether the applicant an unacceptable risk – Exceptional circumstances made out – Unacceptable risk established by respondent – Bail refused - Bail Act 1977 ss 1B, 3AAA, 3B, 4, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Jeronimus | Victoria Legal Aid |
| For the Respondent | Mr S Payne | 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 charges of robbery, attempted robbery, assault, committing an indictable offence whilst on bail, and breaching a youth supervision order, the offences alleged to have been committed on 21 July 2020 (Informant Martin charges). He has been in custody since his arrest on that date. He made an application for bail in the Children’s Court on 22 July 2020. Bail was refused because the learned magistrate was not satisfied of the existence of exceptional circumstances in support of the grant of bail, and also because she considered there was an unacceptable risk the applicant would reoffend and endanger the safety of the public.
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 and subject to a sentence for a Schedule 2 offence.
Procedural history and background to the present application
Although the applicant has only been finally dealt with by a court for criminal charges on one occasion on 26 June 2020, since late 2019, he has had a great deal of contact with police and the criminal justice system, and has been the subject of a large number of grants of bail.
Addressing the procedural history briefly, the applicant was charged with three successive groups of robbery related offences committed over the period November 2019 to January 2020. The robberies were soft target offences committed in public by the applicant in company with co-offenders, in one case in a group of co-offenders as large as 15. Following his arrest and charge on the first robbery, the applicant was released on police bail on 9 December 2019. On 14 January 2020, while on that bail, he was charged with the second group of charges, which were charges of robbery and committing an indictable offence whilst on bail. He was remanded overnight on those matters and granted bail the following day, on 15 January 2020, in the Children’s Court. On 31 January 2020, the applicant was charged and remanded in respect of further alleged offending including a charge of attempted robbery. An application for bail in that matter was refused in the Children’s Court on 3 February 2020. In addition, on that same day, bail was revoked in relation to the other matters.
I granted bail to the applicant in respect of all of those charges on 14 February 2020.[1] That grant of bail was on very strict conditions, including a curfew condition, and conditions requiring the applicant to attend school and comply with the requirements of the Youth Justice Supervised Bail Program. At the time of the grant of bail, the applicant had been in custody at Parkville Youth Justice Precinct (‘Parkville’) for a period of 15 days.
[1]Re KN [2020] VSC 35 (‘Re KN’).
That grant of bail was in place until such time as the applicant was sentenced at the Children’s Court on 26 June 2020 in respect of charges flowing from each of the incidents mentioned earlier. He received a 12 month youth supervision order (YSO) without conviction. The current offending is alleged to have occurred during the period of that YSO, indeed, within the first month of its operation.
Between the time of my grant of bail, and the making of the YSO, it is alleged that the applicant committed three further groups of offences. On 13 April 2020, he stole a motor vehicle and was charged with that, with refusing to comply with the request of an authorised officer, and with committing an indictable offence whilst on bail (Informant Dalzotto charges). These charges were amongst the charges subject to the YSO on 26 June 2020. On 14 and 15 May 2020, the applicant allegedly committed further offences. These were charges of robbery (2 charges), attempted robbery (2 charges), assault (2 charges), theft, and handling (4 charges) (Informant Douglas charges). Those charges were principally laid on 15 May 2020. The applicant was released on bail on conditions, including that he reside at his family address, that he not associate with co-offenders, and that he abide by a curfew. That bail has not been revoked. On 5 June 2020, the applicant allegedly offended again in a violent manner. It is alleged that in company with another male, he confronted a young person RL on a train on the Pakenham line. He allegedly demanded that RL give him his phone, before punching him 15 to 20 times to the head. As RL sought to exit the train at a station, he was punched to the head and fell to the ground where he was kicked to the head. His bicycle was stolen by the applicant. RL was taken to hospital by ambulance and treated for concussion. The applicant was charged by summons on 31 July 2020 with intentionally causing injury, robbery, making a threat to kill, and other charges (Informant Peck charges).
Further background to charges in respect of which this application for bail is brought is provided by two other groups of charges. On 13 April 2020, the applicant was charged by summons with an offence of handling stolen goods allegedly committed on 23 August 2019 (Informant Pasco charge).[2] On 20 June 2020, he was charged by summons with offences of robbery, intentionally causing injury, recklessly causing injury, assault, assault by kicking, assault in company, and obtaining property by deception (2 charges) allegedly committed on 2 January 2020 (Informant Docherty charges).
[2]The Court was informed that that charge will be withdrawn.
A final piece of background material to the current offending is the fact that it is alleged that on two occasions, the applicant was found away from his home in contravention of the directions of the Chief Health Officer for Victoria in respect of the COVID-19 pandemic. He was issued with infringement notices on 28 June 2020 and 10 July 2020. The respondent relied upon these alleged infringements as highlighting the lack of regard by the applicant for the law and the health, safety and wellbeing of others.
