Re MMA (a pseudonym) (Bail Application)
[2025] VSC 113
•14 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0026
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by MMA (a pseudonym)
| MMA (a pseudonym) | Applicant |
| v | |
| VICTORIA POLICE | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 & 13 March 2025 |
DATE OF RULING: | 14 March 2025 |
CASE MAY BE CITED AS: | Re MMA (a pseudonym) (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 113 |
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CRIMINAL LAW – Application for bail – Where exceptional circumstances test satisfied – Whether unacceptable risk test satisfied - Where extensive allegations of violent conduct but no prior convictions – Where past failure to comply with bail conditions – Where period on remand may exceed any sentence of imprisonment if convicted – Whether imposition of conditions may mitigate risk – Bail granted for two weeks on conditions – Bail Act 1977 (Vic), ss 3AAA, 3B(1)(b), 4A, 4E(3)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms E Allan of counsel | Shanelle Veit Lawyers |
| For the Respondent | Ms D Caruso of counsel | Victoria Police |
HIS HONOUR:
A. Introduction
MMA,[1] the applicant, who is now 18 years old, applied for bail. On 14 March 2025, I granted bail for two weeks on stringent conditions. I gave brief oral reasons but said that I would publish fuller reasons. These are those reasons.
[1]A pseudonym has been used to protect the identity of the applicant and ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).
The applicant had been in custody since 30 December 2024. The charges the applicant faces relate to incidents alleged to have taken place when he was 17 years old and thus was a ‘child’ for the purposes of the Bail Act 1977. It was common ground that the applicant’s status as a child at the time of the alleged offences constituted an ‘exceptional circumstance’ that justified the grant of bail unless there was an ‘unacceptable risk’ that he would, if granted bail, endanger the safety or welfare of a person or commit an offence while on bail or interfere with a witness or otherwise obstruct the course of justice or fail to surrender into custody in accordance with the conditions of bail.
In determining whether there is an unacceptable risk, I must take into account the surrounding circumstances which include the nature and seriousness of the alleged offending, the strength of the prosecution case, the applicant’s criminal history (or lack of criminal history), the extent to which he has complied with conditions of any earlier grant of bail, whether at the time of the alleged offending the applicant was on bail or on summons for another offence, the availability of treatment or bail support services, the length of time he is likely to spend in custody if bail is refused, and the applicant’s ‘personal circumstances, associations, home environment and background.’[2] Because the applicant was a child at the time of the offending, I am also required to take into account the considerations set out in s 3B of the Bail Act 1977 including the need to consider ‘all other options before remanding’ the applicant in custody, the need to strengthen and preserve the applicant’s relationship with his family, the need to minimise the stigma to him resulting from being remanded in custody, the likely sentence should he be found guilty, the need to ensure that the conditions of bail are no more onerous than are necessary, and recommendations or information contained in any report provided by a bail support service.
[2]Bail Act 1997 (Vic), ss 3AAA, 4A, 4E.
B. The charges
The applicant was born in Samoa and migrated to Australia in 2022 when he was 14 years old. He has lived with his aunt and his uncle and their five children. There is no evidence to the effect that the applicant has substance abuse issues or mental health issues. The allegations against him are, however, lengthy and concerning. The following is a list of the principal offences with which the applicant has been charged, the allegations against him and other relevant events (remembering that these are allegations only):
(a) 16 January 2024 – Affray. At approximately 1pm at the Woodgrove shopping centre, the applicant and others surrounded a victim and assaulted him, knocking him to the ground and knocking him unconscious. The applicant stomped on the victim’s head while he was unconscious and took his shoes.
(b) 16 January 2024 – Affray and assaulting police. The applicant, and a co-accused, again at the Woodgrove shopping centre, chased another group of males. The co-accused brandished a machete. The accused and the co-accused assaulted someone inside an Aldi supermarket. Later that afternoon, police located the applicant and co-accused. The applicant pushed over one police officer and stood over him or her with clenched fists.
(c) 16 January 2024 - The accused was arrested and summonsed to appear at the Children’s Court on 5 September 2024.
