Re PJ (No 2)
[2024] VSC 498
•23 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
SECR 2024 0179
| 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 years of age, a pseudonym has been adopted pursuant to s 534 of the Children, Youth and Families Act 2005 (Vic).
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JUDGE: | Kaye JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2024 |
DATE OF JUDGMENT: | 23 August 2024 |
CASE MAY BE CITED AS: | Re PJ (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 498 |
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CRIMINAL LAW — Bail application — Applicant charged with aggravated burglary, theft, theft from motor vehicle, theft of motor vehicle, failing to stop vehicle after an accident, failing to stop vehicle at police direction, unlicensed driving, burglary, criminal damage by fire, dangerous driving while pursued by police, reckless conduct endangering serious injury, committing an indictable offence while on bail, threat to inflict serious injury, intentionally causing injury, intentionally damaging property — Whether exceptional circumstances established – Whether unacceptable risk of endangering the safety and welfare of others —Applicant 17 years of age — Extremely low intellect — Bail Act 1977 (Vic) ss 3A, 3B, 3AA, 4A, 4AA, 4D, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L Conwell | Stary Norton Halphen |
| For the Respondent | Mr N Watt | Victoria Police |
HIS HONOUR:
The applicant, who is 17 years of age, is subject to eight separate sets of charges for indictable offences, alleged to have been committed between 14 October 2023 and 16 July 2024. He is also subject to three sets of summary charges in respect of offences, alleged to have been committed in September 2023 and June 2024. On 16 July 2024, the applicant’s most recent application for bail to the Bendigo Children’s Court was refused. He now applies to this Court for bail.
The alleged offending
For the purposes of the application, it is necessary to set out the circumstances of the alleged offending in brief detail.
(1) The Sutton charges
The first set of charges, laid by Detective Senior Constable Ashleigh Sutton, consists of two charges of theft from a motor vehicle, one charge of aggravated burglary and one charge of theft.
It is alleged that at 5:11 am on 14 October 2023, the applicant and his co-offender entered two unlocked motor vehicles in premises in Lobb St North Bendigo, from which they stole a number of items, including a backpack containing four chef’s knives, a wallet and two caps. The incident was captured on CCTV. Subsequently, at 6:30 am on the same morning, the applicant entered through the rear sliding door of premises in Bannister St, North Bendigo. At the time, the occupant of the premises was present. It is alleged that the applicant stole a number of items from inside the home, including the occupant’s handbag, which contained personal cards, her mobile telephone, cigarettes, and $750 in cash. A few minutes later, the applicant was sighted pacing up and down the street, some three doors from the premises.
The applicant was arrested on 19 October 2023, and bailed to attend the Bendigo Children’s Court on 6 November 2023. During a search of his premises, the backpack, that was stolen from one of the motor vehicles, was located in the living room.
(2) The Uren charges
The informant on the second set of charges is Detective Senior Constable Jessie Uren of Bendigo CIU. There are 27 charges. They include: theft (six charges); theft from a motor vehicle (two charges); attempted theft from motor vehicle (three charges); attempted aggravated burglary; aggravated burglary; burglary; theft of motor vehicle (three charges); criminal damage by fire; fail to stop after an accident; dangerous driving while pursued by police; reckless conduct endangering serious injury; and driving at a speed dangerous. The offences are alleged to have been committed by the applicant between 11 November 2023 and 6 January 2024.
On 11 November 2023, at 7:26 pm, it is alleged that the applicant, when riding a bus in California Gully with other youths, moved from the back of the bus to the front of the bus, where he seized the mobile telephone of the driver before alighting from the bus and running away. That incident was captured on CCTV.
On 17 November 2023, at 11:57 am, it is alleged that the applicant entered the front yard of a property in Bendigo and unsuccessfully attempted to gain entry to a motor vehicle parked there. He then gained entry to a second vehicle from which he stole a Makita grinder, a Makita battery and a TV wall mount valued at $548. That offending was captured on CCTV.
On 27 December 2023, at approximately 1:55 pm, the applicant is alleged to have attempted to gain access to a motor vehicle, parked in the driveway of premises in California Gully. That offending was captured on CCTV.
Between 30 December and 31 December 2023, the applicant is alleged to have attended at an address in California Gully. The occupants of the premises were asleep at the time. The applicant entered the premises through an unlocked back door and, when inside, he stole a wallet, an iPad and car keys that were on the kitchen bench. The applicant then used the car keys to enter a red Mazda CX-3 belonging to one of the occupants, and rummaged through its interior. The applicant is then alleged to have entered the garage and removed the cover of a motor bike. He then stole a 2006 Nissan Navara vehicle, with an attached blue box trailer. On 1 January 2024, 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 metres from the vehicle, but they were not arrested at that time. Forensic examination of the vehicle subsequently identified the applicant as an occupant of it.
Between 9:30 pm on 3 January 2024 and 7:00 am on 4 January 2024, the applicant allegedly stole a white Toyota RAV4, which was parked at an address in California Gully. The vehicle had been left with its front passenger window open and a spare set of keys in the console. The vehicle was valued at $8,000.
On 4 January 2024, at approximately 4:27 am, the applicant allegedly attempted to unlock the front door of a property in California Gully. He then removed the flywire screen, and attempted to open a locked window at the premises, but was unable to obtain access. He then left the premises. The incident was captured on CCTV.
On the next day, 5 January 2024, at 7:02 am, the applicant allegedly drove the stolen RAV4 to EG Fuel, located in Epsom. He filled the vehicle with 27.7 litres of unleaded fuel, to the value of $48.78, and left without paying. The incident was captured on CCTV.
On 5 January 2024, at 1:05 pm, the applicant allegedly attended the BP Service Station in Woodend in the stolen RAV4. He filled the vehicle with a further 37.19 litres of unleaded fuel, valued at $70.60, and departed without paying. The incident was captured on CCTV. At 2:00 pm, the stolen Toyota RAV4 vehicle, driven by the applicant, collided with the rear of a motor vehicle on Racecourse Road, North Melbourne. The applicant did not stop after the accident, or exchange details.
On the same date, at 3:03 pm, police identified the stolen RAV4 in Moonee Ponds. It was observed to have damage to the panel on the front passenger side of the vehicle. The applicant was instructed by police to exit the vehicle. He disobeyed the instruction, and drove away, running over stop sticks deployed by police, and puncturing the tyres of the vehicle.
On 5 January 2024, at 5:53 pm, police recorded a video of the applicant driving the stolen RAV4 in Castlemaine. At approximately 8:00 pm, he walked to the home of a resident in Goornang, identified himself by his first name, and requested assistance relating to his motor vehicle, which he claimed he had borrowed from a friend. The resident assisted the applicant to move the RAV4 off the road, before driving him to Rochester. The applicant apparently slept during the journey. The RAV4 was located later the same evening by a CFA member.
On 6 January 2024, at approximately 4:10 am, it is alleged that the applicant entered the yard of a property in Rochester. He entered an unlocked Holden Astra sedan and stole the key to the vehicle’s ignition. The applicant next entered a shed and stole a petrol can with petrol inside. He then entered an unlocked white RAV4 vehicle, where he located the keys in the ignition. He placed the petrol can in the rear of that vehicle, and then drove the vehicle towards Bendigo.