The alleged offences
The current charges arose from events which occurred on 21 July 2020. The applicant and his four co-offenders, all of African appearance, were travelling in one of the front carriages of a Cranbourne-bound train at about 5.00 pm on a Tuesday afternoon. The co-offenders were RT, a 19 year old male, RG, an 18 year old female, NJ, a 17 year old female, and AG, a 14 year old female. At South Yarra station, four students from Melbourne High School boarded the train. Amongst the students were a 16 year old and a 17 year old whom I will call LL and AT respectively. They were in school uniform and on their way home from school. It is alleged that at all times, the applicant and his four friends were acting together in the events which followed. The events which I will briefly summarise are all of course, at this stage, allegations only.
Shortly after taking their seats on the train, LL and AT observed the applicant and his four associates in the train carriage, talking, yelling loudly and looking towards them. At about the time when the train arrived at Carnegie Station, the applicant sat down opposite and close to LL and began talking to him about his mobile phone. He asked if he had any cash in his wallet, and then said, ‘Give me your cash or I’ll beat you up’. In repeatedly demanding the cash of LL, the applicant said at one point, ‘I’ll fuck your shit up’. During the exchange, the applicant spoke loudly and swore repeatedly. He then struck LL to the face with his right open hand with no warning, with sufficient force to knock the glasses from the head of LL and onto the seat behind, causing bruising to his face which was painful for two days. At about the same time, NJ sat next to AT and asked him about his phone. She asked to see his phone, and said that she did not have one, and that she needed his right now or her cousin would punch him. AG also sat next to AT and said to give the others his phone otherwise the group would hurt him. NJ then put her hand into AT’s pocket and tried to remove his phone. AT resisted. AG then started punching AT to the head and body, and was joined by NJ in punching AT. NJ managed to remove the phone from AT’s pocket and steal it. As this was taking place, RG came over and stole a pair of head phones from the head of AT. While the attack upon AT was preceding, one of the other friends of AT, JK, came to his assistance. He was threatened by one of the female attackers. The fourth co-offender RT approached and then, using one of the fixed metal poles in the carriage for support, launched a flying kick to the ribs of JK. During the course of the violent assault and robbery upon AT and LL, a number of unconnected commuters tried to intervene but were unsuccessful in stopping the attack.
The two victims and the applicant and his four co-offenders all got off the train at Murrumbeena Station. The victims sought the assistance of police and PSOs at the station. The five attackers tried to run away and board another train. Eventually they were all located and arrested either within the precincts of the station or close by. The stolen headphones were found down the pants of one of the co-offenders at the time of arrest. The telephone of LL was retrieved by the Melbourne High School boys before they left the train.
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 or was serving a sentence for a Schedule 2 offence.
Therefore, as indicated, because the applicant has been charged with Schedule 2 offences while on bail for Schedule 2 offences and whilst subject to a YSO 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.[3]
[3]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[4] 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.[5]
[4][2004] VSC 17.
[5]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[6] 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.[7]
[6][2018] VSC 438.
[7]Ibid [14].
This passage has been cited with approval in a number of the decisions of judges of this Court, some of which were drawn to my attention during the application.
Personal background of the applicant
As indicated earlier, the applicant is 15 years old. He was born in Ethiopia in a refugee camp, where his family had sought refuge after fleeing the war in South Sudan. The family remained in the camp until a humanitarian visa permitted the entry of the family into Australia. He was about three or four at the time. The applicant witnessed family violence by his father in the context of marital conflict. The mother and father of the applicant separated in 2018. The applicant has three brothers and a sister, all of whom live at home other than the older brother. The applicant attended a secondary school in the eastern suburbs for some years leading up to the commencement of his contact with the criminal justice system. He was a high achieving student who apparently caused no difficulties.
Criminal history
The applicant has only been dealt with once by a court for criminal offending. This occurred at the Children’s Court on 26 June 2020 when the applicant received a youth supervision order for charges of robbery (2 charges), attempted robbery, committing an indictable offence whilst on bail (3 charges), theft of a motor vehicle and refusing to comply with a direction of an authorised officer.
The Youth Justice Report
A report from Ms Sunny Wild, a Case Manager with Youth Justice, was provided to the Court as part of the material filed on behalf of the applicant. The report was dated 3 August 2020 and was prepared specifically for the purposes of the application before me. The report drew on the contact between the applicant and Youth Justice from the time of his remand in February 2020. Ms Wild became the applicant’s case manager shortly after the grant of bail in February and has had contact with him since that time. In her detailed report, Ms Wild set out the history of the applicant’s involvement with Youth Justice, detailed the personal history of the applicant, and noted a number of other matters of relevance to his position.
The report did not specifically address the conduct of the applicant from the time he was released on bail in February 2020, focussing instead on the period from the time the YSO was made. In that regard, the report indicated that the applicant had attended four of six scheduled Youth Justice appointments while the YSO was in operation, the appointments being conducted by telephone in the COVID-19 environment. Ms Wild stated:
It is noted that often, [the applicant] required appointments to be rescheduled up to four times before his successful attendance. During appointments, [he] is often very difficult to engage and provides the writer with short answers, not appearing willing to engage in meaningful discussions. It is the writer’s assessment that [the applicant] may feel shame and embarrassment for his offending behaviours and this has attributed to his reluctance to discuss his offences and the factors impacting his offending behaviour.