(d) 18 August 2024 – Robbery. At approximately 7pm at the Melbourne Central shopping centre, the applicant, and others, approach two people, surrounded and grasped them and asked for their phones and pass code. They also stole a shoebox, with new shoes in it, from one of the victims.
(e) 20 August 2024 – Intentionally cause injury. At 4:55pm at the Sunshine bus terminal, the applicant assaulted the victim. The applicant, and others, repeatedly kicked him in the head whilst he was unconscious on the ground and another person filmed the incident.
(f) 30 August 2024 – Possessing a controlled weapon. At Flinders Street railway station at approximately 8:20pm, the applicant was found to be carrying a large machete, which was seized.
(g) 31 August 2024 – Affray. At approximately 3:40pm the applicant, with others, struck the victim at Melbourne Central shopping centre multiple times in the face with his fist and then kicked him in the face and stomped on his head when he was on the ground.
(h) 3 September 2024 - Attempted robbery and assault. The applicant, and others, approached a group of people in Swanston Street Melbourne, and demanded the victim’s phone. The applicant sought to move the victim into an alley and, when the victim resisted, the applicant slapped the victim across the face.
(i) 6 September 2024 – Theft and assault. The applicant stole some food and a drink from a shop in Spencer Street Melbourne, then punched the shop owner in the face when the shop owner sought to retrieve the stolen items.
(j) 8 September 2024 – Robbery. At approximately 10:24am on a city bound train from Mordialloc railway station, the applicant, with others, stole mobile phones, and the passcode, from two passengers by slapping them in the face and threatening them.
(k) 8 September 2024 – Robbery. At approximately 4:53pm at Southern Cross railway station, the applicant put someone in a headlock, then others with him told the person to give them his phone or they would stab him, and then struck the victim in the face.
(l) 8 September 2024 – Robbery. At approximately 8:11pm outside the McDonald’s at 620 Collins Street Melbourne the applicant, with others, dragged somebody to a car park, took his phone, forced him to reset the phone, then he (or perhaps others in the group) punched the person repeatedly in the face, while others filmed it.
(m) 9 September 2024 – Robbery. At approximately 11:32am at Flinders Street railway station, the applicant, with others, surrounded the victim and took their phone. One of the others told the victim that he had a machete and the victim could see it in his pants. The group demanded that the victim open his banking app, threatened to bash him if he didn’t do so, and proceeded to transfer or withdraw the available money in the account. The applicant, and another, then went through the victim’s pockets.
(n) 9 September 2024 – Robbery. At approximately 11:39am at Flinders Street railway station, the applicant, and others, surrounded the victim, forcibly took his puffer vest (the victim not having any money in his phone) and searched the victim’s bag.
(o) 9 September 2024 – The applicant was arrested at approximately 11:49am and bailed to attend the Children’s Court on 7 October 2024.
(p) 13 September 2024 - Robbery. At approximately 3:20pm on the escalator to the Chemist Warehouse in Bourke Street Melbourne, the applicant grabbed the victim and told him that if he didn’t give him his phone he would bash and kill him and stab him.
(q) 18 September 2024 – Robbery. At approximately 6:20pm at the Deer Park railway station, the applicant demanded that the victim give him his phone and password to the phone and its banking app and told him if he told anyone he would be ‘choked’.
(r) 23 September 2024 - Armed robbery and false imprisonment. At approximately 11:25pm on a train from Frankston railway station to the city, the applicant, and others, demanded two people hand over their phones. When one refused, the applicant produced a large knife. The victims handed over their phones and their passcodes.
(s) 26 September 2024 – The applicant was arrested and charged.
(t) 27 September 2024 – The applicant was released on bail on conditions that he appear at the Children’s Court. One of the conditions of bail was that he not attend the Melbourne CBD.
(u) 2 October 2024 – The applicant was charged.
(v) 3 October 2024 - The applicant was arrested, charged, and remanded to appear at the Children’s Court on 4 October 2024. On 4 October 2024, the bail application was adjourned part heard, and he was remanded in custody.
