Re LT
[2019] VSC 143
•6 MARCH 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0048
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by LT
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 6 MARCH 2019 |
DATE OF RULING: | 6 MARCH 2019 |
CASE MAY BE CITED AS: | APPLICATION FOR BAIL BY LT |
MEDIUM NEUTRAL CITATION: | [2019] VSC 143 |
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CRIMINAL LAW – Application for bail – Multiple charges whilst on bail for Schedule 2 offences – Whether exceptional circumstances exist justifying bail – Whether the applicant is an unacceptable risk – Applicant aged 16 years with criminal history – Applicant of Aboriginal descent - Bail granted – Bail Act 1977 (Vic), ss 3A, 3B, 3AAA, 4A, 4AA, 4E, 30B – Crimes Act 1958 (Vic), ss 17(1)(c), 18, 21, 23, 31(1)(b), 456AA(3)(a), 74, 195H(1), 197(1) – Summary Offences Act 1996 (Vic), s 23 – Children, Youth and Families Act 2005 (Vic), ss 3, 346(6).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Moglia | Kurnai Legal |
| For the Respondent | Ms B Crowley | Victoria Police |
HIS HONOUR:
A. Introduction
The applicant is 16 years of age.[1]
[1]She was born on 9 June 2002.
On 9 February 2019, the applicant was arrested and charged with offences of recklessly causing injury, unlawful assault and committing an indictable offence whilst on bail. The charges relate to an incident which is alleged to have occurred on 8 February 2019.
With respect to the charges the subject of this application, there is a co-accused who is the older sister of the applicant.[2] The co-accused was charged with recklessly causing injury and unlawful assault and has already been granted bail.
[2]The co-accused is 17 years old.
The applicant has been in custody since her arrest on 9 February 2019. On 11 February 2019, the applicant applied to the Latrobe Valley Children’s Court for bail, which was refused.[3] The applicant has been remanded in custody until 8 March 2019.
[3]See par 42 below.
The applicant now applies to this court for bail. For the reasons stated, bail will be granted, subject to conditions.
B. The alleged offending
The applicant was arrested and remanded in custody on 9 February 2019, and charged with the following offences:
(1)1 count of recklessly causing injury without lawful excuse pursuant to s 18 of the Crimes Act 1958 (Vic) (“Crimes Act”).
(2)1 count of unlawful assault pursuant to s 23 of the Summary Offences Act 1966 (Vic) (“Summary Offences Act”).
(3)1 count of committing an indictable offence (recklessly causing injury) whilst on bail pursuant to s 30B of the Bail Act 1977 (Vic) (“Bail Act”).
The offences relate to events which occurred outside the home of a neighbour of the applicant, in the early evening on 8 February 2019. The applicant contests the charges.
The prosecution alleges that the applicant’s neighbour was visited by a friend, who was checking up on the neighbour after she had been reportedly harassed by the applicant, the co-accused and other members of their family for some weeks. After meeting with the neighbour, the friend was attempting to leave, but was blocked by a younger brother of the applicant who was sitting on his bicycle at the end of the driveway. The friend alighted from her vehicle and made requests for the young male to move. At this point, it is alleged the applicant and the co-accused confronted the friend and were verbally abusive towards her.
It is alleged that the victim, also a neighbour, approached to intervene, whereupon she was verbally abused by the applicant who grabbed the victim’s walking stick. The victim made attempts to maintain her grip on her walking stick, resulting in the applicant and the victim falling to the ground, at which point the applicant pulled forcibly on the victim’s hair (resulting in a clump of hair being ripped from her scalp) and punched her in the face.
The victim’s brother then arrived at the scene. After allegedly being physically separated from the victim by the victim’s brother, the applicant and the co-accused retreated and locked themselves inside their house. The police were called and the applicant, the co-accused and their mother allegedly refused to leave their home and also refused police entry into their home. It is also alleged they continued to verbally abuse the victim and witnesses. Eventually, the applicant and co-accused complied with the police direction to leave the house and surrendered themselves.
In a report prepared by the police informant, medical examinations of the victim on 11 and 12 February 2019 revealed that she suffered the following injuries: clumps of hair pulled out, a bloody nose, a minor lip split on her lower lip, scratches on her chin, soreness and tenderness to her body, symptoms of delayed head concussion, including dizzy spells and blurred vision. The victim also complained of existing lower back and hip pain being aggravated by the incident.
The applicant gave a “no comment” interview, instead telling police to view a video that had been taken to record the incident. According to the police informant, the applicant did not answer questions as to the provenance of the recording, however, police were able to obtain a copy.
