Re KP
[2018] VSC 436
•7 August 2018 (First revision 9 August 2018)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0182
| IN THE MATTER of the Bail Act 1977 - and - IN THE MATTER of an Application for Bail by KP |
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JUDGE: | EMERTON JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 August 2018 |
DATE OF JUDGMENT: | 7 August 2018 (First revision 9 August 2018) |
CASE MAY BE CITED AS: | Re KP |
MEDIUM NEUTRAL CITATION: | [2018] VSC 436 |
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CRIMINAL LAW – Bail – Ten charges including armed robbery and intentionally causing serious injury in circumstances of gross violence – Offences committed while applicant was on a Community Correction Order for two robbery offences and while on a good behaviour bond for three theft offences – Whether the charged offences were Schedule 1 offences or Schedule 2 offences – Operation of ‘uplift clauses’ (sch 1 cl 3, sch 2 cl 1) - Whether compelling reason shown justifying bail – ‘Unacceptable risk’ test applied – Compelling reason not shown – Bail refused – Bail Act 1977 ss 3, 3AAA, 4, sch 1 cl 3, sch 2 cl 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Lacy | Giorgianni & Liang Lawyers |
| For the Respondent | Mr D Porceddu | Office of Public Prosecutions |
HER HONOUR:
Introduction
On 6 February 2018, the applicant was arrested and charged with armed robbery, intentionally causing injury, possessing a controlled weapon without lawful excuse, recklessly causing injury, recklessly causing serious injury, intentionally causing serious injury, intentionally causing serious injury in circumstances of gross violence (two counts), and recklessly causing serious injury in circumstances of gross violence (two counts).
The charges arise out of the events alleged to have occurred on 3 February 2018, when the applicant and his co-accused, JT, are alleged to have robbed and stabbed a victim in their vehicle.
At the time of the alleged offending, the applicant was subject to a 12 month Community Correction Order (‘CCO’) imposed on 24 July 2017 in respect of two robberies.
The applicant has been in custody since 6 February 2018. On 27 June 2018, he applied for bail in the Magistrates’ Court of Victoria. The magistrate refused the application for bail on the basis that the applicant had not established exceptional circumstances and was an unacceptable risk of further offending, failure to appear and endangering prosecution witnesses and members of the public.
The charges are currently listed for committal hearing on 28 August 2018.
The co-accused was granted bail in the Children’s Court on 17 April 2018.
The applicant
The applicant is 20 years of age. He was born in Australia of parents who came to Australia from Vietnam. He has two younger sisters. Prior to his arrest and incarceration, he lived with his father and one of his sisters in the family home in the western suburbs of Melbourne. The applicant does not get on with his father. His mother, with whom he does get on, is currently serving a custodial sentence for fraud. When his mother was imprisoned in 2015, the applicant was forced to change schools and experienced a period of dislocation that caused him to drop out of school for some time. However, in 2017, he completed Year 11 at RMIT and proposed to enrol in Year 12 at Victoria University in 2018 had he not been remanded.
The applicant has a criminal history dating back to 2015, although he has no prior convictions. In August 2015, he was charged with three counts of theft and bailed to appear in the Children’s Court on 24 February 2016. He failed to appear on that date and a warrant was issued for his arrest. The warrant was not executed until 17 September 2016, when the applicant was arrested and charged with two counts of robbery. On 20 March 2017, the applicant entered into a good behaviour bond for 12 months in respect of the thefts. On 24 July 2017, the applicant was made subject to the CCO in respect of the robberies.
The applicant’s compliance with the conditions of the CCO has been very poor. A report dated 7 April 2018 from the Sunshine Community Correctional Service describes extensive non-compliance and virtually no compliance with the CCO conditions. The report states that the applicant did not satisfy any condition of the CCO despite the Service attempting to accommodate his availability and personal obligations and other commitments. He incurred six unacceptable absences in relation to the supervision condition, 14 unacceptable absences from the community work condition and three absences from the offending behaviour programs.