[The applicant] is hesitant to discuss his thoughts and feelings to those around him, including his family and appears to lack trust for service providers. It appears that [he] continues to struggle with emotional regulation and expression, which is impacting on a positive engagement with Youth Justice.
Ms Wild, having set out some of the family background of the applicant, noted that his mother reported the lengths the family was prepared to go to in order to influence him in making more positive lifestyle decisions, to no avail. The mother was involved with Ms Jody Quteifan, a Multisystemic Therapist from Oz Child who was providing support to her in enforcing boundaries with her son. Progress had yet to be made. Ms Wild noted that the mother of the applicant ‘appears to minimise [his] past offending behaviour and holds the assumption that some of these offences may be false’.
Ms Wild described the applicant as being ‘currently disengaged from mainstream education’. He had attended Pakenham Secondary College this year but his attendance ‘was extremely mere (sic), demonstrating poor engagement’. She spoke of efforts now being made by the applicant to engage in the TAFE system, to which I will shortly further refer.
Ms Wild noted that the applicant reported no previous or current self-harm ideation. He had frequently declined any counselling or mental health assessments and was very reluctant to engage in conversations surrounding this topic. Nonetheless, Ms Wild indicated that on her assessment, the applicant ‘may be experiencing unresolved trauma associated with…loss and anger’ over his fractured relationship with his father.
In respect of substance use, the applicant appeared to minimise this in her dealings with him, although in discussions with one of the workers at Parkville, he had admitted daily cannabis use. He continued to decline support in respect of his drug use.
As for his peer relations and associations, the applicant remained extremely private. In respect of any connection with the gang, the Eastside Drillers, he had ‘preferred not to share any further information and appears to minimise his associations’. Ms Wild was concerned that the applicant remained heavily influenced by his peers and may be trying to prove himself to this group.
Towards the end of the report, Ms Wild set out a number of factors which were supportive of the prospect of compliance with bail, and some which would increase the risk of bail non-compliance.
Ms Wild noted that whilst the applicant had been ‘challenging to engage during Youth Justice appointments’, he was willing to participate in the bail program if released. She assessed him as suitable for Youth Justice Supervised Bail (‘YJSB’).
Ms Wild gave evidence before me on the application. She confirmed that Youth Justice’s position that the applicant was suitable for YJSB. She set out the reasons for this position, which included his young age, limited history with Youth Justice, family support, and what she described as his ‘demonstrated ability to comply with Youth Justice. Albeit some limitations’.[8] Also included amongst the reasons were that he had agreed to participate, was willing to engage in education in the community, and that his offending behaviour ‘is a continuation but not an escalation’.
[8]Transcript 49.
She informed the Court of the plan adopted initially with the applicant in February, and conceded that in light of his demonstrated non-compliance with his bail, the plan was not successful. As a result, a new plan had been adopted, which included a focus on his education, offence-specific interventions, and the introduction of ‘multisystemic therapy’ involving the services of Oz Child, aimed at assisting the applicant’s mother deal with him. As for the mother, Ms Wild said that her engagement with Youth Justice had improved since the involvement of Oz Child, but there was more work to be done in respect of her tendency to minimise the applicant’s offending. Ms Wild also explained the roll of Youth Justice Community Support Service and Mr Chamings of that service.
Ms Wild indicated that the applicant had left his original school on 24 February 2020 and moved to a different secondary school the next day. He had attended for the first week, after which his attendance had dropped significantly before he departed altogether. Recently, the applicant had expressed an interest in engaging in a building and construction course through TAFE. He was now in the process of satisfying the requirements of entry.
In respect of the applicant’s engagement with Youth Justice, it had been ‘a slow race’.[9] There were still some areas in which he was unwilling to engage, but Ms Wild stated that she had observed some progress in the week before the applicant’s remand.
[9]Transcript 57.
Ms Wild informed the Court that she had been told that there were ten current cases of COVID-19 within Parkville, but that the applicant was in a unit away from those who were infected.
Ms Wild indicated that were the applicant to be released on bail, she would inform the police of any breaches of conditions.
In cross-examination, Ms Wild indicated that the change of school by the applicant was the subject of a variation of bail in the Children’s Court. This was apparently the case. Ms Wild was not confident that she had reported to the informant the failure of the applicant to attend some Youth Justice appointments. In respect of the process of cognitive behavioural therapy touched on in the report, she acknowledged that that would depend for its effectiveness on the commitment of the subject. Based on the applicant’s history or lack of engagement, it would be difficult to be confident he would show such commitment. Ms Wild noted that the applicant had not expressed an interest in doing a TAFE course until around the time of his hearing in the Children’s Court on 26 June, in spite of having disengaged from his school education in February. Ms Wild stated that the applicant had been directed by Youth Justice to engage with the YJCSS program. She had been told by Mr Chaming that he was non-compliant.
Evidence of mother and sister of the applicant.
The mother of the applicant gave evidence before me as to the family constellation and other matters including why it was that the applicant changed schools when he did. She indicated that if the applicant was released on bail and failed to comply with conditions, she would notify the informant. The applicant’s sister, a tertiary student, also gave evidence. She said that she would help her brother keep appointments and the like should he be granted bail.
