Re PM
[2022] VSC 421
•29 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0178
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application by PM |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 July 2022 |
DATE OF JUDGMENT: | 29 July 2022 |
CASE MAY BE CITED AS: | Re PM |
MEDIUM NEUTRAL CITATION: | [2022] VSC 421 |
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CRIMINAL LAW – Application for bail – Applicant is 13 year old child – Applicant charged with murder – Requirement to show exceptional circumstances – Whether applicant an unacceptable risk – Availability of supports – Exceptional circumstances established – Applicant an unacceptable risk if granted bail with conditions – Bail refused – Bail Act 1977, ss 3AAA, 3B, 4AA, 4A, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Louise Conwell | Stary Norton Halphen |
| For the Respondent | Ms Kristie Churchill | Office of Public Prosecutions |
HIS HONOUR:
PM (‘the applicant’) has applied for bail. He is 13 years of age and has been charged with murder. He is currently being detained in a youth justice centre, having been arrested and remanded on 23 March 2022.
The statutory test
Notwithstanding his young age, and the fact that the law presumes that the applicant lacks the capacity to form the necessary mental element for the offence,[1] the applicant can only be granted bail if there are exceptional circumstances justifying the grant of bail.[2] In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances in s 3AAA of the Act. Even if the applicant satisfies the exceptional circumstances test, bail must be refused if the respondent establishes that there is an unacceptable risk that the applicant would, if released on bail, commit an offence while on bail, interfere with witnesses, fail to surrender into custody, endanger the safety or welfare of any person, or otherwise obstruct the course of justice.[3]
[1]RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 (‘RP’).
[2]Bail Act 1977, s 4A (‘the Act’). The exceptional circumstances test applies pursuant to s 4AA(1). The offence of murder is a schedule 1 offence, namely item 2.
[3]Ibid s 4E(1)(a).
The Court must take into account the matters listed in s 3B(1) of the Act. Those considerations are:
(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 consider any recommendation or information contained in a report by a bail support service.[4]
[4]Ibid s 3B(2).
The alleged offending
In order to place the current application in its context, it is necessary to summarise the prosecution case.
The prosecution allege that the applicant associates with one group of youths and Declan Cutler (‘the deceased’) a different group. There has been friction between the two groups resulting in some violence and threats. In the context of that hostility, in the early hours of the morning on 13 March 2022, the deceased, who was then 16 years old, was set upon by a group of eight youths, including the applicant, in a residential street in Reservoir, where he was violently killed during a frenzied attack involving multiple weapons.
Seven young people, aged between 13 and 17, have been arrested for murder and remanded in custody. The applicant, at 13 years old, is the youngest of them. The eighth assailant has not been caught and remains at large.
Police investigators have traced the movements of both the applicant and the deceased in the lead up to the fatal attack. The deceased and his friends were at a party in Reservoir. They believed that one or more of the accused were coming to the party and they decided to leave. They armed themselves with kitchen knives before they left.
The eight assailants arrived near the house in a stolen car. They came across the deceased who had become separated from his friends and attacked him. The fatal assault is captured on CCTV footage. Although taken in the dark of early morning, the footage is clear and chilling. It depicts a brutal, sustained attack involving each of the eight assailants. It appears seven of them are armed with bladed weapons, and a large knife can be seen in the hands of one of the attackers. The deceased is stabbed, kicked and stomped on.
On the prosecution case, the applicant can be clearly seen in the footage. He is unarmed but an active participant in the attack.
Exceptional circumstances
On behalf of the applicant, it was submitted that the following factors amount to exceptional circumstances: the applicant’s age, his vulnerability, his lack of prior criminal history, the risk of institutionalisation, the long period in which he will be remanded, the potential for further deterioration to his mental health, and the existence of family, educational and professional supports in the community. On the strength of the prosecution case, it was submitted that given his age, it will be necessary for the prosecution to rebut the legal presumption, reflected in the Latin phrase doli incapax. In addition, although it does not presently appear to be in contest that the applicant was present during the attack, he contends that there are triable issues in relation to complicity given that he was unarmed.
