Re MG
[2025] VSC 384
•24 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0111
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by MG |
---
JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 June 2025 |
DATE OF JUDGMENT: | 24 June 2025 |
DATE OF REASONS: | 29 June 2025 |
CASE MAY BE CITED AS: | Re MG |
MEDIUM NEUTRAL CITATION: | [2025] VSC 384 |
---
CRIMINAL LAW – Bail – 17 year old, intellectually disabled Aboriginal applicant - Aggravated burglary (x2) and other offences – Offences committed while applicant on seven grants of bail, and subject to seven summons – Exceptional circumstances test applicable – Respondent conceded open to Court to find exceptional circumstances – Exceptional circumstances made out – Whether unacceptable risk – Poor performance on previous grants of bail - Refusal of applicant to accept supervision and support of Youth Justice – Youth Justice no longer supportive of Supervised Bail – Whether recent determination of intellectual disability significant change – Nature of prior and current alleged offending points to risk of community being endangered – Significant risk applicant would not abide by conditions of bail – Recent changes to Bail Act 1977 making safety of the community of overarching importance - Unacceptable risk made out - Bail Act 1977 ss 1B, 3AAA, 3A, 3B, 4AA, 4A and 4E.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Marcs | Kurnai Legal Practice |
| For the Respondent | Mr P McKimmie, Solicitor Advocate | Victoria Police Legal Practice Group |
HIS HONOUR:
Introduction
The applicant, ‘MG’, is a 17-year old mildly intellectually disabled Indigenous boy; a proud member of the Yorta Yorta, Kurnai, Gunditjmara and Monero people. He applied for bail on charges of aggravated burglary (x2), theft, theft from motor vehicle, and possess methyl amphetamine, which arose from conduct on 4 June 2025 (‘application offences’). The applicant had applied for and had bail refused for the alleged application offences in the Children’s Court on both 4 June and 12 June this year.
The parties agreed that the correct test for this bail application was the exceptional circumstances test, [1] because the applicant is alleged to have committed a Schedule 2 offence – aggravated burglary -[2] while on bail for that same charge, thereby enlivening Bail Act 1977 (‘the Act’) s 4AA(2)(c)(i). The applicant asserted that exceptional circumstances were made out, and the respondent conceded that it would be open to the Court to be satisfied of the existence of exceptional circumstances. However, the respondent resisted the application on the basis that the applicant posed an unacceptable risk of committing a Schedule 1 or Schedule 2 offence whilst on bail,[3] or otherwise endangering the safety or welfare of another person, whether by committing an offence that had that effect or by any other means.[4]
[1]Bail Act 1977 (‘the Act’) s 4A.
[2]Ibid Schedule 2 Item 22(b).
[3]Ibid s 4E(1)(a)(iaa).
[4]Ibid s 4E(1)(a)(i).
Having heard the application, I was satisfied of the existence of exceptional circumstances, but also satisfied that the prosecution had proved that the applicant posed an unacceptable risk. I therefore refused bail. I stated that I would publish my reasons for the decision at a future time. What follows are my reasons.
Background and procedural history
At the time of the application offences, the applicant was on seven grants of bail and subject to no fewer than seven summonses, for a multiplicity of charges. Relevantly, he was on bail for aggravated burglary at the time he allegedly committed the application offences.
The following is an outline of the matters in respect of which the applicant was on bail at the time of the application offences. Throughout these reasons, I will refer to ‘offences’ and ‘offending’ and ‘conduct’ without proceeding each word with ‘alleged’, but I approached the application in the clear knowledge that in most cases, the offending is alleged, and contested, rather than established or admitted.
On 22 August 2023, the applicant was arrested and charged by Senior Constable Wishnowsky for offences of theft, theft of a motor vehicle (‘theft MV’), and handling (‘Wishnowsky charges’). He was bailed by the Children’s Court on the same day, with conditions including that he abide by a curfew between 6.00 pm and 6.00 am, not drive a motor vehicle, and comply with a Youth Justice (‘YJ’) Supervised Bail program. This matter has settled. The defence and prosecution have agreed to a statement of agreed facts, pursuant to which the applicant will plead guilty to theft (2 charges) and handling.
On 18 January 2024, the applicant was arrested and charged by Detective Leading Senior Constable Woodbridge for offences of theft MV, theft, possess prohibited weapon, handling, possess ammunition, reckless conduct endangering life, reckless conduct endangering serious injury, being a prohibited person in possession of a firearm, being a prohibited person using a firearm, and criminal damage (‘Woodbridge charges’). The Woodbridge charges arose from the conduct of the applicant between 14 and 18 January 2024 with three co-offenders; his brother SG, their cousin, and a third young person. The reckless conduct and weapons charges arose on the evening of 16 January 2024 at approximately 8.30 pm, in breach of the curfew. At that time a young mother was in the front yard of her home in Morwell emptying a toddler’s pool in which her young child had been swimming shortly before. A stolen Toyota Prado (‘the Prado’) vehicle in which the applicant was a back seat passenger drove past. The applicant leant across a passenger seated behind the driver and discharged a single shotgun round into the rear of the vehicle owned by the female, which was parked on the front nature strip. Eye witness observations led police to one of the offenders, upon whose mobile phone the police found images of the applicant loading and firing the shotgun. CCTV footage depicted the applicant at a service station the next morning at 4.38 am, again in breach of his curfew, wearing the same clothing as he was wearing at the time of the shooting. The applicant and co-offenders stole petrol from the service station before driving off in the Prado. On 18 January 2024, police found the Prado in the driveway of premises in Morwell. An intercept plan including the use of tyre deflation devices was decided upon. The applicant exited the premises at about 12.30 am and got into the front passenger seat. The Prado, driven by the applicant’s brother, with a third person in the rear compartment, drove over the tyre deflation device and departed the scene. The vehicle then mounted the footpath to avoid the police and a further tyre deflation device which had been deployed. Shortly afterwards the vehicle came to a stop when the driver was unable to engage a gear. The applicant and the others refused to comply with police directions before being forcibly removed from the Prado with the use of O.C spray. Upon being searched, the applicant was found to be in possession of a tool for picking locks, and a plastic bag containing shotgun cartridges, a taser, and stolen bank cards.
On 19 January 2024, the applicant was bailed on the Woodbridge charges by the Children’s Court on conditions including that he obey all lawful directions of YJ Supervised Bail service, not carry a weapon, and comply with a curfew between 9.00 pm and 6.00 am.
On 10 January 2025, the applicant was arrested and charged by Senior Constable Aoun with offences of affray, intentionally causing injury, recklessly causing serious injury (‘RCSI’), assault, and contravening a conduct condition of bail (‘Aoun charges’). The offending arose from an incident on 9 January 2025. The focus of the events was AW, the partner of SG, one of the alleged co-offenders on that day. At about 6.08 pm, the applicant forced his way into the front yard of AW’s premises and punched the 11-year-old nephew of AW to the head, before punching CW, AW’s sister, to the head. He then, in company with his brother and two other offenders, punched JN, the partner of CW, to the ground, where he was then kicked and stomped a number of times. Both the applicant and his brother were observed to be armed with knives. Following the attack, JN was left with significant facial bleeding, a broken jaw which required surgical intervention, missing teeth, and a number of puncture wounds consistent with having been caused by a Phillips head screwdriver, which the applicant later admitted had been in the possession of a co-offender. Upon his arrest, the applicant admitted most of the offending. Bail was initially refused on 12 January 2025 by the online weekend remand court on the basis of unacceptable risk, before being granted by the Children’s Court on 16 January 2025. Conditions included that the applicant obey the directions of the YJ Supervised Bail service, not carry weapons, comply with a curfew between 9.00 pm and 6.00 am, and attend court for bail review on 24 January 2025.
