Re Nyembwe
[2023] VSC 413
•12 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0135
IN THE MATTER of the Bail Act 1977
- and –
IN THE MATTER of an application for bail by GEORGE NYEMBWE
BETWEEN:
| GEORGE NYEMBWE | Applicant |
| and | |
| VICTORIA POLICE | Respondent |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 July 2023 |
DATE OF JUDGMENT: | 12 July 2023 |
DATE OF REASONS: | 27 July 2023 |
CASE MAY BE CITED AS: | Re Nyembwe |
MEDIUM NEUTRAL CITATION: | [2023] VSC 413 |
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CRIMINAL LAW — Application for bail — Charges relating to home invasion, theft, commit indictable offence whilst on bail — Two other unresolved matters, one police bail in one matter and summons in another — Personal safety intervention order in force — Young applicant — Vulnerable in custody and subject of attacks — Family support — Eligible for Youth Justice Supervised Bail — Bail granted — Bail Act 1977 (Vic), ss 1B, 3AAA, 4, 4AA, 4D, 4E — Sentencing Act 1991 (Vic), s 10A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Conor O’Bryan | Victoria Legal Aid |
| For the Respondent | Peter Pickering | Victoria Police |
HIS HONOUR:
Introduction
This is an application for bail by George Nyembwe [‘the applicant’].
The applicant is 18 years old and has been in custody since 3 June 2023. This is his first time in custody. He has been charged by Detective Senior Constable Kellie Moore [‘the Moore matters’] with the following offences:
(a) home invasion;
(b) theft;
(c) being disguised with unlawful intent; and
(d) committing an indictable offence whilst on bail.
At the time of the alleged offending in the Moore matters, the applicant was on police bail for the following charges filed by First Constable Zachary Angell on 5 April 2023 [‘the Angell matters’]:
(a) possessing a drug of dependence (cannabis);
(b) possessing a controlled weapon;
(c) possessing a prohibited weapon;
(d) recklessly dealing with the proceeds of crime;
(e) dealing with property suspected to be the proceeds of crime;
(f) going equipped to steal; and,
(g) possessing suspected stolen goods.
In addition, at the time of the alleged offending in the informants Moore and Angell matters, the applicant was subject to a Children’s Court summons for one charge of obtain property by deception filed by Senior Constable Sprakel on 3 January 2023.
Procedural history
On 7 June 2023, the applicant was refused bail in the in the Moore matters in the Bail and Remand Court, on the basis that — if granted bail — he posed an unacceptable risk of, committing an offence; endangering the safety or welfare of any person; and interfering with a witness or otherwise obstructing the course of justice. The applicant now seeks bail in relation to this matter.
The Moore matters are next listed in the Melbourne Magistrates’ Court on 11 September 2023 for committal mention alongside an application to revoke bail in the Angell matters. The Angell matters are next listed in the Wangaratta Magistrates’ Court on 14 August 2023 for mention. The Sprakel matter is listed in the Broadmeadows Children’s Court on 19 September 2023 for mention.
The alleged offending
The Sprakel matter (Children’s Court)
On 18 July 2022, ML [‘the complainant’] contacted someone with the name “James” on Facebook regarding the purchase of a pair of AirPod headphones that were advertised on Facebook Marketplace. Police allege that the account of “James” was set up and operated by the applicant. The parties exchanged messages about the goods and a price of $150.00 was agreed upon. The complainant asked the applicant to send over some identification and further information along with his bank details. The applicant provided the bank details for a Commonwealth Bank of Australia [‘CBA’] account and the name “James”. The complainant paid the money into the nominated account.
After the money was transferred, the applicant left the chat with the complainant and blocked him on Facebook. The complainant contacted the CBA but was told the transfer could not be stopped. The CBA sent a request to the applicant to transfer the money back to the complainant but he did not reply. The complainant searched for the advertisement on Facebook but believes it had been removed.
Further investigation and arrest
Police spoke to an employee from CBA, who advised that the account provided to the complainant was registered with the applicant’s details.
