Re NB
[2019] VSC 37
•6 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL LAW DIVISION
S ECR 2019 0025
IN THE MATTER of the Bail Act 1997
and
IN THE MATTER of an Application for Bail by NB
---
JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 February 2019 |
DATE OF JUDGMENT: | 6 February 2019 |
CASE MAY BE CITED AS: | Re NB |
MEDIUM NEUTRAL CITATION: | [2019] VSC 37 |
---
CRIMINAL LAW – Application for bail – Applicant charged with Schedule 2 offences – Whether exceptional circumstances justifying bail – Whether applicant, if bailed, presents an unacceptable risk – Application opposed only formally – Applicant aged 16 years with no criminal history – Applicant has stable accommodation and schooling arrangements – Likely sentence, if custodial at all, unlikely to exceed time already on remand – Exceptional circumstances established – Applicant not an unacceptable risk – Bail granted – Re JO [2018] VSC 438 – Bail Act 1977 (Vic) ss 4, 4AA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D. W. Gibson | Victoria Legal Aid |
| For the Respondent | Mr M. Sontag | Victoria Police Legal Services |
HIS HONOUR:
Overview
This is an application for bail by NB, who is aged 16.
On 24 January 2019, the applicant was arrested and charged with offences of theft (three counts), intentionally causing injury, recklessly causing injury, unlawful assault and committing an indictable offence whilst on bail (five counts). These charges, where the informant is First Constable Shona Connely, relate to events which are alleged to have occurred that day, 24 January 2019.
There are four co-accused in relation to that matter. All bar one of those have been bailed in relation to these charges.
At the time of this alleged offending, the applicant was on bail in relation to two separate groups of offences. The first, where the informant is Senior Constable Nadine Starbuck, involves charges of armed robbery (four counts), and robbery, alleged to have been committed between 10 and 15 July 2018. The second, where the informant is Constable Rebecca Churcher, involves charges of possessing cannabis and entering a private place without authorisation, alleged to have been committed on 6 December 2018. The applicant’s bail in relation to the informant Starbuck matter was revoked on 25 January 2019.
Additionally, at the time of the alleged offending, the applicant was on summons in relation to a charge of possessing cannabis alleged to have occurred on 14 November 2018. The informant in that matter is Constable Caitlyn Shulz.
The application for bail before this Court was filed on 30 January 2019. The applicant had previously been refused bail in relation to these charges by the Children’s Court on 25 January 2019.
Because the applicant is charged with offences which are within Schedule 2 of the Bail Act1977 (Vic) (“the Act”) – namely, committing an indictable offence while on bail, alleged to have been committed while on bail for another Schedule 2 offence, namely, armed robbery (and committing an indictable offence in the course of which it is alleged that an offensive weapon was used), pursuant to ss 4A and 4AA(2)(c)(i) of the Act, the Court must refuse bail unless satisfied exceptional circumstances exist that justify the grant of bail.
The alleged offending
10 and 15 July 2018 (Informant Starbuck)
I will deal first with the allegations in relation to the informant Starbuck.
These are offences said to have been committed between 10 and 15 July 2018 in relation to which the applicant was charged on 21 August 2018. At about 8.40pm on 10 July 2018, the applicant was in company with approximately nine other males at Essendon Railway Station when another group of young males walked past. Two males from the applicant’s group demanded the jackets of the males from the second group, and then threatened them with a Taser and a knife until they complied.
At about 1.46 pm on 11 July 2018, whilst at Broadmeadows Railway Station, the applicant and a co-accused are alleged to have approached a victim and asked to borrow his phone. The applicant is alleged to have threatened the victim with broken glass while demanding the victim’s password. The applicant then took a photo of the victim’s healthcare card and threatened him not to report the matter to the police.
At about 5.00 pm on 15 July 2018, while at Broadmeadows Railway Station, the applicant and three co-accused are alleged to have approached a victim and punched him to the face twice before stealing his watch and taking $5 in cash from his pocket. The victim is also alleged to have been threatened not to report the matter to the police before being struck again by members of the applicant’s group.
On 21 August 2018, the applicant was arrested in relation to these matters.
On 27 November 2018, the applicant pleaded guilty to the charges against him at the Broadmeadows Children’s Court and the matter was adjourned to 5 February 2019 for a deferral of sentence. That occurred yesterday and I will return to that later in these reasons.
On 30 January 2019, the applicant was scheduled to participate in a group conference in relation to these matters, but because he was remanded in custody on 24 January 2019 in relation to a matter which I have yet to refer to, he was not able to participate in that conference.
18 August 2018 (Informant Schulz)
In relation to the informant Schulz, on 18 August 2018, the applicant is alleged to have been in company with two males at Coolaroo Railway Station. Police attended the railway station after reports had been made of an armed robbery involving a knife in a nearby area, and observed a knife next to the applicant and his two associates. The applicant is also alleged to have been found in possession of cannabis at the time, and was charged in relation to the possession of cannabis but not the armed robbery.
6 December 2018 (Informant Churcher)
In relation to the informant Churcher, at about 8.30 am on 6 December 2018, the applicant was found asleep in a newly built unit in Broadmeadows. It is alleged that he gained access to the unit unlawfully and that he was found by police with a small amount of cannabis in his possession at that time.