On 19 February 2025, the applicant carried out offending later the subject of charges laid by Detective Senior Constable Park (‘Park charges’). At 2.35 am, the applicant walked up the driveway of residential premises in Morwell and entered two vehicles parked in the driveway, rummaging through the vehicles looking for items to steal. He then entered the house through the unlocked front door whilst the occupants were asleep in bed. He entered the kitchen and unplugged the security camera system, but he had been detected on CCTV cameras by that time. He then stole a number of items including a set of car keys before decamping. Upon the crime scene being processed by police they found a fingerprint of the applicant in one of the vehicles in the driveway.
On 26 February 2025, the applicant carried out offending later the subject of a charge laid by Detective Senior Constable McWhirter on 27 March 2025 (‘McWhirter charge’). He entered a residential apartment building in Brunswick in the early hours of the morning and stole the scooter of a resident from a storage cage in the car park.
On 28 February 2025, the applicant was arrested and charged by Detective Senior Constable Park with the Park charges. He was bailed by the police, on conditions which included a curfew between 8.00 pm and 6.00 am.
On 27 March 2025, the applicant was arrested on the McWhirter charges. He was bailed by the police on the same day. The material before the Court did not indicate the conditions of this grant of bail.
Overnight, on 28 and 29 March 2025, in apparent breach of the court-imposed curfews in place, the applicant attended a home in Morwell and gained access through the removal of a fly wire screen. He found the victim’s wallet and car keys, then stole a Ford Ranger parked at the premises. The applicant’s finger print was found by police on the point-of-entry window. Overnight the next day, the applicant and others stole a Range Rover Evoke vehicle from premises in Morwell. The vehicle was dumped some time afterwards on 31 March 2025. The applicant was arrested in possession of the keys to the vehicle. He was charged by Detective Senior Constable Wakker with aggravated burglary, theft MV (x2), committing an indictable offence on bail, unlicensed driving, and possession of ammunition without a licence. (‘Wakker charges’).
On 1 April 2025, bail was refused by the Children’s Court on the Wakker charges on the basis of unacceptable risk.
On 4 April 2025, bail was again refused by the Children’s Court on the basis of unacceptable risk.
On 30 April 2025, the applicant was bailed in the Children’s Court on the Wakker charges with conditions that he not drive a MV, abide by a curfew between 9.00 pm and 6.00 am, comply with YJ Intensive Bail service, and have judicial monitoring on 8 May 2025 and weekly thereafter.
On 5 May 2025, at 8.50 pm, the applicant was detected on CCTV footage attending a residential address in Morwell in possession of a large machete, which he used to remove some mandarins from a tree. This later resulted in a charge or carrying a prohibited weapon laid by Detective Leading Senior Constable Cuschieri (‘Cuschieri charge’).
On 8 May 2025, the applicant failed to attend the judicial monitoring hearing for the Wakker charges.
On 9 May 2025, the applicant was charged on summons by Detective Leading Senior Constable Cuschieri.
On 30 May 2025, the applicant and two co-offenders stole a Toyota Hilux vehicle left by its owner with the engine running outside his premises in Morwell at 6.10 am. At 6.25 am, the offenders drove past the address, tooting the horn to taunt the owner, before driving away. The vehicle had a tracking device fitted, and police were able to locate the vehicle parked nearby in Morwell. A witness observed the offenders walking away from the vehicle and one of them throwing a steering wheel cover over a fence. At 8.15 am, the accused and his co-offenders were arrested in Joy St, Morwell. A search of one of the co-accused revealed the presence of the keys to the stolen vehicle. The applicant was charged by Detective Senior Constable Milner with theft MV (‘Milner charges’). He was bailed by police with conditions including a curfew between 9.00 pm and 6.00 am.
The undertakings of bail referrable to the Milner, Wishnowsky, Woodbridge, Aoun, Park, McWhirter and Wakker charges were all still in place at the time of the application offences. The bulk of these grants of bail had curfew conditions.
In addition, at the time of the application offences, the applicant was subject to at least seven separate summonses from different members of Victoria police charging an array of offences allegedly committed in 2024 and 2025. These charges included offences of theft MV, possession of a prohibited weapon, carrying an imitation firearm, and carrying a prohibited weapon.
Further, the applicant is also the respondent to an interim family violence intervention order and an interim personal safety intervention order.
Alleged offending
The application offences, in respect of which Detective Senior Constable Thomas Hughes is the informant, are of a similar nature to several of the recent offences for which the applicant has been charged and released on bail or summons.
The police allege that on Wednesday 4 June 2025, at about 12.40 am, the applicant and three unidentified co-offenders attended at a residential address in Morwell. A male believed to be the applicant, holding a torch and wearing a distinctive black and white hooded jacket, walked up to the front door of the house and entered through the doorway. He remained in the house for some minutes. A hooded co-offender also entered the house and remained inside for a brief time. Two other co-offenders remained outside the front door. While the offenders were inside, the home owner’s dog growled, alerting him of the presence of offenders inside his house. He yelled out to the offenders to get out. They left the house, with the first offender carrying a back pack containing a computer, house keys and other items, which was stolen from the living room (Charge 1 – aggravated burglary; Charge 2 – theft).
Later that same morning, at approximately 1.15 am, police allege that the applicant and three unidentified co-offenders smashed a window at the front of another residence in Morwell, entered that residence and stole a set of car keys which were on a coffee table (Charge 3 – aggravated burglary). The sound of the breaking glass awoke the two residents of the premises. A female resident got out of bed and observed the four offenders get into her VW Jetta sedan which was in the driveway and drive it away (Charge 4 – theft MV).
At 5.15 am on the same morning, police attended the applicant’s residence to do a curfew check, as the applicant was subject to a curfew condition for many of his grants of bail. He was not there. His grandfather told police that the last he knew of the applicant, he was at a named female’s address. The applicant was arrested later that day (Charge 5 – possess methylamphetamine).
Procedural history for application offences
The applicant was charged with the application offences on 4 June 2025. Bail was refused by a bail justice on that date. A further bail application commenced on 5 June 2025. The application was adjourned pending the provision of a YJ Intensive Bail report. That report was received on 12 June 2025, and as I turn to in greater detail below, it opined that the applicant was unsuitable for YJ’s bail service. Bail was then refused on 12 June 2025 on the basis of unacceptable risk. At the time of this application, the matter was to return to the Children’s Court on 24 June 2025 for further mention. As things currently stand, it is next listed on 15 July.
Personal circumstances
The applicant is 17 years old and will turn 18 in January next year. He is of First Nations heritage, of the Yorta Yorta, Kurnai, Gunditjmara and Monero people. He is one of five children to his parents. He has a history of physical abuse and domestic violence, substance abuse and criminal activities within his family home as a young person. All five children were removed from the care of their parents, and in the applicant’s case, he was placed in the care of his grandfather, where he has remained for most of the years since that occurred. He attended primary school principally in Morwell, then after some absence from school, attended a school in Morwell for a short time in Year 8 before leaving before completing the year. He is not currently engaged in any educational pursuits. He apparently has a plan to attend a TAFE college, and has indicated he would like to become a hairdresser. YJ have also been looking into supporting the applicant to complete a certificate in cultural arts at the Koori Unit at Gippsland TAFE. He has had no paid employment.
The applicant has a history of substance abuse, including smoking cannabis from the age of 10, chroming, ice, and GHB.
