Re Martyn Moore
[2019] VSC 344
•22 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0101
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Martyn Moore |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2019 |
DATE OF JUDGMENT: | 22 May 2019 |
CASE MAY BE CITED AS: | Re Martyn Moore |
MEDIUM NEUTRAL CITATION: | [2019] VSC 344 |
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CRIMINAL LAW – Bail – Aggravated carjacking, armed robbery and other offence – Applicant an 18 year old Aboriginal with low IQ – Whether exceptional circumstances justifying bail – Whether relevantly an unacceptable risk – 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 Swiney | Chester Metcalfe & Co |
| For the Respondent | Mr J D Singh | Mr John Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
An application for bail
Martyn Moore, aged 18 years,[1] applies for bail.
[1]His date of birth is 28 October 2000.
The applicant has been in custody since 27 December 2018, when he was remanded on armed robbery[2] (two charges – charges 1 and 2); aggravated carjacking[3] (one charge – charge 3); aggravated burglary[4] (two charges – charges 4 and 5); common assault[5] (two charges – charges 6 and 7); burglary[6] (one charge – charge 8); theft of motor vehicle[7] (one charge – charge 9); theft[8] (one charge – charge 10); attempted theft[9] (one charge – charge 11); and handling stolen goods[10] (one charge – charge 12).
[2]Crimes Act 1958, s 75A(1).
[3]Crimes Act 1958, s 79A(1).
[4]Crimes Act 1958, s 77(1).
[5]Common assault is a crime at common law.
[6]Crimes Act 1958, s 76(1).
[7]Crimes Act 1958, s 74(1).
[8]Crimes Act 1958, s 74(1).
[9]Crimes Act 1958, ss 74(1) and 321M.
[10]Crimes Act 1958, s 88(1).
Currently, the applicant is being held at the Parkville Youth Justice Precinct (‘PYJP’), and is due to face a contested committal in the Mildura Children’s Court on 1 August 2019.
It is common ground between the parties that this Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
The grounds upon which bail is sought are set out in the application as follows:[11]
[11]Spelling, grammar and syntax as in original.
1. The Applicant is of Aboriginal heritage, a Barkindji man who at the time of this offending was 17 years of age.
2. The Applicant is currently on remand at the Parkville Youth Justice Centre.
3. Pursuant to section 4A of the Bail Act 1977 (Vic) the Applicant must show exceptional circumstances as to why his detention in custody is not justified.
4. The Applicant is 18 years of age, having been born on the 28 October 2000.
5. The applicant does not have other outstanding criminal law matters in either Victoria or New South Wales.
6. The Applicant was extradited to Victoria on the 27 December 2018 having completed a term of imprisonment and parole period in New South Wales. A term of 9 months imprisonment was imposed on the 20 January 2018 at the Childrens Court. On 17 July 2018 the Applicant was paroled. On 23 August 2018 his parole was breached and he was returned to custody to serve the remainder of the term of imprisonment. It is alleged this offending occurs between the 11 August 2018 and 14 August 2018, whilst the Applicant was subject to parole in New South Wales.
7. The Applicant generally resides with his mother and brother at 21 Namatjira Ave, Dareton New South Wales.
8. On 15 March 2018 the Applicant was assessed by Kylie Weiss, Intake Co-ordinator at Bunjilwarra Koori Youth Alcohol and Drug Healing Center as suitable for their residential rehabilitation program. The Applicant proposes to reside at this facility should bail be granted.
9. Youth Justice Case Worker Michael Lowes will supervise and monitor the Applicant’s progress while he is a resident at the facility. Should he abscond from the facility, Mr Lowes will notify the police.
10. The Applicant has the support of Sadini Handunnetti, AIME Centre Manager, who will provide ongoing case management and support for the Applicant.
11. The Applicant is disputing all allegations and there will be procedural delay in the matter being resolved before the courts which will see the Applicant serve a significant period on remand.