On 6 January 2024, at approximately 5:00 am, it is alleged the applicant returned to the abandoned RAV4, poured petrol onto it using a stolen red fuel container, and set the car alight. He then fled the area. Police and CFA attended the scene. While en route, police officers observed a vehicle travelling very rapidly from the fire towards Bendigo.
On 6 January 2024, at 7:25 am, it is alleged that the applicant drove the stolen RAV4 vehicle to a service station in Echuca, where he filled the vehicle with 38 litres of fuel, valued at $72.38. The applicant then left without making any attempt to pay. The incident was captured on CCTV.
On 6 January 2024, at 8:49 pm, police members observed the RAV4 vehicle, driven in Rochester at 117 kph in a 50 kph zone. The vehicle failed to pull over, and the police Air Wing observed the vehicle continuing to drive at excessive speeds on rural roads. Stop sticks were deployed in Huntly, which caused the applicant to stop the vehicle. He then ran from the driver’s seat and jumped a fence as other police vehicles arrived. The applicant was ultimately arrested in the rear yard of a residential property. Police members located a machete, two knives, a red fuel container, a Holden key, and the applicant’s mobile telephone in the stolen vehicle.
After the applicant was conveyed to the Bendigo Police Station, an oral fluid test was conducted. The applicant tested positive to methylamphetamine and cannabis. Police also conducted an analysis of his telephone, which revealed making admissions relating to several of the alleged offences.
(3) The Graham charges
The informant on the third set of charges is Detective Senior Constable Sally Graham of the Bendigo CIU. On 23 January 2024, Detective Senior Constable Graham charged the applicant with one charge of aggravated burglary, one charge of committing an indictable offence on bail, one charge of theft of a motor vehicle, one charge of threat to inflict serious injury, one charge of reckless conduct endangering serious injury, five charges of recklessly causing injury, and one charge of recklessly causing serious injury.
It is alleged that on 17 January 2024, at 3:15 am, the applicant crawled under the garage roller door of residential premises of Kim and Andrea Turner, situated in Strathdale. CCTV from inside the garage depicts the applicant walking around the garage, which housed the sewing table and equipment of Andrea Turner. The applicant picked up a pair of sewing scissors inside the garage, walked to the rear access door of the premises, and attempted to open the locked glass rear sliding door. He then returned to the garage and located a set of car keys belonging to the Mazda wagon parked in the driveway outside the garage door. At that time, the occupants of the house, Kim and Andrea Turner, were awoken by barking by their dogs. They ran outside and observed the Mazda wagon reversing out of the driveway. Andrea Turner ran to the car as it was moving forward, and opened the door, but the applicant closed it again. He said to her, ‘I have scissors and I will stab you’. Kim Turner then opened the door again. In the meantime, the next door neighbours, Rachel and Andrew Fisher, heard the commotion next door. Andrew Fisher ran outside and went to open the driver’s side door of the Mazda vehicle. The applicant reversed the vehicle, causing Kim Turner to be struck by the open door, and flung, skidding across the ground, into the garden bed. Andrew Fisher attempted to pull the applicant from the vehicle, and the applicant 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’. The applicant then stabbed Andrew Fisher in the left arm, left inner elbow and left side of his chest, with the scissors.
Andrew Fisher’s son, Lewis, then ran outside. He and Andrew grabbed at the applicant. In doing so, Andrew Fisher managed to take the scissors from the applicant and he gave them to Lewis, who threw them away. The applicant then attempted to drive the vehicle forward, which caused Lewis’s left foot to drag along the road, resulting in a degloving injury to the skin of his left heel.
The applicant then alighted from the vehicle. Lewis Fisher grabbed at him and struggled with him. The applicant said, ‘I didn’t want any of this, I’m just trying to feed my family’, and ‘I’m sorry’, before escaping and running away.
After police attended the scene, Andrew Fisher and Lewis Fisher were conveyed to Bendigo Hospital by ambulance. Lewis was treated and discharged a short time later. Andrew Fisher required surgery to repair tendon damage to his left wrist. As a result of the injury, he is unable to have full use of his left hand.
Kim Turner was treated at the time by ambulance drivers for cuts to his left knee and elbow. He subsequently attended his treating medical practitioner in respect of those injuries, and the psychological trauma occasioned to him. Andrea Turner was not treated by ambulance drivers, but she sustained bruising to her right forearm. She attended her medical practitioner concerning that injury, and also the psychological trauma she had sustained.
The applicant was arrested on 23 January 2024. CCTV footage from premises in Mitchell Street on 15 January 2024 depicts the applicant inside that address wearing the same clothing as depicted on the CCTV footage at the premises of Kim and Andrea Turner on 17 January 2024.
(4) The Congram charges
The informant on the fourth set of charges is Senior Constable Christopher Congram, of the Bendigo CIU. On 24 March 2024, the applicant was arrested and charged by Senior Constable Congram, on one charge each of theft of motor vehicle, reckless conduct endangering serious injury, driving at a speed dangerous, careless driving, theft of a motor vehicle, theft, two charges of unlicensed driving, and three charges of committing an indictable offence whilst on bail. Those offences were allegedly committed between 16 March 2024 and 22 March 2024.
Between 2:00 pm on 16 March 2024 and 10:00 am on 17 March 2024, a black Hyundai hatchback motor vehicle was stolen from the driveway of a private residence in Eaglehawk. The vehicle was valued at $9,000. On the same day, the applicant was captured on video, taken by a male associate, driving the stolen vehicle on the Calder Highway. The video captured the applicant driving the vehicle at excessive speeds, with the speedometer displaying speeds between 170 kph and 180 kph. The applicant was unlicensed at the time of the driving. Later that day, the vehicle was located, dumped on the Calder Highway at Ravensford.
Between 5:00 pm on 21 March 2024 and 4:00 am on 22 March 2024, a silver Honda Accord sedan vehicle was stolen from the driveway of a private residence in Kennington. The vehicle was valued at $10,000. At 4:03 am on 22 March 2024, CCTV captured the applicant driving the stolen vehicle to a service station in Strathdale. The applicant put 49.02 litres of unleaded petrol into the vehicle, which was valued at $89.36. He then drove from the service station without paying for the fuel.
At 7:19 pm on 23 March 2024, the stolen vehicle was located in Strathdale, at an address associated with the applicant. One hour later, the police attended the address again, and observed the applicant seated on a couch inside the front loungeroom. Upon sighting the police, the applicant fled through the rear door. A search was conducted, and the applicant was located and arrested at the rear door of a neighbouring residence.
(5) The Vear charges
The informant in the fifth set of charges is Detective Senior Constable Vear. On 5 April 2024, Senior Constable Vear charged the applicant with two charges of failing to answer bail.
On 7 March 2024, Incerti J of this Court ruled that the applicant be admitted to bail on his own undertaking, subject to specified conditions, in respect of the matters in which Detective Senior Constable Uren and Detective Senior Constable Graham are the informants.
Subsequently, on 24 March 2024, the applicant was bailed by the Weekend Online Remand Court to appear at the Bendigo Children’s Court on 5 April 2024 in relation to the charges in which Senior Constable Congram is the informant.
It is alleged that the applicant failed to comply with a number of conditions of his bail, specifically: committing further offences; on four occasions, failing to comply with curfew conditions of bail; and, on one occasion, in breach of the conditions of bail, being in company with a co-accused (Ryland Britton).