The applicant has an aunt, Ms THP, with whom he can live if released on bail. One of his sisters is currently living with the aunt and the applicant has resided with her previously from time to time, particularly during school holidays.
The applicant has recently been assessed by a consultant psychologist, Mr Ian Mackinnon. He was found to be of normal cognitive functioning, to have English literacy skills to around Year 10 level and spoken language skills of his age-average level. His functional intelligence is also within the normal adult range. He was found to be appropriately orientated in time, place and person and did not appear to be suicidal. However, he was distressed and anxious, which Mr Mackinnon attributed to the fact that he was on remand and to his legal predicament.
Mr Mackinnon opined that the applicant does not ‘appear to possess an inherently antisocial or criminal character’ and that in favourable circumstances, he ‘would probably thrive in a TAFE/tertiary level degree program’.
Alleged offending
The prosecution case is that on 3 February 2018, the victim, who was not known to the applicant, contacted the applicant via Facebook to purchase two pounds of cannabis for $5,900 in cash. The applicant uses a Facebook account under the name of ‘Milhouse Ferret’. Via this means, arrangements were made for the victim to meet the applicant at the Duke Street Reserve in Sunshine North.
Upon arriving at the designated meeting point, the victim received a message directing him to another location nearby, where the he would be picked up by a black Honda Jazz. The victim proceeded to the new rendezvous point, where he was picked up by the applicant and the co-accused in a car. The applicant was driving and the co-accused was in the rear passenger seat. The victim got into the front passenger seat. As soon as the victim got into the car, the applicant held a large kitchen knife to the victim’s throat, and said, ‘This is a steal, drop the cash or I’m gonna kill you’. When the victim did not comply, the applicant stabbed him in his left thigh, causing a 4 to 6 centimetre deep wound.[1] The co-accused then put the victim in a headlock and pulled him into the back seat, stabbing him twice more in his left leg. The applicant continued to drive the car until the victim began to feel faint as a result of his wounds and dropped the cash he was carrying onto the floor. Once the applicant and his co-accused realised they had possession of the cash, they dropped the victim on the roadside, where he went into a nearby house seeking help.
[1]The police hand-up brief erroneously stated that the wound was 17 centimetres deep and the judgment handed down on 7 August 2018 referred to this depth. The depth of the wound was not material to the decision to refuse bail.
The victim was also allegedly relieved of an Apple iPhone and his wallet.
Legislative scheme
Section 4A(1) of the Bail Act 1977 provides that the Court must refuse bail where a person is accused of a Schedule 1 offence unless satisfied that exceptional circumstances exist to justify the grant of bail. Section 4C(1) provides that the Court must refuse bail where a person is accused of a Schedule 2 offence unless satisfied that a compelling reason exists to justify the grant of bail.
The burden of satisfying the Court that exceptional circumstances exist or that a compelling reason exists rests with the applicant.
In considering whether exceptional circumstances exist or whether a compelling reason exists justifying the grant of bail, the Court must take into account the ‘surrounding circumstances’. This draws attention to s 3AAA of the Act, which sets out the matters that a court must or may take into consideration, depending on the circumstances.
If the Court is satisfied that exceptional circumstances exist (in respect of a Schedule 1 offence) or that a compelling reason exists (in respect of a Schedule 2 offence) justifying the grant of bail, the Court must apply the unacceptable risk test. The Court must refuse bail if satisfied there is an risk that the applicant will, relevantly, endanger the safety or welfare of any person, commit an offence while on bail, or interfere with a witness or otherwise obstruct the course of justice, and that the risk is an unacceptable risk.
Again, in applying the unacceptable risk test, the Court must consider the surrounding circumstances.
There is a dispute in this case as to whether the most serious offences with which the applicant is charged are Schedule 1 offences or Schedule 2 offences.
Pursuant to s 3 of the Act, a ‘Schedule 1 offence’ means an offence specified in Schedule 1 and, if circumstances are specified in Schedule 1 in relation to that offence, means an offence committed in those circumstances. A ‘Schedule 2 offence’ is defined in the same way by reference to Schedule 2.