The applicant’s contentions
In support of the application for bail, Ms Jeronimus, in her very thorough and detailed submissions, relied on a combination of matters to constitute exceptional circumstances within the meaning of the Act. These matters may be summarised as follows:
(a) The young age of the applicant. He is only 15 years old, and as a result, s 3B of the Act dictates that the Court must take into account the various matters set out in the provision. Ms Jeronimus took me through all of those matters,[10] relying upon a number of decision of this Court and the Court of Appeal in doing so. In particular, she submitted that all options short of the continuing incarceration of the applicant had not been exhausted. The applicant, who had been considered by this Court at the time of the grant of bail in February this year to be at a critical juncture in his life, was still at that juncture. By reference to the decision of Priest JA in FA, Ms Jeronimus submitted that it would be a very serious thing to consign a child to custody in circumstances where the likely outcome upon a finding of guilt would not be a custodial sentence. Such an eventuality should be avoided, unless unavoidable. It was avoidable here. Looked at through the prism of s 3B, it was submitted that the surrounding circumstances of this case would warrant a conclusion that exceptional circumstances had been made out.
[10]A number of the individual matters set out in s 3B will be considered in separate sub-paragraphs of this summary of the applicant’s submissions.
(b) The seriousness of the offending. Ms Jeronimus conceded the offending was serious, but submitted that it was of note that the offending could be seen as being a continuation of, rather than an escalation of, the earlier offending of the applicant. Furthermore, the evidence in respect of a gang connection to the offending pointed at most to an affiliation of the applicant with the East Side Drillers, rather than to membership of that organisation.
(c) The importance of the continuing education of the applicant. It was submitted that this was a matter of critical importance. The letter from the Deputy Principal of the applicant’s previous school and the accompanying school report relied on in the previous application before me revealed the considerable promise of the applicant. Whilst it was true that he had not continued to attend school as required under the previous bail undertaking, this should be viewed as a ‘momentary disengagement’, and not a blatant disregard of the bail condition. The applicant remained engaged in his education, and this was a ‘work in progress’. In addition, the onset of the COVID-19 limitations on face-to-face learning was a relevant contributor to the applicant’s distancing from his school education. He had now completed the necessary testing to actually enrol in the General Certificate of Education at TAFE. The current situation within Parkville, however, with no prospect of face-to-face learning, would impose real restrictions on his continuing pursuit of an education.
(d) The fact that COVID-19 had interfered with his supervision under the previous bail. Ms Jeronimus submitted that in spite of the effective departure of the applicant from school, and his less than perfect attendance at appointments with Youth Justice even before the pandemic hit, I should have regard to the fact that the changed conditions as a result of the pandemic hampered his ability to be appropriately supervised and supported under the previous bail, and indeed, the YSO.
(e) The limited criminal history of the applicant. That history comprised a single entry only.
(f) Delay. The charges are next listed for mention in the Children’s Court on 12 August 2020. On any view the charges will not proceed on that date. Indications are of the earliest date for a summary contest being in February 2021. Even were the matters to settle, the plea hearing would be likely to take place three to four weeks after 12 August. Furthermore, if matters were to be dealt with as a consolidation of these and other charges, the delay would be longer.
(g) The likely sentence upon a finding of guilt. It was submitted that the likely sentence in this case would be non-custodial. In support of this contention, Ms Jeronimus took me to the sentencing principles set out in s 361 of the Children, Youth and Families Act2005 and a number of the relevant authorities.
(h) The strong family support available to the applicant. Ms Jeronimus submitted that this support was very strong, and would be ongoing. She emphasised the presence of the mother and sister of the applicant at the hearing, and the evidence given by both of them. The mother, who had recently been able to purchase her first house for the family, was in employment, and was engaging with the care team set up by Youth Justice. Neither the applicant’s mother, nor any of his siblings, have any criminal histories. Furthermore, this is a family which holds aspirations for the future.
(i) The special vulnerability of the applicant. On this score, in addition to relying strongly on the young age of the applicant, Ms Jeronimus submitted that he may have some mental health issues. Although there was no formal diagnosis of any mental health issue, concerns had been expressed by Ms Wild and Mr Chamings as a result of their observations of the applicant, and there was evidence of factors, including the family violence inflicted by the father of the applicant, and the traumatic background of the applicant in other respects, that would raise concerns he might have mental health problems.