Further, at the time of allegedly committing these offences, the applicant was subject to summons to answer for the following charges:
(1)1 count of theft of a motor vehicle pursuant to s 74 of the Crimes Act.
(2)1 count of intentionally destroying property without lawful excuse pursuant to s 197(1) of the Crimes Act.
(3)1 count of making a threat to inflict serious injury without lawful excuse, intending that the victim would fear such threat would be carried out or being reckless as to whether or not the victim would fear that the threat would be carried out pursuant to s 21 of the Crimes Act.
(4)1 count of theft of a frypan pursuant to s 74 of the Crimes Act.
(5)1 count of committing an indictable offence (theft) whilst on bail pursuant to s 30B of the Bail Act.
Charge (1) above relates to an incident which allegedly occurred on 23 April 2018. Charges (2) and (3) relate to an incident which allegedly occurred on 6 September 2018 during a group support session at the Quantum Youth Services centre in Morwell.[4] Charges (4) and (5) relate to an incident which allegedly occurred on 24 January 2019.
[4]Based on the material presently available, the charges have been authorised by police (evidenced by a formal charge sheet and summons), but are yet to be listed by the Latrobe Valley Children’s Court.
C. Previous offending and charges for which bail was granted
At the time of the alleged offending, the applicant was on bail for a number of charges between January and December 2018.
Following an incident which allegedly occurred on 3 February 2018, the applicant was charged with the following offences:
(1)1 count of intentional damage to property without lawful excuse pursuant to s 197(1) of the Crimes Act.
(2)1 count of unlawful assault pursuant to s 23 of the Summary Offences Act.
Following an incident which allegedly occurred on 26 February 2018, the applicant was charged with the following offences:
(1)1 count of intentionally causing injury without lawful excuse pursuant to s 18 of the Crimes Act.
(2)1 count of recklessly causing injury without lawful excuse pursuant to s 18 of the Crimes Act.
(3)1 count of unlawful assault pursuant to s 23 of the Crimes Act.
(4)1 count of unlawful assault in company with another pursuant to s 23 of the Summary Offences Act.
Following an incident which allegedly occurred on 30 October 2018, the applicant was charged with the following offences:
(1)1 count of committing an affray by using unlawful violence pursuant to s 195H(1) of the Crimes Act.
(2)2 counts of intentionally causing injury without lawful excuse pursuant to s 18 of the Crimes Act.
(3)2 counts of recklessly causing injury without lawful excuse pursuant to s 18 of the Crimes Act.
(4)2 counts of unlawful assault with a weapon pursuant to s 23 of the Summary Offences Act.
(5)1 count of unlawful assault in company with others pursuant to s 23 of the Summary Offences Act.
(6)3 counts of unlawful assault pursuant to s 23 of the Summary Offences Act.[5]
[5]It appears that one of these counts may be a duplication.
Following an incident which allegedly occurred on 11 December 2018, the applicant was charged with the following offences:
(1)1 count of assaulting an emergency worker on duty knowing or being reckless as to whether the victim was an emergency worker pursuant to s 31(1)(b) of the Crimes Act.
(2)1 count of resisting an emergency worker on duty knowing or being reckless as to whether the victim was an emergency worker pursuant to s 31(1)(b) of the Crimes Act.
(3)1 count of threatening to assault an emergency worker on duty knowing or being reckless as to whether the victim was an emergency worker pursuant to s 31(1)(b) of the Crimes Act.
(4) 2 counts of recklessly causing injury without lawful excuse pursuant to s 18 of the Crimes Act.
(5)1 count of unlawful assault by kicking pursuant to s 23 of the Summary Offences Act.
(6)2 counts of unlawful assault pursuant to s 23 of the Summary Offences Act.
(7)1 count of refusing to state her name and address after being requested by a protective services officer, who believed on reasonable grounds that the applicant committed an offence, namely, fair evasion, and after explaining the grounds for such belief to the accused in sufficient detail, pursuant to s 456AA(3)(a) of the Crimes Act.
(8)1 count of using obscene language near persons being in a public place pursuant to s 17(1)(c) of the Crimes Act.
(9)2 counts of committing an indictable offence (assault on an emergency worker[6] and recklessly causing injury[7]) whilst on bail pursuant to s 30B of the Bail Act.
[6]See par 19(1) above.
[7]See par 19(4) above.
Bail had previously been granted on the condition, amongst others, that the applicant continue to reside at home, and report to the local police station every Monday, Wednesday and Friday between the hours of 9:00 am and 9:00 pm.
D. Prior criminal history
The applicant has history with respect to violence related offending.