The prosecution submits that while the applicant is charged with Schedule 2 offences, pursuant to cl (3)(d) of Schedule 1, a Schedule 2 offence is deemed to be a Schedule 1 offence under the Bail Act if committed during the period of a community correction order for a Schedule 1 or 2 offence. The prosecution contends that at the time of committing the alleged offences in February 2018 (the ‘Bail Offences’), the applicant was subject to a community correction order for a Schedule 2 offence, namely, robbery.
Robbery is not listed as an offence in Schedule 2. However, the prosecution argues that the robberies were committed while the applicant was at large awaiting trial for other indictable offences, namely, three counts of ‘shopsteal’, which makes the robberies Schedule 2 offences.
Schedule 2 offences include:
An indictable offence that is alleged to have been committed by the accused –
(a) while on bail for another indictable offence; or
(b)while subject to a summons to answer to a charge for another indictable offence; or
(c)while at large awaiting trial for another indictable offence; or
(d)during the period of a community correction order made in respect of the accused for another indictable offence or while otherwise serving a sentence for an indictable offence.
Here, it is submitted the indictable offence ‘that is alleged to have been committed by the accused’ is robbery, which was committed ‘while at large awaiting trial for [shopsteal]’. This, so the prosecution says, makes the robberies Schedule 2 offences for the purpose of cl 3(d) of Schedule 1, which in turn makes the more serious offences with which the applicant is now charged (the Bail Offences) Schedule 1 offences. There is, so to speak, a ‘double uplift’: the circumstances in which the ‘shopsteal’ offences were committed has the effect of lifting the robberies into Schedule 2 which has the flow on effect of lifting the Bail Offences (or some of them) into Schedule 1.
The applicant submits that an offence that the courts have already dealt with — in this case, robbery — cannot be raised to a higher order of offence for the purpose of classifying the offence or offences in respect of which bail is sought. This, so it is submitted, is confirmed by the words in the chapeau to cl 1 of Schedule 2, which refer to an offence ‘that is alleged to have been committed’.
The dispute raises some difficult questions of statutory interpretation. It will no doubt be the task of the Court in the future to definitively construe cl 1 of Schedule 2 and its corollary, cl 3 of Schedule 1, in the context of the Bail Act as a whole. In the present case, it makes no difference whether the Bail Offences are Schedule 1 offences or Schedule 2 offences. For the reasons that follow, I have concluded that the applicant has failed to satisfy the Schedule 2 offence test of establishing a ‘a compelling reason’ justifying bail.
Nonetheless, it is my preliminary view that the applicant is correct in submitting that cl 1 of Schedule 2 describes offences that remain ‘alleged’ offences. In my view, cl 1 of Schedule 2 is intended to apply to the unproven offences for which bail is sought, in this case, the Bail Offences.
Schedules 1 and 2 generally list offences by name or by reference to the relevant statutory provision creating the offence. The ‘uplift clauses’ in question — cl 3 of Schedule 1 and cl 1 of Schedule 2 — do not name specific offences, but refer to a class of offences that are to be included as Schedule 1 or 2 offences by reason of the circumstances in which they are ‘alleged to have been committed’. In the absence of clear indication to the contrary, this choice of words must be taken to involve a deliberate decision on the part of the legislature to limit the offences captured by the uplift clauses to offences that remain to be proven.
The construction advanced by the prosecution has the effect of uplifting offences that were not treated or regarded as Schedule 2 offences at the time the actions or decisions referred to paragraphs (a) to (e) of cl 3 of Schedule 1 were taken, that is, at the time of granting bail, issuing a summons, or making a community correction order or the parole order (as the case may be). In my view, the language of the statute would have to be very clear to produce such an outcome, and it is not.
I am therefore of the view that the Bail Offences are Schedule 2 offences and the applicant must establish that a compelling reason exists justifying the grant of bail.
Are there compelling reasons?