(j) Onerous conditions of remand due to COVID-19. Ms Jeronimus relied strongly on this matter. She detailed the ways in which the custody of the applicant was made the more onerous in the current climate. In the period 22 to 30 July 2020, he had only been permitted out of his cell for a little more than seven hours in total. Educational prospects were limited to pre-loaded material on tablets. There were no personal visits, and the applicant had only spoken to his mother once since being in custody. Ms Jeronimus referred, in that regard, to the statements of Hollingworth J in Re JK[11]. There were 11 inmates of Parkville infected with the virus at the time of the application. There was a risk of spread into the general population, and a risk of lockdowns in future as a result, although Ms Jeronimus acknowledged that there had been no lockdowns to date. In respect of the risk of spread, Ms Jeronimus seemingly drew a parallel between aged care facilities and Parkville on that score, inviting me to look at the current experience with the spread of the virus in aged care facilities. She acknowledged that it was apparent that there was an excellent management plan in place at the facility, which for the time being had the virus contained, but, she submitted, ‘There is a question mark’.[12] It was submitted that the stress experienced by prisoners in the current circumstances would be considerably increased. Ms Jeronimus submitted that the current conditions were ‘not conducive to a young person then being inspired to actually do the things that they need to do to stay out of trouble’,[13] and further submitted that the ‘criminogenic impact of ongoing remand’ and the harm it does was well known. The behaviour of the applicant had been of a high standard nonetheless. Ms Jeronimus submitted that ‘COVID-19 in and of itself is an exceptional factor that warrants the granting of bail’.[14]
(k) The availability of bail supports. It was submitted that the assessment by Youth Justice of the applicant’s suitability for Youth Justice Supervised Bail and his willingness to consent to this was an important matter. The applicant had made a commitment to comply with the supervision of Youth Justice. Any future bail would have elements not present previously. In particular, the plan now put forward would incorporate some features of an intensive bail plan, and would be accompanied by a non-compliance plan.
(l) The availability of stringent conditions of bail. Ms Jeronimus suggested some additional conditions beyond those imposed in the past, including judicial monitoring.
[11][2020] VSC 160.
[12]Transcript 203.
[13]Transcript 185.
[14]Transcript 196-7.
In respect of unacceptable risk factors should I come to consider them, Ms Jeronimus relied on the matters raised in respect of exceptional circumstances. She submitted that there is undoubtedly a risk, but that the risk would be rendered acceptable by a combination of factors which she outlined. She submitted that the progress the applicant had made previously on bail was significant, as was the ongoing support of Youth Justice. The very onerous nature of the conditions in custody was a most important matter. An additional aspect of that was the fact that the applicant now knew exactly what would be in store for him should he again breach bail. There were strict controls over the entire community at the moment. It could be expected that he would be carefully be monitored by the police if released on bail.
The respondent’s contentions
Mr Payne for the respondent relied largely on detailed written submissions filed before the hearing. In a combination of the written and oral submissions, he submitted that exceptional circumstances had not been made out, and that in the alternative, that I should be satisfied of unacceptable risk.
Mr Payne submitted that the position of opposition to bail in the case of a 15 year old child was not a step taken lightly by the respondent. The young age of the applicant was a very significant matter, bringing, as it did, the s 3B considerations into play. Whilst noting the previous determination of this Court that ‘children are rightly afforded a special status by the Bail Act and any assessment of exceptional circumstances in the case of a child must be viewed through the prism of s 3B(1)’, he submitted that the s 3B matters should be considered along with all the other surrounding circumstances and ‘should not be elevated to a position whereby they outweigh all other factors’.[15] Having said that, Mr Payne did not take issue with the case law relied on by the applicant which showed the special status of children where bail was concerned.
[15]Written submissions [30].
Turning to the offending, Mr Payne described it as inherently serious. There was notable similarity between the offending the subject of the bail application and the past offending of the applicant and the other matters yet to be determined. The offending was invariably against soft targets, was unprovoked, and involved group attacks, in public, against innocent members of the community. The offending had all the hallmarks of gang violence.
The current offending occurred when the applicant was subject to a YSO for similar offending and also to a grant of bail.
Mr Payne submitted that the prosecution case is a strong one in light of the sworn accounts of the victims and other witnesses and the clear CCTV footage on the train.
Whilst the criminal history of the applicant is limited, it includes matters of violence of a similar nature to that now under consideration.
In respect of previous grants of bail, the applicant has been found guilty in the past of committing an indictable offence whilst on bail. Furthermore, in a number of respects, he breached conditions of the bail granted by this Court in February 2020, particularly in relation to his schooling, but also in respect of appointments with Youth Justice. His departure from school earlier this year cannot properly be considered to be a ‘momentary disengagement’ as asserted by the applicant. It is apparent that the applicant had little if any regard for something described by Mr Payne as a ‘bespoke condition’. He simply flouted it.
At the time of the Martin offending, the applicant was on bail for the Douglas matters, was on summons for the Pasco and Docherty matters, and was subject to a YSO. All of this was particularly important.
In terms of the family support for the applicant, this was no different from the support provided to him in the past. Insofar as the sister and mother of the applicant gave undertakings to the Court to report any non-compliance to the police, little comfort could be taken from these assurances owing to the failure of either of them to report the failures of the applicant in the past.
Insofar as any asserted mental health issues were concerned, Mr Payne submitted that there was no evidence in support of the contention. It would be no more than speculation to consider that he actually has any such issues.
In respect of the bail supports available to the applicant, the Court could have no confidence that he would actually avail himself of these, and comply with what was required of him by Youth Justice. He has a very poor history of compliance.
In terms of the likely delay, Mr Payne submitted that the damaging appearance of the CCTV footage indicated that it would be unlikely that this case would be contested to any great extent. There were significant prospects of a resolution of the matters.