(6) The Whitty (1) charges
The informant in respect of the sixth set of charges is Senior Constable Benjamin Whitty of Bendigo Police CVRU. On 5 June 2024, Senior Constable Whitty charged the applicant with one charge of aggravated burglary, four charges of theft of motor vehicle, and two charges of unlicensed driving. Those offences are alleged to have been committed by the applicant between 17 May 2024 and 2 June 2024.
It is alleged that between 10:00 pm on 17 May 2024 and 8:20 am on 18 May 2024, the applicant entered a residential address in Castlemaine while the occupant of the premises was present. Having entered the premises, the applicant located a handbag, from which he took motor vehicle keys to a BMW wagon that was parked in a carport, as well as bank cards and a custom ring valued at $8,000. The applicant used the keys to enter the motor vehicle, and drove it away.
At approximately 5:10 am on 18 May 2024, the applicant attended a service station in Long Gully, where he was captured on CCTV, parking the stolen BMW next to a bowser, filling the vehicle with fuel, and then using the victim’s stolen bank card to pay for the fuel. The applicant then returned to the stolen BMW vehicle, filled it with more fuel, before again using the victim’s stolen bank card to pay for the fuel.
The BMW vehicle was recovered on 19 May 2024. On forensic examination, the applicant’s fingerprints were located inside the vehicle. The victim’s handbag, bank cards and ring have not been recovered.
The victim, having checked her bank cards, has noted that four transactions are recorded that were not made by her. The first two comprised the purchases of fuel at the Long Gully service station shortly after 5:10 am on 18 May. The third and fourth transactions comprised purchases at McDonald’s Bendigo shortly after 6:37 am on the same day, respectively for the amounts of $75.75 and $25.90.
During inspection of the applicant’s mobile telephone, the applicant was found to have recorded himself driving the BMW vehicle at 120 kph in a populated suburban area. Call charge records on the telephone number of the applicant revealed the movements of that telephone on 18 May between 3:26 am and 6:41 am, connecting with towers in the Bendigo, Ravenswood, Mount Alexander, Castlemaine, Chewton and Eaglehawk areas.
It is further alleged that between 8:00 pm on 2 June 2024 and 6:30 am on 3 June 2024, the applicant attended the premises of Ward Brothers Earthmoving, located in Rochester. The applicant gained entry to the yard by cutting padlocks that secured the gates. Having entered the premises, it is alleged the applicant located the keys to several vehicles, which were locked inside toolboxes of each vehicle. The vehicles included one Isuzu tipper, one Kenworth prime mover, and one Isuzu utility. It is alleged that the applicant drove each of those three vehicles out of Ward Brothers Earthmoving yard. The vehicles were subsequently recovered in Rochester on 3 June 2024. No damage had been occasioned to any of the vehicles. During examination by police of the applicant’s mobile telephone, the applicant had recorded himself stealing the vehicles, and stating, ‘We’re stealing fucking trucks’ in one recording.
The applicant was arrested on 5 June 2024 in Bendigo in respect of the matters that constituted the seventh set of charges. His mobile telephone was seized as evidence.
(7) The Loricco charges
The informant in respect of the seventh set of charges against the applicant is Leading Senior Constable Andrew Loricco of the Bendigo CIU. On 23 May 2024, Leading Senior Constable Loricco charged the applicant with one charge of aggravated burglary, two charges of theft, two charges of theft of a motor vehicle, one charge of unlicensed driving, and one charge of driving in a manner dangerous. Those offences are alleged to have been committed by the applicant between 22 May 2024 and 23 May 2024.
It is alleged that on 22 May 2024, at about 12:30 am, the applicant and a co-accused entered the rear yard of a residential property in Bendigo. At least one of them entered the rear door of the residence, while its occupant was asleep nearby in the front living area. On entry, the applicant stole a wallet belonging to the victim, a ceramic container with at least $50 of coins, and an Apple watch from the kitchen area. The applicant and the co-accused then, using the stolen keys, stole two vehicles, namely, a red 2023 Mazda CX-7 valued at $80,000, and a purple 2007 Mazda 3 valued at $4,000.
At about 12:10 am, the applicant attended at a petrol station on Eaglehawk Road, Long Gully, in the stolen Mazda 3. He filled the vehicle with fuel, which he paid for using the coins that he had stolen from the victim. That transaction is captured on CCTV.
On 23 May 2024, at about 2:00 am, it is alleged the applicant attended at an Ampol service station in Golden Square, again driving the stolen Mazda 3 vehicle. He had with him two other unknown persons. One of them exited the vehicle from the passenger side. The store attendant, who observed the vehicle, refused to enable the pump. The co-offender then re-entered the vehicle, which drove off at a fast speed. That incident was also captured on CCTV.
It is alleged that at about 2:20 am, the applicant attended a service station in Strathdale, driving the stolen Mazda 3. An occupant exited the vehicle and filled it with 46.23 litres of premium unleaded fuel at the value of $88.53. The vehicle then departed at a fast speed without paying for the fuel.
At about 2:30 am, the stolen Mazda 3 was observed by police on the Calder Highway, driving at speeds estimated to be in excess of 150 kph. At about 2:45 am, the vehicle was located by passing paramedics on the Calder Highway. It had been involved in a collision with an embankment and roadside while executing a U-turn, and had come to rest in the middle of the north-bound lane. The vehicle was abandoned.
(8) The Whitty (2) charges
Senior Constable Whitty is also the informant in respect of the eighth set of charges against the applicant. On 16 July 2024, Detective Senior Constable Whitty charged the applicant with one charge each of aggravated burglary, theft, theft of motor vehicle, criminal damage, reckless conduct endangering serious injury, and unlawful assault.
It is alleged that, at 3:45 am on 16 July 2024, the applicant entered the rear of a residential property located in Barrel Street, Eaglehawk. At the time, the three residents of the property, Michael Marsden, Sally Moore and Joshua Bodenstaff, were all asleep in the premises. Parked in the driveway of the premises was a Toyota Corolla sedan, owned by Sally Moore, and a 2018 Hyundai Sonata sedan, owned by Michael Marsden.
It is alleged that the applicant initially entered the property through the rear side gate, which he propped open. He then entered the house via an unlocked rear door, and rifled through the drawers of the kitchen, trying to locate vehicle keys. He then moved to the entry hallway of the address and located a black coloured basket that contained Mr Marsden’s wallet and vehicle keys belonging to the two motor vehicles. The applicant then took the basket outside, and gave the vehicle keys to Mr Marsden’s Hyundai vehicle to two unknown offenders, who entered the vehicle. The applicant then unlocked Mr Moore’s Toyota vehicle and entered it. He put Mr Marsden’s wallet in his own jacket pocket. The two unknown offenders then started reversing Mr Marsden’s Hyundai vehicle from the driveway at the same time that the applicant started to reverse Ms Moore’s Toyota.