The law presumes that a child aged at least ten but less than 14 years lacks the capacity to be criminally responsible for his or her acts. The child is said to be doli incapax.[5] The rationale for the presumption of doli incapax is the view that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong, and thus lacks the capacity for mens rea. Relevantly, for a 13 year old child, the presumption is rebuttable: the prosecution may adduce evidence to prove that the child is doli capax.[6]
[5]RP (2016) 259 CLR 641, 647 [4] (Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 53.
[6]Ibid 648–9 [8] (Kiefel, Bell, Keane and Gordon JJ) (citations omitted).
Outstanding charges
In addition to the charge of murder, the applicant faces a large number of outstanding charges brought by eight informants. The charges relate to events that occurred between January and March 2022. The charges span a range of alleged offending, including assaulting police by spitting, theft of a motor vehicle, theft, burglary, possession of a controlled weapon, dangerous driving and reckless conduct endangering serious injury.
The applicant’s personal circumstances
The applicant was born in Toowoomba, Queensland, in February 2009, and turned 13 several weeks prior to the alleged offending in March 2022. He is one of nine siblings, and prior to his birth, the applicant’s family had fled war in Sudan. In 2013, the applicant’s family moved to Melbourne. He was both a witness and victim to family violence at the hands of his father. In 2015, the applicant’s parents separated and the applicant’s father returned to Queensland. It is understood that the applicant currently has limited contact with his father. At the time of the alleged offending, the applicant was residing in the family home with his mother and siblings.
The applicant has no prior criminal history. The applicant was charged with a number of offences when he was between 11 and 12 years of age. These charges were withdrawn because the prosecution conceded it could not rebut the presumption of doli incapax.
During his remand, the applicant has been diagnosed with post-traumatic stress disorder (‘PTSD’), marked by mood fluctuations, flashbacks, intrusive thoughts, low-lethality self-harm, rumination and sleep disturbance. He is currently prescribed Clonidine, but has not previously received treatment for his mental health.
Community supports
Given the importance the applicant places on the community supports available to him if he is given bail, it is necessary to refer to them. The following supports were said to be in place should the applicant be granted bail:
(a) Orygen Youth Health: following the applicant’s remand, due to his young age, vulnerability, and the seriousness of the charge against him, the applicant was referred to clinical psychologist Jordan Love through the Orygen custodial forensic youth mental health service (‘FYMHS’). He underwent clinical and psychiatric assessments, following which he was diagnosed with PTSD. He has since been engaging in regular clinical reviews for psychological counselling, with a focus on distress tolerance, self-harm ideation and emotional regulation. He has been compliant with medication and has been ‘reasonably consistent’ in his attendance at reviews. If bail is granted, Orygen FYMHS will continue engaging with the applicant in the community, offering mental health case management, counselling and planning, and a referral and handover to a general practitioner for longer-term management.
(b) The Youth Junction Inc: the applicant was assessed by The Youth Junction Inc on 29 June 2022 and found suitable for their North West Safe Youth Project (‘NWSYP’), which provides targeted interventions to disadvantaged young people. If bail is granted, it is proposed that a number of supports be provided to the applicant through the NWSYP, including: offence-specific case management, education support, cultural supports, substance use education and intervention, and prosocial recreational programs.
(c) O Street of Parkville College: if released the applicant would attend O Street which is a community flexible learning centre attached to Parkville College. If bail is granted, O Street would provide an individualised education program to the applicant which would involve one-on-one learning, with a view to slowly supporting the applicant back into a community setting.
If bail is granted, it is contemplated that the applicant would reside with his mother in the family home. The applicant has eight siblings. One of his brothers is one of the seven accused charged with the murder of the deceased. He is on remand. Another brother is on remand for a different murder. A third brother has recently been bailed on various serious charges, a condition of his bail is that he reside with his mother in the family home.
The applicant’s mother gave evidence on the application. She said that she lives in a house with four bedrooms and there are an additional two bedrooms in a bungalow attached to the house. Five of her children currently live there and, if he is released, the applicant would be the sixth child at home. The applicant’s mother said that she would notify the police in the event of any breach of bail and would supervise the applicant to ensure compliance with any bail conditions.