Turning to the emphasis placed by the applicant on the desirability of fostering his education prospects, Mr Payne questioned the level of the applicant’s commitment to his education. He submitted that there was a ‘fairly dark cloud hanging over the level of that commitment’ based on what has occurred to date. In any event, were he to be admitted into the TAFE course that had been discussed, there is no reason why he could not undertake that course at Parkville.
Mr Payne noted the apparent involvement of alcohol in the current offending as indicated by the CCTV footage, and the admitted regular cannabis use by the applicant. He submitted that there was nothing in place to deal with these issues.
Dealing with the COVID-19 matters, the written submissions in particular contained a detailed analysis of the law in this area. Mr Payne acknowledged that the results of the pandemic are a relevant surrounding circumstance to be considered along with all of the other circumstances in assessing both exceptional circumstances and unacceptable risk. He submitted, however, that the cases referred to on both sides do not stand as authority for the proposition that the pandemic will, of itself, amount to exceptional circumstances, or render any risk referred to in s 4E an acceptable one. Care should be taken, he submitted, not to allow the existence of the virus in the community to overwhelm the factors referred to in s 3AAA and to prevent a proper analysis of the relevant surrounding circumstances.
In respect of the fact of there being eleven positive cases within Parkville at the moment, Mr Payne submitted that the material provided by Youth Justice should give the Court some comfort about the position of the applicant, in light of the fact that no cases have been acquired inside Parkville, and the applicant is being housed in a different unit.
Turning to the question of risk, Mr Payne submitted that there was an unacceptable risk of the applicant further offending or endangering the safety and welfare of the public. He quoted a section from my previous decision granting bail to this applicant, and noted that the risk about which I had expressed concern had materialised and was illustrated in the CCTV footage[16]. I had afforded the applicant an opportunity, and he had rewarded that with clear breaches of bail.
[16]Re KN (No 1) [51]-[52].
Analysis
The applicant is in a very different position from that which applied in February this year. At that time, he had no criminal history. Importantly, there was evidence before the Court, by virtue of a letter from the Deputy Principal of the school that the applicant attended, and a school report provided to me, that he had performed very well over a number of years at that school and was a talented student. I was told that there was still a place for him at that school, and that he would be welcomed back there with open arms. If I bailed him, as I eventually did, he would be able to resume his education at the Year 10 level. As I noted in my decision, I viewed the prospect of the applicant being able to resume his education as being a very important one.
On that occasion, taking into account all of the circumstances, including, importantly, the fact that the respondent conceded that it would be open to the Court to be satisfied of the existence of exceptional circumstances, I was so satisfied.
That particular bail application, in the end, turned on the question of whether or not the respondent had satisfied me that the obvious and significant risks posed by the applicant would not be rendered acceptable by the imposition of stringent conditions. In deciding that question in the negative, that is, in favour of the applicant, I had this to say:
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.[17]
[17]Re KN (n 1) [51]-[53].
Those passages reveal that the bail application in February was a very close-run thing. Unfortunately, having had the benefit of that decision of the Court, in a number of ways about which I will say more in a moment, and from quite soon after the grant of bail, the applicant failed to abide by what he clearly understood to be the requirements of that grant of bail. That fact does not dictate the result of the application now before me, but it fully justifies the acknowledgment by Ms Jeronimus before me that ‘it’s absolutely conceded that this is an application not without it’s significant challenges’.
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 a definitive list.
Looking at the first of these now, that is, the nature and seriousness of the alleged offending, the crimes the subject of this application are very serious. With no apparent legitimate justification, the applicant was on the Pakenham train at 5.00 pm on the day in question in spite of the rules then in place governing the movements of everyone in the Greater Melbourne area. Judging from the appearance of the applicant and his friends as revealed by the CCTV footage, which I viewed in Court, the applicant was affected by alcohol or some other substance. The CCTV footage makes for uncomfortable viewing. In a sense, the conduct of the applicant and his co-offenders is a depiction of precisely the sort of intimidating and frightening conduct frequently carried out in trains and in other public places by young people with no regard for the feelings or comfort of anyone other than themselves. Every indication is that the applicant was the vanguard for his whole group as they set about harassing, intimidating and then attacking the unfortunate and entirely innocent school students who were their target. From the very start, the applicant deliberately situated himself right in the face of his first victim. Even that must have caused significant discomfort to LL in light of the applicant’s total disregard of the by then well-known requirement of social distancing. As the applicant’s associates descended upon the students, surrounding and intimidating them, the growing feeling of apprehension and dread of the recipients of their attention is easy to imagine.
The eventual crimes allegedly committed can only be viewed as being serious examples of crimes of violence, committed by a group acting as one, upon innocent victims, minding their own business on a train. Mr Payne submitted that the events had the hallmarks of gang violence. I agree.
In respect of the strength of the prosecution case, that case for present purposes, bearing in mind that we are only at the stage of a bail application, has the appearance of being a strong one. That particular aspect was understandably not the subject of much in the way of argument by Ms Jeronimus. Indeed, Ms Jeronimus conceded that there was ‘a degree of strength to the case’.[18] She did submit that what remained to be determined as going to the strength of the case was the role of the applicant in the events.
