Re P R W

[2005] VSC 179

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1468 of 2005

NOTE:           The name and address of the applicant and any information which may identify him have been suppressed from publication.

IN THE MATTER OF an Application for Bail by “PRW”

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 May 2005
DATE OF JUDGMENT:	20 May 2005
CASE MAY BE CITED AS:	IMO an Application for Bail by “PRW”
MEDIUM NEUTRAL CITATION:	[2005] VSC 179

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Application for bail – Unacceptable risk of re-offending – Youth.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S. Flynn	Victoria Legal Aid
For the Attorney-General	Mr P. Atkinson	Solicitor for the Office of Public Prosecutions

HIS HONOUR:

1. This is an application for bail by PRW, who was born on 31 December 1987.

1. On 21 March 2005 the applicant was charged with armed robbery, assault, unlawful imprisonment, theft of a motor vehicle and theft of petrol from a petrol station. The incidents which gave rise to those charges occurred on 15 March 2005 when the applicant was in company with six other youths and had consumed a considerable amount of alcohol. On 2 May 2005 the applicant was further charged with a charge of kidnapping under s.63A of the Crimes Act arising out of the same incidents.  A filing hearing proceeded in the Magistrates’ Court on 22 March 2005.  On that date the magistrate granted bail to the applicant on the grounds that cause was shown and there was no unacceptable risk of the applicant re-offending.  The applicant was released on a number of conditions, including daily reporting to the Altona police station, not contacting witnesses for the prosecution, not associating with his co accused, not leaving the place of residence where he then was with his grandmother between 9 p.m. and 6 a.m., not to consume alcohol and to act in accordance with the directions of Mr Stephen Riordan of the Juvenile Justice Unit. 

1. Unfortunately, the applicant breached two of those conditions, and on 8 May 2005 at 10 p.m. he was arrested and charged with drinking alcohol under the age of 18, consuming alcohol on railway premises and supplying a false name to the police.  He was remanded in custody on 9 May 2005.  He pleaded guilty and fined $200.  On the same day the informant in these matters made application for revocation of his bail.  That application was acceded to and the applicant has remained in custody since that date.  I am informed that he has been mainly in the custody centre but in the last week he has been held in the Moonee Ponds cells.  The applicant’s matter is listed for committal mention on 23 June 2005.  I understand that it is likely that a committal hearing will proceed in about August and that if he is committed for trial, that trial is not likely to take place until sometime next year.

1. The matters in respect of the applicant is charged involved the use of knives by two of his co-accused on the unfortunate victim. Accordingly, the applicant is in a show cause situation under s.4(4)(c) of the Bail Act.  However, like the magistrate who granted bail on 22 March, I am satisfied that cause has been shown.  The applicant is of young age, he is being held in circumstances of custody which are entirely unsuitable and undesirable, there will be a considerable delay before this trial, and, I understand, he has no relevant prior convictions. 

1. Indeed, Mr Atkinson, who appeared on behalf of the Director of Public Prosecutions, did not seriously contend to the contrary. Rather, as he put it, the real issue for me is whether it is established that there is an unacceptable risk if the applicant is released on bail that he may re-offend.  In respect of that issue I must say I am sorely troubled.  It is a matter to which I have given  anxious consideration both during the hearing of the application and since I retired to consider my decision.  The informant has, I consider, strong grounds on which to submit that there is an unacceptable risk that the applicant will re-offend if I release him on bail.  The original offences on which he has been charged are serious.  The charges of armed robbery and kidnapping carry a potential maximum of 25 years’ imprisonment.  That maximum indicates the gravity with which courts treat that type of offending.  The offending apparently involved the use of a knife by co-offenders and terrifying threats of violence to the victim.  I consider that the applicant and his co-accused were fortunate to be granted bail in respect to such serious offences.  The circumstance then arises that the applicant, having had the good fortune to be granted bail, proceeded rather rapidly to breach two important conditions of that bail.  Those conditions were imposed not as a matter of whim but in order to ensure that the applicant did not re-offend.  He breached his curfew and he consumed alcohol and ended up in trouble again.  Those matters give me real concern that if I were to grant bail today that there is an unacceptable risk that the applicant might re-offend. 

1. In order to meet those concerns Ms Flynn, who appeared on behalf of the applicant, and if I may say so conducted her case with commendable competence, called in evidence the aunt of the applicant, MM and also Mr Stephen Riordan, the manager of the Juvenile Justice Unit.  I was very impressed with both witnesses who gave their evidence I think sincerely and with a sensible degree of reservation.  MM is the sister of the late father of the applicant.  She told me that if the applicant is granted bail, that she and her husband, CA, are prepared to permit the applicant to reside at their home in Yarraville.  Such are their circumstances that they cannot realistically offer much by way of supervision during the day. However they are prepared to rearrange their lives in order to ensure that they provide maximum possible supervision of the applicant at night, which seems to be the time at which the applicant mainly falls into trouble.  They are prepared to involve him in their lives, and to take him with them when they go out at night.  They will try to get him work, and indeed, will go to the extremes of removing any alcohol out of temptation’s way from their home. 

1. I must say that I am confident that if I grant the applicant bail that MM and CA will do everything within their powers to reduce the risk of re-offending certainly at night-time. However there are limits to what they can achieve, particularly during the day.  To that end I discussed with MM whether she would be prepared, if I were disposed to grant bail, to supervise the applicant by being in charge of giving a number of directions to the applicant as to what he should do, who he should stay out of the way of and places where he should not attend.  MM assured me that she would give such direction that she considered was appropriate and that she would report to the Director of Public Prosecutions any breach by the applicant of those conditions.  I accept that those assurances were given honestly and sincerely by MM.