The applicant was arrested at his parents’ address in Mickleham and taken to Craigieburn Police Station where he was interviewed and released pending summons.
Interview
During the interview the applicant confirmed his details, including his phone number, date of birth, address and email account, all of which matched those used to set up the bank account. The applicant indicated that he has a Facebook account under the name Jamar Nyembwe and he had purchased items on Facebook Marketplace but had never sold anything on the platform.
The applicant agreed that he has one bank account and that no one knows the account details except for his work. He denied that the bank account details sent to the complainant were his.
The applicant denied any knowledge of the conversation with the complainant or the profile on Facebook with the name “James”. He stated that he owned a pair of AirPod headphones but that the serial number would not match the one sent to the complainant.
The Angell matters
On 4 April 2023 at 11:15pm, a car that police allege is registered to the applicant was seen driving erratically on the Hume Freeway. Police told the driver to pull over, but he refused to do so. The police officers then pulled up next to the driver’s side window of the car and saw two people in the front two seats and instructed the driver to pull over, which he did.
Police approached the car and saw CN in the driver’s seat and the applicant in the back seat behind him. The front passenger seat window had been rolled down and the passenger seen sitting next to CN was gone.
While speaking to the people in the car, police noticed an axe in the front passenger footwell and a hammer in the driver’s footwell. Both the applicant and CN were detained and searched.
Search
A search of the car was conducted under s 82 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and police found:
(a) approximately 8.5 grams of vegetable matter alleged to be cannabis;
(b) six iPhones and 13 AirPod earphones;
(c) a knuckleduster;
(d) two small knives;
(e) two masks with a bear and a skull on them;
(f) an Amazon Firestick streaming device;
(g) a passport belonging to CN; and
(h) three wi-fi CCTV cameras.
All the electronic items were in their original packaging and valued by police at approximately $20,000.
The applicant and CN were taken to Wangaratta Police Station to be interviewed and were charged and bailed. The applicant’s car was impounded.
Interview
When interviewed the applicant stated that the electronics were not stolen, but rather, were purchased for selling and personal use.
The applicant indicated that he, and the other passenger(s) were moving to New South Wales to get away from Melbourne as it was “dangerous” and that the weapons found were needed for their protection. Regarding the masks, the applicant stated that they were purchased for Halloween and he had put them in the car as part of the move to Sydney. The applicant denied that the weapons and masks were to be used in the commission of a crime — stating that they would have been in the front of the car if they were.
The applicant admitted that the cannabis was for recreational purposes.
The Moore matters
Background
The applicant and CN used to be good friends. They lived together for about three months in 2023 at an address in Donnybrook [‘the Donnybrook address’]. Along with co‑accused Zane Villella they were all part of the same social circle. On 4 April 2023, police allege the applicant demanded that CN drive them to Sydney and relocate there — saying he would kill him if he refused and threatening him with an axe. During the journey police in Wangaratta pulled over the car and the applicant and CN were arrested and the applicant’s car was impounded.
Following this, relations between CN and the applicant’s group soured. The applicant began threatening CN — demanding the return of some items he claimed to have left at the Donnybrook address. On one occasion it is alleged he went to the Donnybrook address and threatened CN and his family, writing RIP PB (the applicant’s nickname) on the letterbox.
This conduct was the basis of police seeking a Personal Safety Intervention Order against the applicant to protect CN in early May 2023.
Alleged home invasion
On the evening of 3 June 2023, it is alleged the co-accused called CN and threatened him, saying he would be waiting for him at Donnybrook railway station. A few hours later, the applicant and the co-accused went to the Donnybrook address. Both were wearing balaclavas. The pair entered the house through the garage and went to the complainant’s bedroom. In the house at the time were CN’s sister EN and mother EG. EN saw the pair in CN’s room and alerted her brother, MU, who had just come home. MU saw the applicant and co-accused as they were leaving CN’s bedroom and chased them out to the front of the house.