[18]Transcript 119.
Turning to the criminal history of the applicant, Ms Jeronimus correctly submitted that it was reflected by but one entry in his criminal history, but it was a very telling entry. On 26 June 2020, the applicant pleaded guilty, amongst other things, to two robberies and one attempted robbery flowing from three separate incidents over a period of months. Those, too, were offences of violence against young, innocent people who could be described as soft targets, involving the infliction of quite unnecessary violence, much of it directed at the heads of victims. In addition, the criminal history of the applicant records findings of guilt on three charges of committing an indictable offence whilst on bail.
The extent to which the applicant has complied with previous grants of bail is clearly very much to his detriment. The applicant was the object of successive grants of bail for the first two of the groups of offences of violence which were the subject of sentence on 26 June 2020. Those bail undertakings were not sufficient to discourage his continued violent offending in January this year. In addition, in many respects, his performance on the bail I granted him on 14 February 2020 was unsatisfactory. First, he failed to comply with an important condition of that bail, that is, to attend school on a daily basis. His effort in that regard cannot sensibly be regarded as ‘momentary disengagement’. Rather, it was a young person who, in the full knowledge of the requirement mandated by the grant of bail to go to school on a continuing basis, chose not to do so. Mr Payne submitted that the applicant flouted the condition. That, in my view, is a reasonable description. Secondly, on the evidence of Ms Wild, the applicant clearly breached the condition that he comply with the lawful directions of Youth Justice and attend all appointments as directed by them. He did so by failing to attend a number of Youth Justice appointments he was directed to attend, and probably also by failing to engage properly in some of the services arranged for his benefit. Thirdly, on 13 April 2020, only two months after the grant of bail, he was involved in the theft of a motor vehicle, (and consequently committed an indictable offence whilst on bail) and refused to comply with the request of an authorised officer (Informant Dalzotto charges). The charges arose from events which occurred at 3 am on that morning, meaning that the applicant was in breach of the curfew which I had imposed upon him.
All-in-all, the indications to me are that the applicant has little regard for the strictures of bail.
Turning to the consideration in s 3AAA(1)(e), not only was the applicant on bail for the McDonald robberies and related charges at the time of the present offending, but he was also facing charges by summons on the Pasco charge and the Docherty charges, the latter of which were also laid in respect of crimes of violence. In addition, and importantly, because it represented the first finding of guilt made against him, he was subject to the YSO made, as already indicated, in respect of very similar offending to that which is at the heart of this application.
At this time, at least, the picture is of a young person who simply has no respect for the law, and for the orders of courts.
I of course take into account the personal circumstances of the applicant. In terms of the family support that is available to him, that is not different from that which applied in February. Regrettably, the presence of that support has not been sufficient to dissuade the applicant from continuing to offend. Furthermore, the degree of control which the applicant’s mother is able to exert over him is very much called into question by his continuing poor behaviour, not of course that she is to blame for that. Little comfort, however, can be derived from the presence of the family support the applicant is still fortunate to be able to rely upon.
In terms of any special vulnerability of the applicant, I pay full regard to the requirements of s 3B, and what has been said on the matter by many judges of this Court. This issue was properly front-and-centre in this application. The status of the applicant as a child is of great importance as the law makes clear, but it does not offer a guarantee of the grant of bail.
As for the submission that I should have regard to the concerns of Ms Wild and Mr Chamings about the mental health of the applicant, there is no evidence which indicates he has any particular issues. He performed well at school for many years leading up to the end of 2019. He has conducted himself well in custody. There is nothing to indicate he is depressed, anxious, or otherwise overborne by his experiences in his childhood, or indeed, in custody.
I take into account, of course, the availability of bail support services as indicated in the evidence and report of Ms Wild from Youth Justice. To my mind, however, her willingness to assess him as suitable for supervised bail says much more about her decent and tolerant mindset and the focus of the organisation she represents than about the real prospect that the applicant could, or would, abide by the requirements of supervised bail. The Youth Justice report makes it clear, to my mind, that the applicant has been a long way short of cooperative and engaged where Youth Justice are concerned. There may be all manner of reasons for that. One possible reason which comes to mind is that, at this stage in his life, the applicant is simply unwilling to cooperate with efforts being made by others to help him. At this stage, I can see no reason at all for confidence that the poor progress of the applicant in the past would change for the better in the near future. Being subject to Youth Justice Supervised Bail did not discourage him from further offending and breaches of bail previously. I could have no confidence things would be any different in future.
I have been informed that one of the victims of the alleged offending of the applicant is very concerned that the applicant may try to find him if released on bail. I take those concerns into account as I am required to do under s 3AAA(1)(j).
Turning to the likely delay, the future conduct of this case is of course a matter for the applicant and his legal advisers. Having viewed the CCTV footage, however, and read the prosecution brief, it does seem to me that resolution of these charges is highly likely. The next mention is on 12 August 2020. Final resolution of these charges within weeks of that time is a distinct possibility.
