Re LW
[2019] VSC 616
•26 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0121
| IN THE MATTER OF the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER OF an Application for Bail by LW |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 21 and 26 June 2019 |
DATE OF RULING: | 26 June 2019 |
CASE MAY BE CITED AS: | Re LW |
MEDIUM NEUTRAL CITATION: | [2019] VSC 616 |
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CRIMINAL LAW – Application for bail – 16 year old Indigenous applicant – Applicant charged with Schedule 2 offence whilst on bail for Schedule 2 offence – Whether exceptional circumstances justifying bail demonstrated – Application opposed – Exceptional circumstances established – Risk can be mitigated to an acceptable level – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E – Children, Youth and Families Act 2005 (Vic) s 346(6).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms C Woodward | Victoria Legal Aid |
| For the Respondent | Mr P Collins | Victoria Police |
HIS HONOUR:
This is an application for bail by LW (‘applicant’), who is a 16-year-old Aboriginal child. In many respects, this applicant represents the consequence of the failings of our society. The applicant is a child, he is Indigenous, and he is intellectually disabled. As such, this application confronts the Court with very difficult and, at times, conflicting considerations.
Procedural history
On 5 June 2019, the applicant was arrested and charged with two counts of theft of a motor vehicle and with two counts of committing an indictable offence whilst on bail. Those charges relate to events that are alleged to have occurred on 3 and 4 June 2019. They involved the applicant and three others joyriding in stolen cars in the Shepparton area.
He has been in custody since his arrest. He was previously refused bail by the Shepparton Children's Court on 7 June 2019. This matter is next listed in that court on 28 June 2019 for mention.
There are two other co-accused involved in this offending. Both of them have been granted bail in the Shepparton Children's Court, which raises — to a degree at least — the question of parity as a relevant legal consideration in bail applications. As I follow it, a third person alleged to have been present during these offences has not yet been charged.
At the time these offences were being committed, the applicant was on bail awaiting sentence for three outstanding matters. The first involves charges of burglary, theft of a motor vehicle, and unlicensed driving, which took place between 6 November 2018 and 6 December 2018 (‘Schroeter matter (No 1)’).
The second matter, involves charges of theft of a motor vehicle, committing an indictable offence whilst on bail, and unlicensed driving committed between 3 and 4 January 2019 (‘Slee matter’). The third matter involved charges of attempted aggravated burglary and committing an indictable offence whilst on bail, which took place on 13 February 2019 ( ‘Schroeter matter (No 2)’).
On 27 February 2019, these matters were listed by the Shepparton Children’s Court for a consolidated plea. The sentencing was deferred to allow Youth Justice to prepare a pre-sentence report and for the Department of Health and Human Services (‘DHHS’) to prepare a plan of services. They are now listed for sentence on 8 July 2019. In relation to those matters, the applicant remains on bail as an application to revoke was refused on 7 June 2019.
Circumstances of the alleged offending
The prosecution case against the applicant is that, between 10:30 pm on 2 June 2019 and 7 am on 3 June 2019, unknown offenders entered a residential property in Mason Street, Shepparton. Inside those premises, the victim was sleeping next to his infant child. The offenders stole a set of keys and a watch from the bedside table before entering a garage on the property and stealing the victim's vehicle, a green Holden Commodore sedan.
During that same timeframe, it is alleged that the applicant and two co-accused, IH and BH, entered the Holden Commodore and proceeded to joyride around the Shepparton area.
Between the hours of 2 pm on 3 June and 1 am on 4 June, unknown offenders apparently entered a residential farming property in Madill Street, Undera, and stole two vehicles, a silver Ford Territory and an orange Kubota RTV.
At about 1 am, police attended a residential street in Shepparton following the report of three male youths attempting to break into numerous vehicles. Police located the stolen Ford Territory and attempted to intercept the vehicle. However, they were thwarted by the driver of the Ford Territory, who evaded police by speeding through the street. Police have been unable to confirm the belief that the applicant was present in the vehicle at the time of the speeding incident.
It is alleged that following this incident, the applicant and two co-accused proceeded to joyride around the Shepparton area along with other unknown co-offenders.
On 5 June 2019, the applicant voluntarily attended the Shepparton Police Station, where he was charged and remanded in custody. When he was interviewed, he said he had been a back-seat passenger in the stolen Holden Commodore and a front-seat passenger in the stolen Ford Territory, but he would not tell the police the names of his co-offenders or provide information as to how he came to be in possession of the vehicles. It is said by the prosecution that the applicant made admissions during his record of interview that he knew that both vehicles were stolen at the time that he was a passenger in them.
