Re PJ
[2024] VSC 97
•7 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0033
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by PJ (a pseudonym)[1] |
[1]As the applicant is under 18, a pseudonym has been adopted pursuant to s 534 of the Children, Youth and Families Act 2005 (Vic).
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2024 |
DATE OF ORDERS: | 26 February 2024 |
DATE OF RULING: | 7 March 2024 |
CASE MAY BE CITED AS: | Re PJ |
MEDIUM NEUTRAL CITATION: | [2024] VSC 97 |
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CRIMINAL LAW – Bail application – Applicant charged with theft, theft from motor vehicle, theft of motor vehicle, fail to stop vehicle after an accident, fail to stop vehicle at police direction, unlicensed driving, burglary, criminal damage by fire, dangerous driving while pursued by police, reckless conduct endangering serious injury, drive at a speed dangerous, aggravated burglary, commit an indictable offence while on bail, threat to inflict serious injury, intentionally causing injury, intentionally damaging property – HA v The Queen [2021] VSCA 64 – Whether exceptional circumstances exist – Whether unacceptable risk – Applicant identifies as Aboriginal – Bail Act 1977 (Vic) ss 1B(1), 3A, 3B, 3AAA, 4A, 4AA, 4E – Bail of children – Cogent evidence.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Rankin | Victorian Aboriginal Legal Service |
| For the Respondent | Ms A Buzo | Victoria Police |
HER HONOUR:
Introduction
I heard an application for bail by PJ (‘the applicant’) on 26 February 2024 and granted him bail. These are my reasons.
The applicant is a 16-year-old child who identifies as Aboriginal. The applicant seeks bail on the following charges filed by informants Detective Senior Constable (‘DSC’) Sally Graham and DSC Jessie Uren:
DSC Jessie Uren, charged on 7 January 2024(a)
(i) theft (six charges);
(ii) theft from motor vehicle (two charges);
(iii) attempted theft from motor vehicle (three charges);
(iv) attempted aggravated burglary;
(v) theft of motor vehicle (three charges);
(vi) fail to stop vehicle after an accident;
(vii) fail to stop vehicle at police direction (two charges);
(viii) unlicensed driving (three charges);
(ix)burglary;
(x) criminal damage by fire;
(xi)dangerous driving while pursued by police;
(xii) reckless conduct endangering serious injury;
(xiii) drive at a speed dangerous; and
(xiv) aggravated burglary.[2]
[2]Affidavit in Support of an Application for Bail filed 19 February 2024 (‘Affidavit in Support’), Exhibit “AR-1”, 18-22; Affidavit in Response to an Application for Bail filed 22 February 2024 (‘Affidavit in Response’), Exhibit “LCH-1”, Appendix A.
DSC Sally Graham, charged on 23 January 2024(b)
(i) aggravated burglary;
(ii) commit an indictable offence while on bail;
(iii) theft of motor vehicle;
(iv) threat to inflict serious injury;
(v) reckless conduct endangering serious injury;
(vi) recklessly causing injury (three charges);
(vii) threat to inflict serious injury; and
(viii) intentionally causing injury.
On 7 January 2024, the applicant was granted Youth Justice Supervised Bail at the Weekend Online Remand Court in relation to the informant Uren matters. Bail was revoked at Bendigo Children’s Court on 24 January 2024 after the applicant was arrested in relation to the informant Graham matters.
The applicant applied for bail in relation to both the informant Uren and Graham matters on 12 February 2024, however his Honour Magistrate Kelly of the Bendigo Children’s Court refused to grant bail on the grounds that the applicant posed an unacceptable risk of committing another offence whilst on bail and of endangering the safety or welfare of any person.[3]
[3]Affidavit in Support, Exhibit “AR-2”, 51-4.
In addition to the informant Uren and Graham matters, the Court notes the following outstanding matters:
DSC Ashley Sutton, charged on 16 October 2023, granted bail on 19 October 2023 at the Bendigo Police Station(a)
(ix)theft from a motor vehicle (two charges).[4]
Senior Constable Grace Lovel, charged on 26 December 2023, summons date 25 March 2024(b)
(i) intentionally damaging property (two charges).[5]
[4]Affidavit in Support, Exhibit “AR-4”, 66.
[5]Affidavit in Support, Exhibit “AR-5”, 71-2.
Summaries of the alleged offending
Informant Uren matters – on remand
The informant Uren matters relate to alleged offending between 11 November 2023 and 6 January 2024.
On 11 November 2023 at 7:26pm, it is alleged that the applicant was riding a bus in California Gully with other youths when he grabbed the victim’s mobile phone, got off the bus and ran off. This incident was captured on CCTV.[6]
[6]Affidavit in Support, Exhibit “AR-1”, 29;
On 17 November 2023 at 11:57pm, it is alleged that the applicant entered the front yard of a property in Bendigo and attempted unsuccessfully to gain entry to two vehicles parked there. From that second vehicle he stole a Makita Grinder, Makita battery and a TV wall mount valued at $548.00. This alleged offending was captured on CCTV.[7]
[7]Ibid.