As for the likely sentence the applicant will serve, I accept, as it was the position of both sides, that it is unlikely that a custodial sentence would be imposed. Of course I take that strongly into account, but that fact alone does not determine the result of this application.
Turning to the COVID-19 issues, I have heard detailed material on both sides on this matter, have considered the authorities, and take all of this into account. These are important issues, but I note again what I said in the case of Re Tong[19] earlier this year:
It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. These matters, whilst themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of both steps in the 2 step bail process currently undertaken.[20]
[19][2020] VSC 141.
[20]Ibid [33].
In this case, there was evidence indicating that there are currently eleven active cases of COVID-19 among young persons at Parkville. The evidence indicated, however, that each of these cases was a new admission from the community. The young persons did not acquire the infection whilst in Youth Justice custody. There was also one Youth Justice worker who had tested positive for the virus. All eleven confirmed cases were being held separately from other young inmates.
Importantly, I was provided with evidence indicating the quite extraordinary lengths to which the Youth Justice authorities are going in order to try to prevent the spread of the virus within the facility itself. The fact that the applicant, as a new resident, is currently being held in quarantine, is indicative of those measures, but there is a suite of arrangements in place which is very impressive and goes a long way to showing why, in light of the apparent prevalence of the virus in the community, as evidenced by the high number of new residents of Parkville bearing the virus on their admission, there have been no transmissions actually within the facility. It is to be hoped that that remains the case.
As things currently stand, I would not conclude that inmates of Parkville are at a greater risk of contracting the virus than those on the outside. The converse is more likely the case. Furthermore, I would not conclude on the material currently to hand that even if the virus were to be transmitted to a person within the facility, that it would necessarily spread quickly. Parkville cannot be likened to an aged care facility or a cruise ship. It is a secure facility, with well organised management taking every possible step to reduce the risks of infection.
Ms Jeronimus submitted that the COVID-19 issue alone was enough to get over the hurdle of exceptional circumstances in this case. I do not agree with that contention. Having said that, the various considerations flowing from the pandemic, the most important of which is the onerous conditions of remand at the present time, are important in the determination of this application.
In that regard, I should note that perhaps the most prominent matter relied on in respect of the issue of the onerous nature of the current conditions of remand was the fact that since being in custody, the applicant has been permitted out of his cell for only very short periods of time each day. The reason for this is to be found in the updated admissions process for young people entering custody set out in the written information provided to the Court from Youth Justice, which was said to be current to 4 August 2020. All children coming into Parkville are now being admitted via a dedicated admissions unit where they are to be tested twice for COVID-19; once on the day of admission, and then again on day 11. Children will be isolated to their bedrooms for 14 days, and not permitted to mix with the general population until the conclusion of that period and the provision of two negative test results. On my estimation, the applicant should now have reached the end of that admission phase and he will be moved shortly into the general population if he has not already been moved. In the general population within Parkville, the time permitted for residents outside their cells has not been reduced on account of COVID-19. Therefore, whilst of course I have regard to the particularly onerous restrictions on the applicant’s movements since going into Parkville, that state of affairs has already changed, or will change very soon.
The need to foster the continuing education of the applicant is of course a matter of great importance. It was one of the things at the heart of my decision to grant bail six months ago. The fact is, however, that the applicant, by his conduct after the previous grant of bail, showed that he had made a decision about what he wanted to do at that time in respect of his education. The decision was an unfortunate one. I am not satisfied that he is actually engaged in any real way with his education. Hopefully that may come in the future, perhaps with greater maturity. For some months, his moves to further his education have been scant. Should his attitude change, I am confident that he would be able to pursue educational opportunities in Parkville should he still be residing there.
Taking into account all of the circumstances, and with some hesitation, I am satisfied of the existence of exceptional circumstances in this case.
Turning to the second step of the test for bail, the unacceptable risk test, I was very concerned at the time of the previous grant of bail about the risk posed by the applicant, because of the inclination he had seemingly shown in the months leading up to that application to engage in violent group offending, robbing and applying gratuitous and dangerous violence to defenceless individuals in public places. I was concerned that he may, by his conduct if released on bail, endanger the community.
Sadly, his conduct from the time of that release shows that my concerns were very well founded. It seems that thus far, the applicant has not been deterred from his violent ways. In the context of all that has occurred since late-2019, the offending alleged against him in the current charges is very concerning. It is no comfort to the Court at all that the offending may be viewed as being a continuation of, rather than an escalation of, his previous offending. If a continuation it is, it is a continuation of serious and dangerous conduct showing a complete disregard for the welfare of those with whom he comes in contact, in spite of the many safeguards put in place to try to arrest this unacceptable behaviour. I think that the risk that the applicant may endanger the safety of the public or commit offences while on bail is a very substantial one. Furthermore, having considered all of the measures which could reasonably be put in place to ameliorate that risk, I do not consider that the risk can be reduced to a level which would be acceptable in the circumstances. To my mind, at this time, there is no alternative open other than for the applicant to be held in custody.
Conclusion
For the reasons I have stated, this application for bail must be refused.