A scuffle broke out between the co-accused and MU and the applicant punched MU to the head approximately seven times. MU let go of the co-accused, who fled, while the applicant and MU continued to fight in the street. MU ultimately restrained the applicant until the police arrived. Following this, the applicant was searched, with police finding clothing and jewellery belonging to a current resident of the Donnybrook address in his possession. In subsequent statements the complainants’ also stated that a speaker and watch had been taken from the property. The applicant was arrested and taken to Royal Melbourne Hospital by police due to injuries he sustained during the arrest.
Police interview
On 4 June 2023, the co-accused was arrested. He made full admissions to entering the Donnybrook address and leaving the property with items he claimed to be his own. The co-accused was charged and remanded in custody.
On 6 June 2023, the applicant was taken from hospital to a police station where he was interviewed. The applicant stated that he and CN were going to move to Sydney together but police stopped the car along the way and impounded it. The applicant accused CN of taking things from the car which belonged to him and refusing to pay fines which the complainant had accrued while driving the applicant’s car.
The applicant stated that CN had called the co-accused on 3 June 2023 and threatened him, and in response both the co-accused and the applicant went to Donnybrook railway station to assault him. When CN did not arrive they went to his house. They looked in the applicant’s bedroom window and, seeing that it was empty entered the house through an unlocked garage door. Once inside, the applicant said the pair went to CN’s room and took some property belonging to him along with items belonging to the complainant and other residents. The applicant stated that he knew that other people were home at the time and was wearing a balaclava to disguise his identity.
The applicable legislation
In interpreting and applying the Bail Act 1977 [‘the Act’], the Court is to have regard to the guiding principles as set out in section 1B(1) of the Act.[1]
[1]The Act s 1B(2).
The parties agree that, in order to be granted bail, the applicant is obliged to satisfy the court that exceptional circumstances exist that justify the grant of bail. This is on the basis that the applicant is accused of Schedule 2 offences in the informant Moore matter[2] while subject to bail for a Schedule 2 offence in the informant Angell matter.[3] Pursuant to section 4AA(2)(c)(i) of the Act, a Schedule 2 offence committed whilst on bail for a Schedule 2 offence requires the applicant to demonstrate exceptional circumstances to be granted bail. In considering whether exceptional circumstances exist that justify the grant of bail, the court must take into account all of the relevant surrounding circumstances, including those set out in section 3AAA of the Act.[4]
[2]Specifically: home invasion and commit offence against the Act. See the Act, Sch 2, items 22(c) and 30.
[3]Specifically: commit indictable offence while subject to summons for an indictable offence. See the Act, Sch 2 item 1(b). The indictable offences allegedly committed were recklessly deal with the proceeds of crime and possess drug of dependence in the informant Angell matter. These are said to have been committed while the applicant was on summons in the informant Sprakel matter for the indictable offence of obtain property by deception. The applicant’s affidavit in support at [8] incorrectly states that the applicant was on bail in the Sprakel mater but is otherwise correct in its articulation of the test.
[4]The Act s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, the court must then move to consider the unacceptable risk test.[5] The court must refuse bail if satisfied by the respondent that there is a risk of the kind set out in section 4E(1)(a) of the Act, and that such a risk is unacceptable.[6] In considering whether a risk is unacceptable, the court must again take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate any risk so that it is not unacceptable.[7]
[5]Ibid ss 4A(4), 4D(1)(a).
[6]Ibid ss 4D(2)–(3), 4E(1)–(2).
[7]Ibid s 4E(3).
Co-accused
The co-accused, Zane Villella, was granted bail in the Melbourne Magistrates’ Court on 21 June 2023. The reasons for granting bail included the co-accused’s age, stable residence, lack of relevant prior convictions, delay, treatment being available and the support of his family.
The applicant’s personal circumstances
The applicant is an 18 year old man. He is one of three children born to parents who migrated to Australia from the Democratic Republic of Congo. Prior to his remand the applicant lived at home with his mother, father and sister. His brother was recently in custody, but at the time of the hearing in this matter, had been released and was residing at the family home.