Criminal history
The applicant has accrued findings of guilt in respect of a variety of charges including dishonesty, drugs, firearms, driving and violence offences since September 2023. In February 2024, he was placed on a without conviction bond for 12 months on charges including robbery, assaulting police, recklessly causing injury, committing an indictable offence on bail (x13), theft, theft MV, possessing a dangerous article in a public place, possessing an imitation firearm, and threatening to inflict serious injury. The bond had a special condition that the applicant would work with the Koori Education Children’s Court liaison officer. It was noted that the applicant had been on intensive bail programs and diversion over a period of two years. Most recently, on 28 May 2025, the applicant was placed on an accountable undertaking for 12 months on charges of unlicensed driving and other driving offences. He remained on that accountable undertaking at the time of the application offences.
The law
In setting out the guiding principles of the Act, s 1B relevantly provides:
(1AA) The Parliament recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime.
(1) The Parliament also recognises the importance of—
…
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
It is the intention of the legislature that the Act be applied and interpreted having regard to the matters set out above.[5]
[5]The Act (n 1) s 1B(2).
Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of committing a Schedule 2 offence while on bail for another Schedule 2 Offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist which justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[6] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances,[7] including, but not limited to, those prescribed in s 3AAA(1) of the Act.
[6]The Act (n 1) s 4A(2).
[7]Ibid s 4A(3).
If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D of the Act.[8] The respondent bears the onus of satisfying the Court that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk. In my assessment of the question of unacceptable risk, I am again required to consider the surrounding circumstances,[9] including, but not limited to, those prescribed in s 3AAA(1), and to consider whether there are any conditions of bail that may be imposed to mitigate the risk, so that the risk is not an unacceptable one.[10]
[8]Ibid s 4A(4).
[9]Ibid s 4E(3)(a).
[10]Ibid s 4E(3)(b).
In addition to these requirements, in this case I was required by s 3A to take into account any issues which arise due to the applicant’s Aboriginality, including:
(a) the historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population;
(b) the risk of harm and trauma that being in custody poses to Aboriginal people;
(c) the importance of maintaining and supporting the development of the person’s connection to culture, kinship, family, Elders, country and community;
(d) any issues that arise in relation to the person’s history, culture or circumstances, including the following
(i) the impact of any experience of trauma and intergenerational trauma, including abuse, neglect, loss and family violence;
(ii)any experience of out of home care, including foster care and residential care;
(iii)any experience of social or economic disadvantage, including homelessness and unstable housing;
(iv)any ill health the person experiences, including mental illness;
(v) any disability the person has, including physical disability, intellectual disability and cognitive impairment;
….
(e)any other relevant cultural issue or obligation.
Section 3A(5) required me, having refused bail to the applicant, to identify the matters in 3A(1) to which I have had regard in taking account of the issues set out in s 3A(1).
Because the applicant is a child, I was also required to take into account the following issues set out in s 3B(1):
(a) the child’s age, maturity and stage of development at the time of the alleged offence;
(b) the need to impose on the child the minimum intervention required in the circumstances;
…
(d)the need to preserve and strengthen the child’s relationships with—
(i) the child’s parents, guardian and carers; and
(ii) other significant persons in the child’s life;
(e) the importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community;
(f) the importance—
(i) of supporting the child to engage in education, or in training or work; and
(ii) of that engagement being subject only to minimal interruption or disturbance;
(g) the need to minimise the stigma to the child resulting from being remanded;
(h) the fact that time in custody has been shown to pose criminogenic and other risks for children….
…
(j) the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort's over-representation in the criminal justice system—
(i) Aboriginal children;
(ii)children involved in the child protection system;
(iii)children from culturally and linguistically diverse backgrounds;
(k) whether, if the child were found guilty of the offence charged, it is likely—
(i)that the child would be sentenced to a term of imprisonment; and
(ii) if so, that the time the child would spend remanded in custody if bail is refused would exceed that term of imprisonment;
(l)any of the following issues that arise—
(i)any ill health the child experiences, including mental illness;
(ii) any disability the child has, including physical disability, intellectual disability, cognitive impairment and developmental delay;
(iii) the impact on the child, and on the child’s behaviour, of any experience of abuse, trauma, neglect, loss, family violence, or child protection involvement, including removal from family or placement in out of home care;
(m) any other relevant factor or characteristic.
Report of Martin Jackson
The applicant provided a report of Mr Martin Jackson, Clinical Neuropsychologist, dated 24 February 2025. Mr Jackson’s assessment of the applicant took place while the applicant was on bail in relation to the Aoun charges. The referral to Mr Jackson was made by the applicant’s solicitors. The specific referral question was whether the applicant had an intellectual disability within the meaning of the Disability Act 2006. Previous assessments had been carried out by Carla Lechner, Clinical Psychologist, and Dr Frank Muscara, Clinical Neuropsychologist, casting light on the applicant’s cognitive condition. Mr Jackson had access to the reports of each of these practitioners. Carla Lechner’s assessment of the applicant took place when he was 11 years of age and facing a range of charges, in respect of which the question of doli incapax had been raised.[11] Testing of the applicant revealed a full scale IQ of 80, placing him in the low average range. This result was said to be not dissimilar to previous testing results. Dr Muscara’s report was provided through the Children’s Court Clinic in November 2023. Testing by Dr Muscara indicated a full scale IQ of 57, in the extremely low range, but Dr Muscara did not believe this to be necessarily a valid indication of intellectual level in light of some inconsistencies across domains. Assessment indicated significant difficulties in executive functioning. An assessment of adaptive functioning by his grandfather and carer, revealed a score in the low average range. The combination of all testing did not indicate intellectual disability.
[11]These charges were apparently withdrawn on the basis of doli incapax.
In his report, Mr Jackson assessed the applicant as having a full-scale IQ of 69, placing him in the extremely low range.[12] Mr Jackson noted the discrepancy between this result and those of earlier cognitive assessments of the applicant, one of which produced a higher result, and one of which produced a lower result. In setting out the results relevant to the various aspects of cognition and function, Mr Jackson indicated that the language skills, including vocabulary and reading, were in the borderline range, and equivalent to Grade 4 primary school. He did no assessment of executive function. The results of testing carried out by the applicant’s aunt indicated a very low level of adaptive behaviours and living ability, although the applicant himself reported being independent in his personal activities and having no particular issues with memory, or emotional or behavioural issues.
[12]Report of Martin Jackson, 24 January 2025, 8 (‘Jackson report‘).
Whilst noting that the applicant had performed much better on this assessment than he had done in the previous assessment conducted through the Children’s Court Clinic just over a year before, Mr Jackson indicated that overall, in his opinion, the applicant would be able to access the NDIS because he now had a firm diagnosis of a mild intellectual disability with severe impairment of adaptive living skills.
The court was provided with a Statement of Intellectual Disability from the Department of Families, Fairness and Housing (‘DFFH’), dated 22 April 2025.
Youth Justice involvement
In January 2025, when the applicant was briefly held on remand in relation to the Aoun charges, he was assessed as suitable for a YJ Supervised Bail program. A progress report of Jo Fuhrmann from YJ dated 11 April 2025 was provided to the Court. This report had been prepared by YJ at the request of the applicant’s legal representatives in preparation for a bail application on 4 April 2025 in relation to the Wakker charges. Ms Fuhrmann indicated that the applicant had been released on 16 January 2025 subject to YJ Supervised Bail. It was noted that his attendance and engagement with YJ and other services had been ‘inconsistent’, and that YJ now held significant concerns about his substance use and associated risk. It was indicated that YJ, having concerns about the applicant’s mental health and self-harming behaviour, had offered him a referral to Orygen Youth Health, which he had declined. The report noted the formal diagnosis of ‘mild intellectual disability with severe impairment of adaptive living skills’ arrived at by Mr Jackson. It was indicated that the view of the author was that the applicant’s inconsistent compliance with YJ supervised bail conditions had impacted consistent delivery of structured interventions, and therefore reduced the effectiveness of the program’s risk mitigation. It was recommended that the applicant was not suitable for the YJ Supervised Bail program.