The applicable legislation
In this matter, the applicant is accused of committing an indictable offence whilst on bail, which is a Schedule 2 offence.[1] At the time of this alleged offending, the applicant was on bail for another Schedule 2 offence, namely, committing an indictable offence whilst on bail.[2] Therefore, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[3] The burden of satisfying the Court that exceptional circumstances have been established rests with the applicant.[4]
[1]Bail Act 1977 (Vic) Sch 2, item 30.
[2]Ibid.
[3] Ibid ss 4A(1) and 4A(1A).
[4]Ibid ss 4A(2).
In considering whether exceptional circumstances exist, the Court must take into account 'the surrounding circumstances' found in s 3AAA of the Bail Act 1977 (Vic) (‘Act’), which sets out a non-exhaustive list of matters that the Court must take into consideration.
Additionally, the applicant in this matter is a child. Pursuant to s 346(6) of the Children, Youth and Families Act 2005 (Vic) (‘CYFA’), the Act applies to this application to the extent that it is consistent with the CYFA. 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.
In applying the exceptional circumstances test in the case of a child, T Forrest J made the following observations in Re JO [2018] VSC 438:
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'.[5]
[5]Re JO [2018] VSC 438 [14].
I agree with his Honour's observations and respect his analysis of the application of s 3B.
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.
As will become apparent, it seemed to me on reading the materials provided in this application that a key to the future of this applicant is held by the Aboriginal Community. I have had the very great benefit of assistance in this hearing from representatives of that community, which I will turn to shortly.
Noting that a finding of exceptional circumstances is not opposed by the respondent, if the Court is satisfied that exceptional circumstances exist that justify the grant of bail, the Court must then apply the ‘unacceptable risk’ test.[6] 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.
[6] Bail Act 1977 (Vic) s 4D(1)(a).
In considering whether any risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’, and consider whether there are any conditions of bail that may mitigate the risk so that it is not an unacceptable risk.[7]
[7] 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 background
LW is a 16-year-old Aboriginal child. He suffers from a mild intellectual disability, having been assessed in 2017 as having a full-scale IQ of 53. I will come back to his intellectual disability directly.
Sadly, since 20 December 2013, the applicant has been in the care of the Department of Health and Human Services (‘DHHS’). More recently, he has been in their care pursuant to a Care by Secretary Order, and that order remains in force until 8 April 2020. The applicant's mother has a history of involvement with the DHHS in relation to alcohol misuse, emotional and physical abuse, and family violence. She provides ‘sporadic’ support to the applicant.
The applicant has a history of transient accommodation. He resided with various family members, including his maternal grandmother and maternal uncle, until October 2017 when he was placed in the DHHS's residential care along with two of his brothers. In March 2019, he was moved to residential care facility in Gilchrist Street, Shepparton without his brothers. This residence was provided through the Berry Street Residential Care Service, which is responsible for the applicant's case management. As I understand it, that residence is not a compulsory care establishment, and the applicant effectively can come and go as he pleases.
It is noted by the informant in this matter that, prior to being on remand, he was not attending school.
A Youth Justice Bail Service report filed with the Court on 14 June 2019 notes concerns regarding the applicant's alcohol use. The report states that these issues have impacted on his ability to engage in pro-social activities, such as playing football, where he has both interest and talent.
Residential staff and other support services, such as the Rumbalara Koori Youth Justice Program, have also been concerned about the applicant's alcohol use. Rumbalara Koori Youth Justice Program consider that his alcohol use has impacted on his engagement and performance with the Rumbalara Football Club. Due to his behaviour, the applicant has been banned from playing football with them, and I proceed on the basis that, should he be granted bail, his engagement with the Rumbalara Football Club is not welcome by that club — at least at this stage.
The Youth Justice Bail Service report also identifies an ongoing disregard on his part for curfew conditions.
The applicant has no prior criminal history, save for the charges in the Slee and Schroeter matters, for which he has pleaded guilty and awaiting sentence. He has previously spent six days in remand between 21 and 27 February of this year in respect of those outstanding matters.
The applicant’s submissions
On behalf of the applicant, submissions have been made that there are a number of matters which establish exceptional circumstances. In my view, these matters also go to the question of the risk involved in his release on bail.
It is asserted on the applicant's behalf that he, at age 16 and being of Aboriginal descent, has a particular vulnerability. This particular vulnerability is further complicated by his psychological state. Following a request by this Court on 14 June 2019, the applicant was assessed by Dr Charles Malpas, a neuropsychologist. His report contains the following opinion:
'In my opinion, [LW] meets the criteria for the diagnosis of intellectual disability. For a person to warrant such a diagnosis, they must have significant deficits in general intellectual function as confirmed by objective assessment of cognitive function. They must also have significant deficits in adaptive behaviour, which describes the daily activities required for personal and social sufficiency.'