(w)On 11 October 2024, the applicant was granted supervised bail. The applicant attended five of eight scheduled supervision appointments.
(x) On 30 October 2024, the applicant signed bail undertakings including to appear at the Children’s Court on 10 December 2024.
(y) On 29 November 2024, the applicant signed bail undertakings including to appear at the Children’s Court on 19 December 2024.
(z) 10 December 2024 – The applicant, in breach of his 30 October 2024 bail undertakings, failed to appear at the Children’s Court.
(aa) 10 December 2024 – Aggravated carjacking with an offensive weapon, theft, use of a controlled weapon and assault. At approximately 2:15am, the applicant, and two others, booked a ‘DiDi’ ride. When the driver arrived, they entered the car, produced machetes, held them in the victim’s face, demanded the vehicle keys and his phone and for him to get out of the vehicle. The applicant then drove away with the vehicle.
(bb) On 19 December 2024, the applicant failed to appear before the Children’s Court to face charges – in breach of bail conditions entered into on 27 November 2024 and on 27 September 2024.
(cc) 30 December 2024 – Going equipped to steal and possessing cannabis. The applicant was found at approximately 9:58pm by an unmarked police vehicle, with others, approaching a service station in Preston wearing face coverings with hoods of their jumpers over their heads. They were apprehended following a chase and were found to have dishwashing gloves and balaclavas in their possession. The applicant was arrested and remanded in custody.
C. Youth Justice’ report
The application for bail first came before me on 5 March 2025. Shortly before that hearing, Youth Justice provided a Bail Service Report. Youth Justice has had involvement with the applicant and his family in Victoria. The report from Youth Justice stated that, in its opinion, the applicant was ‘unsuitable for bail service’. The concerns noted by Youth Justice include the following:
(a) On 26 February 2025, the applicant told Youth Justice that he was not prepared to apply for bail that would impose a curfew (which any bail would) and would rather instead ‘return to the community on a sentenced Order’ and he refused to engage in an assessment. His lawyers later informed Youth Justice that the applicant had changed his mind, but, in telephone conversations, the applicant later presented as ‘hesitant’ about bail;
(b) The only location at which the applicant could reside was with his aunt and uncle. His aunt had previously said that she was not prepared to have him due to her concern about his criminal behaviour and its influence on her own children but now feels that she ‘needs to accept him back’. One of her children is a co-accused. No other accommodation had been able to be sourced. The applicant told Youth Justice that if he could not live there, he would not present for emergency accommodation but would instead ‘couch surf’. Also, Child Protection contacted Youth Justice in relation to increased risk for the other children at that home and asked to be notified if the applicant were to obtain bail and reside there. Youth Justice said it held ‘significant concerns regarding the stability of’ the applicant being able to remain at that home, but was still looking into that issue;
(c) The applicant maintained ‘current connections with young people known to Youth Justice’ and told Youth Justice that he has ‘issues with multiple young people from opposing “gangs”’;
(d) The applicant had engaged in antisocial behaviours while on remand, including numerous physical assaults (including, I note, on staff) and has shown an inability to follow staff direction; and
(e) Youth Justice ‘remained concerned regarding [the applicant’s] ability to comply with bail conditions’ and ‘regarding his commitment and motivation towards bail’ at this time.
D. The evidence called on 5 March 2025
On 5 March 2025, after some evidence was called and discussions had, the applicant applied to have the application for bail adjourned to 14 March 2025 and I granted that adjournment. The evidence called included the following:
(a) The video captured by the vehicle that was ‘carjacked’ was played. It showed three people get into the ‘DiDi’ vehicle. The person in the front seat and the person in the seat immediately behind the driver then produced machetes or large knives and held them close to the face and neck of the driver and ordered him to get out and give them the keys and his phone. The incident must have been terrifying for the driver. One wonders what might have happened had the driver resisted their demands;
(b) Detective Senior Constable Gillies gave evidence. He is the informant in the aggravated carjacking charge. He said that the applicant’s aunt and uncle have both identified the person sitting behind the driver with a machete as the applicant, and that mobile phone data indicates that a phone known to be used by the applicant was in that general area at or about that time. He adopted his report and explained his concern that the applicant would cause harm if released on bail because of the applicant’s connection to ‘gangs’ and his willingness to threaten people with knives, and observed that, to date, persons threatened had complied rather than resisted. He said that with police resources being stretched, it could not be assumed that just because they know the identity of some of the gang members (who are not under surveillance) that they would become aware of it if the applicant were to associate with them. He confirmed that two of the applicant’s co-accused, the applicant’s cousins, reside with the applicant’s aunt and uncle.