A further report of Ms Fuhrman dated 8 May 2025 was provided to the Court. This report was prepared in anticipation of the judicial monitoring appearance of the applicant scheduled for that date. The report indicated that the applicant’s involvement with YJ in fact commenced in December 2022, when he was remanded and subsequently placed on a Supervised Bail order in early January 2023. The involvement of YJ ceased when the applicant received a good behaviour bond in February 2024, before resuming in January 2025. After the unsuitable assessment indicated in the previous report in April 2025, a request was made by the applicant’s legal representatives for a further assessment due to changed circumstances. YJ assessed the applicant as suitable for Intensive Bail, upon which he was released on 30 April 2025. The author indicated –
[MG]’s participation in his previous and more recent orders has oscillated between short periods of compliance and non-compliance despite the implementation of service provision and targeted strategies which [have] considered [his] functioning, trauma history and cultural needs.
In describing the applicant’s response to supervision under Intensive Bail, Ms Fuhrmann noted that the applicant was arrested and interviewed for theft MV on the day he was placed on Intensive Bail. He failed to attend numerous appointments including appointments with YJ, YJ Community Support Services, the Aboriginal YJ Program and Youth Support Advocacy Servies.
Ms Fuhrman stated that on 7 May 2025, YJ were informed by the applicant’s grandfather that he was not aware of the applicant’s whereabouts, and had friends and family out looking for him. The applicant had had no contact with any of his professional supports since 3 May 2025. YJ passed on their concerns to Victoria Police, who indicated that curfew checks carried out on 4 and 7 May 2025 revealed the applicant was not at home. On the second of those checks, the applicant’s grandfather indicated that he believed the applicant was in Melbourne with another young person.
Ms Fuhrman noted steps that had been taken to engage the applicant and ensure his compliance and engagement with supervision and supports. She indicated:
In consideration of [MG’]s functioning and to make information more concrete, to aid better comprehension and increase understanding, and support [MG] to make associations between pieces of information, YJ has developed and provided him visual and client friendly resources. [He] has also been provided a calendar of his appointments and mobile phone to support compliance and contact with his supports.
As to the current situation, the author stated:
As no recent contact has been able to be established with [MG] and his whereabouts is currently unknown, YJ is unable to provide a more contemporary assessment of his current situation, however, hold significant concerns about his safety and the risk posed to the safety of the community based on his previously assessed risk and alleged offending behaviour.
Ms Fuhrman indicated that the applicant had been assessed as unsuitable for a further period of Intensive Bail.
Things had become no more promising by the time of the report of Ms Bates-Fennessy on 11 June 2025. This report had been requested by the magistrate who commenced hearing the bail application on 5 June 2025 in relation to the application offences. The application was adjourned pending the provision of the report from YJ. The report read, in part:
YJ assess [MG]’s presenting high risks and alleged repeat and high harm offending are currently unable to be mitigated through the bail service program and therefore [he] is unsuitable for the YJ Bail Service at this time. In making this recommendation, YJ have considered the factors as outlined below.
[MG]’s age and stage of development as a 17-year-old Aboriginal young person with complex needs and vulnerabilities. [MG] has an intellectual disability, ADHD, trauma history and concerns related to his mental health (self-harming).
[MG] presents with persistent high-risk behaviours including significant and early onset poly-substance, absence from home for periods of time, disengagement from education and structured leisure and activities and engagement with anti-social peers.
[MG] has been involved with YJ since January 2025 and on the current remand sinch 5/06/25 which represents his fourth period of remand this year. [MG] has had the opportunity of ongoing YJ intervention and support through both the Supervised and Intensive Bail programs. YJ have referred [MG] to support services to assist in building his capacity, supporting him to engage in education, cultural supports and to address his problematic substance use. These supports have included Aboriginal YJ Program – Anglicare Victoria, Youth Support and Advocacy Service, YJ Community Support Service, Quantum Support Services and the Gippsland Youth Residential Rehabilitation Service – Uniting. [MG] is also linked with Better Futures, …Forensic Disability Justice,…and the Proactive Policing unit, Victoria Police. More recently, [MG] has also been afforded the opportunity of the 16 Yards Lived Experience mentoring program….These services have worked collaboratively through care teams and frequent communication to provide [MG] with a co-ordinated support network to attempt to reduce his risk and motivate him to address his needs.
These periods of support and intervention have not been effective in reducing [MG]‘s overall offending risk. Despite the statutory and community based services and support available to him, [MG] is alleged to have reoffended on several occasions throughout this period. [MG] alleged offending presents as high harm consequence to himself and the community, involving the possession of weapons, motor vehicle related offending and possession of substances. Throughout this period, [MG]’s engagement with services has been poor, [and] because of him not attending scheduled appointments, and services being unable to locate [him], YJ and his care team have been unable to implement supports and therefore mitigate the risks to the community.
Ms Bates-Fennessy noted the strict conditions to which the applicant had been subject whilst in the community, including a curfew and judicial monitoring, which he had failed to attend on 8 May 2025. She indicated that YJ had been advised by the applicant’s grandfather that he had inconsistently stayed at his home, as required by the curfew conditions.
She stated that MG had consistently demonstrated an inability to comply with prior bail orders including Intensive Bail, and to engage with the supports on offer. She indicated that the applicant was unsuitable for YJ Bail Service support.
Evidence called during the application
Detective Acting Sergeant Warren Gardner, standing in for the informant Detective Senior Constable Hughes, was cross-examined about aspects of the evidence relevant to the application offences. In particular, he was taken through the available CCTV footage taken from the first of the burgled premises, and two service stations in the Morwell area on the morning of the offending. He indicated there would be a minimum of a six week delay in the provision of the DNA results in respect of a drink can located in one of the stolen vehicles.
Lynda Mayze, a Disability Justice Co-ordinator with the Department of Families, Fairness, and Housing, gave evidence before me. She was the author of a document entitled ‘Plan of Services’, dated 23 May 2025, which had been prepared by her in anticipation of an appearance of the application on 28 May 2025.
The Plan of Services, which became Exhibit 1 on the hearing, was described by Ms Marcs, who appeared for the applicant, in a question she asked of the witness in examination-in-chief as a ‘very detailed report’.[13] With all due respect, the document could not accurately be described as that. The document set out aspects of the background and past history of the applicant, and the diagnosis that had been reached by Mr Jackson, along with the earlier assessments carried out. It was indicated that the applicant may benefit from both mainstream and specific supports to assist in helping him to learn how to engage with his community in a prosocial manner. Additionally, Ms Mayze asserted in the report that the applicant would benefit from engaging with treatment and counselling catered to his specific disability requirements. She stated that the applicant would ‘require intensive treatment at a pace specifically tailored to his level of functioning to address his behaviour and mitigate the risk of reoffending’.[14]
[13]Transcript 32.
[14]Lynda Mayze, Plan of Services report, 23 May 2025, 3 (‘Mayze report’).
The report indicated that if the applicant was placed on a Plan of Services, Disability Justice would be able to support him to access and engage in mainstream and disability specific supports to increase his protective factors and reduce the risk of recidivism.
In terms of the level of contact between Disability Services and the applicant, the report indicated that the applicant did not attend a Zoom meeting attempted on 21 May 2025, and that a further Zoom meeting was scheduled for 23 May 2025, but unable to be facilitated by staff at Parkville. So the recommendations contained in the report were based on attending care team meetings, liaising with current supports, and considering previous assessments.