The applicant’s affidavit in support notes, by way of background, that the applicant has struggled with mental health issues and alcohol abuse. Youth Justice report that he has previously used approximately one to two grams of cannabis every two days and prior to his arrest had switched to consuming alcohol.[8]
[8]A referral has been made by Youth Justice to the Youth Support and Advocacy Service at Preston to help the applicant with his drug use.
In adolescence he received outpatient psychiatric treatment through Austin Health and was recommended for a full autism assessment. This, however, never took place and there has been no formal diagnosis. The applicant was prescribed Ritalin for Attention Deficit Hyperactivity Disorder [‘ADHD’] at some stage but he discontinued use of the medication in 2018 due to adverse side effects. While the applicant does not want to recommence medication to manage his ADHD, he is willing to explore psychotherapy with a mental health professional should he be granted bail.
Criminal history
The applicant has no disclosable prior criminal history however, he has had a number of matters in the Children’s Court. Each of the below charges were ultimately withdrawn following his compliance with programs imposed by the court:
(a) 2017: the applicant was charged with criminal damage after he and two co‑accused set alight a portable toilet at a construction site. The charges were discharged after he completed a Ropes program;[9]
(b) 2019: the applicant was charged with theft after taking a mobile phone the complainant had left on a bus. The charges were discharged following the applicant’s successful completion of a diversion program; and
(c) 2020: the applicant was charged with robbery after he and three co‑offenders stole items from a complainant at Greensborough railway station. The co‑accused in the informant Moore matter was also a co-offender in this matter. The charge was discharged after the applicant’s successful completion of a diversion program.
[9]A Ropes program is a program that a young person can be referred to instead of or prior to being referred to a diversion program.
The applicant’s contentions
The applicant relies on the following matters, in combination, to argue that the exceptional circumstances test has been satisfied.
Nature and seriousness of the alleged offending
The applicant submits that, while home invasion is an inherently serious offence, the allegations do not represent a serious example of that offence — noting that the applicant was not armed at the time of the alleged offending. It was noted that the offence carries, as a default, a mandatory term of imprisonment. In the face of that, the applicant’s counsel submitted that if a plea of guilty was entered to this charge, it would be submitted that the circumstances are such that a non-custodial sentence would be an available sentencing disposition.
Strength of the prosecution case
The applicant acknowledges that the prosecution case is relatively strong, but submits that there are triable issues in relation to the mens rea component of the charge as it is currently particularised namely, that the applicant was a trespasser with an intention to both assault and steal. The applicant notes that in his record of interview he states that he and the co-accused checked CN’s bedroom and made sure it was empty before entering the house. In interview, he also stated that he and the co-accused went to the property with the intention to retrieve belongings which they owned, along with stealing property of CN’s, and that the confrontation with MU was not pre-meditated but rather a response to him returning home unexpectedly and seeking to restrain the applicant.
Criminal and bail compliance history
The applicant notes that he has no prior disclosable criminal history and that this is relevant to establishing exceptional circumstances as well as the question of risk.
The applicant submits that while he was on bail in the Angell matters, this was police bail and not a grant of bail from a court. It is also noted that it is not alleged that the applicant contravened his bail conditions before the alleged offending in the Moore matters. Finally, it is conceded that the applicant was subject to summons in the Sprakel matter at the time of the informant Moore matter.
Personal circumstances, associations, home environment and background
The applicant submits he is supported by his parents and they have agreed to provide him with stable accommodation at an address in Mickleham. It is pointed out that Youth Justice reports the applicant has a close relationship with his parents and that they have assisted him previously to engage with services while on bail. Youth Justice have spoken to the applicant’s parents who indicated a strong desire to support him — stating that they will maintain communication with Youth Justice regarding his bail compliance should the applicant be granted bail.
The applicant’s mother, Mrs Florence Nyembwe, gave evidence at the bail hearing. Both the applicant’s parents are employed. Mrs Nyembwe stated that she would assist the applicant with complying with his conditions of bail and indicated that he would not be permitted to have friends attend the home.