24 January 2019 (Informant Connely)
In relation to the informant Connely, on 24 January 2019, the victim in this matter posted an advertisement wanting to sell his mobile phone. He was contacted by what is described in the material as a “dummy profile” expressing interest in the phone and arrangements were made to meet the potential purchaser near Essendon Railway Station.
Later that day, the applicant and four co-accused are alleged to have driven a stolen car to Essendon Railway Station for the purpose of meeting with the victim. Two of the group are alleged to have exited the stolen vehicle, approached the victim and asked to see his phone before taking it and running away towards the stolen vehicle.
The victim pursued the two men and began to tackle them; however, the two men gained control over the victim and began to punch and kick him. At this time, it is alleged that the applicant and another man got out of the stolen vehicle and joined in the assault on the victim by both punching and kicking him while he was on the ground. The victim’s phone was taken during the assault before the applicant and the four co-accused are alleged to have left the scene in the stolen vehicle. All of this was recorded on closed-circuit television.
The police had been alerted to the incident and followed the stolen vehicle at a distance. They found it abandoned in Keilor. Police dogs attended the scene and traced the applicant and the four co-accused to Brimbank Park Reserve in Keilor. The applicant and the four co-accused were arrested and taken to Moonee Ponds Police Station for interview.
During the interview, as I understand it, the applicant informed police he was unaware that the vehicle he and his co-accused were in had been stolen and that he thought it was a vehicle belonging to his friend’s mother. He also told police that he was not involved in the assault and did not leave the vehicle.
The other accused, having been arrested, were each interviewed and admitted, in varying degrees, to awareness of the vehicle being stolen and of the plan to steal the phone.
As I have earlier said, I am informed by Mr Gibson, who appeared on behalf of the applicant on this application, that all four of the above matters were before the Broadmeadows Children’s Court yesterday, 5 February 2019. That Court has now adjourned those matters to 26 March 2019.
On the basis of what Mr Gibson has told me, it is anticipated that the matters will be dealt with in a consolidated matter and appear likely to be resolved by pleas of guilty to some or most of the charges. Mr Gibson and his instructor forecast that the matters will either result in probation or a youth justice order (or something of that kind), and almost certainly not in a custodial sentence.
Mr Sontag, who appears on behalf of the respondent police officers to this application, agrees that that is likely and, as a result of those circumstances, has announced to me that his opposition to the applicant’s release on bail is formal only.
I have been provided a Department of Justice and Community Safety pre-sentence report dated 5 February 2019. The report was compiled for the hearing yesterday before the Broadmeadows Children’s Court and deals with the offences I have summarised. The case manager who compiled the report, Zen Tobias-Quigley, has recommended to the Children’s Court that the sentence of the applicant be deferred in order for the applicant to participate in a group conference which will involve various interested parties, including the victims, and, assuming that that goes positively, will have a significantly mitigating effect on the sentence ultimately to be imposed. However, in all the circumstances, it seems unlikely that the applicant will be sentenced to any period of imprisonment.
The applicant
The applicant is 16 years of age. He has no criminal history. He came to Australia from Kenya in 2009 and, prior to his remand, was residing with his mother and two siblings in the Melbourne suburb of Dallas.
Analysis
As I have already said, the applicant is in the position of having to satisfy this Court that exceptional circumstances have been established. Bearing in mind the particular circumstances that he finds himself in and the future manner in which these matters will be dealt with in the Children’s Court, in my opinion, the likelihood that he will not be sentenced to any period of imprisonment is, in itself, an exceptional circumstance, particularly given this young man’s age and lack of criminal history.
In that context, I refer to the observations T. Forrest J in a similar application, Re JO [2018] VSC 438, where His Honour said the following:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[1]
[1]Re JO [2018] VSC 438, [14].
With great respect, I think His Honour has stated the application of that part of the Act with precision.
On behalf of the applicant, Mr Gibson has relied upon the following matters as establishing exceptional circumstances. Firstly, the applicant’s youth (being 16 years of age). Secondly, that there is stable accommodation for him residing with his family in Dallas. Thirdly, the availability of education at Hume Central Secondary College. Fourthly, the prospect of supervision by Youth Justice, which was in operation at the time. Fifthly, the applicant’s absence of criminal history, and the fact that, save for the time since his arrest on 24 January 2019, this has been his first time in custody.
Some criticisms are made of the prosecution case; however, I think that is not something I can deal with, with any degree of accuracy, at this stage, and is unlikely really to be central to the considerations in this matter.
The other consideration to which I have had regard is that the likely sentence to be imposed is well and truly aided by the applicant’s time on remand already, and also that he is unlikely to be sentenced to any further custody.
As I have said earlier, the respondent had originally opposed the application, but has now reduced its position to what Mr Sontag described as a formal opposition only. The respondent does, however, express concern more about the applicant’s prospects of offending whilst on bail.
In my opinion, exceptional circumstances have been established for the reasons that I have outlined, and, as far as the risk of endangering the public or himself, or interfering with witnesses, or not complying with orders of the court as a concern from here on, I am satisfied that, although there is a risk, that risk can be mitigated by the imposition of reasonably strict conditions.
I therefore propose to grant the application.