On 26 November 2015, at Bairnsdale Children’s Court, the applicant was found guilty (without conviction) in relation to recklessly causing injury. The guilty finding related to causing serious injuries to a security officer, in a toilet cubicle at a shopping centre located at Frankston North, inflicted by the applicant’s punches and kicking. The victim suffered broken legs, a large haematoma on 1 of her kidneys and bruising. On this occasion, the applicant was placed on a 12 month supervision order.
On 10 March 2016, again at Bairnsdale Children’s Court, the applicant was found guilty (again without conviction) in relation to recklessly causing injury. The proven charges concerned the applicant punching and kicking the victim, as well as breaking the screen of the victim’s mobile phone. As a result, the applicant was the subject of a further supervision order for a period of 9 months, expiring on 9 December 2016.
The applicant then enjoyed a period of just over 2 years without a guilty finding against her name.
However on 13 April 2018, at the Latrobe Valley Children’s Court, the applicant was found guilty (again without conviction) of intentionally causing injury, unlawful assault, criminal damage and assaulting a police officer. The events giving rise to the guilty findings occurred on 12 May 2017, 1 July 2017 and 21 July 2017. Without descending into the detail, as with previously proven charges, the crimes involved punching and kicking.
Upon the applicant being found guilty, she was released on a youth supervision order for a period of 12 months, which is due to expire on 12 April 2019.
E. The applicable legislation
To the extent it is not inconsistent with the Children’s Act, the Bail Act applies to applications for bail made by a child.[8]
[8]Children, Youth and Families Act 2005 (Vic) (“the Children’s Act”), s 346(6).
Applications for bail made by a child[9] differ from bail applications made by those over the age of 18 years, in that the court is required to take into account special considerations, in addition to the matters contained in ss 3AAA, 4A, 4AA and 4E of the Bail Act.
[9]At the time of the alleged offending, the applicant was 16 years of age. Pursuant to s 3 of the Bail Act, a “child” has the same meaning as in s 3 of the Children’s Act, and is 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.
Pursuant to s 3B(1) of the Bail Act, the court is required to take into account the following factors in deciding whether or not to grant bail to a child:
(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.
Further, s 3B(2) provides that the court may take into account any recommendation or information contained in a report provided by a bail support service.[10] Furthermore, s 3B(3) of the Bail Act provides that bail must not be refused to a child on the sole ground that the child does not have any, or adequate, accommodation.
[10]A “bail support service” is defined in the Bail Act, s 3, to include bail support programs and counselling services or treatment services for behaviour which may lead to commission of offences.
Moreover, where an applicant is of Aboriginal descent, as here, the court must also take into account any issues that arise by virtue of the person’s Aboriginality. Pursuant to s 3A of the Bail Act, this includes:
(a)the person’s cultural background, including the person’s ties to extended family or place; and
(b)any other relevant cultural issue or obligation.
Turning now to bail applications generally, s 4 of the Bail Act provides that a person accused of an offence is entitled to bail, unless the court is required to refuse bail in accordance with the Bail Act.
In the present case, the applicant is charged with a Schedule 2 offence under the BailAct, namely, the committing of an indictable offence whilst the applicant was on bail for a Schedule 2 offence.[11] Accordingly, pursuant to s 4AA(2)(c)(i) and (ii) of the Bail Act, the court is to apply the “exceptional circumstances test” when considering whether to grant or refuse bail.
[11]Paragraphs 1(a) and 1(b) of Schedule 2 of the Bail Act apply in this instance. The applicant committed the offences (1 of those offences being indictable, see par 6), whilst on bail for another indictable offence: see pars 15-19. Further, committing an offence whilst on bail is of itself a Schedule 2 offence as it constitutes an offence against the Bail Act: see par 30, Schedule 2 of the Bail Act and par 19(9) above.
Therefore, pursuant to s 4A(1A) of the Bail Act, the court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The onus is on the applicant to satisfy the court of the existence of exceptional circumstances.[12]
[12]Bail Act, s 4A(2).
In considering whether exceptional circumstances exist, the court must take into account the “surrounding circumstances”.[13] Pursuant to s 3AAA of the Bail Act, this comprises all the circumstances that are relevant to a matter and include, but are not limited to, relevantly:
[13]Section 4A(3).
(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;
(f) whether there is in force -
(i)a family violence intervention order made against the accused; or
(ii) a family violence safety notice issued against the accused; or
(iii)a recognised [domestic violence order] made against the accused;
(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;
…
The phrase “exceptional circumstances” is not defined in the Bail Act. However, in order to be exceptional, it has been accepted that “the circumstances relied upon must be such as to take the case out of the normal so as to justify the admission of the applicant to bail".[14] Further, whilst the threshold of “exceptional circumstances” is high, it is not an impossible standard to reach.[15] Furthermore, exceptional circumstances may be established by a combination of circumstances, which may by themselves, not be considered exceptional. In An application for bail by Moloney, Vincent J stated:[16]
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.