(c) The applicant called his uncle. He and his wife have five children aged 16, 15, 13, 11 and 9 years old. The older two (who are co-accused) were not at school. His uncle works as a forklift truck driver at a Coles warehouse. His wife also works there and was at work at the time of the application. He said that the applicant was a ‘good boy’ when he was at their home and that he had no concerns with the applicant living with them and associating with his children. He came across as a decent and hardworking man. He claimed to be unaware that the police contended that the applicant was in a gang and to be unaware that the applicant had been arrested with weapons, which I found hard to accept. He had no real explanation for why he and his wife had changed their mind from when they had previously had concerns about the applicant living with them other than that he and his wife had told the applicant that this would be his ‘last chance’ (but it was not clear whether he had also said this last time). He said, and I accept, that he would inform police if he became aware that the applicant was breaching his bail conditions.
(d) Ms Attard, who had prepared the report for Youth Justice, was called. As noted above, in her 4 March 2025 report she had indicated that the applicant was ‘unsuitable for bail service’ and given the reasons for which she formed that view. In her oral evidence, she explained that she would not support supervised bail unless a suitable day program could be found or devised and that more work was done in relation to the applicant’s family’s suitability following some further involvement with the support service Functional Family Therapy. However, having heard the applicant’s uncle give his evidence in which he indicated his willingness to have the applicant stay at their home, Ms Attard indicated that the department’s opinion on bail may be different, but that there would have to be various discussions and she could not herself, then and in the witness box, say what that opinion would be. The discussions to be had would include other persons at the department who were involved with at least one of the other children residing there and, possibly, Child Protection. That was all, broadly, positive. But one of the discussions would be about the position at the home given that she now understood that two of the applicant’s cousins, who are co-accused, had left school and so would be present at home during the day. There were also some concerning matters that arose out of her oral evidence or report. She said:
(i) The applicant had no interest in any training – ‘he’s indicated he does not want education whatsoever’;
(ii) Child Protection had expressed the view that if the applicant were to return to living with his aunt and uncle ‘the other children will be a higher risk of possible reoffending and risk of harm to themselves’;
(iii) The applicant told her that he would not be prepared to travel on public transport to appointments without a carrying a weapon out of a fear that he might meet someone ‘who he does not get along with’;
(iv) The applicant told her that if his proposed accommodation broke down for some reason, he would not ‘attend for support’ but would couch surf with people she considered to be ‘negative peers’;
(v) As she understood it, the applicant had been the aggressor in some of the assault allegations relating to the period while he has been in custody, although the alleged assault on a staff member was ‘more of a push’ than a punch. One of the assault charges related to what was a ‘planned fight’ between the applicant and another resident that took place on 3 March 2025, that is, two days before the application for bail and on the same day that he had met with her to discuss bail. This caused her, understandably, to ‘wonder what [that decision making] would look like in the community; and
(vi) When she had a ‘deep’ conversation with him on 3 March 2025 about his concerns about a curfew, she got ‘mixed answers’ including his expressing a concern that he ‘didn’t like the feeling of being restricted and having to be home at a certain time’.
(e) Ms Attard ultimately gave the following evidence:
MS CARUSO: So it’d be fair to say that he’s not yet at a point where he is taking real ownership of his actions and consequences? --- I would say so, yeah.
And that one of the things you’ve said is that at this time he’s not appropriate for bail, but work could be done with him whilst he’s in Parkville? --- Correct, yes.