Ms Mayze indicated that if placed on a Plan of Services, the applicant would receive guidance and encouragement to engage in both mainstream and disability supports. In considering the supports which would be in place should the applicant be released on bail, Ms Mayze essentially outlined the supports that would be already in place through YJ; these are the same supports which have been offered to the applicant on the occasions of previous grants of bail, which he has largely failed to engage with.
The Plan of Service actually put forward in the document was as follows:
1. Forensic Disability
Disability Justice Coordination of the Department of Families, Fairness and Housing provide coordination of forensic disability supports and treatment for offenders with an intellectual disability. Disability Justice Coordinators within forensic disability work with Corrections Victoria and mainstream supports to encourage treatment and support targeted to those with an intellectual disability catering for their disability requirements. disability Justice applies evidence-based approaches to support and treatment, with the aim of improving a person’s skill development to reduce offending behaviour and improve quality of life.
[MG] is currently accessing many services to address his criminogenic needs and increase his quality of life. The role of Disability Justice Coordination in this case will be to support [MG] to continue to access the services in place and assist to identify other services required to meet his needs. The Disability Justice Coordinator will continue to have regular contact with [MG] and his care team, and attend any appointment required to encourage his adherence to his court order.
Recommendation
1.1 That [MG] engages with a Disability Justice Coordinator from the Department of Families, Fairness and Housing.
1.2. That [MG] agrees to services and supports identified by the Disability Justice Coordinator.
Conclusion
The Department of Families, Fairness and Housing recommends the above available services to reduce the likelihood of [MG] re-offending. The Department of Families, Fairness and Housing will monitor [MG]’s participation in the services recommended in the Plan of Services and will advise appropriate authorities if the Plan of Services requires review.
Ms Mayze indicated in her oral evidence that Disability Services would be able to provide specialist support and advice, based on the applicant’s requirements. She stated that she met the applicant on one occasion, at court on 28 May 2025, and that he engaged quite well with her. He was released on the Plan of Services on that day, but the plan was not able to get started prior to the applicant’s arrest on 4 June 2025, for reasons which were not spelt out. Ms Mayze had no knowledge of the circumstances of Annie Hamilton becoming involved with the applicant, or of the role she would carry out. She indicated that a Disability Justice Plan, when put in place, is different from a YJ Supervised Bail program because it is disability specific, and can be more intensive.
In response to some questions from me, Ms Mayze indicated that the highest it could be put would be that, if placed on a Plan of Services, the applicant could be guided and encouraged to engage in supports, but not compelled. She indicated that she had not read any of the YJ reports to which I earlier referred.
The applicant also relied on the support of Ms Annie Hamilton, who is the applicant’s Aboriginal Youth Justice Worker. Ms Hamilton was unable to attend the hearing and give evidence, but in an email from her supervisor, Ms Tracey Andrews, provided to the court, it was outlined that Ms Hamilton has agreed to support the applicant to obtain identification, engage with the Koori education unit and liaise with persons at the Department of Justice regarding accessing NDIS supports, as well as providing support with court appearances, and where required, support to attend appointments.
Ms Bates-Fennessy, the author of the most recent YJ report, gave evidence before me. She has been working with YJ for 14 years, and is a team leader. She gave evidence about a calendar relating to meetings and supports in place for the applicant should he be released on bail on the day of the application. She indicated that notwithstanding the position of YJ that the applicant was not suitable for YJ supervised bail, the program had been prepared in accordance with YJ’s responsibility to provide services should this be required by the Court. She confirmed that the applicant had not had access to disability services until the Plan of Services was put in place on 28 May 2025. When asked what impact the Plan of Services might have, she stated it was difficult to comment, but observed that there had been a number of supports which had unsuccessfully attempted to engage the applicant in the community in the past.
In cross-examination, Ms Bates-Fennessy stated that the applicant’s attendance and engagement had improved since he had been in custody. In relation to the calendar of supports in place for the applicant, that level of support was the same as that previously available to him.
In re-examination, Ms Bates-Fennessey indicated that it was the position of YJ that the time the applicant had been at large following 28 May 2025 until his later remand was a sufficiently long period for him to settle into the program to enable a view to be formed as to his level of engagement.
In response to questions from me, the witness indicated that YJ had been aware of the past assessments of the intellectual capacity of the applicant and had attempted to tailor their support for him accordingly. In terms of the period over which an assessment had been made as to the performance and engagement of the applicant, this was the period since he was put on Supervised Bail in January 2025.
Applicant’s submissions on unacceptable risk
I indicated reasonably early in the application that I would likely be satisfied of the existence of exceptional circumstances. The application proceeded therefore, with the focus very much being on the question of unacceptable risk. Ms Marcs, in her written and oral submissions, relied on a combination of matters amongst the surrounding circumstances to resist the anticipated prosecution contention of unacceptable risk. These were:
a) The applicant’s age. Ms Marcs relied strongly on the considerations arising from the application of s 3B of the Act;
b) The applicant’s Aboriginality. Ms Marcs relied strongly on the considerations arising from the application of s 3A of the Act. In this regard, she relied in particular on the statements of the Court of Appeal in HA (a pseudonym) v The Queen (‘HA’).[15]
[15][2021] VSCA 64 (Maxwell P and Kaye JA) (‘HA’).
c) The fact that there are triable issues in the prosecution case. Ms Marcs did not specifically submit that the case was a weak one, but pointed to possible deficiencies in the evidence as to the identity of the applicant as one of the offenders. The case largely depended on the contention that the person observed wearing the distinctive jacket during the first aggravated burglary was the applicant, based on the fact that he was seen wearing the same item some hours later, and that when he was arrested later in the morning, that jacket was found nearby.
d) The likely delay in finalisation of the charges, which Ms Marcs submitted may be in the order of 9 to 12 months. There is DNA evidence outstanding, and the timeframe for its production was not clear.
e) The fact that regardless of the length of the delay, the application would spend more time on remand than he would be required to serve as a sentence. In fact, Ms Marcs submitted that the applicant is unlikely to receive a custodial term at all if found guilty. This would mean, consistent with what the Court stated in HA and other cases, that any period of time during which the applicant remains on remand prior to the hearing is akin to a form of preventive detention.
f) The personal circumstances, home environment, and background of the applicant. These include that he lives in extreme poverty, with no income and no access to the internet at home, and is supported by a grandfather who is trying his best to support multiple grandchildren, while receiving a meagre Newstart allowance.
g) The special vulnerability in custody of the applicant in light of his age and Aboriginality.
h) The availability of treatment and support through Disability Services. Ms Marcs relied upon the recent making of a Statement of Intellectual Disability, bringing Disability Services into play for the first time, as a game changer. There would now be services available to the applicant specifically focused on his intellectual disability. Although the Plan of Services was put in place on 28 May 2025, the applicant did not have sufficient time in the community after that time for the beneficial effects of the new or augmented plan to come into effect. The applicant requires culturally safe, disability focused supports. Those supports will now be available to him.
i) The fact that the application offending, whilst serious, was opportunistic, property based offending in which the offenders were not armed or looking to assault victims. Ms Marcs took issue with the proposition I put to her that aggravated burglaries aimed at the theft of motor vehicles which might then be driven by unlicensed young offenders, expose the community to risk.
j) The possibility that the applicant’s past non-compliance with supports and supervision in place under YJ Supervised or Intensive Bail orders may have been the result of his intellectual disability rather than deliberate conduct by him.
Ms Marcs made mention of the applicant’s professed willingness to be subject to electronic monitoring as a sign of his desire to change, whilst acknowledging that this service was not currently available in the applicant’s geographic region for young alleged offenders, and noting that the cost of privately obtaining ankle monitoring was too high for the applicant to bear.
