Re LD
[2019] VSC 457
•11 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0147
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by LD |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2019 |
DATE OF JUDGMENT: | 11 July 2019 |
CASE MAY BE CITED AS: | Re LD |
MEDIUM NEUTRAL CITATION: | [2019] VSC 457 |
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CRIMINAL LAW – Bail – Child aged 16 years – Alleged commission of Schedule 2 offences when applicant already on bail for Schedule 2 offences – Charges include aggravated burglary and committing an indictable offence whilst on bail – Bail refused by Children’s Court – Whether exceptional circumstances justifying bail – Whether relevantly an unacceptable risk – Whether conditions capable of rendering risks acceptable – Bail granted on strict conditions – Bail Act 1977, ss 1B, 3AAA, 3A, 3B, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Garner | Victoria Legal Aid |
| For the Respondent | Mr P McKimmie | Victoria Police |
HIS HONOUR:
An application for bail
‘LD’, a child aged 16 years,[1] applies to this Court for bail.
[1]He was born in November 2002.
The applicant has been in custody since 27 June 2019, when a magistrate in the Latrobe Valley Children’s Court refused him bail on a number of offences, and also revoked two previous grants of bail. He presently is in custody at the Parkville Youth Justice Precinct (‘PYJP’), and is due back before the Latrobe Valley Children’s Court on 19 July 2019.
LD was arrested by Detective Senior Constable John Park on 27 June 2019 and charged (among others) with aggravated burglary and committing indictable offences whilst on bail. At that time, LD was already on bail for aggravated burglary and committing an indictable offence whilst on bail, both of which are Schedule 2 offences for the purposes of the Bail Act 1977 (‘the Act’). The consequence of this is that, by virtue of s 4AA(2)(c) of the Act, a court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. Indeed, it is common ground for the purposes of the present application that this Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
As I have said, LD was arrested by Detective Park on 27 June 2019. He was charged with burglary[2] (one charge – charge 1); aggravated burglary[3] (one charge – charge 4); theft[4] (two charges – charges 2 and 5); theft of a motor car (one charge – charge 6); committing an indictable offence whilst on bail[5] (two charges – charges 3 and 8); and unlicensed driving[6] (one charge – charge 7). At the time, LD was subject to two different grants of bail, arising from charges laid on 15 March 2019 and 18 April 2019.
[2]Crimes Act 1958, s 76(1).
[3]Crimes Act 1958, s 77(1).
[4]Crimes Act 1958, s 74(1).
[5]Bail Act 1977, s 30B.
[6]Road Safety Act 1986, s 18(1)(a).
Thus, on 15 March 2019, the applicant had been arrested by Detective Senior Constable Jaymie Carroll and charged with attempted arson[7] and arson,[8] and had been bailed by police to appear at the Latrobe Valley Children’s Court. (This grant of bail was one of those revoked on 27 June 2019.)
[7]Crimes Act 1958, ss 197 and 321M.
[8]Crimes Act 1958, s 197.
Further, Detective Park had previously arrested the applicant on 18 April 2019, and charged him with aggravated burglary (two charges – charge 1 and 12); theft (three charges – charges 2, 9 and 17); theft of a motor vehicle (three charges – charges 3, 10 and 13); arson of a motor vehicle (two charges – charges 7 and 15); aggravated burglary (one charge – charge 12); obtaining property by deception (one charge – charge 4); attempting to obtain property by deception (two charges – charges 5 and 6); dealing with the proceeds of crime (one charge – charge 16); committing an indictable offence whilst on bail (one charge – charge 18); unlicensed driving (one charge – charge 11); and failing to stop a motor vehicle upon a police signal (one charge – charge 14). Following the 18 April arrest, LD spent five days in custody — it was the Easter public holiday period — before being granted bail by the Latrobe Valley Children’s Court on 23 April 2019.[9] (This second grant of bail was also revoked on 27 June 2019.)
[9]Bail was granted on the applicant’s own undertaking, with a condition that he report to police three times a week; a residence condition; a curfew between 8.00 pm and 6.00 am; a non-association condition; and conditions that he obey all lawful directions of Youth Justice Supervised Bail Support Service and attend and comply with the requirements of the Youth Justice program.
LD now seeks bail on all of the charges that he faces.