Youth Justice Report
Section 3B(2) of the Act provides that the Court may consider any recommendation or information contained in a report by a bail support service. Youth Justice has assessed the applicant as not suitable for bail at this time. Relevantly, the report notes:
Youth Justice Supervision:
Prior to [the applicant’s] remand, [the applicant] attended most of his scheduled Youth Justice Supervision appointments and appeared to engage meaningfully in offence related discussions aimed at developing his insight into his police contact and presenting challenges in the community. Despite [the applicant’s] positive response to Youth Justice support, [he] has continued to breach bail conditions and engage in high-risk behaviours including; absconding, negative peer associations and contact with police whilst subject to court dispositions. The writer holds concerns for [the applicant’s] capacity to adhere to bail conditions and comply with the Youth Justice Bail Program and notes the alleged offending before the court today occurred whilst subject to Youth Justice supervision.
…
Family Dynamics:
[The applicant] presents a trauma history pertaining to transgenerational trauma relating to his family’s refugee background and exposure to serious family violence. This has resulted in significant instability and disadvantage in the community setting. Youth Justice assess this has ultimately resulted in [the applicant] gravitating towards negative peer influences with whom he feels a sense of belonging and acceptance and engaging in risk taking behaviours. This has culminated in extensive Child Protection intervention.
[The applicant’s] family continue to experience a high level of support needs. Youth Justice also maintain concerns for [the applicant’s mother’s] capacity to manage [the applicant’s] behaviours and provide an appropriate level of supervision and monitoring in the event of bail. [The applicant’s mother] has also historically struggled to meet reporting requirements to police regarding breaches of bail.
High Risk Behaviours:
As noted above, [the applicant] is known to engage in behaviours that place himself and the community at risk including, regularly absconding from home, reconnecting with negative peers and frequent police contact resulting in incurring further charges whilst subject to court dispositions.
Youth Justice hold significant concerns pertaining to [the applicant’s] peer associations. [The applicant] is known to gravitate to peers who reside in the Western suburbs and who are known to Youth Justice. These peers appear to normalise engagement in high-risk behaviours, including offending. It is assessed that [the applicant] seeks peer acceptance and gravitates to peers with whom he feels a sense of connection and belonging which enhances his self-esteem. Youth Justice assess [the applicant] is at high risk of re-connecting with antisocial peers in the evet of bail.
Community Safety issues:
Youth Justice note the prominence of community safety concerns and hold significant concern for retribution due to the nature of the alleged offence. Youth Justice acknowledged the presence of peer group tension in the community and the risk of retaliation. Youth Justice are in regular discussion with Victoria Police in respect to this concern, to ensure safety issues are proactively addressed.
Exceptional circumstances established
It is well established that the status of an applicant as a child will be a significant factor in considering whether exceptional circumstances exist that justify the grant of bail. In Re JO,[7] T Forrest J (as he then was) said:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[8]
[7][2018] VSC 438.
[8]Ibid [14] (citations omitted).
In Re KA,[9] when applying the exceptional circumstances test in the context of an application for bail by a 13 year old child, Beach JA stated:
The community’s interest in taking the applicant out of detention (with all the downside that the detention of a young person by the criminal justice system entails) is a matter of great importance. The detrimental effects of detention on a young person, to that person and to the wider community, are well known such that every possible step that can reasonably be taken to avoid them by this Court in the proper application of the Act, and more generally should be taken. The real issue in a case such as the present is whether the respondent has established that if the applicant is released on bail, there is an unacceptable risk of the kind referred to in s 4E of the Act.[10]
[9][2022] VSC 277.
[10]Ibid [33].
I am satisfied that there are exceptional circumstances that would justify a grant of bail. There are a number of factors that make the position of the applicant exceptional. They include the applicant’s youth, that he has the benefit of a legal presumption that he lacks the necessary intent to commit the offence, that he is vulnerable in detention, the risk of a deterioration in his mental health in custody, and the expected duration of remand.
As will appear, most, if not all of the matters that make this application exceptional, elevate the risks of bail to an entirely unacceptable level.