In questioning from me, she demurred from acceptance that a history of stealing cars, driving them while unlicensed and possibly while affected by illicit substances, indicated that the applicant posed a substantial risk to the community, stating that there was no evidence before the court that the accused had driven a vehicle in this matter, and that it would be a ‘leap’ in reasoning to consider the likelihood of this risk.[16]
[16]Transcript 79.
While Ms Marcs conceded that the combination of the applicant’s unsatisfactory history of compliance with bail, his charges for allegedly endangering the safety of others, and Youth Justice’s determination that he is unsuitable for their bail service, collectively raise concerns regarding risk, she argued that Youth Justice’s opinion was not determinative, and, in reliance on HA submitted ‘that the question of unacceptable risk ‘must be relative to all the circumstances’, in particular the exceptional circumstances that justify the grant of bail’.[17]
[17][2021] VSCA 64 [6] (citations omitted).
Ms Marcs relied heavily on the analogy between the present circumstances and those which the Court of Appeal grappled with in HA, submitting that:
There, the Court of Appeal were also dealing with a youthful applicant with severe cognitive impairment who was vulnerable in custody and who would probably not receive a custodial sentence despite similar offending whilst on bail. The Court of Appeal found that these factors ‘were so powerful as to entail the conclusion that such risk as he presents is not unacceptable’.[18]
[18]Outline of submissions in support of an application for bail, 18 June 2025 [41] (‘Applicant’s submissions’); HA (n 15) [7].
She further relied on a ‘laundry list’ as she termed it, of judgments in which applications for bail have been granted in similar circumstances to the applicant’s, including for Aboriginal children with diagnosed intellectual disabilities,[19] young Aboriginal men with diagnosed intellectual disabilities,[20] Aboriginal mothers with childcare responsibilities,[21] Aboriginal people with diagnosed mental illnesses,[22] or health issues,[23] and an Aboriginal man, where unacceptable risk was not established for a one week grant of bail.[24] None of the judgments cited by Ms Marcs were made under the current version of the Act, following its 22 April 2025 amendments.
[19]Re PJ [2024] VSC 498; Re DZ (A pseudonym) [2024] VSC 687.
[20]Re Carr [2023] VSC 564; Re Stephens [2024] VSC 695.
[21]Re JH [2023] VSC 444; Re Males [2024] VSC 802; Re Terei [2024] VSC 294 – Ms Marcs submitted that the comments in this case remain relevant, notwithstanding subsequent developments – see Re Terei (No 3) [2024] VSC 423.
[22] RE RK [2024] VSC 792; Re McLaughlin [2024] VSC706.
[23] Re Lesslie [2024] VSC 568; Re Thorpe [2024] VSC 414.
[24] Re TQ [2025] VSC 82.
In response to the question from me as to the extent to which, if at all, the recent changes to the Act should affect my assessment of unacceptable risk, Ms Marcs stated that the amendments had in no way modified the requirements of ss 3A and 3B, and that the amendments reflected the government’s intention to protect the community from machete-wielding gangs, which was not the case in respect of the applicant.[25]
[25]Transcript 91.
Ms Marcs submitted that a judicial monitoring condition or the grant of a limited period of trial bail were possible mechanisms to mitigate risk.
Respondent’s submissions on unacceptable risk
In his written submissions, Mr McKimmie, for the respondent, placed emphasis on the recent amendments to the Act brought about by the Bail Amendment Act 2025,[26] highlighting that the Premier’s Second Reading Speech outlined the intention to better protect the community from repeat and serious offending, particularly high harm, repeat and serious offending. The amendments were targeted squarely at the risk of people committing serious crimes while on bail. Mr McKimmie submitted that the Applicant has been shown to continue to commit high harm offending and that he poses an unacceptable risk of committing further such offending, should he be granted bail.
[26]No. 8/2025.
In substantiating the submission that the applicant poses an unacceptable risk of committing a Schedule 1 or Schedule 2 offence whilst on bail,[27] or otherwise endangering the safety or welfare of another person, whether by committing an offence that has that effect or by any other means,[28] the respondent relied upon a range of surrounding circumstances, including that:
[27]The Act (n 1) s 4E(1)(a)(iaa).
[28]Ibid s 4E(1)(a)(i).
(a) Aggravated burglary is an inherently serious offence;
(b) The prosecution case is reasonable, and ‘a bail application is not an occasion for the court to determine factual disputes that are being litigated at trial, however, the strength of the prosecution’s case is a relevant factor’;[29]
[29] Re Hu [2020] VSC 285 [50] (Incerti J).
(c) One of the alleged victims to the application offences has expressed the wish that the applicant not be granted bail;
(d) The applicant has a relevant criminal history, including for aggravated burglary and weapons offences;
(e) The applicant has had a history of poor compliance with bail, and was on bail at the time of the alleged application offences; and
(f) Youth Justice have recommended that the Applicant is not suitable for the Youth Justice Bail service.
In brief oral submissions, Mr McKimmie maintained that the strength of the prosecution case was ‘reasonable’, submitting that despite the challenges to identification on the CCTV evidence raised by Ms Marcs, the CCTV was only one aspect of the evidence in a circumstantial case.
He also conceded that the s 3A and 3B factors, as well as the real possibility that the applicant’s period of remand would exceed his sentence, if bail is refused, were ‘very significant factors’ which ‘must be given real weight by the court’.[30] However, he went on to submit that:
Balanced against that, Your Honour, much of the alleged offending alleged in the material before Your Honour is of a serious nature, and there is a not insignificant volume of it. When it comes to assessing community safety, the aggravated burglaries are of concern, as are the theft of vehicles. Of particular concern is the alleged offending involving the shotgun – not so much for the harm caused on that occasion but more so that it indicates a willingness of the applicant to use a firearm.[31]
[30]Transcript 115-116.
[31]Ibid 116.5-14.
Mr McKimmie emphasised the seriousness of the application offences, notwithstanding the absence of confrontation or the use of weapons. Residential aggravated burglaries in the hours of darkness are inherently serious. Furthermore, when assessing future risk posed by the applicant, regard should be had to material before the Court regarding the applicant’s past use of an imitation firearm, a shotgun, and other weapons.
In respect of past grants of bail, Mr McKimmie submitted that the applicant has shown scant regard for conditions of bail.
Mr McKimmie challenged the applicant’s characterisation of the diagnosis of an intellectual disability as a springboard for change, and submitted that while the fact of a diagnosis and the provision of additional supports weighs in favour of the application, when the total proposed supports now are compared to what was in place on previous grant of bail, there is not a significant difference such that the risk can be seen to have reduced.
Mr McKimmie argued that my assessment of unacceptable risk must be guided by s1B(1AA), as well as the removal of the words ‘with the remand of the child being a last resort’ from s 3B(1)(b), submitting that the current Act is ‘a different Act’ from how it was when HA was decided.
Mr McKimmie submitted that, in combination, the risk identified is unacceptable and cannot be reduced to an acceptable level by the imposition of conditions.
Analysis
I commence by indicating that I was satisfied that the applicant had discharged the onus of proving the existence of exceptional circumstances in this case. That then took me to a consideration of the question of unacceptable risk.
The applicant is an Aboriginal child, and the considerations flowing from that as spelt out in s3A and 3B of the Act were of central importance in the application. Before turning in detail to those consideration, I will touch on a number of the matters set out in the non-exhaustive list of surrounding circumstances set out in s 3AAA(1) of the Act.