At that point, Mr Marsden heard the vehicles reversing, and ran out the front door. He yelled to the offenders to stop. The unknown offenders, in the Hyundai vehicle, decamped and ran down the street. Mr Marsden yelled out to the applicant to get out of Ms Moore’s vehicle. In response, the applicant drove Ms Moore’s vehicle forward and reversed it straight into Mr Marsden’s vehicle, in an attempt to move that vehicle out of the way. The applicant then repeated that movement, causing damage to the rear of Ms Moore’s vehicle and the front of Mr Marsden’s vehicle. At that point, Mr Marsden jumped onto the bonnet of his own vehicle. The applicant reversed Ms Moore’s vehicle, again into Mr Marsden’s vehicle, while Mr Marsden was on the bonnet of it. The applicant then exited Ms Moore’s vehicle, leaving behind his mobile telephone. Mr Marsden grabbed him, and they wrestled to the ground of the address. Ms Moore came to Mr Marsden’s aid and assisted in restraining the applicant.
Shortly afterwards, the police, who had been contacted, arrived and arrested the applicant. Located in his jacket pocket was Mr Marsden’s wallet, batteries, $28.05 of coins, and paperwork belonging to Ms Moore. The police inspected the applicant’s telephone. Before attending the victim’s address, the applicant had sent a message via Snapchat, stating: ‘Me and the boys going out and getting a car each’.
Previous bail applications
On 7 January 2024, the applicant, having been arrested in respect of the second set of charges (‘the Uren charges’), was granted Youth Justice Supervised Bail by the Weekend Online Remand Court.
Subsequently, on 23 January 2024, the applicant was arrested in relation to the third set of charges in which Detective Senior Constable Graham is the informant (‘the Graham charges’). On 24 January 2024, the applicant was refused bail by the Bendigo Children’s Court, and bail was revoked on the outstanding matters. A further application for bail in respect of both matters was made on 12 February 2024, and bail was again refused.
On 26 February 2024, the applicant was granted bail by this Court in respect of all outstanding charges.[2] On that occasion, Incerti J granted bail to the applicant on his own undertaking on conditions that included that he comply with all lawful directions and attend all appointments as directed by Youth Justice, that he reside at a specified address, that he remain at those premises between the hours of 8:00 pm and 7:00 am each day, that he abstain from consumption of alcohol or any drug of dependence, and that he not have any contact with the co-accused.
[2]Re PJ [2024] VSC 97.
On 5 June 2024, the applicant was arrested in respect of the sixth set of charges in which Detective Senior Constable Whitty is the informant. An application for bail was made to the Bendigo Children’s Court on 6 June 2024, and the applicant was again granted Youth Justice Supervised Bail.
Subsequently, on 16 July 2024, the applicant was arrested on the eighth set of charges, in which Detective Senior Constable Whitty is also the informant. On the same date, the Bendigo Children’s Court refused the applicant’s application for bail, and bail was revoked on all the outstanding matters. The presiding magistrate accepted that exceptional circumstances had been established, but concluded that there was an unacceptable risk that the applicant, if released on bail, would endanger the safety and welfare of members of the public.
Outstanding summary charges
The applicant is also the subject of three sets of summary charges, which are outstanding.
On 26 December 2023, Senior Constable Grace Lovel of Bendigo Police charged the applicant with two charges of criminal damage. It is alleged that on 1 September 2023, the applicant was present at the Bendigo Railway Station with a group of his friends. Police who attended arrested one of the applicant’s friends and commenced to escort him to the processing pod. As they did so, the applicant kicked the driver’s side door of one of the police vehicles, and then smashed the driver’s side mirror, and kicked the driver’s door, of a second police vehicle. The applicant then fled the scene on a bicycle, and he was subsequently arrested in Bendigo. The total cost of the damage to the vehicles was estimated at $12,952.39.
On 16 May 2024, Senior Constable Daniel Peckham charged the applicant with one charge of obtaining property by deception, and one charge of dealing with the proceeds of crime. It is alleged that on 14 May 2024, at approximately 4:00 am, an offender stole the bank card of the owner of a motor vehicle, which was parked in Epsom. At approximately 5:40 am on the same day, the applicant attended at McDonald’s store in California Gully, in company with four other persons. The applicant purchased food items to the value of $106.30, using the stolen bank card. The transaction is captured on CCTV footage.
On 5 June 2024, the applicant was arrested and charged by Senior Constable Jack Milligan of Bendigo Police with six charges of attempted theft from a motor vehicle, and one charge of theft from a motor vehicle.
The first five charges are alleged to have occurred in Huntly on 15 May 2024 between 1:30 am and 3:00 am. It is alleged that, during that period, the applicant attended at three separate premises in Huntly, where he unsuccessfully attempted to gain entry into five motor vehicles at those premises. At each address, he was captured on CCTV. The sixth and seventh charges were alleged to have been committed by the applicant on 16 May 2024. It is alleged that, on that date, he attended at premises at Jackass Flat, where he gained entry to a Chrysler motor vehicle, from which he stole a gold chain and two pairs of sunglasses, valued at approximately $1,580. It is alleged that he then gained entry to a Hyundai sedan, but did not take anything from it. The applicant was captured on CCTV footage at the time.
The applicant’s personal circumstances
The applicant was born on 8 June 2007. He has two older siblings. His parents separated before he was born, and he has had no contact with his mother since he was approximately one year of age. Subsequently, the applicant’s father was in a relationship with Ms Gwen Mitchell for approximately eight years. Ms Mitchell is a Barkandji woman from the Mildura area. The applicant has regarded Ms Mitchell as his mother and, during his life, has been quite close to her. Through his association with Ms Mitchell, the applicant has identified as an Aboriginal person, and in recent times he has commenced to connect with his Aboriginal heritage. After the applicant’s father and Ms Mitchell separated, Ms Mitchell subsequently entered into a relationship with another partner, and, in those circumstances, he was exposed to some domestic violence. The applicant has no previous convictions.
The applicant has a severe intellectual disability. At the age of nine years, and subsequently at the age of 11 years, he was assessed to have a full-scale intellectual quotient of 61, which falls within the extremely low range of ability. In 2016, he presented with a very limited ability to express himself and to use words to describe concepts. He had difficulty with visual spatial tasks and completing mental puzzles. He had significant difficulties in a number of aspects, including with his working memory and processing visual information. In 2016, his teacher reported that the applicant got easily frustrated, he was easily manipulated by other students, he was deficient in self-care, and he had difficulty in comprehending task instructions.
In addition to his intellectual disability, the applicant has been diagnosed to have a number of behavioural disabilities, including oppositional defiance disorder, caprices (impulsive and unpredictable behaviour), autism spectrum disorder, and learning disorder.
In 2022, a NDIS progress report in respect of the applicant noted that there had been a significant decline in his engagement with education since 2020. The report noted that he had engaged in particular behaviours of concern, that included withdrawing from school, spending time away from his home, withdrawing from expectations at home, and engaging in verbal aggression and threats. On testing, he scored nine areas of problematic behaviour.
A Youth Justice Bail Service Report, dated 23 February 2024, was tendered on the previous hearing of the bail application before Incerti J, and was also tendered in evidence in the present application. The report recommended that the applicant was unsuitable for the Youth Justice Supervised Bail program because of the serious nature of the alleged offending and his history of poor engagement and/or lack of motivation towards engaging with therapeutic and community services, and because he presents with significant personal risk factors and lacked insight. The report noted that after the applicant was subject to Youth Justice Supervised Bail on 7 January 2024, he presented, in supervision sessions, with a lack of motivation to cease his engagement in high risk behaviours. It was also noted that the applicant disclosed significant consumption of methamphetamine and cannabis before he was remanded in custody.