Bail is opposed. In an Affidavit in Response to an Application for Bail, affirmed on 8 July 2019 by Julia De Freitas Alex, Victoria Police legal practitioner (‘first affidavit’), bail was opposed ‘on the basis that the applicant has not discharged the burden of satisfying the Court as to the existence of exceptional circumstances that justify the grant of bail’ (albeit that, during the hearing in this Court, Mr McKimmie for the respondent very fairly conceded that it was open to me on the evidence to find that exceptional circumstances exist); and, alternatively, should exceptional circumstances be found to exist, on the basis that the applicant is an unacceptable risk of, first, endangering the safety or welfare of any person, and, secondly, committing an offence while on bail.
In a report exhibited to Ms Alex’s first affidavit, when addressing the issue of unacceptable risk, Detective Park stated:
It is also the Respondent’s view that bail should be refused on the grounds that the Applicant is an unacceptable risk of:
a. endangering the safety and welfare of any person, having regard to the following:
i. The applicant has been charged with unlicensed driving and there is allegations [sic] that the applicant was conducting in dangerous driving behaviours where Police pursuits were initiated. The applicant has since been alleged to have stolen more motor vehicles and is still unlicensed to drive. The applicant has placed himself and persons of the public in danger of their safety because of his driving behaviours.
b. committing an offence whilst on bail, having regard to the following:
i. The Applicants [sic] current offending was committed whilst he was already on two counts of bail with strict conditions.
c. Not abiding by conditions of bail previously afforded by the courts:
i. The applicant has consistently breached his curfew
ii. The applicant has failed to sign in to the Morwell Police Station or [scil., on] 8 of his 15 reporting dates
iii. The applicant has failed to abide by a court direction recently by not engaging with the Youth Justice Program since 4th June 2019.
iv. The applicant has not resided at [a residential address].
Ms Alex affirmed a supplementary affidavit on 10 July 2019 (‘second affidavit’). Among other things, in her second affidavit Ms Alex deposed that the applicant failed to comply with his bail reporting conditions on ten separate occasions, being 13 and 27 May, and 10, 12, 17, 19, 21, 24, 26 and 28 June 2019. Further, the applicant failed to abide by his curfew condition on at least five occasions, including 8 April, 10 May, and 1, 6, 22 and 25 June 2019 (offending between 1 and 2 June, and on 22 June 2019, having occurred during curfew hours).
The alleged offending
The offending alleged against the applicant is serious. I will only very briefly summarise it.
Detective Carroll charged the applicant with attempted arson and arson, relating to an abandoned church in Morwell. It is alleged that at about 2.44 am on 19 February 2019, and again at about 1.14 am on 20 February 2019, the applicant threw ‘Molotov cocktails’ at a wall of the church building. On each occasion the applicant had constructed the makeshift bomb from a bottle, partially filled with petrol, with a rag stuffed into the neck as a wick, and had ignited the wick with a lighter and thrown the device. As a result, there was some burning and charring of wooden beams at the bottom of the abandoned building. LD was arrested for this alleged offending on 15 March 2019.
Detective Park first arrested LD on 18 April 2019, and charged him with a number of offences, including aggravated burglaries, thefts of motor cars and arson of motor cars. It is alleged that at about midnight on 29 March 2019, LD and a co-offender, Samual Robertson,[10] broke into a house in Morwell, stole the keys to a Great Wall utility motor vehicle and then stole the vehicle. They then used a stolen credit card to buy, and later to attempt to buy, petrol. At about 7.00 am they set the vehicle alight, destroying its interior.
[10]Robertson, who will turn 18 in a few weeks’ time, is on bail for theft of motor vehicle, obtaining property by deception, attempting to obtain property by deception and arson of motor vehicle. Conditions of his bail include a residence and curfew conditions, and a condition that he not associate with LD.
Subsequently, on 11 April 2019, LD and co-offenders illegally entered premises in Traralgon. They stole cash, handbags, a mobile telephone and keys to a Hyundai motor vehicle. They stole the vehicle, dumping it in Morwell.
Two days later, on 13 April 2019, between 3.00 am and 6.00 am, LD and co-offenders illegally entered premises in Morwell, took the keys to a Holden Trax motor vehicle and stole the vehicle. Police attempted to intercept the vehicle whilst the applicant drove it, but he refused to pull over. Pursuit was halted due to the applicant’s erratic driving. At about 2.30 pm the applicant set the vehicle alight.