[14]See Re CT [2018] VSC 559, [64]-[65] (Champion J), citing Re Sam [2017] VSC 91, [22] (Beach JA); Re Fairest [2015] VSC 375, [17] (Weinberg JA); Armstrong v R [2013] VSC 111, [31]-[32] (Lasry J); An application for bail by Moloney (unreported, Supreme Court of Victoria, Vincent J, 13 October 1990).
[15]See Re CT [2018] VSC 559, [64] (Champion J). See also Re Whiteside [1999] VSC 413, [10] (Warren J) and the cases there cited.
[16]Unreported, Supreme Court of Victoria, Vincent J, 13 October 1990, 1.10-2.01.
With respect to child applicants, T Forrest J noted in Re JO:[17]
Whilst the burden of demonstrating “exceptional circumstances” is, as I have said, a stringent one, the age of the applicant weighs heavily in [her or his] favour. 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). 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.
[17][2018] VSC 438, [14].
Once a court has considered all the circumstances that are relevant, including the surrounding circumstances, and if, as a result, it is of the view that exceptional circumstances exist which justify the granting of bail, the court must apply the “unacceptable risk test”.[18] For this test, the burden is on the prosecution to satisfy the court of an unacceptable risk of a kind set out in s 4E of the Bail Act.[19]
[18]Bail Act, s 4D(1)(a).
[19]Section 4A(2).
Section 4E(1) of the Bail Act provides that the court must nonetheless refuse bail if there is an unacceptable risk that, if granted bail, the applicant would:
(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.
In applying the unacceptable risk test, the court must again have regard to the surrounding circumstances,[20] and must also consider whether any bail conditions may be imposed to mitigate any risk such that it is no longer unacceptable.[21]
[20]See par 35 above.
[21]Bail Act, s 4E(3).
Lastly, the Bail Act is to be applied and interpreted in accordance with the guiding principles set out in s 1B(1), including, relevantly:
(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.
…
F. Previous applications for bail
On 11 February 2019, the applicant made an application for bail at the Latrobe Valley Children’s Court. The Magistrate refused the application, determining that the factors identified by the applicant did not establish the existence of exceptional circumstances.[22]
[22]Counsel for the applicant contended that the Magistrate erred in finding that exceptional circumstances did not exist and also finding that exceptional circumstances must be shown before considering s 3B of the Bail Act. Counsel submitted that this constituted a clear misinterpretation of the legislation and of case law, particularly in light of the recent decision of Re NB [2019] VSC 37. In any event, the hearing before this court is not a review of the Magistrates’ decision.
The applicant was remanded in custody until the contested hearing scheduled for 8 March 2019. She has been residing at Parkville Youth Justice Precinct (“Parkville”).
G. Recommendations from the Department of Justice and Regulation
The youth justice unit in the Department of Justice and Regulation (“Youth Justice”) prepared 4 reports in relation to the applicant: a progress report dated 16 November 2018 (“the November Progress Report”); a progress report dated 18 January 2019 (“the January Progress Report”); a Youth Justice bail service report dated 11 February 2019 (“the Service Report”); and a further bail service report from Youth Justice dated 5 March 2019 (“the Current Report”).
The November Progress Report details the applicant’s compliance with the youth supervision orders in place as well as her positive engagement with Youth Justice services. It outlines the applicant’s regular cannabis use, and her lack of interest in seeking drug counselling. It refers to her possible interest in returning to school. Further, it provides that the applicant does not have any cultural supports in place and that at present, the applicant does not want a Koori worker. Finally, the November Progress Report concludes with a recommendation that the applicant be subjected to a youth supervision order pursuant to s 387 of the Children’s Act.
The January Progress Report mirrored the November Progress Report in respect of the applicant’s compliance and engagement with Youth Justice services and her possible interest in further education. With respect to developments since the November Progress Report, the applicant had been assigned a case worker with the Youth Justice community support service, Ms Amanda Steet, and had been attending all appointments. The applicant also expressed an interest in obtaining her learner’s driving permit. Further, the January Progress Report provided that the applicant has demonstrated some victim awareness, however, it did not provide any detail as to how this was expressed by the applicant. Similarly, the January Progress Report concludes that the applicant is suitable for a youth supervision order.