At the time of the report, Youth Justice had put in place supports for the applicant that included the following:
· Engagement with ‘Boys to the Bush’, which is a charity that focuses on preventative and early intervention strategies for disengaged young males.
· ‘U-Choose Independent Support Services’.
· ‘Behaviour Support Specialist’, which would focus on completing behaviour support plan to assist the care team and family in best managing the applicant’s behaviours.
· A referral to an occupational therapist.
In addition, on being taken into custody, the applicant had commenced to engage with Bendigo District Aboriginal Co-op (‘BDAC’). In particular, it was reported that he engaged positively with his allocated worker, Ash Petty, who would continue to provide support for him. Mr Petty’s role was to engage with the applicant on a voluntary basis in supporting his education and employment, and in providing mentorship to him. In addition, the Aboriginal Liaison Officer (‘ALO’) team in Parkville had been engaging with the applicant.
Ms Brittany Johnson, the applicant’s Youth Justice Advance Case Manager, who wrote the report, gave evidence on the previous hearing before Incerti J, in which she elaborated on some aspects of the report.
Ms Johnson explained the basis upon which the applicant identified as Aboriginal. In particular, it has been determined that the applicant’s stepmother, who he regards as his mother, is of Aboriginal heritage and identifies herself as such, as do her children, who are, in fact, siblings of the applicant. The applicant has been connected with Aboriginal services, and that connection is important to him, as his siblings and his stepmother identify in that way.
Ms Johnson further explained the nature of the programs referred to above. The ‘Boys to the Bush’ program is a full day program, designed to take young people away from their usual contacts, and, in that way, to connect them with positive programs, such as fishing and camping. The program also provides assistance in linking participants to education, employment and other pro-social activities. At the time of giving evidence, Ms Johnson noted that the applicant had shown a significant amount of enthusiasm for the program, and, in particular, with the involvement in it of Ash Petty. Ms Johnson noted that the applicant had connected quite quickly and quite strongly with Mr Petty. In particular, Ms Johnson noted that the connection to culture, which the applicant was achieving through his association with BDAC, provided a significant protective factor for him.
Ms Johnson also noted that the U-Choose Independent Support Services also provide a full day program, which is designed to assist the applicant in maintaining independent living skills, such as cooking and preparing meals.
In her report, and in her evidence, Ms Johnson noted that the applicant’s father, RP[3], had a distrust of government services, and presents in a manner that is unfavourable to police. In discussion with Ms Johnson, RP had acknowledged that some of his views may have had an adverse impact on the applicant. Further, RP had, in other contacts with Ms Johnson, been candid in disclosing whether or not the applicant was present in the home and as to when RP had last seen him.
[3]A pseudonym.
In her report, Ms Johnson also noted that the applicant had attended two alcohol and other drug (‘AOD’) sessions since he had been in custody in Parkville. Those sessions had discussed the applicant’s drug use, particularly methamphetamine and cannabis. Ms Johnson noted that the applicant’s substance abuse was one of his highest risk factors, and that, before he entered custody on 24 January, he had refused consent to participate in drug counselling. Finally, in her evidence, Ms Johnson noted that the applicant had both untreated ADHD and a profound deficit in social skills, and, as such, he would be extremely vulnerable in a custodial environment. The applicant had, in fact, been involved in a number of altercations during his time in custody. Ms Johnson noted that the applicant had also been the victim of a number of incidents which, she considered, he might have deliberately provoked, in order to encourage staff to isolate him while he was in custody.
Youth Justice Supervised Bail Progress Reports
Youth Justice Supervised Bail has provided three progress reports, respectively dated 21 June 2024, 5 July 2024, and 12 July 2024, relating to the period in which the applicant was on bail between 5 June and 16 July 2024.
In the first report, dated 21 June 2024, it was recorded that the applicant had failed to follow directions of the Youth Justice Supervised Bail Program by failing to engage in programs as directed on multiple occasions. He had failed to engage in supervision with Youth Justice on 18 June and 20 June, and he had failed to engage with the Boys to the Bush program on 21 June. It was noted that since the last court hearing (14 June), the applicant’s engagement had declined. He had engaged with BDAC on 17 June 2024. It was noted that on that occasion, the applicant engaged positively with Ash Petty, and that he subsequently also engaged with BDAC on the telephone on 19 June. It was noted that the applicant was not motivated in engaging with the Boys to the Bush program, which had made a number of unsuccessful attempts to contact him.
In the report dated 5 July 2024, it was noted that the applicant had failed to follow directions of the Youth Justice Supervised Bail Program, by failing to engage in appointments as directed on multiple occasions. He had also failed to abide by his residential condition of bail, failing to reside at his father’s address as directed on numerous occasions.
The third report, dated 12 July 2024, noted that since the applicant’s last court hearing on 5 July 2024, his engagement had shown improvement. He had been responsive on the telephone to all services, including his legal services on 8 July. He was supported by Youth Justice and BDAC on 9 July to Melbourne in which he engaged in an appointment with his legal practitioners. That occasion gave Youth Justice and BDAC a significant period of time within which to engage positively with the applicant.
Youth Justice Bail Service Report
The most recent report in respect of the applicant is a Youth Justice Bail Service Report dated 16 August 2024, authored by Ms Johnson.
The report commences by noting that Youth Justice has assessed the applicant as unsuitable to engage with the Youth Justice Supervised Bail program. In particular, his current risk of non-compliance is not able to be reasonably mitigated through the Youth Justice Bail Service because of the serious nature of the offending, the poor history of engagement, lack of motivation by the applicant towards engaging with therapeutic and community services, and the presence of significant personal risk factors and lack of insight by the applicant into those factors.
The report notes that, after the applicant was originally placed on supervised bail on 6 June 2024, he had sporadic periods of engagement. On some occasions, he displayed positive engagement and an ability to engage, but there were also periods in which he displayed a complete lack of engagement and motivation. It was difficult for supervised bail to balance, on the one hand, the degree of intervention necessary to target the applicant’s risks, while on the other hand ensuring that the applicant did not become overwhelmed by that process. The report noted that the applicant had briefly engaged in the Boys to Bush program, but he had displayed a lack of interest and motivation to continue with it.
The report further notes that although the applicant’s father, RP, has a distrust of government services and of the police, nevertheless, he has presented positively during the period of the applicant’s active involvement with Youth Justice. In particular, RP has been cooperative in communicating with Youth Justice and has presented accurate information concerning the applicant’s compliance with the terms of his bail. The applicant continued to desire to be bailed to reside at the property of his stepmother in Bendigo. However, that property has been assessed to be high risk for the applicant, because of concerns of substance abuse and violence by the stepmother’s partner. When previously the applicant had been bailed to his father’s address in Rochester, the applicant had failed to abide by that residential condition.
The applicant continues to be disengaged from education and employment. That disengagement commenced at the beginning of the COVID-19 pandemic, and the applicant has not reconnected with education or opportunities made available to him.
The report notes that the applicant’s substance abuse continues to be one of his highest risk factors, being a significant contributor to his criminal choices and connections. The applicant has been referred to multiple AOD services, but he has yet to successfully attend an appointment. In the most recent period of supervised bail, he was referred to the Njernda Aboriginal Corporation for that purpose, but he failed to attend three consecutive scheduled appointments.