Moreover, between 1 April and 17 April 2019, the applicant walked around an area in Morwell, stealing bank cards, money, car keys and other property from unlocked vehicles.
The most recent spate of offending, which led to the applicant being arrested by Detective Park on 27 June 2019, commenced somewhere between 11.00 pm on 1 June and 9.30 am on 2 June 2019, when the applicant and a co-offender entered a property in Morwell and stole two mountain bikes, power tools and alcohol. About three weeks later, on 22 June 2019, between 3.00 am and 6.00 am, the applicant and others returned to the Morwell property, and unlawfully entered the house. LD and co-offenders then rummaged through the kitchen, lounge room and dining room, stealing video games, wallets, purses and other valuable property. The applicant then took keys to a 2006 silver coloured Nissan Pathfinder and stole the vehicle (which was parked in the driveway of the property). The vehicle was dumped elsewhere in Morwell later in the morning, and was recovered. Police forensically processed the vehicle, locating the applicant’s fingerprints on items inside it. The applicant’s fingerprints were also located at the rear window of the house (being the apparent point of entry).
The Bail Act
By virtue of s 4AA(2)(c) of the Act, an ‘exceptional circumstances’ test applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if the offence is alleged to have been committed while the accused was on bail for a Schedule 2 offence. LD, as I have said, is alleged to have committed Schedule 2 offences whilst already on bail for Schedule 2 offences. Section 4A(1A) of the Act therefore requires this Court to refuse bail ‘unless satisfied that exceptional circumstances exist that justify the grant of bail‘, the burden of satisfying the Court as to the existence of exceptional circumstances resting on the applicant (s 4A(2)).
In considering whether exceptional circumstances exist, the Court must take the ‘surrounding circumstances’ into account (s 4A(3)). Section 3AAA(1) (so far as relevant) provides that if the Court is required by the Act to take surrounding circumstances into account, the Court
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c) the accused’s criminal history;
(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e) whether, at the time of the alleged offending, the accused—
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; or
(v)was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g) the accused’s personal circumstances, associations, home environment and background;
(h) any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i) the availability of treatment or bail support services;
(j) any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k) the length of time the accused is likely to spend in custody if bail is refused;
(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
…
Further, given that LD is a ‘child’,[11] in deciding whether to grant or refuse bail, the Court is required to take into account the various matters set out in s 3B[12] (albeit that one might take the view that those matters on their face are incompatible with the ‘exceptional circumstances’ test). The influence of s 3B was discussed by Forrest JA in JO:[13]
Whilst the burden of demonstrating ‘exceptional circumstances’ is … 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.
[11]By virtue of s 3(1) of the Act, and s 3(1) of the Children, Youth and Families Act 2005, a child is ‘in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court’.
[12]See also Children, Youth and Families Act 2005, s 346(6).
[13]Re JO [2018] VSC 438, [14] (footnote omitted).
Separately from the applicant’s need to demonstrate exceptional circumstances, the respondent asserts that there is an unacceptable risk that the applicant, if released on bail, will commit an offence whilst on bail, and will endanger the safety or welfare of members of the public. By virtue of s 4E of the Act, this Court must refuse bail if the ‘prosecutor’ satisfies the Court that there is an unacceptable risk that the applicant would, if released on bail:
(i) endanger the safety or welfare of any person;
(ii) commit an offence while on bail;
...
In considering whether any relevant risk is unacceptable, s 4E(3) requires the court once more to take into account the ‘surrounding circumstances’, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
It is important to bear in mind that the applicant is not required to show an absence of unacceptable risk. The burden of establishing an unacceptable risk in one or more of the prescribed ways rests with the prosecutor (s 4E(2)). Self-evidently, any grant of bail must carry some risk,[14] assessment of whether a risk is unacceptable requiring evaluation of the putative risk. Significantly, as the Act recognises, there are some risks which may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.
[14]Robinson v The Queen (2015) 47 VR 226, 244 [65] (Priest JA); Re Guirguis [2015] VSC 242, [43] (Priest JA).
As Beach JA observed in Ceylan,[15] it is well established that exceptional circumstances for the purposes of the Act may consist of a combination of a number of circumstances relating both to the strength of the prosecution case against the applicant and the personal circumstances of the applicant.