12. The Applicant will comply with any conditions of bail the honourable court deems appropriate, including any curfew or reporting condition.
Bail is opposed. The respondent relies on the following grounds, set out in the affidavit of Zi Jun Toong, solicitor at the Office of Public Prosecutions, affirmed 7 May 2019:[12]
i. The Applicant is in an ‘exceptional circumstances’ position pursuant to s 4(2)(a) of the Bail Act 1977 and the circumstances outlined in the Applicant’s affidavits do not constitute exceptional circumstances;
ii. There is an unacceptable risk that the Applicant, if released on bail, will fail to surrender himself into custody in answer to his bail;
iii. There is an unacceptable risk that the Applicant, if released on bail, will commit an offence whilst on bail; and
iv. There is an unacceptable risk that the Applicant, if released on bail, will endanger the safety or welfare of members of the public.
[12]Spelling, grammar and syntax as in original.
The alleged offending
At the time of the offences alleged against the applicant he was aged 17 and resided in Dareton, NSW. He had two alleged co-offenders, Allan-Ray Payne, aged 19, who resided in both NSW and South Australia; and Johnathon Mitchell, aged 26, who resided on the same street as the applicant in Dareton.
It is alleged that the applicant, Payne and Mitchell, stole a Mitsubishi table top truck from a farm in Coomealla, NSW, on 12 August 2018, and drove to a farming property in Cabarita, NSW, where, having cut the padlock from a shed, they stole a number of items, including a quad bike and chain saws. They fled in the stolen truck once disturbed by occupants of the property.
At about 2.30 am on 14 August 2018, the applicant, Payne and Mitchell travelled to Irymple, a town in north-west Victoria, and abandoned the stolen truck. They then went to a service station store. It is alleged that Mitchell acted as a look-out while Payne, wearing a black hooded Puma brand jumper entered the store armed with a knife. Payne prevented the automatic doors from closing, allowing the applicant to enter the store armed with a rifle. He quickly made his way to the front counter where he pointed the rifle at the female attendant’s face, demanding that she empty her till. She handed $300 in cash to the applicant. Recovered CCTV footage shows the applicant to be armed with a black pump-action, short-barrelled firearm with a telescopic sight, carried in his right hand. He is wearing a light grey hooded jumper with what appears to be a white t-shirt covering the lower part of his face, together with a distinctive jacket and coloured bracelets.
It is alleged that the applicant then approached a customer, who was attempting to hide in the aisles. The applicant pointed the firearm at the customer, demanding his car keys. Having taken possession of the customer’s wallet and car keys, the applicant left the store with Payne. The applicant, Payne and Mitchell then drove away in the customer’s Holden Astra.
At about 3.30 pm, NSW police located the applicant, Payne and Mitchell at premises in Dareton. They attempted to arrest the applicant but he escaped into bushland. He was located by NSW police in Broken Hill, NSW, in the afternoon of 22 August 2018, and arrested.
On 27 December 2018, the applicant was extradited from Wagga Wagga, NSW, and was interviewed at the Wodonga Police Station, where he gave a ‘no comment’ interview concerning all allegations of his involvement in armed robbery and other offences.
Later that day, the applicant in person made an application to the Mildura Children’s Court for bail. The application was refused. A further application for bail to the Mildura Children’s Court on 22 March 2019 was refused on 26 March 2019, the magistrate holding that the applicant had not demonstrated that exceptional circumstances existed justifying the grant of bail.
Payne was refused bail by the Mildura Magistrates’ Court on 11 December 2018, on the basis that there was an unacceptable risk that he would endanger the safety or welfare of a person, or fail to surrender himself into custody in accordance with conditions of bail. Having initially been refused bail by the Magistrates’ Court at Mildura on 30 October 2018, Mitchell was granted bail by that court on 6 March 2019, subject to strict conditions (including a curfew and daily reporting to police).