On 27 December 2023 at approximately 1:55pm, the applicant is alleged to have attempted to gain access to a vehicle in California Gully. This alleged offending was captured on CCTV.[8]
[8]Ibid.
Between 30 and 31 December 2023, the applicant is alleged to have attended an address in California Gully. The occupants at the address were asleep when the applicant is alleged to have exited via the unlocked back door and taken a wallet, iPad and car keys. The applicant entered but did not take anything from a red Mazda CX3 belonging to the occupants and made off with a Nissan Navara and an attached a blue box trailer. The applicant is also alleged to have entered a neighbouring property via the garage and removed the cover from a motorbike. On 1 January 2024 at 3:50am, police located the stolen Nissan Navara which had a warm engine, indicating that it had been recently driven. The applicant and an associate were located approximately 160 meters from the stolen vehicle but were not arrested. Forensic examination of the vehicle later identified the applicant as an occupant.[9]
[9]Ibid, 29.
Between 9:30pm on 3 January 2024 and 7am on 4 January 2024, the applicant allegedly stole a white Toyota RAV4 which was parked at an address in California Gully. This vehicle had been left with the front passenger window down with a spare set of keys in the console and was valued at $8,000.[10]
[10]Ibid, 30.
On 4 January 2024 at approximately 4:27am, the applicant allegedly attempted to unlock the front door of a property in California Gully. He attempted to remove fly wire at various entrances to the property but could not gain access. He left after approximately nine minutes and the entire venture was captured on CCTV.[11]
[11]Ibid, 29-30.
On 5 January 2024 at 7:02am, the applicant allegedly drove the stolen RAV4 to EG Fuel in Epsom and filled it with 27.7 litres of unleaded fuel to the value of $48.78 without paying. The entire incident was captured on CCTV.[12]
[12]Ibid, 30.
On 5 January 2024 at 1:05pm, the applicant allegedly attended the BP in Woodend in the stolen RAV4, filled up the vehicle with 37.19 litres of unleaded petrol valued at $70.60 and left without paying. This incident was captured on CCTV.[13]
[13]Ibid, 32.
On 5 January 2024 at 2pm, an incident occurred in North Melbourne. The victim was sitting stationary in her vehicle when it is alleged that the applicant, who was driving the stolen RAV4, collided with her causing significant damage to her vehicle. The applicant did not stop or exchange details.[14]
[14]Ibid, 30.
On 5 January 2024 at 3:03pm, police identified the stolen RAV4 in Moonee Ponds. Panel damage to the front passenger side of the vehicle was observed. The applicant, who is alleged to have been driving, was instructed by police to exit the vehicle. The applicant did not comply and drove away, running over stop sticks deployed by police and puncturing the front and rear tyres.[15]
[15]Ibid, 30.
On 5 January 2024 at 5:53pm, police recorded a video of the applicant driving the stolen RAV4 in Castlemaine. At approximately 8pm that evening, the applicant approached the home of a resident in Goornong, identified himself by his first name and requested assistance with his vehicle, which he claimed was borrowed from a friend. The resident assisted the applicant to move the RAV4 off the road before driving him to Rochester. The resident observed that the applicant slept during this car ride. The stolen RAV4 was located at 9:30pm that same evening by a CFA member.[16]
[16]Ibid, 30.
On 6 January 2024 at approximately 4:10am, it is alleged that the applicant entered the yard of a property in Rochester. While there, he stole the key from the ignition of an unlocked Holden Astra sedan and a petrol can with petrol inside. It is further alleged that the applicant then entered an unlocked white RAV4. He located the keys in the ignition of this vehicle and drove away in it.[17]
[17]Ibid, 31.
On 6 January 2024 at approximately 5am, it is alleged that the applicant returned to the abandoned RAV4, poured petrol onto it using a stolen red fuel container and set the car alight. The applicant then fled the area. CFA and police attended the scene. Whilst enroute, police officers observed a car travelling very fast away from the fire toward Bendigo.[18]
[18]Ibid, 31.
On 6 January 2024 at 7:25am, it is alleged that the applicant drove the stolen RAV4 to United Service Station in Echuca. Whilst there, he was captured on CCTV stealing 38 litres of fuel valued at $72.38 and leaving without paying.[19]
[19]Ibid, 31.
On 6 January 2024 at 8:49pm, police members observed a vehicle in Rochester driving at 117 km/hour in the 50 km zone. The vehicle failed to pull over and the police air wing observed the vehicle continue to drive at excess speeds on rural roads. Stop sticks were deployed by police and the driver, alleged to be the applicant, was eventually forced to stop the vehicle in Huntly. The applicant fled the vehicle and was arrested in the yard of a nearby residential property. Police members also located two other persons in the vehicle, aged 13 and 14 years old. In the vehicle, police also located a machete, two knives, a red fuel container, a Holden key, and the applicant’s mobile phone.