The report further notes that while there is some issue as to whether the applicant is, by birth, of Aboriginal heritage. Nevertheless, BDAC has agreed to continue to work with the applicant to support him culturally, in view of his connection to culture through his family relations. The applicant first met Ash Petty on 16 February 2024. Subsequently, the applicant has had sporadic and inconsistent periods of engagement with Mr Petty. During those times of engagement, Mr Petty has supported the applicant to attend gym, and has attempted to encourage him to adopt a healthy pro-social lifestyle. The report notes that Mr Petty is able to assist the applicant in education and employment, and mentoring him, and in engaging him in culturally-centred and strength-based ways to build interpersonal skills. In that connection, BDAC has a wide service which it can offer to multiple health and other programs.
Ms Johnson, in her report, noted that the applicant engaged in an assessment with her via a Zoom link from the Cherry Creek Youth Justice Precinct on 12 August last. The applicant presented with significantly entrenched pro-criminal attitudes, and a disturbingly strong admiration towards the criminal lifestyle. During his time in custody, he has displayed significant interest towards some of the Melbourne-based youth gangs, and he has made attempts to connect himself to those groups, voicing a desire to connect with them on his release into the community. He has presented with an inability to show insight into his offending behaviour and its impacts on the community. In view of the applicant’s lack of motivation to engage in services in the past, it will be difficult to put interventions in place to mitigate that risk.
Finally, the report notes that since the applicant was remanded in custody on 16 July last, he has been involved in seven separate incidents, involving five physical assaults, one episode of his disruptive behaviour towards a unit staff member, and one episode of dangerous conduct due to covering his window.
Ms Johnson gave evidence on the hearing of the bail application. In her evidence Ms Johnson confirmed her reservations about the suitability of the applicant to be placed on supervised bail, in view of his persistent offending, his poor engagement with the bail service, and a number of personal risk factors. In particular, Ms Johnson noted that following the applicant’s release on bail on 26 February last, he displayed a lack of appropriate motivation, he did not consent to a number of referrals that were important to treat his underlying issues, he failed to address his drug problem, and he did not consent to any referral for assessment for his mental health. In addition, the applicant displayed little insight, and he expressed a desire to continue to reside in Bendigo, where he was susceptible to being influenced by other young offenders. Nevertheless, he had had sporadic periods of involvement with Youth Justice Bail service, and in doing so had demonstrated an ability to engage with it.
Ms Johnson confirmed that the applicant does however have a good relationship with Ash Petty who is a positive male role model for him. Mr Petty has involved the applicant in constructive activities directed to ensuring that he adopt a healthy lifestyle. Ms Johnson said that Mr Petty has done a lot of good work with the applicant.
Ms Johnson noted that since the applicant has been detained in custody since 16 July, he has demonstrated an increased level of insight particularly into his need to engage in gainful employment, and to cease offending. Further, the applicant, for the first time, has expressed a preparedness to seek treatment for his mental health issues. He has also consistently expressed an interest in learning a trade such as concreting.
Ms Johnson agreed that the Cherry Creek Youth Justice precinct, where the applicant is presently detained, has a number of staff shortages which has the effect that the programs which are available to the applicant are limited. There are a number of criminal gangs who are currently inmates at the precinct, and the applicant has demonstrated unhealthy interest in them. In view of his limitations, he is particularly vulnerable to the influence of those persons.
Ms Johnson confirmed that if the applicant were granted bail, he would attend two appointments with herself, and two appointments with Ash Petty, each week. He would also be referred to a Drug and Alcohol program conducted in Echuca. The applicant would live with his father in Rochester, which is important in view of the fact that his previous criminal associates reside in Bendigo. The applicant had previously preferred to live with his step-mother in Bendigo, but he has more recently expressed a willingness to reside in Rochester.
Finally, in her evidence, Ms Johnson noted that in view of the applicant’s intellectual disability, and his psychological disorders, he presents at a level of maturity substantially less than that of his actual age. She confirmed that, notwithstanding that disability, the applicant has been developing some insight into his conduct, and that he has taken some small steps towards maturity.
Other evidence
The principal informant, Detective Senior Constable Whitty, also gave evidence on the hearing of the application. Senior Constable Whitty noted that on the previous occasion which the applicant was granted bail, he resided in Bendigo, which is a matter of concern because his criminal associates also live in the same city. As a consequence, most of the applicant’s offending occurred in Bendigo. Senior Constable Whitty did not have similar concerns about the applicant residing in Rochester, provided that he does not venture from there to Bendigo. In that respect Senior Constable Whitty noted that the applicant has driven significant distances after he has stolen vehicles in the past.
Bail provisions
The charges against the applicant include offences specified in Schedule 2 of the Bail Act 1977 (‘the Act’), which are alleged to have been committed while he was subject to grants of bail for Schedule 2 offending. Accordingly, s 4AA(2)(c) and s 4A(1A) of the Act provide that the application for bail must be refused, unless the applicant establishes the existence of exceptional circumstances that will justify the grant of bail. In essence, in order to meet that requirement, the applicant must demonstrate the existence of circumstances, which are such as to take the case out of the ordinary circumstances that would otherwise entitle an applicant to bail.[4]
[4]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Tong [2020] VSC 141, [18] (Tinney J); Re Pope [2022] VSC 735, [6] (Priest JA).
In the present case, the respondent has correctly accepted that it is open to conclude that exceptional circumstances have been established by the applicant, which would justify the grant of bail. At the time of the offending, the applicant was 16 years of age. He has a severe intellectual disability and is vulnerable in custody. He has no previous convictions. It is accepted by the respondent that it is likely that any further time, spent by the applicant on remand, will exceed any term of imprisonment ultimately imposed on the applicant.
Section 4D and s 4E(1)(a)(i) of the Act provide that in a case, such as this, in which the applicant establishes the requisite exceptional circumstances, the application for bail must be refused, if the Court is satisfied that there is an unacceptable risk that the applicant, if released, would endanger the safety or welfare of another person, whether by committing an offence that has that effect or by any other means. Section 4D(2) provides that the respondent bears the onus of demonstrating the existence of such an unacceptable risk.
Section 4E(3) of the Act provides that in determining whether any such risk is unacceptable, the Court must take into account the ‘surrounding circumstances’, which are specified in s 3AAA of the Act.
Relevantly, for the purposes of the present case, those circumstances include the following: the nature and seriousness of the alleged offending; the strength of the prosecution case; the criminal history of the applicant; the extent to which the applicant has complied with the conditions of any earlier grant of bail; whether, at the time of the alleged offending, the applicant was on bail for another offence or subject to a summons to answer a charge for another offence; the applicant’s personal circumstances; any special vulnerability of the applicant, including being a child or an Aboriginal person, or having a cognitive impairment, an intellectual disability or a mental illness; the availability of treatment or bail support services; the view of an alleged victim of the offending to the grant of bail; the length of time the applicant is likely to spend in custody if bail is refused; and the likely sentence to be imposed should the applicant be found guilty of the offences with which he is charged.
