Re LJ
[2019] VSC 765
•22 November 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0248
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| - and - | |
| IN THE MATTER of an Application for Bail by LJ | |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 November 2019 |
DATE OF JUDGMENT: | 22 November 2019 |
CASE MAY BE CITED AS: | Re LJ |
MEDIUM NEUTRAL CITATION: | [2019] VSC 765 |
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CRIMINAL LAW — Bail — Application for bail — 12-year-old Indigenous applicant — Applicant charged with Schedule 2 offence whilst on bail for Schedule 2 offence —Application unopposed — Exceptional circumstances established — Risk can be mitigated to an acceptable level — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3A, 3B, 4AA, 4A, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Gillihan | Victoria Aboriginal Legal Service |
| For the Respondent | Mr S Payne | Victoria Police |
HIS HONOUR:
This is an application for bail by LJ, who is a 12-year-old Aboriginal child. He is currently charged with affray, committing an indictable offence while on bail, unlawful assault and possessing a controlled weapon.
These offences are alleged to have occurred on 12 November 2019 in Robinvale, when the applicant armed with a knife and covering his face with a mask and in the company of three others attended the house of another person and yelled out for him to come outside to fight.
The applicant was arrested the following day at which time he was found to have a small silver knife in his pocket. Upon being questioned by police, he admitted attending the premises.
Procedural history
The applicant has been in custody since his arrest on 13 November 2019. On 15 November 2019, he applied for bail before the Mildura Children's Court. That application was refused on the basis that he was an unacceptable risk of committing an offence whilst on bail and endangering the safety of another person.
The presiding magistrate remanded him to appear at the Mildura Children's Court on 28 November 2019. He is presently at Parkville Youth Justice Centre. As at today's date, he has spent some nine days on remand.
At the time of the alleged offending, he was on bail for three outstanding matters alleging more serious offences, including serious violence offences.
The first matter, where the informant is Detective Senior Constable Carter, involves charges of attempted armed robbery (two counts), robbery, intentionally causing serious injury in circumstances of gross violence, and intentionally causing injury (the ‘Carter matter’). Those offences alleged to have occurred on 28 July and 2 September 2019.
The second matter, where the informant is Leading Senior Constable Fincher, relates to charges of making threats to inflict serious injury, assault with a weapon, unlawful assault and committing an indictable offence while on bail, allegedly committed on 9 September 2019.
The third matter, where the informant is Constable Wu, involves charges of theft, unlawful assault, affray, common law assault, assault in company and committing an indictable offence while on bail. These offences are alleged to have occurred on 19 October.
The applicant remains on bail in relation to those three matters. They are also listed for mention before the Mildura Children's Court on 28 November 2019.
The alleged offending
The prosecution case is that, on 12 November 2019 at about 8:10 pm, the applicant attended at a residential address in Robinvale together with three others.
The applicant is alleged to have told one of his associates to go to the front door of the residence and convince JWM to come outside and fight.
The applicant was observed to be covering his face with a dark-coloured mask, wearing black gloves and carrying a silver knife in front of his body. It is alleged the accused yelled at the complainant to fight him outside. JWM exited the premises, but no fight took place.
Two others inside the residence, LW and TW, heard the commotion and TW became frightened. LW directed JWM to go back inside, and both TW and LW asked the applicant and his associates to leave. The applicant then left the address a short time later.
On 13 November 2019, the applicant was arrested by police. During the subsequent search of him by police, he told them that he was carrying a small, silver knife in his left jumper pocket, which was located.
The applicant was taken to the Mildura Police Station and interviewed in the presence of an independent person. The prosecution allege that he made admissions during that record of interview that he had attended the residence following previous incidents between the complainant and himself.
The application legislation
The applicant is accused of a Schedule 2 offence within the meaning of s 3 of the Bail Act 1977 (‘the Act’) — namely, committing an indictable offence whilst on bail - alleged to have been committed while he was on bail for a number of other Schedule 2 offences.[1] The Court must therefore refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[2]
[1]Bail Act 1977 (Vic) s 30B and sch 2, items 1, 4, 31 (‘Bail Act’).
[2]Ibid ss 4A and 4AA(2)(c)(i).
In considering whether exceptional circumstances exist, the Court must take into account 'the surrounding circumstances' described in s 3AAA of the Act, which sets out a non-exhaustive list of matters that the Court must take into consideration.[3]
[3]Ibid s 4A(3).
In addition, the applicant in this matter is a child. Therefore, in making a determination in relation to the present application, s 3B(1) of the Act sets out that the Court is required to take into account the following matters:
(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.
The operation of s 3B(1) in determining the existence of exceptional circumstance sis set out in the oft-cited decision of T Forrest in Re JO [2018] VSC 438, in which his Honour stated:
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 the Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[4]
[4]Re JO [2018] VSC 438 [14].
In addition, the applicant is an Aboriginal person, and therefore s 3A of the Act provides that the Court must also take into account any issues that arise by virtue of his Aboriginality, including his cultural background, his ties to extended family or place, and any other relevant cultural issue or obligation.
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, the Court must then apply the ‘unacceptable risk’ test.[5] Pursuant to s 4E of the Act, that the Court must refuse bail if satisfied by the prosecutor that there is an unacceptable risk that the applicant 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.
[5] Bail Act s 4D(1)(a).