Once conveyed to the Bendigo Police Station, an oral fluid test was conducted on the applicant. He tested positive to methyl amphetamine and cannabis. Police also conducted analysis of the applicant’s phone, which it is alleged reveals admissions and evidence relating to several of the alleged offences.
The applicant was interviewed by police in the presence of an independent third person and provided mostly ‘no comment’ answers.[20]
[20]Ibid, 31-3.
Informant Graham matters – on remand
It is alleged that on 17 January 2024 at 3:15am, the applicant crawled under the garage door at a property in Strathdale, Victoria. He proceeded to obtain a pair of sewing scissors and a set of car keys to a Mazda wagon parked outside the garage door. Two owners of the property, Mr and Mrs Turner, awoke and noted the applicant on their CCTV cameras, by that stage inside the Mazda wagon as the sole occupant. Mr and Mrs Turner rushed outside and opened the driver’s side door of the Mazda to confront the applicant. The applicant allegedly told Mrs Turner “I have scissors and I will stab you”.
Neighbours Mr and Mrs Fisher were awoken by the commotion and called triple 0. They proceeded outside to assist, calling to their son Lewis. Mr Fisher joined Mr and Mrs Turner and told the applicant to get out of the car. The applicant reversed the vehicle causing Mr Turner to be flung across the ground. Mr Fisher attempted to pull the applicant from the vehicle. The applicant allegedly yelled “I’m going to stab you” and “leave me alone, come any closer and I’ll stab you with the scissors. I don’t want to, but I will”. He then allegedly stabbed Mr Fisher to the left forearm, left inner elbow and left side chest. Lewis joined his father and attempted to turn the car ignition off. The scissors were taken from the applicant, however the applicant attempted to drive the car away causing Lewis’ left foot to drag along the ground and degloving his left heel. Lewis grabbed the applicant and, after a scuffle, the applicant fled the scene. Mr Fisher and Lewis were taken to Bendigo Hospital by ambulance. Lewis was treated and discharged, while Mr Fisher required surgery but is expected to make a full recovery. Mr Turner was treated for cuts at the scene. The entire incident was captured on CCTV and forensic evidence was recovered at the scene.
The applicant was arrested on 23 January 2024 at an address in Strathdale and provided a ‘no comment’ police interview.[21]
[21]Affidavit in Support, Exhibit “AR-1”, 18-20.
Informant Sutton matters – on bail
It is alleged that on 14 October 2023, the applicant and his co-accused attended an address in North Bendigo and stole various items from two unlocked vehicles, notably a backpack containing four chef’s knives, a wallet, and two caps.[22] This incident was captured on CCTV.
[22]Affidavit in Support, Exhibit “AR-4”.
The applicant was arrested and interviewed on 19 October 2023. He initially indicated to police that he was asleep at home at the time of the offending, before providing ‘no comment’ responses. He was subsequently bailed from the Bendigo Police Station.
Informant Lovel matters – on summons
On 1 September 2023, the applicant was at the Bendigo Railway Station with a group of friends.[23] Two Senior Protective Services Officers had arrested the applicant’s friend on an unrelated matter. As the PSOs escorted the applicant’s friend away, the applicant allegedly started to kick at the driver’s side door of the officers’ police vehicle parked nearby, which resulted in a large dent. The applicant is alleged to have also damaged another nearby marked police vehicle, by smashing the driver’s side mirror and kicking the driver’s side door, causing a large dent. The cost of damages to both vehicles totalled $12,952.39.
[23]Affidavit in Support, Exhibit “AR-5”.
The applicant fled the scene but was arrested shortly after. He provided a ‘no comment’ police interview and was subsequently released on summons.
Applicant’s personal circumstances
The applicant was 16 years old at the time of the alleged offending.
The applicant was previously residing with his father. He has no contact with his biological mother and has been exposed to family violence and parental substance abuse from a young age.[24] The applicant’s father and stepmother, who reside separately, are both supportive of the applicant. On previous occasions the applicant has advised Youth Justice that his stepmother’s partner is violent, and that he does not get along with his stepmother when she drinks.[25] The applicant has been involved with Child Protection services.[26]
[24]Affidavit in Support, 13 [g].
[25]Youth Justice Bail Service Report (12 February 2024) in Affidavit in Support, Exhibit “AR-3”, 59.
[26]Ibid, 58.
During assessment on 7 January 2024, the applicant reported to identify as Aboriginal. Although he has provided conflicting reports since, it is noted that his stepmother – who the applicant considers his mother figure – and siblings identify as Aboriginal.[27] The applicant has expressed a desire to learn more about his stepmother’s Aboriginal ancestry, as well as his biological mother’s background.[28]
[27]Ibid, 60.