The applicant relies on a variety of circumstances in combination to make out a compelling reason justifying the grant of bail:
(a) his youth and educational/rehabilitation prospects;
(b) his strong family support, the availability of stable accommodation and his ties to the jurisdiction;
(c) the availability of Youth Justice bail support;
(d) his limited prior criminal history;
(e) the weakness of the prosecution case against him;
(f) the likely delay in having his matters listed for trial if they do not resolve at committal;
(g) parity with his co-accused, who turned 17 in July this year and was granted bail in the Melbourne Children’s Court on 17 April 2018.
The last two matters can be shortly dealt with. There was no evidence in relation to delay. It was not submitted that the applicant is at risk of spending longer in custody on remand than any custodial sentence that might be imposed upon conviction. As to the issue of parity, the circumstances of the co-accused are plainly not the same as those of the applicant. The co-accused is a child and is being dealt with in the regime applicable to children. The consequences of a conviction for him are quite different from those of the applicant.
Putting aside for one moment the question of the strength of the prosecution case against the applicant, the applicant’s contentions were to the effect that he is a young person on the cusp of adult life who has made some mistakes but is keen to pursue his education and is a prime candidate for rehabilitation. In this endeavour, he enjoys strong family and community support. If granted bail, he will have all of the opportunities for counselling and educational support offered through the Youth Justice bail support program.
It was also submitted that were the applicant to be convicted and given a custodial sentence, a successful period on bail would give him better prospects of receiving a sentence involving a Youth Training Centre rather than an adult gaol. This, in turn, would give him better prospects of rehabilitation.
In support of his application, the applicant relies on an affidavit affirmed by his solicitor, Nadia Georgianni, together with an affidavit affirmed by his aunt, Ms THP, deposing that if released on bail, the applicant can live with her, his grandfather and his sister. She would also support him in complying with the requirements of bail. Ms THP did not give evidence, as no interpreter was available. The applicant also relies on the report by Mr Mackinnon to the extent that it describes or confirms his aptitude and willingness to pursue educational and other opportunities.
Mr Stephen Riordan, a senior court advice officer for Youth Justice Victoria, gave evidence about the applicant’s suitability for supervised bail. He described the programs that would be available to the applicant on bail, the level of supervision to which the applicant would be subject and the support that he would receive. It was Mr Riordan’s evidence that the applicant’s future prospects would be enhanced by the opportunities available to him through the Youth Justice bail program.
However, Mr Riordan was unaware of the extent of the applicant’s non-compliance with the CCO conditions.
The difficulty with the applicant’s submissions based on the desirability of giving him the opportunity to become a contributing member of society while on bail through the provision of a stable home life, educational opportunities and the various supports and services offered by Youth Justice is that these opportunities were available to the applicant while on the CCO and he did not take them. Mr Riordan agreed that the 23 ‘unacceptable absences’ incurred by the applicant on the CCO was indeed a fairly high number. The applicant’s previous non-compliance with conditions of the CCO reduces the weight to be given to the factors of family and Youth Justice support in assessing whether the applicant has shown a compelling reason for the grant of bail.
However, I give full weight to the applicant’s youth and the difficulties he is experiencing on remand as a young person in an adult prison, particularly as it is his first time in custody. I also take into account that a successful period complying with bail conditions and undertaking the programs offered by Youth Justice may assist the applicant upon sentencing if convicted.
In contrast, I do not accept the submission that the case against the applicant is weak and that this weakness militates in favour of the grant of bail.
The prosecution case against the applicant is described in the affidavit of the informant made on 14 July 2018 as a strong circumstantial case for the following reasons:
(a)The victim heard both the applicant and the co-accused refer to each other by name in the car;
(b)The victim identified both the applicant and the co-accused via a photograph attached to the Facebook account;
(c)The victim told investigators that he received three calls from the person he believed was the applicant on the night prior to the incident during the specified period, and those phone calls linked to a number in a name police believe to be an alias used by the applicant;
(d)The owner of the black Honda Jazz confirmed to investigators that he loaned the car prior to the offence to a male he knows as ‘Kiet’ and confirmed that he communicated with this person via the Facebook account in question;
(e)The co-accused confirmed during his record of interview that Milhouse Ferret is the applicant;
(f)Forensic testing has linked the victim to the car, the victim’s blood to the co-accused’s shoe, and DNA of the co-accused to the clothing of the victim;
(g)DNA analysis of a sample obtained from the applicant is currently being analysed against items seized;
(h)‘Arunta’ calls appear to record the applicant confirming himself as being inside the vehicle during the commission of the offence;
(i)The applicant wears reading glasses similar in appearance to those described by the victim.