In considering whether any risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’ referred to in s 3AAA and consider whether there are any conditions of bail that may mitigate the risk so that it is not an unacceptable risk.[6]
[6] Ibid s 4E(3).
Finally, section 1B of the Act sets out the guiding principles that the Court is to have regard to when applying and interpreting the Act. Section 1B reads, in part, as follows:
(1)The Parliament recognises the importance of –
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking into account 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.
The applicant’s submissions
The applicant contended that a number of matters are established by the evidence that, in combination, demonstrate exceptional circumstances that would justify a grant of bail. It was also submitted these factors are relevant as to whether the applicant is an unacceptable risk. By way of brief summary, those matters relied on are as follows.
First, as a young Aboriginal child, the applicant has a special vulnerability. Ms Gillahan, on behalf of the applicant, relied on Re Chafer-Smith [2014] VSC 51 to support the proposition that the operation of s 3A of the Act often weighs in favour of granting release.
It was asserted that he has strong cultural and family ties to the Mildura area where his grandparents, mother and siblings reside, which are an important consideration under the Act.
On the limited material filed on behalf of the applicant, it appears that his family circumstances in early childhood required the intervention of New South Wales Family and Community Services. Carley Eaton, a team manager with Youth Justice, gave evidence at the hearing, and identified existing difficulties with transferring management of that support from New South Wales to Victoria. This has apparently created difficulties with providing support to the applicant. However, Ms Eaton gave evidence that Victoria’s Child Protection is making efforts to finalise that transfer in order to provide the applicant and his family in Victoria with support.
Further, it appears on the material that the applicant has recently experienced the death of his father and is grieving that loss whilst on remand.
Next, the applicant also relied on the fact that he has no criminal history which, at the age of 12, is perhaps not surprising.
The applicant also referred to the prospect of delay and foreshadowed that the most serious charges will be contested, which may further extend that delay. Given the applicant's age, Aboriginality and lack of previous convictions, it was submitted that it would be unlikely that he would be sentenced to any period of detention as a result of a finding of guilty and a potential sentence will not exceed the period he has already served on remand.
The applicant submitted that the prosecution case in relation to the most serious charges is not overwhelming, with particular reference to the Carter matter. However, that matter is not before this court. It is not clear whether the applicant seeks to dispute the strength of the prosecution case in relation to the present charges.
It was also put that, if granted bail, the applicant proposes to reside with his mother at [redacted] Mildura along with his two sisters. The applicant reported that the New South Wales Family and Community Services has approved of this proposed address. It is also put that his mother's residence is on Barkindji country and that would allow him to reside close to his extended family.
Finally, in the written material, there was no indication as to whether the applicant is engaged in school or has plans to undertake education. In her evidence, Ms Eaton referred to the fact that, although the applicant apparently is not welcome at the [redacted], the school would support an off-campus education program through Mallee District Aboriginal Services and would assist wherever possible with his continuing education. She also noted that referrals to the Education Justice Initiative were in progress.
The applicant ultimately submitted that, with appropriate conditions, the risk involved in the release of the applicant can be mitigated to an acceptable level.
Respondent’s submissions
Mr Payne, who appeared on behalf of the respondent, conceded that a finding of exceptional circumstances was open to the Court, although the respondent’s original position was that the application would remain opposed on the basis of unacceptable risk of his release.
However, after hearing the evidence from Ms Eaton on behalf of Youth Justice, the respondent now concedes that the risk, whilst it remains, is nonetheless acceptable. In particular, Ms Eaton gave evidence of a number of supports that could be put in place through Youth Justice to support the applicant, if he were granted bail, including referrals to Koori Youth Justice and the Education Justice Initiative.
Analysis
In my opinion, the concessions made on behalf of the respondent is appropriate, both as to exceptional circumstances and to risk.
It seems to me sad and, indeed, almost unthinkable that a 12-year-old Aboriginal child could be held for an imprecise and possibly lengthy period of remand prior to the matters with which is he is charged being dealt with.
In all the circumstances, I am satisfied that exceptional circumstances have been established and that the risk posed by his release can be reduced to an acceptable level through the imposition of conditions, which I will now describe.
Conclusion
I will therefore grant the application and release the applicant on bail in his own undertaking and with the following conditions:
1. The applicant is to reside at [redacted] Mildura in the State of Victoria (‘place of residence’);
2. The applicant is to remain at his place of residence between the hours of 8 pm and 7 am (the ‘curfew hours’) each day for the duration of the bail period unless in the company of his mother, FK;
3. The applicant is to present himself at the front door of the premises during the curfew hours if and when called upon by a member of the Victoria Police to do so;
4. The applicant is to report to the Officer in Charge, or their nominee, at the Mildura Police Station each Monday, Wednesday and Friday between the hours of 9 am and 6 pm.
5. The applicant is to comply with all lawful directions of the Youth Justice worker, or their nominee, including Ms Carley Eaton or any person on her behalf;
6. The applicant is not to contact or associate with, directly or indirectly, any complainant or witness for the prosecution other than the informant or their nominee;
7. The applicant is not to enter the township of Robinvale in the State of Victoria at any time;
8. The applicant is not to associate with his co-accused, LB and KB; and
9. The applicant is to appear at the Mildura Children’s Court on 28 November 2019 and thereafter as directed by that Court.
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