Unacceptable risk
In assessing the risks that would arise in the event the applicant were bailed, it is necessary to take into account the nature and extent of the potential harm and of the likelihood of that harm being realised. Plainly, the extreme nature of the alleged offending, which occurred in a context of ongoing animosity and hostility, in an environment where recourse to knives and other weapons was apparently routine, affects both the gravity of the risk and the likelihood of further offending in the event bail is granted.
It is sufficiently plain on the current material, that the applicant lacks the maturity, insight and ability to adequately control his own behaviour. That is a function of his age and stage of development. It is not a moral judgment. Before he was remanded he had lost contact with his school and he was engaged in highly dangerous behaviour in company with others. It is also of significant concern that the applicant was on bail at the time of the alleged offence, having been released from a youth justice centre on 11 March 2022, just two days before the fatal attack. The strictures of bail do not seem to have dampened his anti-social behaviour.
For the purposes of the present application, I am satisfied that the applicant was present at the time of the incident and was physically involved in the assault to some degree. The nature and extent of the brutality involved was extreme. Left unsupervised, the applicant presents a very high risk of reoffending in a very serious way. The defences raised by the applicant to undermine the prosecution case on the murder charge, namely doli incapax and lack of complicity, while relevant to criminal liability, do little to assuage my concerns about the applicant’s conduct and the risk he poses.
Recorded telephone calls between the applicant and other persons that he has made since being on remand are also highly revealing of the applicant’s outlook. The applicant has made telephone calls to his nine year old sister and arranged for her to merge the calls to allow the applicant to speak with people who are not on his phone list. In one call he discusses a witness ’snitching’ and refers to the witness in a hostile manner. In other calls in June 2022, he refers to ‘going to do a burg’ if he is released and being provided with a car. The language he uses is juvenile but redolent of further offending.
The question then is whether those endogenous risks can be adequately addressed by the community supports that are proposed. I conclude that they cannot.
The professional supports depend to some extent on the capacity and willingness of the applicant to engage. Given his age and immaturity, it is not possible to place weight on his assurances. In this respect, I place weight on the Youth Justice Report which outlines a number of cogent concerns about the applicant’s ability to engage with the supports available to him. In this regard, his past history of non-compliance with bail conditions, including a curfew and absconding, is highly relevant. I accept the evidence of Ms Giordano, who authored the Youth Justice Report and who gave evidence before me, that in order to have confidence in the applicant’s ability to comply with conditions it is necessary to see more of a commitment from the applicant in the custodial setting in ensuring his engagement with treatment is more consistent. As importantly, those supports that would be available in the community will involve ongoing but sessional contact with the applicant. They do not involve continuous supervision.
Ultimately, the applicant, if released, would be spending substantial periods of time at home under the supervision of his mother. I am persuaded that the applicant’s mother is unable to properly supervise him. This conclusion does not entail any personal criticism of the applicant’s mother. Nor is it necessary to resolve the disputed allegations that she failed to report bail breaches in the past and that she obstructed police when they executed a search warrant in respect of the applicant. I note she denied these allegations on oath. I do not take them into account.
The applicant’s mother is in an extremely difficult position, as single mother of a large family facing extremely challenging circumstances. I am unable on the material to draw any firm conclusion as to the reasons why she is unable to control the applicant. The salient point is that she cannot. The applicant’s recent history makes this conclusion inevitable. It was something that the applicant’s mother was driven to accept in cross examination. She candidly accepted that she could not control the applicant when she was asleep, and that in the past she would wake to find the applicant missing. She said that the applicant would not tell her when he was leaving the house and that effectively he did what he wanted. She accepted that her children were ‘doing whatever’ they wanted to do. There is no basis on the current material on which I could be satisfied that, were the applicant to return to the family home, this would change and he would be appropriately supervised.
In my view, on the current state of the material the risks of reoffending and interfering with witnesses are simply too great to permit a grant of bail. The proposed conditions and supports are, at this stage, inadequate to bring the risks to an acceptable level. As already observed, the factors which make this application exceptional conversely make the risks of further offending or interfering with witnesses unacceptable.
The application for bail must be refused.
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