E. The evidence called on 14 March 2025
As noted, the application for bail was adjourned to 14 March 2025. On 13 March 2025, Ms Attard signed a second Bail Service Report. She was available to give evidence, but was not sought to be cross-examined. Some errors in the report were corrected by counsel by agreement. Youth Justice had changed its opinion, and now recommended supervised bail. The change in view appears to have come about because:
(a) Ms Attard met with the applicant again on 13 March 2025. At that meeting, the applicant indicated that he was aware that given that he was now 18, if he ‘got into trouble’ it would result in ‘adult custody’, that he was eager to source employment, and he does not want to ‘let the … family down’;
(b) Ms Attard also spoke with the applicant’s uncle. He advised her that he would support the curfew and any conditions that limited the persons with which the applicant could spend time and would require the applicant to inform him of where he was going and who he was meeting if he was to leave the house. Significantly, the applicant’s uncle also said that he would not allow the applicant to use public transport and that he or his wife would take the applicant to his appointments; and
(c) A more detailed program was prepared for the applicant if he were to be granted bail. The supervised bail timetable provided for scheduled appointments with Youth Justice or other service providers on Sunday 16 March 2025, Monday 17 March 2025, Tuesday 18 March 2025, Wednesday 19 March 2025, Friday 21 March 2025, Saturday 22 March 2025, Monday 24 March 2025, Tuesday 25 March 2025 and Wednesday 26 March 2025.
F. Is there an unacceptable risk?
The allegations against the applicant are concerning. The allegations, if correct, reveal an ongoing preparedness to engage, repeatedly, in violent and threatening behaviour, including with the use of weapons, against members of the public. The applicant’s history also reveals, if the allegations against him are correct, that his engagement with police, the laying of charges and being subject to a summons to answer an offence and even the imposition of bail conditions have not operated in the past to prevent his continuing to offend in the same way; the applicant, to date, has not been precluded from offending by a fear of the criminal justice system. Most significantly, when released on bail in October 2024 and supervised by Youth Justice on conditions that he not reoffend and obey a curfew and not associate with certain persons, the applicant, it is alleged, breached his curfew and engaged in the aggravated ‘carjacking’ referred to above.
Counsel for the applicant suggested that the aggravated carjacking case was not strong because of concerns about identification. Counsel pointed out that there were no fingerprints connecting the applicant to the vehicle and suggested that the aunt and uncle may have been keen, as I understood it, to implicate the applicant in order to provide some protection for their 13 year old son who had admitted being present in the car, and that there were arguments to be made about the reliability of any mobile phone evidence. The face of the person seated immediately behind the driver is shown in the video and it bore, to my mind, an apparent likeness to the applicant. It is to be recalled that the applicant’s aunt and uncle are the people whom the applicant puts forward as responsible people with whom he should be able to live while on bail. I reject any submission that the case against the applicant for the aggravated carjacking is weak; on the material put before me, I consider it to be strong. I am unable to assess the strength of the various assault and robbery charges. I was told that they are for the most part caught on CCTV, but identity will have to be proved.
Finally, living with his aunt and uncle is problematic because of their past concern about this influence on their other children and the fact that the other children are co-accused.
For these reasons, there is, clearly, a real risk that the applicant, if released on bail, will reoffend and endanger the safety or welfare of others or interfere with the administration of justice. The issue is whether that risk is an ‘unacceptable risk’ in all the surrounding circumstances. In making that assessment, I must consider whether any conditions of bail may be imposed to mitigate that risk so that it is not an unacceptable risk[3] and, because the applicant was a child at the time of the alleged offending, ‘the need to impose … the minimum intervention required in the circumstances with the remand of the child being the last resort.’[4]
[3]Bail Act 1977, s 4E(3)(b).
[4]Bail Act 1977, s 3B(1)(b).