Of some significance, the firearm used to perpetrate the aggravated carjacking and armed robbery has not been found, but the prosecution relies on the following text message exchange on 20 August 2018 to show that the applicant previously was in possession of a gun:
APPLICANT: Is that gun right cuz
APPLICANT: Don’t show anyone
APPLICANT: Where the gun is cuz
UNKNOWN: Its still there
APPLICANT: You sure cuz
UNKNOWN: Eshay buddy I went there today
APPLICANT: It right a cuz
UNKNOWN: Yeah my buddy
APPLICANT: All right cuz
UNKNOWN: Yeah buddy
The Bail Act
By virtue of s 4AA(1) of the Bail Act 1977 (‘the Act’), an ‘exceptional circumstances’ test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence. Aggravated carjacking is a Schedule 1 offence. That being so, s 4A(1A) of the Act constrains 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 is presently 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;
…
Given that the applicant is an ‘Aboriginal person’, by virtue of s 3A of the Act the Court must also take into account any issues that arise due to the applicant’s Aboriginality, including his cultural background (his ties to extended family or place included), and any other relevant cultural issue or obligation.
Further, since he is a ‘child’,[13] in deciding whether to grant or refuse bail, the Court must take into account the various matters set out in s 3B,[14] almost all of which, it seems to me, do not sit easily with the applicable ‘exceptional circumstances’ test. With that in mind, however, I respectfully endorse the observations of Forrest JA in JO:[15]
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.
[13]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’.
[14]See also Children, Youth and Families Act 2005, s 346(6).
[15]Re JO [2018] VSC 438, [14] (footnote omitted).
Quite apart from the applicant’s need to demonstrate exceptional circumstances, the respondent claims that there is an unacceptable risk that the applicant, if released on bail, will fail to surrender himself into custody in answer to his bail; will commit an offence whilst on bail; and will endanger the safety or welfare of members of the public. And, 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;
(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 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.
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; …
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 resting with the prosecutor (s 4E(2)). As has been observed more than once, any grant of bail must carry some risk.[16] Assessing whether an applicant relevantly poses an unacceptable risk therefore requires an evaluation of the suggested risk (or risks). Significantly, as the Act recognises, there are some risks which may be rendered acceptable by, for example, the imposition of appropriate conditions of bail.
[16]Robinson v The Queen (2015) 47 VR 226, 244 [65] (Priest JA); Re Guirguis [2015] VSC 242, [43] (Priest JA).
As I observed in Gloury-Hyde, the concept of exceptional circumstances is an elusive one.[17] As Beach JA observed in Ceylan,[18] however, it is well established that exceptional circumstances for the purposes of the Act may, in an appropriate case, 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.[19]
[17]Re Gloury-Hyde [2018] VSC 393, [30]. See also DPP v Cozzi (2005) 12 VR 211, 214 [18] (‘Cozzi’).
[18]Re Ceylan [2018] VSC 361, [46].
[19]See also Cozzi, 215–16 [22]–[25].
The applicant’s circumstances
As I have indicated, the applicant is now aged 18 years. He is Aboriginal, and has been assessed as having an impaired general intellect, with a full-scale IQ of 70 (borderline range). The applicant has been diagnosed as having attention deficit hyperactivity disorder (‘ADHD’), for which he is treated with Ritalin.
The applicant has had a transient upbringing, at various times at the Dareton Aboriginal Mission (NSW), and in Broken Hill, Wagga Wagga and Bourke. At the age of nine, the applicant’s father passed away; and at the age of 13 or 14, his brother committed suicide. His mother continues to reside in Dareton.
From the age of 14, the applicant commenced consuming alcohol, which over time progressed to cannabis, methylamphetamine, buprenorphine and prescription pills. At the age of 16, he spent three months in a rehabilitation centre, before discharging himself as he was ‘missing home’. That said, there is no evidence that the applicant was drug affected at the time of the alleged offending.