The applicant is not working and was not receiving Centrelink payments at the time of his arrest. He was being financially supported by his parents. The applicant told Youth Justice he has a strong desire to gain employment and will be looking for work part‑time in a retail supermarket.
The applicant reported to Youth Justice that he was diagnosed with ADHD at age 11, which resulted in learning difficulties at school. He is not currently enrolled in school and ceased attending in Year 11. It is noted that on the material provided to the court, the applicant does not appear to have been formally diagnosed with ADHD, or received a mental health diagnosis.
Special vulnerability
The applicant points out that he is young and that this is his first time in adult custody. The applicant has faced intimidation from fellow prisoners and was assaulted by three other inmates during a dispute over a blanket. These circumstances have apparently led to his transfer from Ravenhall Correctional Centre to Marngoneet Correctional Centre. On 28 June 2023, due to fears for his safety, the applicant was moved to protective custody. The applicant notes that he has been in isolation since that date. Youth Justice report that he is at risk while in custody due to his age, immaturity and previous victimisation.
The applicant has told Youth Justice that his mental health is “okay” but that he would like assistance with managing his emotions. He further reported a history of suicidal ideation and trauma stemming from being bullied at a young age. The applicant has previously seen a private psychologist and has expressed the wish to re-engage with them should he be released on bail. Youth Justice have referred the applicant to a Youth Justice mental health clinician at Orygen Youth Health and he will attend an initial session with her on 13 July 2023 if granted bail.
Availability of treatment or bail support services
The applicant notes that he has been found suitable for supervised bail. If granted bail, the applicant will attend weekly in-person appointments at the Broadmeadows Youth Justice office beginning on 13 July 2023. In addition, fortnightly meetings will then take place with his bail supports and family.
The applicant was previously placed on Youth Justice supervised bail at the age of 15. He complied with the terms of bail, attending 30 of 33 appointments, before being transferred to Children’s Court Youth Diversion where the charges were dismissed. Records indicate that the applicant’s attendance at the time was good and that he maintained a high level of engagement with support services.
Ms Mia Catchlove, the author of the Youth Justice report, gave oral evidence and was examined and cross-examined at the hearing in this matter. Ms Catchlove gave supportive evidence, stating that the applicant’s insight has developed since his time in custody. She indicated that numerous supports would be available if the applicant was to be granted bail in addition to the weekly appointments at Broadmeadows Youth Justice Office. These supports include drug and alcohol support; mental health support through the Youth Justice mental health clinician; employment support through an employment pathways broker; and Youth Justice community support service, which will offer employment support and leisure and recreational support.
Delay and likely sentence
The applicant submits that he may spend more time in adult custody than any sentence ultimately imposed if he is refused bail. The applicant notes a triable issue exists in relation to the current particularisation of the charge. The applicant places significance on the argument that he may be eligible to serve a custodial sentence requiring greater time than his remand period, under a Youth Justice Centre Order. As the home invasion charge is a Category 2 offence under the Sentencing Act 1991 (Vic) [‘Sentencing Act’], a custodial sentence must be imposed unless there are “special reasons” under section 10A of the Sentencing Act. Accordingly, the applicant also submits that delay may occur in order to investigate whether any “special reasons” apply.
The applicant’s counsel submitted that a custodial sentence of significantly less than six months would be strongly advocated for, if the applicant is to receive a custodial sentence. The committal mention date is in September 2023, and the applicant submits that in light of triable issues identified from within the remand summary, there is a risk that the applicant will be likely to spend more than six months in custody if not granted bail before matters were resolved.
In summary, the applicant submits the exceptional circumstances threshold is met by a combination of factors,[10] including:
[10]The applicant cites Re Logan [2019] VSC 134, [13].
(a) the applicant’s age being 18 years old;
(b) that this is the applicant’s first time in adult custody, which is more onerous because of his young age;
(c) the applicant’s lack of prior disclosable criminal history;
(d) the applicant has been assessed as suitable for Youth Justice supervised bail;
(e) the applicant has strong family support and stable accommodation at the family home; and
(f) the applicant may spend longer in adult custody than he will ultimately be sentenced to, particularly having regard to the potential availability of a Youth Justice Centre Order if being sentenced to a further custodial term.