[28]Ibid.
The applicant has been diagnosed with an intellectual disability,[29] and an NDIS Progress Report from 2022 indicates that he has been diagnosed with Autism, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and Encopresis.[30]
[29]Affidavit in Support, Exhibit “AR-8”, 87-8.
[30]Affidavit in Support, Exhibit “AR-9”, 95.
At the time of his remand, the applicant was disengaged from education and employment, and had been for a significant period. Since being remanded, the applicant has indicated a desire to complete year 10 and has requested enrolment at a secondary school. His engagement with Parkville College has been limited, although it appears this is not due to lack of engagement on the part of the applicant.
The applicant has disclosed a history of methylamphetamine and cannabis use. Prior to being remanded, the applicant demonstrated an unwillingness to cease substance use, and a lack of insight into the impacts of his substance use. Upon being taken into custody, the applicant has provided consent for referral to alcohol and drug treatment services.
Youth Justice Bail Service Report
The Court was assisted by the preparation of a Youth Justice Bail Service Report (‘YJ Report’) by Youth Justice Advanced Case Manager, Brittany Johnson, on 23 February 2024. The Court also had before it a previous report prepared by Ms Johnson dated 12 February 2024, which I understand was prepared in advance of the application for bail in the Children’s Court. Ms Johnson also attended the hearing to give evidence.
The YJ Report assesses the applicant as unsuitable for the Youth Justice Supervised Bail Program. As Ms Johnson confirmed in her oral evidence, the applicant was assessed for both the Supervised and Intensive Bail Programs in the preparation of the YJ Report.[31] The applicant was previously subject to Youth Justice Supervised Bail prior to being remanded on 24 January 2024.[32]
[31]T5.20-1.
[32]YJ Report, 3.
Ms Johnson greatly assisted the Court in clarifying the difference between these programs. She indicated that Supervised Bail is directed at low or moderate risk assessed clients and provides a less rigorous program,[33] whereas Intensive Bail is directed at applicants with a higher risk of non-compliance and requires a structured 25 hours of engagement each week.[34]
[33]T6.6-8.
[34]T5.24-28; T6.8-10.
Ms Johnson explained that, despite the gravity of the offending, the applicant was considered unsuitable for an Intensive Bail Program out of concern that he would be overwhelmed and unable to complete the 25 hours of activities required each week.[35] This concern was in part prompted by the applicant’s cognitive deficits and neurodiversity, as well as his previous struggles with engagement in the Supervised Bail Program, when he was only required to attend three appointments per week.[36]
[35]T5.24-31.
[36]T5.28-31; T6.1-4.
In alternatively considering the applicant for a Supervised Bail Program, the YJ Report notes several factors weighing against recommending such a course of action. First, the applicant has previously been subject to such an order and continued to offend. Second, the applicant has proven unmotivated to cease his engagement with high-risk behaviour and has not provided consent to facilitate referrals to other services.[37]
[37]YJ Report, 3.
However, at the hearing, Ms Johnson accepted that the initial bail program was the applicant’s first substantive engagement with Youth Justice, and that the applicant had attended five of eight appointments whilst in the community.[38] Ms Johnson has seen a shift in the applicant since experiencing custody and the applicant has demonstrated an ability to engage in programs.[39] Ms Johnson expressed confidence that the applicant will attend sessions and engage better with services in the future,[40] and has seen his engagement improve significantly while on remand.[41] Ms Johnson also noted that the applicant’s history demonstrates a tendency to engage better with services when there is a degree of court oversight.[42]
[38]T6.29-31; T7.1-6.
[39]T10.10-18.
[40]T8.16-23; T13.19-21.
[41]T11.2-6.
[42]T13.19-21.
Ms Johnson gave evidence that the applicant has voiced having a positive relationship and strong connection with his father, stepmother and siblings, and that he has missed this bond while on remand.[43] It is unclear exactly how many siblings the applicant has, however it appears that there is one sibling living with his father and further siblings living with his stepmother.[44] The applicant has proposed residing with either his father or stepmother if granted bail, but he has expressed a preference to reside with his stepmother. However, the YJ Report raises concerns about the suitability of this option, especially noting the use of alcohol at the premises and the potential for violence by the stepmother’s partner.[45] Although the YJ Report indicated that this risk was possibly ameliorated by a current Family Violence Intervention Order, the respondent confirmed at the hearing that this Order had expired on 9 February 2024.[46] It was also unclear whether the applicant’s stepmother and her partner were still in a relationship.[47]
[43]T27.27-31; T28.1-8.
[44]T28.15-22.
[45]YJ Report, 5.
[46]T49.26-31; T50.1-5.
[47]T29.11-14.