[15]Re Ceylan [2018] VSC 361, [46].
Finally, I note that when interpreting the Act, the Court is required by s 1B to take into account (among other things) that:
The Parliament recognises the importance of —
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; …
Discussion
In an affidavit in support of LD’s application for bail, his solicitor relied on the following exceptional circumstances:
(a) The applicant is 16 years old;
(b) The applicant has no criminal priors;
(c) The applicant is unlikely to receive a term of imprisonment upon finalisation of his matters;[16]
(d) The length of time the applicant is likely to spend in custody if bail is refused;
(e) Due to the issues outlined in relation to the strength of the [prosecution] case, it seems likely the matters will take some time to finalise and there is likely to be a significant delay;
(f) There will also be a significant delay in relation to a new facts and circumstances application before the magistrate who refused bail;
(g) The applicant has been assessed as suitable to remain on Youth Justice Supervised Bail;
(h) The applicant may be suitable for Youth Justice Intensive Bail, which would provide the applicant with further supports;
(i) The applicant has the support of community agencies including Youth Justice and [Youth Support and Advocacy Service];
(j) The applicant has family support including stable accommodation with his family; and
(k) The applicant’s rights under s 17(2), 21 and 25(1) [and] (3) of the Charter of Human Rights and Responsibilities Act 2006.
[16]I note that Mr McKimmie for the respondent conceded in the course of the application in this Court that LD was unlikely to receive a sentence involving his detention.
As to exceptional circumstances, the applicant’s solicitor relied on the following in her affidavit:
(a) The applicant has accommodation and support through his family.
(b) Youth Justice have found the applicant suitable for continued supervised bail support and may find him suitable for intensive bail. This would increase the level of support provided to the applicant, as well as increasing the intensity of case management and supervision.
(c) There is sufficient prospect of reducing the risk to one that is acceptable rather than unacceptable.
LD is 16, and has no prior convictions. He has been diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’). LD presently is not at school and has no employment.
When granted bail on 23 April 2019, the magistrate found LD to be suitable for the Youth Justice Supervised Bail Program. As part of the supervised bail program the applicant was required to attend supervision appointments twice a week, together with appointments with external agencies.
At his most recent bail application on 27 June 2019, Ms Kate Wilkens, from Youth Justice, gave evidence confirming that Youth Justice would continue to support the applicant if he was released on supervised bail. Her evidence was that LD had attended approximately eight appointments with Youth Justice since being released on bail on 23 April 2019.
On 27 June 2019, the magistrate found that there were exceptional circumstances justifying the grant of bail, including the applicant’s age; his lack of prior convictions; the anticipated delay in finalising the charges; and the possibility of continued support from Youth Justice. The magistrate refused bail, however, on the basis that there was an unacceptable risk of the applicant committing further offences on bail and not complying with his bail conditions. His Honour noted the applicant was alleged to have breached both his residence condition and his curfew condition. He also noted the applicant had missed several appointments with Youth Justice and had failed to report to police on several occasions.
Notwithstanding his breaches of residence and curfew conditions, and his failures to report to police and Youth Justice, Youth Justice have assessed LD as suitable for supervised bail. In a Youth Justice Bail Service Report dated 9 July 2019 — the contents of which were confirmed in oral evidence that she gave — Ms Jennifer Quinn, Youth Justice Case Manager (Gippsland Region) reported:
· Youth Justice will facilitate a minimum of twice weekly supervision appointments with LD if he is granted bail, with the first appointment scheduled for 12 July 19.
· LD is well-supported by his father and his step-mother. The applicant’s father is able to support LD by providing adequate and safe accommodation, supervision, practical support and guidance, and in supporting LD to attend work experience.[17]
[17]In the course of the hearing in this Court the applicant’s father gave sworn evidence confirming that his son could reside at home and could work with him on Tuesday and Thursdays.
· The applicant is currently enrolled at Latrobe Valley Flexible Learning Option School with a timetable to attend five days per week from 12.30 pm to 2.30 pm.
· LD will be able to work at his father’s employment in Morwell on Tuesdays between 8.00 am and 5.00 pm, and on Thursdays from 8.00 am to 6.00 pm.[18]
· The applicant has been referred to Youth Support and Advocacy Service (‘YSAS’) for drug and alcohol counselling. If granted bail, LD will have to attend appointments on 16 July and 23 July 2019 (with the capacity for further appointments).