The applicant, being 17 years of age, is a child by law. Section 3B of the Bail Act provides that in making a determination whether to grant bail, the Court must take into account (inter alia): the need to consider all other options before remanding the applicant in custody; the need to strengthen and preserve the relationship between the applicant and his family; the need to minimise the stigma to the applicant resulting from being remanded in custody; the likely sentence should the applicant be found guilty of the offences charged; and the need to ensure that the conditions of bail are no more onerous than are necessary.
As noted, the applicant identifies as an Aboriginal person. Section 3A provides that in making a determination whether to grant bail in relation to an Aboriginal person, the Court must take into account any issues that arise due to the applicant’s Aboriginality, including the applicant’s cultural background, his ties to extended family or place, and any other relevant cultural issue or obligation.
In HA (a pseudonym) v The Queen,[5] the Court of Appeal explained the significance of those provisions in the following terms:
The fourth relevant factor was the appellant’s Aboriginal heritage. Section 3A, and s 3AAA(1)(h), of the Act provide that in making a determination under the Act, the Court must take into account any issues that arise due to a person’s Aboriginality, including the person’s cultural background, and the person’s ties to extended family or place. Those provisions are an important and salutary recognition that cultural connection can play a significant role in the rehabilitation of offenders who are of Aboriginal heritage. A number of programs have been developed in Victoria, and in other jurisdictions, which demonstrate that the reconnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour.
The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts. The courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.[6]
[5][2021] VSCA 64 (‘Ha’).
[6]Ha [2021] VSCA 64 [58]-[59] (Maxwell P, Kaye JA) citing Re Chafer-Smith [2014] VSC 51, [27] (T Forrest J).
In that respect, the Court has been provided with a cultural support plan prepared by Ms Traysy Kay, Executive Director, Koori Programs and Initiatives, Court Services Victoria. The report notes that the applicant has previously engaged with BDAC, an Aboriginal Community Controlled Organisation. BDAC provides culturally appropriate services and programs to the local Dja Dja and Wurrung community and to Aboriginal and Torres Strait Islander residents living in the area. In addition, Njernda, which covers the proposed bail address of Rochester, is an Aboriginal corporation whose purpose is to deliver community controlled, wholistic services and programs to improve the wellbeing of Aboriginal community of Echuca and surrounding areas. Ms Kay reports that both of those organisations have a Koori youth justice program to which the applicant, if granted bail, would have access. Accordingly, it is recommended that if the applicant is granted bail, the applicant should access either BDAC (if bail is granted to the Bendigo region) or to Njernda (if the applicant is bailed to the Rochester area).
Submissions
Counsel for the respondent submitted that if the applicant were granted bail, there would be an unacceptable risk that he would endanger the safety or welfare of other persons, whether by committing an offence that has that effect, or by any other means.
Counsel accepted that it is probable that if bail were refused, the time spent by the applicant on remand would exceed any sentence of imprisonment ultimately imposed on him. However, it was submitted that a number of circumstances which, nevertheless, have the effect that there would be an unacceptable risk that if the applicant were released on bail, he would endanger the safety of other persons.
In that respect, it was noted that the applicant’s compliance with previous bail has been an abject failure on his behalf. After he was granted bail by Incerti J on 26 February 2024, the applicant has engaged in repeated offending and contravened other conditions of his bail, including curfew conditions, which are designed to mitigate the risk of further offending. Counsel submitted that the applicant has an obvious difficulty with self-regulating behaviour, and that his home environment has not been sufficient to prevent him from engaging in repeated further offending. In that respect, it was submitted that the applicant’s reported consumption of methylamphetamine and cannabis is concerning. The applicant’s special vulnerabilities are relevant, however, it was submitted, they elevate the risk that the applicant would pose to the safety and welfare of others if released on bail. In that respect, counsel referred to the alleged conduct of the applicant in respect of the third set of charges (the Graham charges) and the eighth set of charges (the Whitty (2) charges), which, it is submitted, are serious examples of the offences of aggravated burglary, given the applicant’s alleged conduct in seeking to avoid apprehension and his use of weapons to that effect. In that respect, counsel particularly referred to the injuries sustained by the members of the Fisher family as a consequence of the offending that is the subject of the Graham charges.
In summary, counsel for the respondent submitted that if the applicant were granted bail, there would be an unacceptable risk that he would endanger others by further offending for the following reasons:
(1)At the time of the most recent offending, the applicant was subject to bail in relation to several outstanding matters.
(2)The applicant has demonstrated minimal desire to comply with the grants of bail and its conditions, particularly those designed to provide him with support.
(3)The applicant has not adhered to curfew conditions of his bail, which are specifically directed to address the risk of his re-offending.
(4)The applicant had already spent 30 days on remand before previously being granted bail by Incerti J on 26 February 2024.
(5)The proposed support by family and external organisations would be insufficient to appropriately alleviate the risk of the applicant endangering other persons in the community if he were released on bail.
(6)The allegations against the applicant are serious, and they include allegations of offending involving violence and behaviour that involves a high risk of serious harm to others.
In response, counsel for the applicant submitted that, notwithstanding the applicant’s unsatisfactory non-compliance with previous grants of bail, nevertheless, taking into account the relevant surrounding circumstances, the respondent has not established that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of another person, whether by committing an offence that has that effect or by any other means.
In that respect, counsel relied on the following relevant surrounding circumstances, namely: the applicant’s age; his profound intellectual disability; his diagnoses of autism spectrum disorder, oppositional defiance disorder, attention deficit hyperactivity disorder, encopresis and caprices; the applicant’s vulnerability; his lack of previous criminal history; the delay in the final determination of the matter; the likelihood that any time spent by the applicant on remand would exceed any term of detention imposed should the applicant be convicted of the offences; the conditions which the applicant has experienced in custody; and the availability of accommodation, treatment and support in the community, which is not available to the applicant in custody.
In particular, counsel noted that, in view of the applicant’s intellectual disability and mental disorders, he presents as an immature 17 year old. Those conditions limit the applicant’s capacity to comply with expectations, and restrict his insight into what is in his best interest. Further, the applicant’s cognitive impairment and immaturity make him vulnerable in custody in respect both of his mental and physical wellbeing. In that respect, counsel noted that the most recent report of Youth Justice has indicated that, while in custody, the applicant has associated with inmates, who are of criminal disposition, and has thus indicated an interest in joining criminal gangs. It was submitted that that observation by Youth Justice reflects the fact that time in custody by the applicant poses a particular criminogenic risk for the applicant in view of his limitations.
Counsel further submitted that the applicant, who is presently residing in Cherry Creek Youth Justice facility, has had limited contact with his family. His father is the only person who has a landline telephone, and he has not been able to visit the applicant in person. In that way, the applicant’s term of detention has been, and if he were refused bail, would continue to be, particularly onerous and counterproductive to his welfare. Finally, it was submitted that the applicant has shown some motivation and capacity to comply with supervised bail, particularly in his relationship with Mr Ash Petty of BDAC.
Analysis and conclusion
The critical question in the present case is whether, if the applicant were released on bail, there is an unacceptable risk that he would endanger the safety or welfare of another person, either by committing an offence that has that effect or by any other means. As I have noted, the prosecution bears the burden of satisfying the Court of the existence of that risk, and that that risk is unacceptable.
In considering that question, three considerations are of particular concern.
First, the applicant has a most unsatisfactory history of failing to comply with previous grants of bail.