The applicant attended school until Year 9, albeit his schooling was attended by frequent absences and suspensions due to poor language and behaviour toward staff and students.
Although the applicant has no criminal history in Victoria, he has an extensive — and very concerning — criminal history in NSW, including for offences related to dishonesty, destroying property, resisting police, weapons (including firearms), violence and failing to answer bail.
The applicant’s submissions
Through counsel, the applicant submits that he:
· does not have other outstanding charges in either Victoria or NSW;
· has endured a disadvantaged background, being born and raised in an Aboriginal Mission in Dareton, NSW;
· has been assessed by a psychologist, Dr Gina Cidoni, as having an impaired general intellect and overall borderline full scale IQ;
· has been diagnosed with ADHD and is currently prescribed Ritalin;
· is a vulnerable individual in custody due to his Aboriginality and impaired general intellect;
· generally resides with his mother and brother in Dareton, NSW;
· was assessed on 15 March 2018 by Kylie Weiss, Intake Coordinator at Bunjilwarra Koori Youth Alcohol and Drug Healing Service (‘Bunjilwarra’), as suitable for their residential rehabilitation program, and it is proposed that he reside at this facility should bail be granted;
· will be supervised and monitored at the facility by Youth Justice Case Worker, Michael Lowes, while he is resident at the facility, who will notify police should the applicant abscond;
· has the support of Ms Sadini Handunnetti, AIME Mentoring Program Centre Manager, who will provide ongoing case management and support for him; and
· is disputing all allegations and there will be procedural delay such that he will serve a significant period on remand.
It is submitted that the applicant will comply with any conditions of bail the Court thinks appropriate, including curfew or reporting conditions. Certain conditions are proposed, including that the applicant:
· reside at Bunjilwarra;
· obey all lawful directions of the staff at Bunjilwarra;
· obey all lawful directions of Michael Lowes, Youth Justice Worker;
· not contact Payne or Mitchell; and
· not leave the State of Victoria.
The respondent’s submissions
As I have said, the respondent opposes bail for a variety of reasons.[20]
[20]See [6] above.
The respondent relies on the fact that the alleged offending breaches a nine month control order imposed by the Parramatta Children’s Court on 20 January 2018 (which was to expire on 18 December 2018). Moreover, the firearm used in the offending remains unseized, and the female victim of the armed robbery is constantly worried that the applicant and co-accused will, if granted bail, return armed to her place of work. Furthermore, the victim of the aggravated carjacking is fearful of any of the accused being granted bail, since his wallet containing his driver’s licence was stolen and he is worried that his address is known and retribution might be sought. Additionally, the respondent argues that the applicant has in the past shown a contumelious disregard for court orders (including relating to bail), and has not responded to previous rehabilitative programs.
The evidence concerning proposed supervision on bail
The applicant has been assessed as suitable for admission to the Bunjilwarra program. A bed has been allocated and is currently available should bail be granted.
According to the evidence, Bunjilwarra is a purpose-built, 12 bed residential rehabilitation and healing service for young Aboriginal people aged 16 to 25 years, located in Hastings. Admission to Bunjilwarra is voluntary and the formal program is three months in length.
The Bunjilwarra program provides a safe and supportive environment for young Aboriginal people to manage their alcohol and other drug problems through participation in therapeutic and structured programs designed to assist them to develop their living skills, and to strengthen their cultural identity and spiritual wellbeing. It aspires to assist young Aboriginal people to improve their physical, social and emotional wellbeing, and to strengthen their connection to family, community and culture, through the use of a holistic recovery model which includes individual and group therapy, as well as recreational, educational and vocational activities. The program also seeks to aid young Aboriginal people to develop alternative behaviours and coping strategies, and skills for resilience and reintegrating into the community, based on therapeutic community principles and Aboriginal cultural practices.