In contrast, the recommendation contained in the Service Report is that the applicant is unsuitable for bail. Despite acknowledging the applicant’s positive engagement with Youth Justice and a recent appointment with Quantum Support Services in Morwell, [23] the Service Report outlines 3 critical factors as the basis for the negative assessment. First, the applicant’s alleged offending (whilst on 4 counts of bail) is of a serious nature, pertaining to assault charges against members of the community, similar to the charges for which the applicant was currently on bail. Secondly, the applicant resides next door to the victim which will increase the likelihood of incidental contact and the risk of further conflict. Thirdly, the applicant continues to display poor attitude towards the alleged victim, in that she justifies her behaviour during the incident, has struggled to take responsibility for “the offending” and ongoing impact on the victim and places some blame on the victim’s actions.
[23]This is the same support centre which was the scene of an alleged incident involving the applicant: see par 13(2) and (3) above.
The Service Report acknowledged that the applicant has displayed appropriate behaviour whilst at Parkville; and further, that she has consented to participate in the Youth Justice supervised bail program. The Service Report also noted that Youth Justice had assessed that the applicant would be compliant with reporting conditions.
The court was provided with the Current Report immediately before the hearing. The Current Report confirmed the applicant was willing to engage with Youth Justice and comply with supervised bail. It also indicated that, if the court were to find that locating the applicant at the family residence may give rise to unacceptable risks, another residential address was available some distance from the family home, namely, at the applicant’s grandmother’s residence.
It is recorded that the applicant was due to resume her participation in a program called “Adolescent Behaviour Change - Respectful Relationships” on 15 February 2019, but was unable to do so because she was on remand. It is further recorded that the applicant was engaged with Youth Justice, and that Ms Amanda Steet would provide ongoing cultural engagement, including the kick-back program at a local Koori youth group.
Ms Amanda Steet gave evidence in support of the application at the hearing. She worked with the applicant for approximately 3 ½ months before the applicant was arrested. During that time she met with the applicant at least 3 times a week and stated that, if bail were granted, she would continue to do so. Further, she attended with the applicant 3 times a week at a police station to comply with a condition of the applicant’s youth supervision order. Ms Steet stated that she had worked really well with the applicant, who was completely compliant. She also gave other details of ways in which she would be able to assist the applicant if bail were granted.
Evidence was also given by an active team leader of Youth Justice. She stated that the applicant could be the subject of supervision by Youth Justice whether she was located at her family’s residential address or at her grandmother’s address. She also gave evidence that, on the whole, the applicant had engaged well with staff at Parkville. Further, in contrast to her attitude before her most recent arrest, the applicant had also engaged with the education program at Parkville “quite well". Further, if granted bail, the applicant would be required to attend twice weekly with Youth Justice to discuss compliance with bail conditions, her engagement with Ms Steet and any other relevant matters concerning the ongoing well-being of the applicant.
The applicant’s grandmother also gave unsworn evidence over the telephone as to her willingness to assist the applicant by providing her a separate room in the grandmother’s home, as well as taking the applicant to any meeting she was required to attend. Further, the grandmother stated that she worked for a local land Council, Bunurong Land Council Aboriginal Corporation (“the Land Council”), and that she had made arrangements for the applicant to volunteer with her 4 to 5 days a week. She also said there was a prospect of this work becoming ongoing once appropriate arrangements had been made.
H. The present application
H.1 Overview of the applicant’s contentions
The applicant relies on the following personal and cultural circumstances in order to establish that exceptional circumstances exist:[24]
[24]These matters relate to the considerations prescribed by s 3A (see par 31 above), s 3B (see pars 29-30 above).
(1) The applicant is of Aboriginal descent, lives with her mother and siblings and is connected to the local Aboriginal community. This connection will necessarily be disrupted for as long she remains in custody.[25]
[25]See the Bail Act, s 3A(a).
(2) The applicant has available employment with the Land Council.[26]
[26]Ibid, s 3A(b) and s 3B(1)(d).
(3) The support available to the applicant is suitable and a viable alternative to remand.[27]
[27]Ibid, s 3B(1)(a).
(4) The applicant remaining on remand will place a significant distance between the applicant and her family, going against the need to strengthen and preserve that relationship.[28]
[28]Ibid, s 3B(1)(b).
(5) The applicant has suitable and stable living arrangements with her mother, alternatively her grandmother.[29]
[29]Ibid, s 3B(1)(c).
(6) This is the applicant’s first time in custody and, for as long as it continues, it will cause stigma. It is contended that the applicant needs to be released as soon as possible for the stigma to be minimalised.[30]
[30]Ibid, s 3B(1)(e).