The YJ Report, and Ms Johnson’s evidence, similarly indicates that the applicant’s father has a distrust of police and government services.[48] Ms Johnson suggested that the applicant’s father has seemed motivated to overcome his personal misgivings and has presented positively to engaging with Youth Justice and receptive to assisting the applicant to access support services.[49] The applicant’s father was also previously open to reporting the applicant’s whereabouts to Youth Justice;[50] Ms Johnson confirmed that when she had telephoned during the previous engagement with Supervised Bail, the applicant’s father had been candid in advising whether the applicant was at home and when he had last seen him.[51]
[48]YJ Report, 5.
[49]T27.3-8.
[50]T52.3-17.
[51]T27, 11-13.
It also appears from the YJ Report that there was previously an investigation by Child Protection into the family, and that there was an additional referral for investigation following the applicant’s admission to Parkville.[52] Ms Johnson indicated that the file had been endorsed for closure, suggesting that the Child Protection services assessed that there was no risk, although this was far from clear.[53] As at February 2024, it appears the case is still in the investigation phase.[54]
[52]YJ Report, 3-4.
[53]T12.26-31.
[54]YJ Report, 4.
The applicant has had mixed engagement with school; he was previously enrolled at a special school in Echuca, however his enrolment was apparently terminated for lack of engagement around the beginning of the COVID-19 pandemic.[55] The applicant has since expressed a desire to complete his year 10 studies and undertake a trade.[56] However, his chosen school is unable to accommodate his enrolment based on his age.[57] Alternative avenues, such as the Victorian Pathways Certificate at other specialist schools, are available but have yet to be discussed with the applicant.[58]
[55]YJ Report, 6.
[56]YJ Report, 6.
[57]T25.1-8.
[58]YJ Report, 6; T26.1-11.
The YJ Report notes that the applicant has been involved in multiple altercations in his time in custody.[59] At the hearing, Ms Johnson indicated that the applicant has also been the victim of multiple incidents, perhaps deliberately in order to encourage staff to isolate him.[60] Ms Johnson considered that the applicant presented as someone who could be extremely vulnerable in a custodial setting,[61] and suggested that a further period in custody could detrimentally impact on the applicant’s mental health.[62] Ms Johnson also confirmed that the applicant has expressed concerns to custody staff about changes to his mental health since arriving at Parkville.[63]
[59]YJ Report, 10-11.
[60]T37.3-31; T38.1-6.
[61]T38, 4-6.
[62]T31,16-17.
[63]T31.1-17.
The applicant has disclosed extensive use of methamphetamine and cannabis and has previously declined to engage in any alcohol or drug support. However, since being remanded, the applicant has engaged in two sessions and has expressed an eagerness to address his drug use.[64] Youth Justice has arranged support for the applicant through the Njernda Aboriginal Co-Operative in the Echuca area, or through the Youth Support and Advocacy Services (YSAS), which can commence immediate weekly counselling.[65] This support addresses what Ms Johnson considers a “major” risk factor to the applicant reoffending.[66] Consideration was also given to seeking a placement in a residential drug and rehabilitation facility, such as Bundjilwarra Healing Centre, however the Court was advised that there is a six month waitlist for this and other similar facilities.[67]
[64]YJ Report, 6-7.
[65]YJ Report, 6-7; T31.24-31; T32.1-12.
[66]T32.13-17.
[67]T32.25-29; YJ Report, 7.
The YJ Report instead sets out a combination of services to address the applicant’s risk. This was expressed in a weekly schedule commencing from the day of the bail hearing.[68] The schedule includes:
[68]YJ Report, 13.
(a) engagement with the Bendigo and District Aboriginal Co-operative (‘BDAC’) on a Monday and Tuesday. The applicant has been paired with Mr Ashley Petty at BDAC and appears to have built an instant rapport with him, reportedly describing Ash as an “effing legend”.[69] Mr Petty appeared at the hearing and indicated that his role involves talking with the applicant about daily activities and his connection to culture.[70] Mr Petty later suggested that there are also opportunities for the applicant to become involved with local football;[71]
[69]T19.23-31.
[70]T24.12-15.
[71]T25.25-28.
(b) additional Youth Justice Supervision on Tuesday and Friday;
(c) a full day with the Boys to the Bush program on Wednesday. This initiative aims to connect children with different activities, such as fishing and camping, and provides one-on-one mentoring to promote pro-social engagement in the community.[72] The applicant has expressed considerable enthusiasm for this program;[73]
[72]Ibid; T19.9-22.
[73]T19.23-27.