Regarding unacceptable risk, the applicant submits that the Moore matters are not similar to either the Angell or Sprakel matters as neither of these allegations involve a physical confrontation. The applicant further outlines that no allegation before the court involves interference with a prosecution witness, and it is noted that complainant MU is now protected by an interim Personal Safety Intervention Order [‘PSIO’].
The applicant emphasises that his lack of prior disclosable convictions for offences against the Act is of particular significance to the assessment of risk of committing further offences while on bail.
The applicant notes that the supervision of Youth Justice as a bail condition can help to target issues such as the applicant’s alcohol abuse and serve to reduce risk, and that Youth Justice (and a condition relating to engagement with their services) were not involved in the original grant of police bail in the Angell matters.
It is also submitted that the applicant has shown significant insight and that his experience of remand has been salutary. He has expressed a desire to engage with mental health counselling, employment support and substance use counselling.
It is submitted that any unacceptable risk alleged by the respondent can also be ameliorated to an acceptable level by the imposition of conditions of bail, including that the applicant:
(a) resides at the family home in Mickleham, Victoria;
(b) is subject to a curfew unless in the company of his parents;
(c) follows all directions of Youth Justice;
(d) does not associate with the co-accused;
(e) does not contact witnesses other than the informant; and
(f) complies with the terms of the PSIO in place.
The respondent’s contentions
The application for bail is opposed on the basis that the applicant has not discharged the burden of satisfying the court that exceptional circumstances exist. Further, even if exceptional circumstances were to be found, the respondent submits that the applicant — if granted bail — poses an unacceptable risk of endangering the safety or welfare of any person, committing an offence whilst on bail and interfering with a witness or obstructing the course of justice.
In response to the applicant’s contentions, and in addressing the surrounding circumstances and unacceptable risk, the respondent relies on the following.
Nature and seriousness of the alleged offending
The respondent submits that the offending is serious and has taken place in the context of ongoing tension between the applicant and CN. Similarly, the respondent notes that the applicant has continued to offend whilst on bail and the nature of his offending is increasing in severity.
Personal safety intervention order in force
In order to protect the complainant, police made an application for a PSIO against the applicant on 1 May 2023. This was granted (in the name of CN) on 7 June 2023 (after the alleged offending in the informant Moore matter) on an interim basis. The application returns to the Melbourne Magistrates’ Court on 11 September 2023.
Family support and stable accommodation
The respondent accepts that the applicant’s parents are supportive of him. However, this support is not viewed as sufficient to mitigate the applicant’s risk to a point where it becomes acceptable — noting that the applicant was living at home when he was remanded. The respondent also has concerns with the proposed residence as the applicant’s brother has been released from prison and has returned to live at the family home. The respondent argues that the applicant’s brother is a poor influence and has a criminal history including aggravated burglary, theft, weapons and drug offences.
It was also submitted that the applicant rebels against his parents, as demonstrated by his disappearance for a month whilst living in Donnybrook. In cross‑examination, the applicant’s mother indicated that during this period, the applicant told her that she did not need to know where he was, and had moved out because he did not want to abide by the house rules. He reportedly told his father, according to the applicant’s mother, that he “didn’t like rules”.
Special vulnerability
It is conceded by the respondent that the applicant is vulnerable in custody, however it was submitted that the circumstances of the attack are largely unknown.
Availability of treatment or bail support services
It is conceded by the respondent that the applicant is suitable for supervised bail with Youth Justice.
Complainant’s views on bail
The respondent submits that the complainant has described serious concerns for his and his family’s safety. He believes that, if released on bail, the applicant will attempt to harm him — a concern exacerbated by the fact that the co-accused has been bailed. If released, the complainant believes that both parties will attempt to assault him.
Unacceptable risk
Endangering the safety and welfare of any person
The respondent submits that the applicant has allegedly been involved in serious offending, namely a home invasion. This has taken place while in the company of another person, while wearing a face mask and during the evening. The respondent submits that this shows a blatant disregard for the safety of residents of the property and is relevant to the question of risk.