The offending alleged against the applicant is serious, notwithstanding the fact that it is not alleged that the applicant or co-offenders were armed. An intrusion by a person into the home of another at night time is a crime likely to cause fear and concern to householders and the community as well. That the focus of many such crimes is nowadays the theft of car keys to enable a motor vehicle to be stolen from the premises is a feature of this type of offending which raises the spectre of danger to the community which arises from young, unqualified people driving stolen motor vehicles late at night. Aggravated burglary is an inherently serious offence.
In respect of the strength of the prosecution case, the parties were at odds. It was not asserted on behalf of the applicant that the case was hopelessly weak, or on behalf of the prosecution that it was overwhelmingly strong. The bail application was not the time for any definitive assessment of the merits of the case, but I acted on the basis that the case was at least of reasonable strength. The applicant was seen wearing a very distinctive jacket at a service station not far from the scene of the first aggravated burglary a few hours later. He was in the company of other males. An identical-looking jacket was worn by an offender who entered the first premises, having been accompanied to the burglary scene by other males. When the applicant was arrested, as far as the prosecution brief is able to be understood, that jacket was found very close to where he was. The fact that at one point during the morning, another person was seen wearing that jacket does not remove the clear connection between the applicant and the jacket, on the one hand, and the jacket and the first aggravated burglary on the other.
Turning to the applicant’s criminal history, it is not lengthy, but still quite significant. It shows findings of guilt for a wide array of offending including crimes of violence, dishonesty and driving offences. In addition, there are numerous offences of committing an indictable offence whilst on bail.
Turning to s 3AAA(1)(d) (the extent to which the applicant had complied with the conditions of earlier grants of bail) and (e) (whether, at the time of the offending, the applicant was on bail for another offence, subject to summons for another offence, or subject to a community correction order or otherwise serving a sentence for another offence), the picture was quite a grim one. The applicant was on no fewer than seven separate grants of bail, and subject to numerous summonses encompassing a large number of offences, at the time of the application offences. It was unsurprising that in her written submissions, Ms Marcs acknowledged that the applicant ‘has an unsatisfactory history of failing to comply with previous grants of bail’.[32] The overall picture presented by the material in the application was of a young person who, as submitted by the prosecution, has shown scant regard for the conditions of bail, and in fact, has shown a complete lack of respect for the institution of bail. He has shown a complete disregard for conditions intended to bind him, and provide a measure of protection to the community, including curfews and the requirement to comply with the directions of YJ. Throughout the first half of 2025 at least, the applicant, if the allegations of the application offences and other charges are made out, has effectively gone on a crime spree encompassing a vast array of serious crimes, interrupted only by the periods of remand to which he has been subject, and in no way curtailed by conditions of bail.
[32]Applicant’s submissions (n 18) [38].
In respect of the personal circumstances of the applicant, these are undeniably tragic, and would arouse sympathy in any judicial officer. It should be noted, however, that, with the exception of the possible change brought about by the recent Statement of Intellectual Disability, to which I will shortly turn, no change in the living circumstances of the applicant was proposed on his behalf. If granted bail, he would live with his grandfather, where he has been living – it must be observed, intermittently in recent times – throughout the veritable crime spree in which he has recently engaged.
Section 3AAA(1)(i) concerns the availability of treatment or bail support services. Youth Justice made clear their position that in light of the applicant’s poor performance over a period of months on Supervised and Intensive Bail programs, YJ supervision was no longer supported. That was not to say, as made clear by Ms Bates-Fennessy, that YJ would not continue to do their best to provide support to the applicant should the Court require it. The current position of YJ of being unsupportive of Supervised Bail was not, of course, determinative of what the Court should do, but it was an important consideration. In my experience – and my initial decision in Re HA is a good example –[33] YJ is supportive of Supervised Bail whenever they possibly can be, even in the face of repeated failures or refusals of an alleged offender to engage in treatment, comply with supervision, and cease offending.
[33] [2021] VSC 96.
When regard is had to the contents of the YJ reports to which I earlier referred, and the evidence of Ms Bates-Fennessy before me, it was clear to me that YJ, with all their experience and expertise in trying to assist troubled children and young persons to stay on track, devoted a great deal of time, effort and care to the applicant. Time and again over the troubled months from January 2025, YJ officers did all they could to assist the applicant and bring him into line, protect him from himself, and, insofar as they could, protect the community from him. Although the formal Statement of Intellectual Disability was not made until 22 April 2025, throughout the entirety of the period, YJ were well aware of the intellectual standing of the applicant, as well as the importance of providing culturally appropriate supports to him. They were in a position to tailor their services to the needs of the applicant, and they did so.
Unfortunately, the applicant was almost entirely unwilling to accept the supports and supervision on offer. Time and again the patience extended to him by courts and by supervising staff of YJ was in vain. He continued to ignore the requirements of grants of bail, including to comply with supervision and curfews. He caused officers of YJ, quite rightly, to fear both for his safety and that of the community. For significant periods, his whereabouts were apparently unknown to his grandfather, YJ and Victoria Police. The decision of YJ, in the end, to no longer formally support the applicant on bail, was no doubt taken most reluctantly. Even after that change of position, YJ continued to do all it could to support and supervise the applicant, as required by further grants of bail, but again, their efforts had no effect on the applicant.
Of course, I accept that the applicant’s actions following his previous grants of bail – and by ‘actions’, I am referring to his failures to engage with YJ supports, periods of absconding and allegedly committing further offending, globally – need to be viewed through the prism of issues which arise from his history, culture and circumstances, including his experiences of trauma, intergenerational trauma and abuse, social and economic disadvantage, his intellectual disability and other relevant cultural issues or obligations.[34] Understood in this way, the requirements of compliance with supervised and intensive bail are doubtless more onerous on the applicant than for a person with less difficult personal circumstances. Notwithstanding the acknowledgement of this important difference, it is typical for YJ to support children with multifaceted complexities which make it difficult for them to comply with conditions of bail; the service is equipped to support people as best they can to meet their obligations. Therefore some responsibility must rest on the applicant, notwithstanding his age, Aboriginality and disability, for his failures to engage with YJ, and repeat offending while on grants of bail. This conclusion is supported by the fact that Ms Marcs did not submit that the applicant was incapable of complying with grants of bail.
[34] The Act (n 1) s 3A(1)(d) (i), (iii), (v) and (e).
Ms Marcs put forward the involvement of Disability Services brought about by the making of the Statement of Intellectual Disability as a game-changer in the supervision and support of the applicant. Having considered the Plan of Services and the evidence of Ms Mayze, I did not accept that that was so. Ms Marcs asserted that YJ are not experts and their supports are not always culturally safe. That contention significantly underestimated the expertise of YJ, the experience they have in dealing with troubled children and young people of varying cognitive levels and backgrounds, including Indigenous children, and the detailed knowledge they had all along about the applicant.
Furthermore, I accepted the prosecution contention that what was being put forward in terms of the supports and supervision on offer to the applicant should he again be released on bail was no different from what was previously available.
Turning to the factors noted in s 3AAA(1)(k) and (n), the likely period of time the applicant would spend on remand should bail be refused is not as long as would often be the case, although of course any period in custody for a child, especially an Aboriginal one, is an extremely important matter. I did not accept that the likely period on remand would be as long as that asserted on behalf of the applicant. I was confident that this matter, if it remains contested, would be resolved in the Children’s Court as expeditiously as possible in the remaining months of this year.
As for the likely sentence to be imposed should the applicant be found guilty of the application offences, I accepted that it is unlikely that the applicant would receive a period of detention, especially in view of the time he has already been in custody. However, I also accepted the prosecution contention that a period of detention would be within the range of appropriate sentences, in view of the seriousness of the offending, the age of the applicant, and his criminal history. It follows that I did not accept Ms Marc’s contention that any period for which the applicant is remanded would amount to preventive detention. However, I am conscious that any period of detention risks harm and trauma to Aboriginal people, disrupts their connection with culture, and contributes to the over-representation of Aboriginal people in the remand population.