(7) Counsel for the applicant contends that there is “no likelihood” of the applicant receiving a term of imprisonment for any of the charges she is currently facing.[31]
[31]Ibid, s 3B(1)(f).
(8) Other than re-offending, the applicant has been complying with the conditions of her youth supervision order.
(9) The conditions of bail proffered by the applicant are suitable, including continuing to engage with youth justice.[32]
[32]Ibid, s 3B(1)(g).
(10) The applicant is only 16 years old, and could be considered to be still within the “therapeutic" jurisdiction of the children’s court.
(11) The applicant has now spent 4 weeks in custody and the manner in which she has behaved in custody reflects a changed attitude, with incarceration being likely to have had a salutary effect.
The applicant also relies on a number of surrounding circumstances:[33]
[33]See par 35 above.
(1)Whilst the charge of recklessly causing injury is serious,[34] there was, at the time of this application, no medical evidence of the injury suffered by the victim. Further, the victim refused an offer of an ambulance at the time of the incident.[35]
[34]Bail Act, s 3AAA(1)(a).
[35]See par 11 above.
(2)The applicant denies the charges the subject of this application and claims that she acted in self-defence. It was submitted that the video recording depicts the victim initiating the incident by poking the applicant in the chest area with her walking stick.[36]
[36]Bail Act, s 3AAA(1)(b).
(3)The applicant has a criminal history for similar assault type offending, however, the highest penalty the applicant has received to date is a youth supervision order.[37]
[37]Ibid, s 3AAA(1)(c).
(4)Prior to breaching her bail conditions by further offending, the applicant had been complying with her youth supervision order.[38]
[38]Ibid, s 3AAA(1)(d).
(5)The applicant is not subject to a parole or community corrections order.[39]
[39]Ibid, s 3AAA(1)(e)(iv) and (v). Notably, counsel for the applicant did not address either s 3AAA(1)(e)(i) and (ii), despite the applicant being on bail for another offence and being subject to a summons for another offence, at the time of the re-offending. See pars 15-20 and 13 above, respectively.
(6)There is no family violence intervention order, family violence safety notice or other domestic violence order against the applicant.[40]
(7)The applicant resides with her mother and siblings, and assists her mother in caring for her siblings. The applicant is also supported by a case worker from the Youth Justice community support service.[41]
(8)The applicant is particularly vulnerable as an Aboriginal child in custody.[42]
(9)The alternative accommodation to be provided by the applicant’s grandmother if the court were of the view that the family residence was not an appropriate location for the applicant to reside.
(10)Both the Youth Justice community support service and Quantum Support Services are providing ongoing support to the applicant.[43]
(11)The applicant will be likely to spend 6 months in custody awaiting a summary hearing for the offences the subject of the present application. Counsel for the applicant contends that imprisonment is unlikely as a sentence and that any time on remand is unacceptable.[44]
(12)There are other sentencing options available for a child in the applicant’s position.[45]
(13)The applicant has witnessed severe family violence towards her mother and has also been a victim of family violence herself. As a result of this trauma, the applicant has difficulty regulating her emotions, especially when confronted by aggressive and threatening behaviour.
(14)The applicant has been the subject of “extreme bullying” at school whilst living in another location, which prompted the family to move to its current location.
[40]Bail Act, s 3AAA(1)(f).
[41]Ibid, s 3AAA(1)(g).
[42]Ibid, s 3AAA(1)(h).
[43]Ibid, s 3AAA(1)(i).
[44]Ibid, s 3AAA(1)(k).
[45]Ibid, s 3AAA(1)(l).
In addition to the above, the applicant contends that the negative assessment made by Youth Justice concerning the absence of any admissions by the applicant and the absence of suitable accommodation ought to be rejected.[46] As to the first of these points, it was noted that the applicant is entitled to be treated as innocent until proven guilty.[47] As to the perceived lack of suitable housing, it was submitted that this contradicted s 3B(3) of the Bail Act.[48]
[46]The lack of suitable accommodation was because, if bail were granted, the applicant would be living in close proximity to the victim: see par 47 above.
[47]See par 41 above.
[48]See par 30 above.
H.2 Overview of the respondent’s contentions
The prosecution conceded that it was open to the court to find that the applicant had established exceptional circumstances.
However, with respect to the applicant’s surrounding circumstances, the prosecution made the following contentions:
(1)If the applicant were permitted to return to the family home, the applicant would not be returning to “suitable and stable” living arrangements if released on bail. The prosecution contends that the applicant’s mother has demonstrated an “extreme hatred” towards police, and holds concerns that any attempts by police to check compliance with bail conditions will be met with resistance from the applicant’s family.[49]
(2)Further, the family home was unsatisfactory location as the victim with respect to the current charges is a neighbour of the applicant’s family.