· LD has expressed a willingness to re-engage with Youth Justice Community Support Service (‘YJCSS’), and an intake appointment has been fixed for 12 July 2019 at 10.00 am. YJCSS can provide after-hours support to the applicant, which may include support to engage in recreational activities after school or work, and on weekends. Additionally, YJCSS can telephone LD each night to remind him of curfew hours.
[18]Ibid.
Ms Quinn also reported:
[LD] presents as a vulnerable young person given his age and limited exposure to the remand environment. [LD] has been a target from peers on the unit and is currently managing this by isolating himself and spending time in his room. In terms of his behaviour, [LD] presents as a compliant young person in custody and appears to follow staff direction. Custody staff advise that [LD] does not engage in unit dynamics/issues and spends time in his room. [LD] reports he does not know any other young people in custody.
[LD] has been the target of a minor assault during his current remand; custody staff advise that he was slapped in the back of his neck in an unprovoked incident by another young person. [LD] did not retaliate and did not sustain any injuries though may feel intimidated by other clients and uncomfortable in communal areas.
LD’s failure to abide by conditions requiring him to report to police and to maintain a curfew are not a source of much optimism. Further, and perhaps more importantly, his alleged commission of further serious offences whilst on bail is a source of grave disquiet. At the least, and not seeking to understate it, his alleged offending shows him to be a serial pest. At worst, some of the alleged offending had the capacity to be quite dangerous.
Despite these factors, however, and fully cognisant of the fact that the exceptional circumstances test is a stringent one, the applicant has satisfied me — albeit by a whisker — that exceptional circumstances exist that justify the grant of bail. By and large, the factors that combine to establish exceptional circumstances are those set out above at [26] (in particular (a), (b), (c), (g), (h), (i) and (j)), together with the evidence concerning the circumstances of his custody set out above at [33] (in particular, his vulnerability, and the fact that he has been the target of others, causing him to isolate himself).
With respect to the suggested unacceptable risks that LD will commit an offence on bail, or endanger the safety or welfare of persons, I acknowledge that the applicant does indeed present a substantial risk in both of the two ways advanced by the respondent. Not without some hesitation, however, I consider that those risks may be rendered acceptable by strict conditions. Once more, I make clear that I do not ignore the seriousness of the applicant’s offending. But, as I have said, I am of the view that any relevant risk presented by the applicant can be mitigated by conditions, so as to render the risks acceptable.
In the result, I will order that the applicant be admitted to bail upon his own undertaking with conditions that he:
1. appear before the Children’s Court of Victoria, Latrobe Valley, on 19 July 2019;
2. reside at [redacted], and not change residence without prior permission of a court, or on the lawful direction of Ms Jennifer Quinn of Youth Justice or her nominees;
3. not leave the residence at [redacted], any day between the hours of 8.00 pm and 7.00 am;
4. present himself at the front door of the residence at [redacted], between the hours of 8.00 pm and 7.00 am, upon request by any member of Victoria Police;
5. at 10.00 am on Friday, 12 July 2019, accompany Ms Manda Steet from his place of residence to the Youth Justice Office, Morwell, for the purposes of an intake appointment;
6. report to the Youth Justice Office, Morwell, at such other times as directed by Ms Jennifer Quinn of Youth Justice or her nominees;
7. report to the Youth Support and Advocacy Service (‘YSAS’), Morwell, at 11.00am on 16 July 2019, and at such other times as directed by YSAS or by Ms Jennifer Quinn of Youth Justice or her nominees;
8. be under the supervision of Youth Justice, and comply with all lawful directions of Ms Jennifer Quinn or her nominees, including (but not limited to) submitting to such lawful medical, psychiatric, psychological, drug and alcohol treatment or counselling as directed;
9. not contact Samuel Robertson, directly or indirectly, whether personally, by telephone, email, social media or other means;
10. not use a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, or consume alcohol, except with the permission or on the advice of a legally qualified medical practitioner;
11. not leave Victoria except with the permission of the Informant, Detective Senior Constable John Park, first obtained;
12. not contact or approach any witness for the prosecution other than the Informant.
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