(d) an appointment with YSAS on Thursday to address drug and alcohol concerns. It was noted at the hearing that this service is based in Bendigo and does not cover the Rochester area, however the court was assured that there are Echuca-based services that are available should the Court grant bail to that area;[74]
(e) a consultation, also on Thursday, with Ms Sarah Nash from the Youth Justice Community Support Service (YJCSS). This service from Anglicare focuses on helping the applicant achieve set goals, and he has been meeting with Ms Nash since 12 January 2024.[75] Ms Nash also appeared at the hearing and explained that she worked with the applicant when he was in the community and has continued to see him since he has been on remand.[76] Ms Nash noted that the applicant has appeared increasingly motivated to setting goals.[77] The service offered is an outreach program and Ms Nash will travel to the applicant to assist him to achieve whatever task he has planned for the session;[78] and
(f) an appointment with U-Choose on Friday morning, an Echuca-based disability support service that can provide a full day program of behavioural support for the applicant.[79]
[74]T18.3-9.
[75]YJ Report, 8; T33.11-20.
[76]T33.24-26.
[77]T34.2-18.
[78]T34.21-29.
[79]T17.23-30; T20.4-6.
The YJ Report does not propose any services for the applicant on weekends. Ms Nash was asked at the hearing about the availability of services through YJCSS to provide recreational activities, such as attending the gym, on these days to keep him engaged and occupied.[80] Unfortunately, while the YJCSS does offer a Saturday program, the service only has one employee for this program and she is currently at capacity.[81] It is regrettable that supervision and support is not available on weekends, a time when it would prove most valuable to at-risk children, simply through a lack of adequate resources.
[80]T34.30-1; T35.1-2.
[81]T35.3-9.
Ms Johnson indicated that the major hurdle to recommending bail was the need to see the applicant engage more fully with services.[82] She noted that a significant number of the services in place were voluntary, and therefore the mitigation of risk depended heavily on the applicant’s personal motivation.[83] Her concerns around the applicant’s ability to engage are heavily linked to his cognitive deficits, and Ms Johnson appeared to be highly cognisant of the risk that he may become overwhelmed. She indicated that a demonstrated period of engagement would provide Youth Justice with some comfort in this regard.
[82]YJ Report, 2; T38.7-25.
[83]T51.17-30.
It was also conceded by Ms Johnson that, considering the increased discussions regarding youth crime in the public discourse, Youth Justice has come under scrutiny and has adopted a more conservative approach in their assessments regarding suitability for bail.[84] While I do not consider that this report was the product of an internal directive, it is a cause for concern if Youth Justice is considering public policy over the individual merits of a case.
[84]T40.23-31; T41.1-3.
Legislative framework
The Court is required to interpret and apply the Bail Act 1977 (‘the Act’) by taking account of the guiding principles in s 1B(1).
Determination in relation to an aboriginal person
When making a bail determination, the Court is also required to consider any issues arising from the accused’s Aboriginality under s 3A of the Act, including:
(a) the accused’s cultural background, including his ties to extended family or place; and
(b) any other relevant cultural issue of obligation.
Determination in relation to a child
Additionally, as the applicant in this matter is a child, the Court must take into account the factors set out in s 3B(1) of the Act:
(a) the need to consider all other options before remanding the child in custody; and
(b) the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e) the need to minimise the stigma to the child resulting from being remanded in custody; and
(f) the likely sentence should the child be found guilty of the offence charged; and
(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
The Court may also take into account any recommendation or information in a report provided by a bail support service,[85] and bail must not be refused on the sole ground that the child does not have any (including any adequate) accommodation.[86]
[85]The Act, s 3B(2).
[86]Ibid, s 3B(3).
The applicant was charged with schedule 2 offences under the Act that are alleged to have been committed while he was on bail for a schedule 2 offence. He is therefore required by ss 4A and 4AA of the Act to establish the existence of exceptional circumstances to justify his release on bail. This requires considering the surrounding circumstances of the matter, including the non-exhaustive list of considerations in s 3AAA of the Act.
It was common ground that the applicant had established the existence of such exceptional circumstances.
The critical question is whether the respondent has established that if the applicant is released on bail, he would endanger the safety and welfare of a person or commit an offence while on bail, as prescribed by s 4E of the Act.
Sections 3A and 3B of the Act are of relevance in determining that question.
Applicant’s submissions
The applicant seeks bail on the following grounds:
(a) the applicant is a 16-year-old child who identifies as Aboriginal;
(b) the applicant has an intellectual disability[87] and reports having been diagnosed with Autism, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and Encopresis;[88]
[87]Affidavit in Support, Exhibit “AR-8”, 87-8.
[88]Affidavit in Support, Exhibit “AR-9”, 95.
(c) it is the applicant’s first time in custody, and he has no prior criminal convictions. At the date of the bail application, the applicant had spent 34 days on remand;
(d) the applicant’s Youth Justice case manager is arranging community supports to ameliorate the risk of further offending including through NDIS and Bendigo District Aboriginal Cooperative. The applicant has consented to engaging with appropriate support services; and
(e) the applicant’s father and stepmother are supportive of him and would welcome the applicant home if he was to be released on bail.[89]
[89]Notice of Intention to make an Application for Bail, filed 19 February 2024.