Committing an offence whilst on bail
The respondent notes that the applicant was on bail for a Schedule 2 offence at the time of the alleged offending in the Moore matters and that his alleged offending is increasing in severity. The respondent has concerns regarding the welfare of the complainants in the Moore matters, given the applicant has previously made threats towards them and has then broken into their house. The respondent asserts that no conditions of bail will sufficiently manage the risk of reoffending that the applicant poses.
Interfering with a witness or otherwise obstructing the course of justice in any matter
The respondent submits that if granted bail, the applicant will continue to contact witnesses for the prosecution and threaten them. It is noted that the applicant has previously sent messages to the complainant stating, “you can tell the police whatever, they can’t do shit” — which the respondent submits demonstrates a belief that he is above the law. Accordingly, the respondent holds concerns that, should the applicant be granted bail, he will continue to act on the grudge held against CN.
Analysis and conclusions
As noted above, the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail pursuant to section 4AA(2)(c)(iii) of the Act. This is on the basis that the applicant has been charged with Schedule 2 offences in the informant Moore matters[11] while subject to bail for a Schedule 2 offence in the informant Angell matters.
[11]Specifically: home invasion and commit offence against the Act. See the Act, Sch 2, items 22(c) and 30.
If he succeeds in doing so, the onus then shifts to the prosecution to satisfy the court that an unacceptable risk exists that cannot be mitigated by the imposition of any bail conditions.
In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the applicant’s surrounding circumstances. Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.
With these factors in mind, I turn to considering the merits of the application.
Has the applicant shown that exceptional circumstances exist?
I note that the authorities suggest that the exceptional circumstances test, although not impossible to reach, is a high threshold.[12] The applicant must show there are circumstances that are “right out of the ordinary” to justify his release on bail.[13]
[12]Re Villani [2021] VSC 638, [34] (Tinney J).
[13]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
The parties agree in this application that the exceptional circumstances test applies but disagree on whether it is met. It is clear that the applicant relies on a combination of circumstances to establish exceptional circumstances. It is well accepted that whilst circumstances by themselves might not meet the test, a combination of circumstances may do so.
As to the allegation of home invasion, which is perhaps the most serious allegation in this set of offences, in my opinion it is apparent that the degree of seriousness of the allegations do not fall towards the higher end of objective gravity. Having considered the evidence, the aggravating factors and degree of seriousness, in my opinion it would be open to a fact-finding court to find that the allegations are towards the lower end of seriousness.
I am of the opinion, however, that the cases against the applicant must be regarded as reasonably strong. I am not prepared to say that the cases are foredoomed to fail, though some charges may be regarded as stronger, and some weaker, than others.
Having considered the matters before the court as a whole, it appears that this is yet another case that should move forward to resolution as quickly as possible.
The applicant’s unsatisfactory experience in custody so far has been put forward as being a significant factor weighing in favour of a grant bail. I agree with that submission and note the significant possibility of the sentencing outcome put forward on his behalf. For a young man with no disclosable prior convictions he faces the prospect of a lengthy time in custody should the matters proceed to contested hearings(s), and fail to resolve. His time in custody is likely to be particularly burdensome if he is required to remain in isolation as he is at present. It is extremely concerning to me that an 18 year old, in circumstances where he has been the victim of assaults and intimidation, is confined to isolation for 23 hours each day, fed through a hole in a cell wall, and only allowed into a small space for a form of exercise, alone, during a short breakout period each day. It has not been suggested the applicant has himself been a behaviour problem since being in custody, but rather that he is a victim, and has been isolated for his own protection.
The applicant has foreshadowed a likely submission, in relation to the home invasion, that a CCO is open to be made in the circumstances, despite the provisions of the Sentencing Act that provide that a sentence of imprisonment is the default position.
To my mind, the vulnerability of the applicant is a very significant factor in this application and this is made clear by the Youth Justice report. The report assesses him as suitable for a supervised bail program.