(3)As to the nature and seriousness of the offending,[50] the victim has undergone a medical examination and details of the injuries sustained have been provided.[51]
(4)In response to the applicant’s claims of self-defence,[52] the prosecution contends that the applicant’s account is contradictory to that depicted by the video recording. The prosecution alleges that the victim is never depicted as behaving aggressively toward the applicant.
[49]Bail Act, s 3B(1)(c).
[50]Ibid, s 3AAA(1)(a).
[51]See par 11 above.
[52]See par 55(2) above.
Further, the prosecution submits that the applicant presents an unacceptable risk for a number of reasons, some of which overlap with the matters referred to above.
First, the prosecution refers to the fact that previous supervision orders, including the current ongoing supervision order, are having little impact in curtailing the applicant’s offending which, it is alleged, continues to be of a serious nature involving assaults and damaging property. In particular, the prosecution refers to allegations concerning the applicant assaulting staff and damaging property whilst attending Quantum Support Services. Secondly, the prosecution relies upon the fact that the current charges arose when the applicant was already the subject of 4 counts of bail for similar offending. Accordingly, prosecution submits that the applicant being the subject of bail also has had no real effect on her unlawful behaviour. Thirdly, and further to the second point, in these circumstances it contends that no conditions of bail could be put in place which would result in the risk the applicant presents becoming an acceptable risk. Fourthly, the prosecution submits that the proposal to have the applicant reside at the family residence is unacceptable in circumstances where the alleged victim is the applicant’s next door neighbour.
The prosecution submits that the evidence demonstrates the applicant has a “very high propensity for violence”, which often results in physical assaults that are instigated by the applicant herself. Further, the informant gave evidence in which he stated that he could not conceive of conditions that would make the risk attendant to the granting of bail being acceptable. In giving that evidence, he acknowledged he had not had the opportunity to visit the grandmother’s residence.
Furthermore, it was contended that the applicant’s history shows she has a propensity for targeting vulnerable victims who are alone or outnumbered. In addition, that history includes assault on victims being police and staff of Quantum Support Services. Moreover, the prosecution contends that the applicant is at risk of failing to surrender herself into custody, in light of her history of breaching bail conditions and orders, including committing offences whilst on a youth supervision order.
Lastly, the prosecution rejected the applicant’s contention that the present matters arose because the applicant had difficulty regulating her emotions when “confronted by aggressive and threatening behaviour”, contending that the victim did not exhibit any aggressive or threatening behaviour to her before she was assaulted. This was coupled with the fact that the applicant conceded to police that she has an addiction to cannabis and becomes highly agitated if she is unable to use cannabis when desired.
Video recording of the incident
During the course of the hearing, a video of the incident the subject of the current charges was shown in court. The video was taken from a telephone and was not of high quality. Suffice to say for present purposes, based on the footage available it could not be said that the prosecution’s case was a weak case. Quite properly, the applicant’s counsel indicated no such submission would be advanced in that regard.
J. Analysis
It is now necessary to engage in the 2-step process as set out in the Bail Act.
As to exceptional circumstances, the applicant is a child of Aboriginal descent, and for that reason, there are particular circumstances that must be taken into account when determining her application for bail. Having considered the matters set out in s 3A and 3B of the Bail Act, as well as the “surrounding circumstances” prescribed by s 3AAA of the Bail Act, I am of the view that exceptional circumstances pursuant to s 4A of the Bail Act arise in this case, which justify the granting of bail.
The applicant is 16 years of age, and, at least at the time of the alleged offending, was experiencing a lack of routine with respect to education and employment. It was also reported that she was a victim of domestic violence which is likely to have resulted in the strong connection she has with her mother and siblings.[53] Further, the applicant has indicated she is now willing to explore her Aboriginal culture with the support of her grandmother, through her upcoming volunteer work. Accordingly, opportunities for the applicant to strengthen her familial bond or to explore her Aboriginality are to be strongly encouraged. Any further time in custody would likely be highly disruptive to the applicant’s personal and cultural development. The applicant also has other extensive support available to her and has indicated a willingness to take advantage of this support.
[53]See par 55(7) above.
I will now address the second test; whether or not the applicant poses an unacceptable risk.
The allegations against the applicant are of a serious nature and cannot be taken lightly. The same may be said with respect to the charges against the applicant that have previously been the subject of findings of guilt. However, with the considerable assistance of those who appeared and those who gave evidence at the hearing, I am of the view that appropriate conditions can be imposed so that any risk presented by the applicant may be properly characterised as an acceptable risk.