Dr Malpas went on to say:
[LW] has an intellectual disability of mild severity. His level of general intellectual function is in the 1st percentile compared to the general population, and he has significant deficits in adaptive behaviour. This is a permanent condition that has most probably been present since birth.
…This uniformly affects [LW’s] ability to think, reason, solve problems, process information, and remember written and spoken information. The complexities of cognitive development make it difficult to [put] an exact age on [LW’s] level of mental functioning. Nevertheless, I would estimate that [LW’s] abilities fall somewhere in the range expected for typically developing 7- to 8-year-olds.
He observed that the applicant has demonstrated some of the symptoms of attention-deficit hyperactivity disorder and recommended that diagnosis be pursued. He also recommended that the applicant be assessed by a forensic psychologist at some time in the future.
The second factor relied upon by the applicant was an asserted weakness in the prosecution case. The applicant submitted that, at its highest, the prosecution case is that the applicant 'was a passenger in two different stolen motor vehicles while being aware that they were stolen.' Whilst there is a suggestion by the prosecution that the applicant also drove the cars and was present during the incident in which the Ford Territory was driven at speed to evade police, it is not admitted by the applicant.
It was also stated that it was not conceded that the applicant did have knowledge that the vehicles were stolen. I do not, with respect, pay much attention to that submission. Ultimately, I suspect it will be said that the prosecution case against the applicant is of significant strength.
Further the applicant relies on his lack of criminal history and that, if convicted, the applicant is unlikely to be sentenced to a term of detention in a youth justice facility.
It is proposed on the applicant's behalf that he participate in a Youth Justice Intensive Bail program. However, it is noteworthy that he has been assessed by Youth Justice as unsuitable for supervised bail. This is due, in part, to the applicant's history of non-compliance with bail conditions. It is estimated by Youth Justice that the applicant breached his curfew condition 36 times between 25 March and 27 May 2019. Staff at his residential care unit report that he breached his curfew condition every night from 25 May up to the date of his current remand on 5 June. This is, of course, very concerning.
The reason given for this non-compliance is that the applicant had been staying with his mother instead of at the Gilchrist Street unit, which is not approved by Child Protection. In addition, the applicant has continued to associate with co-offenders in contravention to non-association conditions. These behaviours are also very concerning.
Youth Justice has attempted to have the applicant participate in Group Conferencing prior to his sentencing in the Slee and Schroeter matters. This program is directed at pre-sentence community rehabilitation with young offenders. However, as at 11 June 2019, the Group Conference convenor, Rachel Slorah, advised that, after multiple unsuccessful attempts to engage with the program, Group Conferencing had been cancelled for the applicant. Ms Slorah did express her confidence that the applicant would be able to participate in the process if given a further opportunity.
The applicant has a number of supports available to him if released on bail, including cultural support through the Rumbalara Koori Youth Justice Program and pending referral to Rumbalara's Youth Alcohol and Other Drugs support program. However, Youth Justice note that, whilst most of these services have previously been available to the applicant, they were not regularly utilised. Notwithstanding Youth Justice's assessment that the applicant is unsuitable for supervised bail, an Intensive Bail plan and timetable have been provided to Court.
The Youth Justice report notes that the applicant will be referred to the Save the Children's Outreach Mobile Education Program. He was previously accepted to this program, prior to his current period of remand.
Apparently, he has indicated a desire to pursue, and has a pending referral for, the Certificate I in Developing Independence through the Brotherhood of St Lawrence. It is an educational program designed to set goals and plans in relation to education, employment, health and wellbeing, social connections, community engagement, housing, and independent living skills.
If granted bail, it is proposed that the applicant be made subject to a general residence condition, requiring that he reside as directed by the DHHS. Practically speaking, this would mean that he would return to the Gilchrist Street unit. I was told on the first day of this application, that the instructing solicitor for the applicant was advised DHHS was also considering a placement for the applicant in a secure welfare service in Melbourne under the CYFA. However, as I understand it, that would not be an appropriate placement for someone in the position of the applicant.
The applicant's counsel acknowledged that the allegations are serious; although the point was also made that there are more serious examples of the offence of theft of a motor vehicle.
It is submitted on behalf of the applicant that the risk can be made acceptable by the imposition of conditions.
The respondent’s submissions
The respondent concedes that it is open to this Court to find that exceptional circumstances have been established. However, the application for bail is opposed by the respondent on the basis that the applicant is an unacceptable risk of endangering the safety and welfare of any person, including himself, and also of committing an offence whilst on bail.