In that respect, it will be recalled that the applicant was granted bail on 7 January in respect of the first and second sets of charges (the Sutton charges and the Uren charges). It is alleged that ten days later, on 17 January, the applicant engaged in the offending that is the subject of the third set of charges (the Graham charges). He was arrested on those charges on 23 January, and subsequently granted bail by Incerti J of this Court on 26 February.
Having been released on bail, it is alleged that the applicant engaged in the offending that is the subject of the fourth set of charges (the Congram charges) between 16 March and 23 March. He was charged with those offences on 24 March, and granted bail. Between 14 May and 16 May it is alleged that the applicant then engaged in the summary offences that are the subject of summary charges brought by Senior Constable Peckham and Senior Constable Milligan. It is then alleged that between 17 May and 2 June the applicant engaged in the offending that was the subject of the sixth set of charges (the Whitty (1) charges). Between 22 May and 23 May it is alleged he also engaged in the offending that is the subject of the seventh set of charges (the Loricco charges).
On 5 June the applicant was arrested and charged by Senior Constable Whitty with the sixth set of charges. He was granted bail. Finally, it is alleged that on 16 July the applicant committed the offences that are the subject of the eighth set of charges (the Whitty (2) charges). He was arrested on that date and remanded in custody.
It is thus evident that the applicant having been granted bail respectively on 7 January, 24 March and 5 June, proceeded to commit further offences on a particularly prolific scale.
The second relevant factor is that the offending, that is alleged to be the subject of the third set of charges (the Graham charges) and the eighth set of charges, involved conduct that endangered the safety of others. In particular, the conduct that is alleged to be the subject of the Graham charges (the third set of charges) involved a concerning degree of violence by the applicant, both threatening to injure others, and by stabbing Andrew Fisher in the left arm, left inner elbow and left side of his chest with scissors.
Thirdly, it is a concern that in the most recent Youth Justice Bail Service report, and in her evidence, Ms Johnson has concluded that the applicant’s current risk of non-compliance with conditions of bail cannot be reasonably mitigated through the Youth Justice Bail Service. The report notes that while the applicant has been placed on bail, his engagement with Youth Justice has been unsatisfactory. He has failed to attend multiple AOD appointments arranged for him, and he has demonstrated a lack of motivation to engaging with therapeutic and other community services.
Taken together, those three considerations raise substantial concern in determining the question as to whether, if the applicant were granted bail, there would be an unacceptable risk that he would endanger the safety and welfare of others whether by engaging in further offending or otherwise.
As noted, s 4E(3) of the Act mandates that in determining whether that risk is unacceptable, the Court must take into account the relevant surrounding circumstances specified by s 3AAA. In addition it is necessary to take into account the considerations specified by s 3A and s 3B of the Act.
In the present case, it is of particular relevance that not only is the applicant a child at law, but also that he suffers from a significant intellectual disability and psychological disorders. His intellectual capacity quotient of 61 places him within an extremely low range of intellectual capacity, placing him in the lowest 0.5 percentile rank of the adult population. In addition the applicant has significant psychological disorders. It is clear that he functions at a level that is substantially lower than persons of the same age, and his reduced level of function necessarily affects his capacity to undertake basic daily functions.
Ms Johnson in her evidence confirmed that the applicant is vulnerable to adverse influences in custody. The applicant’s involvement in incidents while in the Parkville facility and at Cherry Creek, and his attitude to criminal gangs with which he has had some contact at Cherry Creek, are matters which are particularly detrimental to his capacity to develop an appropriate capacity to conduct himself lawfully in society.
In that context, it is of particular relevance that, as accepted by the respondent, if the applicant were not granted bail, it is common ground that the length of time which he would spend on remand would exceed the period of any custodial sentence ultimately imposed on him.
At this point, two of the eight sets of charges (and two of the sets of summary charges) have resolved. The other six sets of charges have been adjourned for a contest mention on a date to be fixed in the Children’s Court. The fact that any further period on remand would exceed any sentence potentially imposed on the applicant is a matter of significant relevance in this case, particularly in view of the applicant’s intellectual disability, his vulnerability in custody, and the fact that he has only been able to have very limited contact with his family since he has been detained at Cherry Creek precinct.
It is a matter of concern that the applicant’s previous engagement with Youth Justice has been, at best, variable. However, on a positive note, he has developed a constructive relationship with Ash Petty at the Bendigo District Aboriginal Cooperative. It is not necessary in the present case to determine whether the applicant is an Aboriginal person for the purpose of s 3A of the Act. The relevant consideration is that the applicant does identify as such, particularly through his connection with his Aboriginal step mother. In that context, the applicant’s relationship with Ash Petty, and his constructive involvement with him in the past, is a positive factor in determining whether, if he were released on bail, there is an unacceptable risk that he might endanger the safety and welfare of others.
As I have discussed, the question whether there is an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of others, is difficult. If the applicant were placed on bail, he would be subject to a number of conditions designed to address that risk, namely, that he reside with his father in Rochester, that he be subject to a daily curfew and that he obey all directions given to him by Ms Johnson or her delegate. The applicant has failed to comply with similar conditions imposed on previous grants of bail. However, the evidence of Ms Johnson, that he has demonstrated some additional insight into the underlying causes of his offending, does provide some basis to expect that, if granted bail, the applicant might be more compliant with the terms of the bail.
In summary, the relevant surrounding circumstances, that must be taken into account, include the applicant’s age, his extremely low intellectual capacity, his psychological disorders, his vulnerability in jail, the potential delay in finalising the charges against the applicant, the probability that any further period on remand would exceed any custodial sentence imposed on the applicant, the availability of support to the applicant by the Youth Justice Bail Service, and the positive role of Mr Ash Petty, of the Bendigo District Aboriginal Corporation, in mentoring the applicant.
Taking into account those matters, I am satisfied that there is not an unacceptable risk that the applicant would endanger the safety and welfare of others if he were released on bail, provided that he fully complies with the conditions which I have discussed and which would address that risk. In light of that qualification, I am prepared, at this stage, to grant the applicant bail, on strict conditions, but for a limited period, in order to give him the opportunity to demonstrate that he is prepared to, and can, comply with the conditions of his bail and undertake the programs that necessarily address the issues that have mediated his offending. If at the conclusion of that trial period, the applicant has complied satisfactorily with all the conditions of his bail, and has not re-offended, his bail will be further extended.
Accordingly, I propose to make an order that the applicant be admitted to bail to Tuesday, 17 September 2024 on his own undertaking and subject to the following special conditions:
1.The applicant is to attend at this Court on 17 September 2024 at 10:00 am and surrender himself into custody at the Court on that date.
2.The applicant must comply with all lawful directions, and attend all appointments as directed, by any approved officer or delegate of Youth Justice.
3.The applicant reside at [the Rochester address] and not change that address without the leave of the Court, or as otherwise permitted by an approved delegate of Youth Justice.
4.The applicant remain at those premises between the hours of 7:00 pm and 7:00 am each day for the duration of bail, except when in the company of an approved delegate of Youth Justice.
5.The applicant 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.
6.The applicant 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.
7.The applicant not contact, directly or indirectly, any witness for the Prosecution, except the informant.
8.The applicant not contact, directly or indirectly, any co-accused for the duration of the bail period.
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