In the evening, residents of Bunjilwarra are supervised by an active night-shift staff member whose responsibility it is to conduct regular perimeter checks and to monitor the alarms on all external doors of the client dormitories. If any door is open, the alarm system is activated and alerts the staff member and a security company who will telephone the service directly to report the activation to Bunjilwarra management. If the applicant discharged himself, or was discharged by staff, prior to the completion of the program, Youth Justice would be immediately contacted.
Mr Michael Lowes, Advanced Youth Justice Case Manager, Mallee Youth Justice, informed the Court that since being in custody at PYJP from 28 December 2018, the applicant has shown consistent positive behaviour, and is polite and respectful to staff and peers. Mallee Youth Justice has worked with Bunjilwarra on many previous occasions to achieve positive outcomes for Aboriginal youth from its region, and it supports the applicant’s entry to the facility if he is granted bail. Indeed, Youth Justice has assisted the applicant to secure a placement there.
Should bail be granted, Mr Lowes recommends conditions that include that the applicant reside at Bunjilwarra as directed by Youth Justice; comply with program conditions and direction of Bunjilwarra staff; and obey the lawful direction of Youth Justice. Such conditions would allow additional support to be provided, and the applicant’s progress monitored and reported to the Court. Any known breaches of bail conditions, Mr Lowes said, will be reported to the Informant. Further, while Mallee Youth Justice would retain primary case management, given the distance, for the duration of the applicant’s stay at Bunjilwarra, courtesy supervision will be provided by South East Metropolitan Area Youth Justice.
Discussion
Recognising that the exceptional circumstances test is a stringent one, I am of the view that the applicant has satisfied the burden of showing that exceptional circumstances exist that justify the grant of bail. In my opinion, the fact that the applicant is a child; Aboriginal; and influenced by cognitive deficits which make him vulnerable in custody; coupled with the availability of a structured environment in which he will be taught to develop alternative behaviours and coping strategies based on therapeutic community principles and Aboriginal cultural practices, combine to satisfy the exceptional circumstances test.
So far as the suggested unacceptable risks that the applicant will fail to answer bail; commit an offence on bail; or endanger the safety or welfare of persons; are concerned, although I acknowledge that the applicant does present a substantial risk in each of the three ways advanced by the respondent, I consider that those risks can be acceptably ameliorated by strict conditions. Of course, I do not ignore the seriousness of the applicant’s offending, or the fact that the firearm has not been recovered, but, as I have said, 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. upon release from custody pursuant to this order, forthwith accompany Mr Trevor Lightfoot, Youth Justice, directly to Bunjilwarra Koori Youth Alcohol and Drug Healing Service, at 197A Hendersons Road, Hastings (‘Bunjilwarra’);
2. reside at the premises of Bunjilwarra, 197A Hendersons Road, Hastings, and not change place of residence without an order of a court first obtained;
3. participate in Bunjilwarra three month residential program as directed by Mr Peter Dawson, Clinical Lead, or his nominee, and follow all lawful instructions and directions of Mr Peter Dawson or his nominee;
4. obey all lawful directions of Mr Michael Lowes, Advanced Youth Justice Case Manager, or his nominee;
5. comply with each of the following requirements:
i.not leave the premises of Bunjilwarra, 197A Hendersons Road, Hastings, unless for a purpose authorised by Mr Peter Dawson or his nominee;
ii.at all times if absent from Bunjilwarra, 197A Hendersons Road, Hastings, be in the company of Mr Peter Dawson or his nominee;
iii.receive only such visitors as are approved by Mr Peter Dawson or his nominee;
6. appear before the Children’s Court of Victoria on 1 August 2019;
7. not have a mobile telephone without the permission of Mr Peter Dawson or his nominee;
8. 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;
9. not leave Victoria except with the permission of the Informant first obtained;
10. not contact Allan-Ray Payne or Johnathon Mitchell, directly or indirectly, whether personally, by telephone, email, social media or other means;
11. not contact or approach any witness for the prosecution other than the Informant.
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