The applicant submitted that any risk of reoffending needs to be weighed against the potentially corrosive effect on a vulnerable individual spending additional time in custody, possibly extending the risk of reoffending in the medium to long term.[90]
[90]T57.15-31.
In oral submissions, the applicant also drew the Court’s attention to the requirements of section 3B(1)(a) of the Act, which requires that all other options must be considered before remanding a child in custody. In their submission, until the applicant has had an opportunity to meaningfully engage with support services put in place to mitigate risk, it could not be determined that all other options had been exhausted.[91]
[91]T56.10-24.
The applicant also noted that the finalisation of the proceedings may be delayed by at least six weeks as any sentencing would need to be deferred to allow for provision of a pre-sentence report.[92]
[92]T59.2-7.
Respondent’s submissions
The respondent conceded in written submissions, and at the hearing, that it is open to the Court to find that exceptional circumstances exist to justify the grant of bail.
Nonetheless, the respondent contended that bail must be refused on the basis that the applicant poses an unacceptable risk of:
(a) endangering the safety or welfare of the general community through his lack of motivation to cease offending and the serious nature of his alleged offending; and/or
(b) committing an offence on bail, given that his most recent offending occurred while he was subject to Youth Justice Supervised Bail.
The respondent submitted that the applicant has demonstrated a lack of ability to self-manage and identify his current risk factors, and that as a result the programs put in place would not be able to mitigate the risk of re-offending.[93]
[93]T59.16-23.
Additionally, at the hearing, the respondent contended that there has been no evidence from the consultations with the applicant that he was motivated towards “breaking the cycle” of his offending.[94] Instead, the respondent submitted that any evidence of the applicant’s growing engagement with services is motivated by a desire to get bail, rather than to seek support.
[94]T59.24-5.
The respondent conceded that a custodial disposition is unlikely in the circumstances of the offending.[95]
[95]Submissions on behalf of the Respondent, filed 23 February 2024, [26]; T57.6-7.
Analysis
The respondent conceded that it is open to this Court to find that exceptional circumstances exist to justify a grant of bail.[96] Having considered the material before the Court, I am satisfied that the applicant has satisfied the burden of showing that exceptional circumstances exist to justify the grant of bail.[97] I note that:
[96]Affidavit in Response, filed 23 February 2024, [27].
[97]Pursuant to the Act, s 4A.
(a) the applicant is a child, being 16 years old;
(b) the applicant identifies as Aboriginal;
(c) the applicant has been assessed as having an intellectual disability. He has also been diagnosed with Autism, Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. I note for completeness that no up-to-date psychological or psychiatric testing reports are before the Court;
(d) it is conceded that the applicant is unlikely to receive a custodial sentence; and
(e) the applicant has never been convicted of an offence in Victoria.
The real issue in this application is whether the applicant represents such an unacceptable risk on bail as to warrant his continued remand. The onus for demonstrating that the risk is ‘unacceptable’ rests with the respondent.[98] I consider that the serious decision to continue the incarceration of any child demands that the risk is demonstrated with cogent evidence to a high degree.
[98]The Act, s 4D(2).
The respondent submits that there exists an unacceptable risk that the applicant will commit an offence on bail or endanger the safety or welfare of any person. In determining risk, I have considered the factors raised by the respondent, such as the gravity of the offending in January 2024 and the fact he was on bail when that offending occurred. I take this opportunity to note that this offending is extremely concerning and the applicant has demonstrated an inability to identify his own risk factors. As the respondent pointed out, he has previously demonstrated little ability to self-manage in the community despite the availability of multiple supports. Though he now appears more motivated to take positive steps, I have considered the respondent’s submission that this is primarily motivated by the prospect of bail. I have had regard to the victims’ statements, their views about bail, and the impact of the offending on them.[99]
[99]Affidavit in Response, Exhibit LCH-1 ‘Informant’s Report’, Appendix N ‘Medical Update provided to Informant Uren by victims’, 388-391.
While these factors are relevant, there is a degree of risk in almost every grant of bail.[100] The enquiry as to whether the risk is ‘unacceptable’ requires regard to all the circumstances of the applicant,[101] not just the elements of the offending or the applicant’s record.
[100]HA v The Queen [2021] VSCA 64, [73].
[101]The Act, s 4E(2)(a).
The Court’s ability to assess the level of risk has been severely hampered by the availability of recent psychological assessments. Nevertheless, the applicant presents with severe intellectual and cognitive disabilities, extreme vulnerability to a custodial setting and an inherent vulnerability as an individual who identifies as Aboriginal.
Most importantly, perhaps, the respondent concedes that the applicant is unlikely to receive a custodial sentence for his offending. Instead, the respondent is seemingly seeking the ongoing remand of a vulnerable child, for the remaining six to eight weeks required for these current matters to resolve (on an optimistic estimate), with full awareness that the applicant is unlikely to receive a custodial disposition. This is a regrettable situation.