In evaluating whether the risk is an unacceptable risk, it must also be borne in mind that:
(a) The applicant’s aunt and uncle seem to be honest and hardworking people who are prepared to do their best to look after him, to ensure he complies with any conditions and to drive him to his appointments;
(b) The applicant does not have a criminal record;
(c) The prosecution accepted that if the applicant exercised his right to a trial by jury rather than to have the carjacking charge heard summarily, there would be a delay of at least a year. If found guilty, the applicant will be sentenced as a child in accordance with the principles in s 362 of the Children, Youth and Families Act 2005 and so may not be imprisoned or, if he is, there is a prospect that the period of delay would exceed any term of imprisonment;
(d) Youth Justice now supports supervised bail and has compiled an intensive two-week program for the applicant if released on bail;
(e) The applicant complied, or substantially complied, on the previous occasion with the bail conditions between September and December 2024, and it is not alleged that he engaged in criminal behaviour between those dates prior to 10 December 2024. That is, although the bail failed in a sense in that the applicant breached the conditions of bail particularly in December 2024, the period of bail was otherwise associated with a period of months during which the applicant is not alleged to have engaged in criminal activity;
(f) The applicant is now 18 years old and appreciates that he will be sentenced for any further offending as an adult, rather than as a child; and, perhaps most importantly
(g) The applicant has been in custody since December 2024. This is the first time that he has been in custody for any length of time. The potential deterrent effect on his having spent this time in custody must be brought into account
I am satisfied that the risk was an unacceptable risk unless bail is for a limited time and on stringent conditions. I am not satisfied, on balance, that the risk was an unacceptable risk if the applicant were bailed for a two-week period on conditions that he reside with his aunt and uncle, observe a curfew, attend the police station three times a week, not carry with him any knives or other weapons, not attend the Melbourne CBD, not associate with certain persons identified by police, and attend the program compiled by Youth Justice. In reaching this conclusion, I have not ignored the fact that the list of persons compiled by the police is likely not exhaustive of persons who might influence the applicant into offending and is difficult, in practice, to enforce.
Accordingly, I granted the applicant bail on conditions that he:
(a) Reside at his aunt and uncle’s address;
(b) Remain at that address between 9pm and 6am each day (‘the Curfew Hours’) for the duration of bail, unless in the company of an approved delegate of Youth Justice;
(c) Present himself the front door during the Curfew Hours if and when called upon by a member of Victoria Police to do so;
(d) Not carry or have on his person any knives or other weapons;
(e) Comply with all lawful directives of the Youth Justice Supervised Bail Support Service;
(f) Attend all the programs scheduled by Youth Justice as set out in the ‘Supervised Bail Timetable’ annexed to the Youth Justice Bail Service Report dated 13 March 2025 and any other programs as directed by Youth Justice, unless the applicant is otherwise required to appear before the Children’s Court at that time;
(g) Attend at the Melton Police station on each Monday, Wednesday and Friday between the hours of 6am and 9pm during the bail period;
(h) Not attend the central business district bounded by Flinders Street, Spring Street, Victoria Street and Spencer Street and including Southern Cross Railway Station, unless it is to attend a court hearing or is in the company of an approved delegate of Youth Justice;
(i) Not associate with any co-accused other than Ms Vaai’s other children residing at the identified address;
(j) Not associate with any of the persons in the list exhibited to the affidavit in response to an application for bail filed 13 March 2025 (other than those who are his aunt and uncle’s family);
(k) Not contact any witnesses for the prosecution other than the informant and any persons ordinarily resident at the identified address;
(l) Not discuss the evidence to be led in any prosecution or the conduct or defence of the charges against him with any witnesses for the prosecution including, without limitation, any persons ordinarily resident at the identified address;
(m) Appear before the Children’s Court of Victoria at Melbourne on 25 March 2025 unless excused by the Children’s Court; and
(n) Attend the Supreme Court of Victoria at Melbourne at 10am on 29 March 2025 and there surrender himself into custody, and not depart without leave of the Court, and if leave is given, return at the time specified by the Court and again surrender himself into custody.
I consider that these conditions were necessary to reduce the risk to an acceptable level in the circumstances.
If the application for bail is renewed on 29 March 2025, the views of Youth Justice and the extent to which the applicant has complied with these conditions will no doubt be of significance.
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