The unsworn evidence of the applicant’s grandmother’s intended involvement, including the plan to relocate the applicant was critical.
First, the acknowledgement by the applicant’s grandmother that she would enforce any bail conditions related to her and report any breaches to the police informant, carried significant weight.
Secondly, by moving some 40 kilometres away, the risk of any potential conflict with the victim or other neighbours involved in the incident the subject of the current charges is greatly reduced.
Thirdly, volunteering with the Land Council will have a positive influence on the applicant and is expected to take up a considerable amount of the applicant’s time; potentially up to 5 days per week and up to 8 hours a day, depending on her other commitments arising out of any bail conditions.
Fourthly, when the applicant visits her mother and siblings at the family home, appropriate bail conditions can be imposed, requiring the applicant to avoid attending or entering the victim’s premises.
Fifthly, both Youth Justice and Ms Steet confirmed that the applicant’s relocation will not affect her access to existing external support services. The applicant intends to have twice weekly meetings with Youth Justice and at least 3 weekly sessions with Ms Steet if bail is granted. Evidence was also given at the hearing that the applicant would continue to attend the kick-back program once a week.[54] Further, Ms Steet made enquiries with the Koori unit at Federation TAFE. If she decided to enrol, the applicant could attend their education program 3 times per week. Furthermore, the applicant’s grandmother indicated that she would transport the applicant to and from any necessary appointments.
[54]See par 50 above.
Sixthly, the time spent by the applicant outside volunteering and support sessions can be adequately limited by strict curfew conditions. With a structured routine, the likelihood the applicant will find herself in conflict situations is significantly reduced. Instead, curfew will enable the applicant to reflect on the serious nature of her offending and address her anger issues and poor decision making.
The Bail Act requires that I need be satisfied that the applicant is not an unacceptable risk. Based on the above, I am satisfied any risk of the applicant endangering the safety of members of the community, re-offending whilst on bail or failing to surrender herself into custody[55] are likely to largely fall away by her relocation. In my view, this factor, coupled with the further conditions referred to below render the applicant an acceptable risk pursuant to s 4E(1).
[55]See par 39 above.
J. Conclusion
For the reasons stated, bail will be granted on the applicant’s undertaking to attend at 9:30 am on 8 March 2019 at the Latrobe Valley Children’s Court and on her undertaking to comply with the following conditions:
(1)The applicant reside at [address] in Victoria (“the Premises”), and not change that address without the leave of the court or the Children’s Court.
(2)The applicant remain at the Premises between the hours of 8:00 pm and 6:00 am each day for the duration of bail.
(3)The applicant present herself at the front door of the Premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(4)The applicant not communicate with the residents of the following residences (together, “the Neighbours’ Premises”):
(a) [address] in Victoria.
(b) [address] in Victoria.
(5)The applicant is not to enter any part of the Neighbours’ Premises, including the front yards of the Neighbours’ Premises.
(6)The applicant comply with the Latrobe Valley Children’s Court youth supervision order dated 13 April 2018, and any extension of that order.
(7)The applicant report Monday, Wednesday and Friday to the officer in charge of the police station at Warragul, or his or her nominee, between the hours of 9:00 am and 7:30 pm.
(8)The applicant attend the premises of the Bunurong Land Council Aboriginal Corporation (“the Land Council”) for the purposes of providing volunteer services as and when directed by her grandmother, [name].
(9)The applicant, in performing her duties and responsibilities as a volunteer or employee, comply with all lawful directions of any officer, employee, or other designated volunteer, of the Land Council.
(10)The applicant comply with all lawful directions of any officer of Youth Justice of the Department of Justice and Community Safety and attend all appointments as directed.
(11)The applicant comply with all lawful directions of any officer of Youth Justice Community Support Service and attend all appointments as directed.
(12)Without limiting paragraph (11) above, the applicant must attend each designated session of Adolescent Behaviour Change - Respectful Relationships Program as directed by Youth Justice.
(13)The applicant comply with all lawful directions of any officer of Quantum Support Services and attend all appointments as directed by Ms Amanda Steet.
(14)The applicant abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act.
(15)The applicant not contact, directly or indirectly, any witness for the prosecution, except the informant and family members residing at [address] in Victoria or the Premises.
(16) The applicant not leave the State of Victoria.
(17)The applicant surrender any passport she may have to the informant within 24 hours.
(18) The applicant not attend any points of international departure.
(19) The applicant must not re-offend whilst on bail.
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