Strikingly similar circumstances to this application were present in HA v The Queen [2021] VSCA 64. When faced with the likelihood that a child applicant would not receive a custodial sentence, the Court of Appeal noted that, even though the Act does not require the grant of bail where the length of time that an accused is likely to spend on remand would exceed the likely sentence that would be imposed on a finding of guilt, ss 3AAA(1)(k) and (l) make this a consideration which must be taken into account as part of the surrounding circumstances.[102]
[102]HA v The Queen [2021] VSCA 64, [62].
The Court of Appeal further described the continued pre-trial incarceration of a child who is unlikely to receive a custodial sentence as “akin to a form of preventative detention”,[103] a motive that is “alien to fundamental principles that underpin our system of justice”.[104] Maxwell P and Kaye JA went on to state that, in the case before them, the consideration that it was unlikely that the appellant would receive a custodial sentence was “necessarily a most powerful factor in determining whether, if the appellant were granted bail, the risks of him offending, or endangering others, were unacceptable”.[105]
[103]Ibid, [63].
[104]Ibid, [64].
[105]Ibid, [66].
While there are several circumstances, each of significant weight, in my view the most significant is that it was common ground that due to his age and circumstances, the applicant is unlikely to be sentenced to a term of custody if he is found guilty of the charges outstanding against him.
It was nevertheless submitted by the respondent in this case that the applicant has shown a lack of ability to identify his own risk factors, is unable to self-manage his strategies and therefore poses an unacceptable risk of continuing to commit offences whilst on bail despite programs put in place for him. The respondent contends that there is no evidence of “breaking the cycle” before the court.
The problem with the respondent’s submission is that it fails to consider the reasons why the applicant has limited insight and personal strategies to self-manage. The reasons include his age, his intellectual, personal and psychological profile, his trauma background and his identification as an Aboriginal person. The applicant has not had the opportunity to develop personal strategies in custody because, due to factors out of the applicant’s control, he has only had access to one music class in the four weeks he has spent on remand and has not had access to further psychological testing.[106] This is not a criticism of Parkville Detention Centre or Parkville College. As is so often the case, this is a matter of resourcing, not risk. However, it comes as no surprise that the material before the court indicates that further time in custody is likely to have a detrimental effect on his mental health. It beggars belief to understand how keeping a child in custody in these circumstances can “break the cycle”.
[106]YJ Report, 6,
In the absence of cogent evidence that the applicant poses more than an obvious risk and weighing this against the compelling circumstances that call for a grant of bail, I am not satisfied that the respondent has demonstrated that bail must be denied on step two of the test.
As a result, I consider that the role of the Court in a situation like this is to investigate bail conditions that address the unavoidable risk, while supporting the applicant to change their behaviour. This is a rare opportunity when a vulnerable individual is in a setting that may facilitate rehabilitation. It is these steps that may “break the cycle”, as the respondent put it, rather than preventative detention or any sort of custodial sentence. The unsuitability of custody in circumstances like this is further supported by the fact that NDIS resources are sidelined when a participant is in a youth detention centre. There is also growing understanding that the justice system is criminogenic and the earlier a child engages with youth justice, the more likely they will reoffend and become entrenched in the system.[107]
[107]Standing Council of Attorneys-General, ‘Age of Criminal Responsibility Working Group Report’ (Report, September 2023) 23; C Cunneen, ‘Arguments for Raising the Minimum Age of Criminal Responsibility’ (Research Report, Comparative Youth Penalty Project, University of New South Wales, 2017) 11-12.
As is true in almost every grant of bail, there will remain a degree of risk. Nevertheless I consider, given the powerful considerations to which I have referred – the applicant’s youth and serious cognitive deficits, his vulnerability in custody and the probability that he will not receive a custodial sentence – what might in other circumstances be viewed as unacceptable risk has properly to be viewed as acceptable.
Conclusion
I will order that the applicant be admitted to bail upon his own undertaking with the following conditions:
(a) He comply with all lawful directions and attend all appointments as directed by any approved delegate or officer of Youth Justice.
(b) He attend the Bendigo Children’s Court on the next date 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.
(c) He reside at [the Rochester address] in Victoria, and not change that address without the leave of the Court, or as otherwise permitted by an approved delegate of Youth Justice.
(d) He remain at those premises between the hours of 8pm to 7am each day for the duration of bail, except in the company of an approved delegate of Youth Justice.
(e) 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.
(f) He abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) without lawful authorisation under that Act.
(g) He not contact, directly or indirectly, the co-accused for the duration of the bail period.
(h) He not contact, directly or indirectly, any witness for the prosecution, except the informant.
(i) He remotely attend an assessment at the Children’s Court of Victoria on 29 February 2024, or as otherwise arranged by the Children’s Court Clinic.
(j) He reappear remotely before the Court for judicial monitoring to review his compliance with this order on the agreed date, and any further dates this Court appoints during the course of this order.