They point, understandably, to the breaches of his previous bail conditions that he has committed. Effectively, the respondent argues that the supports available to the applicant are not sufficient to mitigate his risk of committing further offences. It was also submitted that the applicant’s previous history is one that demonstrates almost no insight into his offending nor into the consequences for those who are victims of the offending. Generally speaking, the respondent is dubious about the ability of the applicant to engage in various activities that would be to his benefit, including the Youth Justice Group Conferencing process. Their scepticism about that is thoroughly understandable.
Ultimately, in applying the provisions of the Act to this applicant who is not only children but Indigenous, I am driven to the conclusion that the applicant has established exceptional circumstances and, therefore, qualifies for a grant of bail to that degree. Without too much hesitation, I am willing to put the faith of this Court in the Indigenous community.
Enquiries were made over the last 24 hours and, through the cooperation of the County Court Chief Judge and Judge Taft, I have been favoured with information from Aunty Pam Pederson, a significant Aboriginal elder, and Luke Elgey, the applicant’s support worker. They took the view that significant part of the answer to the applicant’s difficulties may well lie in his Indigenous background and the willingness of his community to support him.
Aunty Pam Pederson is a Yorta Yorta Elder, an advocate in the Koorie Court system and an Aboriginal community leader. She has spent some time speaking to the applicant to make him understand the importance of his compliance with any bail conditions which might be imposed. She also impressed upon him the significance of the assistance that is being offered to him by the Indigenous community. I am persuaded that, given a reasonable degree of intensity of effort on the part of the Indigenous community, the applicant can be made to comply with what will be quite strict bail conditions.
Conclusion
I acknowledge that the conclusion that I have reached — with some considerable hesitation — that the applicant should be released on bail is, in part, driven by a desire on my part that this boy not be left on the scrap heap of life. I am a most reluctant adherent to the choice between the applicant returning to custody or becoming a habitual offender. There must be another way. I suspect that Aunty Pam Pederson, in particular, agrees that there is another way. It is time society paid more attention to the ability, insight and influence of the Indigenous community. I propose to take that step. I propose to put my faith in those around the applicant who will support him, who will make him understand the importance of his heritage, who will encourage him, and who will facilitate his connection with people to steer him away from the kind of offending that he has been apparently pursuing until now.
Therefore, the application for bail will be granted.
It seems to me that the applicant should be subject of judicial monitoring, but that the best place for that to occur is in the Shepparton Children's Court rather than in this Court. My recommendation, offered respectfully to the Children's Court, is that the applicant be monitored weekly, so that the Children’s Court can remain informed about his attitude and his compliance with the conditions that will now be imposed on him. However, I wish to make it clear that that nothing that I have said in the course of this ruling is intended in any way to interfere with the jurisdiction of the Children's Court, or to restrain or inhibit any action that a Children's Court magistrate might think is appropriate for them to take.
I therefore propose that the applicant be released on bail on his own undertaking and with the following conditions:
1. The Applicant is to reside at an address as directed by the Department of Health and Human Services;
2. The Applicant is to remain at his place of residence between the hours of 9 pm and 7 am (the ‘curfew hours’) each day for the duration of the bail period, except:
a) In the case of a medical emergency, or
b) In the immediate presence of a delegate of the Department of Health and Human Services.
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 Victoria Police to do so;
4. The Applicant is to report to the Officer in Charge or their nominee at the Shepparton Police Station each Wednesday between the hours of 7 am and 9 pm;
5. The Applicant is not to contact or associate with, directly or indirectly, IH, BH and SJ except as directed by the Department of Health and Human Services;
6. The Applicant is not to contact or associate with, directly or indirectly, any complainant or witness for the prosecution other than the informants or their nominees;
7. The Applicant is to abstain from the consumption of any alcohol;
8. The Applicant is to undertake a preliminary breath test or breath test at the request of a member of the Victoria Police.
9. The Applicant is not to drive a motor vehicle at any time and of any description;
10. The Applicant is to comply with all lawful directions of the Youth Justice worker or their nominee;
11. The Applicant is to attend all appointments as directed by the Youth Justice or their nominee,
12. The Applicant is to comply with all conditions of the Youth Justice Intensive Bail Program;
13. The Applicant is to appear at the Shepparton Children’s Court on 28 June 2019, and thereafter as directed by that Court; and
14. The applicant is to accept support services offered by:
a) Auntie Pam Pedersen and the Aboriginal community; and
b) Berry Street Community Service Organisation.