The applicant submitted that the case against him is not strong, as it relies on the evidence of the complainant in circumstances where the complainant has given radically different versions of the events in question and there is no physical evidence linking the applicant to the car. It is further submitted that the ‘Arunta’ phone calls and the evidence in the record of interview of the co-accused may not be admissible.
On the basis of the information available, I do not consider the case against the applicant to be weak. There is evidence linking the applicant to both the car and the Facebook page. There is evidence of phone contact between the applicant and the victim on the relevant evening. In my view, weakness of the prosecution case is not a factor that could be regarded as contributing to establishing ‘a compelling reason’.
An important consideration in determining whether there is a compelling reason justifying the grant of bail in this case is the nature and seriousness of the alleged offending.
The alleged offending by the applicant was premeditated and committed in company with another person. The applicant and his co-accused made an arrangement with the victim using the Facebook account in order to lure the victim to a location, which was then varied at short notice to the victim. Both the applicant and the co-accused were armed with knives intending to rob the victim. The victim was stabbed three time in the leg. The injuries sustained by the victim would, in common parlance, be described as serious.
The alleged offending by the applicant is of a serious kind. This kind of offending is not simply a product of youthful recklessness, but involves planning and coordination, as well as a preparedness to use violence of a kind that can result in fatalities. It is a big step up from robbery or shop theft. If convicted, the applicant is likely to receive a custodial sentence that will exceed the period he will have spent on remand pending the committal hearing if bail is refused.
In Re Ceylan,[2] Beach JA considered the amendment to the Bail Act that resulted in the change to the wording ‘show cause’ to ‘show compelling reason’, observing that the original recommendation was to change the wording to ‘show good reason’. His Honour said:[3]
It may be thought that in enacting ‘compelling reason’ rather than ‘good reason’, the Parliament intended that a slightly more rigorous test be applied. While compelling reason will always include (and thus be) good reason, it is possible that good reason will not always be compelling reason.
[2][2018] VSC 361.
[3]Ibid [36].
His Honour had regard to the use of the words ‘compelling reasons’ in other contexts and concluded that, in the context of the Bail Act:[4]
compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified.
[4]Ibid [47].
In my view, the applicant has not established forceful and convincing reason justifying the grant of bail, having regard to the surrounding circumstances. These are, in particular, the nature and seriousness of the alleged offending, the strength of the prosecution case, the apparent escalation in his antisocial conduct since 2015 and his inability or refusal to take the opportunity for rehabilitation given to him in 2017 through the CCO.
The fact that the applicant is young, wishes to continue his education, has family support, would have targeted bail support through Youth Justice and a better chance of persuading a court to give him detention in a youth justice facility if convicted, is not sufficient to give rise to a compelling reason justifying bail given these countervailing factors.
Unacceptable risk
The applicant having fallen at the first hurdle, it is unnecessary to consider whether the prosecution has established that releasing him on bail would constitute an unacceptable risk of any of the relevant kinds.
Were it necessary to decide, I would find that there is a risk that the applicant will offend while on bail, endangering the safety of himself and others, and that this risk cannot be adequately mitigated by bail conditions.
The applicant has offended previously while subject to a good behaviour bond. His compliance with the CCO conditions was derisory. He was assessed as suitable for Youth Justice bail support without informing Mr Riordan of his failure to comply with the CCO. There was no evidence from his aunt or anyone else as to her ability to supervise or manage the applicant while on bail. The offending with which the applicant is charged is of a kind that imperils the safety of the community.
The risk that the applicant would present to the community if released on bail is an unacceptable risk, in my view.
Conclusion
The application for bail is refused.