1. Mr Riordan told me that he is endeavouring to arrange courses for the applicant, particularly occupational courses involving skills such as brick laying.  He is prepared to see the applicant twice per week.  Mr Riordan is a busy man and such an assurance is one which will, I consider, intrude heavily into his workload.  Mr Riordan told me that he considers the proposal that the applicant live with his aunt a positive one.  The applicant has been raised by his paternal grandmother.  She has done the best she can for him, but regrettably the relationship is now fraught and is giving rise to some conflict between the two as is understandable between a grandmother in her mid 60s and a young man in his teens.  Mr Riordan told me that he considers the placement with MM may be much more positive in terms of the ability of MM to be able to communicate to the applicant just what is required of him.

1. As I have stated, this matter is difficult.  On the one hand it is most unpalatable for a young man to remain in custody in the circumstances in which he now finds himself.  It is that circumstance and that circumstance only that gives me pause.  If I had assurance that the conditions of his custody were better than they are, then I would have peremptorily dismissed this application without any hesitation at all.  However, the fact remains that if he is not granted bail, the applicant will remain in circumstances which are not to his benefit, and ultimately when he is released into the community will not be for the community’s benefit either.

1. There still remains for me the difficult question as to the whether the Crown has established that there is an unacceptable risk that if I grant bail that the applicant will re-offend.  I regret to say that I am satisfied there is a risk. The question is, is the risk unacceptable?  Ms Flynn pointed me to two circumstances which have changed since the applicant breached bail in the way that he did.  Firstly, she points out that the placement with MM will be of considerable benefit in ensuring that he does not re-offend.  Regrettably, and no doubt through no fault of the grandmother, the placement with her simply was not suitable to ensure that he did not re-offend.  Secondly, as Ms Flynn forcibly points out, the applicant has had a sharp taste of time in custody, a circumstance which no doubt has been most unpleasant for him and an unpleasant way for him to learn hopefully a salutary lesson which I expect he will not likely forget. 

1. In the end I have reservations.  However, with some hesitation I am prepared to grant bail.  I am prepared to do so subject to a surety which has been proffered of $2,000, with the applicant fully understanding the risk to his aunt and his uncle if he breaches bail.  I am prepared to grant bail also subject to a number of conditions, some of which have been imposed previously and some of which have been discussed in evidence with the witnesses.  The first condition is that the applicant report daily to the officer in charge of Footscray police station between the hours of 6 a.m. and 9 p.m.  Secondly, that the applicant reside at the address of MM.  Thirdly, that the applicant not leave his place of residence between 9 p.m. and 6 a.m. unless in the company of MM and/or CA.  Fourthly, that the applicant not contact prosecution witnesses other than the informant.  Fifthly, that the applicant not associate with any of his co-accused.  Sixthly, that the applicant not consume or have in his possession any alcohol.  Seventhly, that the applicant act in accordance with the directions given to him by Mr Stephen Riordan, the manager of the Juvenile Justice Melbourne Central Courts Unit.  Eighthly, that the applicant not attend the suburbs of Altona, Hoppers Crossing, Wyndham Vale, or Werribee unless in the company of MM and/or CA or unless at the expressed direction of Mr Stephen Riordan.  Ninth, that the applicant obey all directions given to him by MM as to the following: 

(a)Courses which he must attend and the time and place at which he is to attend such courses. 

(b)Occupational activities in which he is to participate and the times and places at which he is to attend such activities. 

(c)Locations and premises at which he is not to attend. 

(d)As to persons with whom he is not to associate.

1. PRW, I consider you very lucky indeed to have been granted bail today.  It is probably against my better judgment that you are granted this bail.  You have been a very foolish young man.  If you breach any of those conditions at all and you come back here, rest assured there will be no other chance from me.  I cannot bind any other judge of this court, but I would be amazed if any other judge of this court or any magistrate gave you another chance.  I regret having to impose conditions which should not be required of a man of your age, but they are to ensure that you are not an unacceptable risk to the community.  I would hope that you can work cooperatively and sensibly with those who are doing their level best to help you, that you appreciate the sincerity and decency that those people have brought into this court to try and help you on your way. The chance is ahead of you to rehabilitate yourself, and make a decent fist of things, particularly pending your trial if the trial occurs.  Rest assured from my position that if you come back before me having breached in the slightest way any of these conditions there will be zero tolerance from me.  Do you understand that?

APPLICANT:  Yes, I do, sir.

HIS HONOUR:  Are you prepared to abide by those conditions?

APPLICANT:  Yes, I am.

HIS HONOUR:  Do you understand them fully?

APPLICANT:  Yes, I do.

HIS HONOUR:  Is there anything you do not understand about them?

APPLICANT:  No.

HIS HONOUR:  Thank you.

MS FLYNN:As Your Honour pleases, thank you, Your Honour.

MR ATKINSON:  Thank you, Your Honour.

HIS HONOUR:  Thank you, Ms Flynn.  I thank Ms Flynn and Mr Atkinson for their assistance.

MR ATKINSON:  If Your Honour pleases.

MS FLYNN:Thank you, Your Honour.

MR ATKINSON:  Thank you, Your Honour.

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