I now turn to the special vulnerabilities of the applicant brought about by his status as an Aboriginal person, as a child, and as a person with an intellectual disability. These matters were at the heart of the application.
Not surprisingly, much store was placed in the statements of the Court in HA. In respect of the importance of an applicant’s Aboriginality in a bail application, the Court stated:
Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[35]
[35]HA (n 15) [58]-[59].
The significance of an applicant being a child was also considered by the Court in HA. The Court noted the young age of the applicant, who was 15, as being the first of five circumstances relevant to deciding whether the risk he posed was unacceptable. The considerations referred to by the Court and set out in s 3B are well known and I will not detail them here. I have had regard to all of them. I make the observation that in this case, the applicant is 17 ½ years old, and not 15. Furthermore, I should note that whereas in HA, the Court noted that s 3B of the Act reflected the underlying principle that a decision to hold a child in custody should be made only as a last resort, consistently with the wording of s 3B(1)(b) as it then was, the words, ‘with the remand of the child being a last resort’ have since been removed from the Act.
In her Second Reading Speech when the amending bill was before the Legislative Assembly, the Premier, Ms Allan, stated:
The changes in this Bill are targeted squarely at the risk of people committing serious crimes while out on bail. These new laws ensure that community safety will be a key priority in all bail decision, - for offenders of all ages.
And when referring to the amendment to s 3B(1)(b), she stated:
Additional changes to the way bail decisions are made will go further to elevate community safety and put it front and centre of bail decision making currently, bail decision makers deciding whether to grant bail to a child must consider the need to impose the minimum intervention necessary, with remand as a last resort. This government is listening to concerns that this may be misinterpreted by bail decision makers as an additional restriction, suggesting that all other options – such as stricter bail decisions – must be exhausted before remanding a child, even when remand is already the minimum intervention required. The phrase “with the remand of the child being a last resort” will be removed to clarify that remand may be the minimum intervention required in circumstances where there is an unacceptable community safety risk.
The fifth and most important factor to which the Court had regard in HA was the fact that it was common ground that the appellant was unlikely to be sentenced to a term of custody if found guilty of the charges he was facing. The Court stated:
The Act does not direct that bail must be granted in a case in which the length of time that an accused is likely to spend in custody if bail is refused would exceed the likely sentence that would be imposed should the accused be found guilty. Rather, s 3AAA(1)(k) and (l) specify that as a consideration which must be taken into account as part of the ‘surrounding circumstances’.
It is, nevertheless, a consideration of significant importance both in deciding whether “exceptional circumstances exist that justify the grant of bail” and in considering whether such risk as an offender would present if released on bail is acceptable. Once it was conceded that it is unlikely that a custodial sentence would be imposed (given the appellant’s age and disability and the nature of the offences charged), his continued incarceration pre-trial would be akin to a form of preventive detention. That is, he would be being held in custody solely because of the risk that he might commit an offence in the future.[36]
[36]HA (n 15) [62]-[63].
The proposition that bail is not an inevitable or automatic outcome in circumstances where a child applicant is unlikely to receive a custodial sentence was made clear by the decision of Beale J in Re HA (a pseudonym),[37] which concerned the same applicant released on bail some months earlier by the Court of Appeal. Again, in that case, the parties were at one that the applicant would be unlikely to receive a sentence of detention. Yet in response to the circumstances of that case, and the risk posed by the applicant, Beale J refused bail, stating:
I am mindful of what the Court of Appeal said in respect of the applicant’s March bail application about the evils of preventative detention and the risk that remanding the applicant in custody may force him to plead guilty to charges which he might otherwise contest. But the issue remains whether the risk to the community of releasing the applicant on bail is acceptable. Given what has transpired since the Court of Appeal released him on strict bail in March, I am driven to the conclusion that, on the current state of the evidence, it is not.[38]
[37][2021] VSC 443.
[38]Re HA (a pseudonym) [2021] VSC 433 [22].
I, too, am mindful of the statements of the Court in HA. Although previous bail decisions are not precedents binding bail decision makers in later cases, I do note that there were significant differences between the case before me and the case considered by the Court of Appeal in HA. These include:
· MG is significantly older than HA;
· MG’s intellectual disability is less severe than HA’s;
· MG is not supported by YJ, whereas HA was;
· MG has had a poor history of compliance with supervision, whereas HA has been a willing recipient;
· It is proposed that MG would return to live with his grandfather, in conditions of limited supervision and poverty, whereas it was proposed that HA would return to a residential care unit supported by an extensive care team, which would continue into the future;
· MG is not currently engaged with schooling or work, whereas HA had recently enrolled in a special school;
· the changes to the Act since the decision in HA, as outlined at [83] of these reasons.
Mr McKimmie argued that the Act as it was by the time of the application before me was a different Act from that which was in place at the time of the decision of the Court in HA. That may be overstating the position somewhat. The fact is, as correctly submitted by Ms Marcs, that the considerations in section 3A and 3B are no less vital. However, it is true that the installation of the matter of the safety of the community and persons affected by crime as being of ‘overarching importance’ at the head of the guiding principles of the Act is a significant change in the law to which I must have regard.
In relation to the intellectual disability of the applicant, which, by the time of the initial bail application in this matter, had been formally recognised, but in reality, had been understood for a period of time beforehand, I did not accept the contention by Ms Marcs that some or all of the failures of the applicant to comply with conditions of bail, including YJ support and supervision, may have been attributable to his disability. I was satisfied that, for whatever reason, over a period of some months, the applicant failed to keep appointments, abide by instructions, observe the curfew that was imposed upon him, and generally comply with conditions of bail which he could not have failed to understand. As I concluded at [95], some responsibility must rest on the applicant, notwithstanding his age, Aboriginality and disability, for his failures to engage with YJ, and repeat offending while on grants of bail.
I carefully considered all of the evidence before me in the application, and the entirety of the circumstances of the case. These included the seriousness of the application offences, the past criminal and bail history of the applicant, including the apparent willingness of the applicant to inflict violence and to possess and use dangerous weapons, the clear unwillingness of the applicant to accept the substantial supports and supervision offered to him by YJ, and the position reached no doubt reluctantly by YJ of being unsupportive of Supervised Bail. I also considered the applicant’s personal circumstances, particularly in view of s 3A and s 3B considerations, and the way that these factors where relevant not only to the establishment of exceptional circumstances, but also to the assessment of risk.
In particular, I am conscious of the disgraceful over-representation of Aboriginal people in the criminal justice system, including the remand population, the risk of harm and trauma that being in custody poses to Aboriginal people, particularly children such as the applicant, and the importance of maintaining and supporting a person’s connection to their culture. I have considered all of these factors as they pertain specifically to the applicant, along with the factors in s 3A(1)(d) to which I have earlier referred at [95]. They are weighty factors, worthy of deep consideration. But, they do not countervail the obligation on me to refuse bail, if satisfied that an unacceptable risk exists which cannot be appropriately moderated by conditions.
Following this consideration, I was of the view that, as things then stood, there would be little prospect of the applicant abiding by any conditions of bail which I could impose. In my view, he would be highly likely to reoffend, and were he to do so, there would be a very real, and by no means, unrealistic, risk that members of the community may be endangered by his offending.
Conclusion
Being satisfied that the respondent had discharged the onus resting on him of proving that there would be an unacceptable risk that the applicant, if released, would commit a Schedule 1 or 2 offence or otherwise endanger the safety of any person, I refused the application for bail.
14
0