I express a high degree of dissatisfaction that the applicant has been remanded in the circumstances he has, particularly where he is apparently exposed to these circumstances for his own protection.
Weighing all of the matters put before the court and, weighed against each other, I am satisfied the applicant has demonstrated exceptional circumstances justifying a grant of bail.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
Much material has been put forward and submissions made about whether the unacceptable risk test has been satisfied. Many of the matters put forward in the exceptional circumstances category are relevant for this assessment also.
Weighing up all the relevant matters, I am of the opinion that given the degree of bail support to be provided by the Youth Justice Supervised Bail program, combined with the evidence of the level of family support that is available, the respondent has not established that the risk posed cannot be reduced to an acceptable level.
There is, of course, a risk that attaches to the applicant should he be released on bail. The question to ask is not whether the risk can be eliminated but whether it can be reduced to an acceptable level.
The applicant has submitted that the risks identified by the respondent can be ameliorated to an acceptable level by a strict bail plan including a number of conditions.
As I have noted, the applicant is young, being 18 years old. On the other hand, he is alleged to have committed a number of troubling criminal offences over a relevant period of time, and they do appear to be escalating. The alleged offending demonstrates a susceptibility towards engaging in illegal activities with other young men, and that has been a feature of this application, namely, the influence of a negative peer group with respect to at least one particular individual.
As against these features, the applicant has ongoing support, and a limited background of criminal convictions. Furthermore, as I have described, he has experienced adult custody for the first time — with very stringent adult custody — in circumstances where it is accepted he is vulnerable. The applicant must appreciate that he has to stop associating with negative peers, as this appears particularly to be an aspect of him falling into the trouble that he has over the course of the last period.
Taking into account all these factors, in my opinion, he can be supervised on bail. However, a significant obligation will fall on the Department of Justice and Community Safety and his parents in this regard. I have taken into account the possible influence of his brother in making this decision.
Having considered all of the matters and in respect of the question of unacceptable risk, the respondent has not satisfied me that the applicant cannot be made an acceptable risk by virtue of the imposition of bail conditions in all of the circumstances. Taking into account the surrounding circumstances, the applicant's youth and vulnerability in custody, and the requirements of the principles of the Act, I will grant the application on the basis there will be strong conditions imposed on the applicant.
Conclusion
The application is granted on the following conditions:
(a) He attend the Melbourne Magistrates’ Court on 11 September 2023 and then surrender himself, and must not depart without the leave of the court and, if leave is given, return at the time specified by the court and again surrender himself into custody;
(b) He reside at [redacted address] in Mickleham, Victoria, and not change that address without leave of the court;
(c) He remain at those premises between the hours of 9:00pm and 6:00am each day for the duration of bail;
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(e) He notify the informant at least fourteen days in advance of any proposal to change his place of residence;
(f) He not possess or use more than one mobile phone;
(g) He produce any mobile phone that he possesses or uses for inspection upon the reasonable request of the informant or his or her nominee, and grant access to the full contents of the mobile phone;
(h) He report Monday, Wednesday and Friday, or the nearest day thereafter if it falls on a public holiday, to the Officer in Charge of the Police Station at Craigieburn, or his or her nominee, between the hours of 6:00am to 9:00pm;
(i) He comply with intervention order P10915887;
(j) He report to Mia Catchlove (or her nominee) at Youth Justice within two working days after this order comes into force;
(k) He comply with all lawful directions of the Youth Justice Bail Service Program;
(l) He not contact, directly or indirectly, or by any means whatsoever, the co‑accused, being Zane Villella, for the duration of the bail period;
(m) He not contact, directly or indirectly, the complainant, [CN], or any witness for the prosecution, except the informant or her nominee;
(n) He not leave the State of Victoria;
(o) He not attend any points of international departure;
(p) He not attend the suburb of Donnybrook; and
(q) He reappear before the court for judicial monitoring to review his compliance with this order at 9:30am on 16 August 2023, and any further dates this court appoints during the course of this order.
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