Re RN
[2023] VSC 9
•16 January 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0345
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by RN |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 January 2023 |
DATE OF JUDGMENT: | 16 January 2023 |
CASE MAY BE CITED AS: | Re RN |
MEDIUM NEUTRAL CITATION: | [2023] VSC 9 |
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CRIMINAL LAW – Bail – Child applicant charged with Schedule 2 offence (aggravated burglary) whilst on bail for Schedule 2 offence (aggravated burglary) – Whether exceptional circumstances justifying grant of bail – Whether unacceptable risk of committing an offence while on bail – Bail refused – Bail Act 1977 s 3AAA, s 3B, s 4, s 4AA, s 4A, s 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | Dribbin & Brown Criminal Lawyers |
| For the Respondent | Ms J Gleeson | Victoria Police |
HIS HONOUR:
Introduction
The child applicant — whom, for convenience, I shall refer to as ‘RN’ — is aged 13 years.[1] He has been in custody since 30 November 2022, and, having been refused bail by the Children’s Court on 16 December 2022, now seeks bail from this court.[2]
[1]By virtue of s 3(1) of the Children, Youth and Families Act 2005, in the case of a person who is alleged to have committed an offence, a child is ‘a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years’.
[2]The 19 matters upon which the applicant is remanded, and for which he seeks bail, are set out are set out in the Appendix hereto.
Between 1 May and 30 November 2022, the applicant was arrested on eight occasions (and, on the applicant’s solicitor’s calculation, between 3 June and 30 December 2022, had spent a total of 97 days in custody) as follows:
· 21 May 2022: the applicant was arrested and bailed;
· 31 May 2022: the applicant was arrested and bailed;
· 3 June 2022: the applicant was arrested and spent two weeks in custody until bailed by the Children’s Court on 17 June 2022;
· 28 June 2022: the applicant was arrested and granted bail the next day by the Children’s Court;
· 20 July 2022: the applicant was arrested and spent nine days in custody until bailed by the Children’s Court on 29 July 2022;
· 11 August 2022: the applicant was arrested and spent almost a month in custody until bailed by the Children’s Court on 9 September 2022;
· 11 November 2022: the applicant was arrested and spent 10 days in custody until bailed by the Children’s Court on 21 November 2022; and
· 30 November 2022: the applicant was arrested and has been in custody since.
The applicant has allegedly committed a staggering number of offences. On my calculation, the applicant faces 181 separate charges,[3] including more than a dozen charges of aggravated burglary and multiple charges of home invasion, burglary, theft, robbery, attempted robbery, affray, intentionally causing injury, assault, assault in company, assault by kicking, assault with a weapon, damaging property, committing an indictable offence whilst on bail, and other offences. Indeed, the extent of his alleged criminal activity is breathtaking.
[3]The prosecution has indicated, however, that one charge of aggravated burglary laid by Senior Constable Caso (see Appendix para 19) will be withdrawn.
As I have indicated, the applicant last applied for bail in the Children’s Court on 16 December 2022. Bail was refused, the magistrate finding that the applicant had failed to show exceptional circumstances, and finding further that there was an unacceptable risk that the applicant would, if released, commit an offence whilst on bail or endanger a member of the public. Moreover, a police application to revoke all active grants of bail was granted.
All of the charges that the applicant faces are due to return to the Children’s Court for mention later this week, on 20 January 2023. Notwithstanding that fact, the applicant now seeks bail from this court. It is uncontroversial that, since the applicant was on bail for a Schedule 2 offence (aggravated burglary) under the Bail Act 1977 (‘the Act’) when he allegedly committed another Schedule 2 offence (aggravated burglary), ss 4AA(2)(c)(i) and 4A(1A) of the Act require the court to refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
In opposing bail, the respondent contends that the applicant has not established exceptional circumstances that justify the grant of bail. The respondent also contends that there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of a person, commit an offence on bail, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender himself into custody in accordance with the conditions of bail.
For the following reasons, I consider that bail must be refused.
Evidence and submissions advanced in support of bail
In support of the application in this court, the applicant relied on an affidavit affirmed by his solicitor, Daniel Walsh, on 29 December 2022 (‘the Walsh affidavit’), accompanied by a large number of exhibits.[4] Among other things, Mr Walsh deposed to the following:
[4]He also relied on a Supervised Bail Progress Report, dated 12 January 2023, prepared by Ms Alana Armstrong (Exhibit A).
· The applicant, whose parents are from South Sudan, lives with his mother and four sisters in Narre Warren. His grandmother and step-father also provide him support from outside the home. The applicant has contact with his father, and his mother encourages his father to play a more active role in his life to act as a strong male role model.
· Throughout its engagement with the applicant, Youth Justice has expressed its concern that he is at risk of early entrenchment in the criminal justice system.
· Youth Justice referred the applicant’s family to the Centre for Multicultural Youth to provide intensive family work within the home, and the family is assisted by two Youth Justice Community Support Services workers. The applicant is also assisted by Jesuit Social Services.
· The Department of Families, Fairness and Housing (‘DFFH’) is also involved. A Family Preservation Order was made by the Children’s Court on 19 September 2022 (expiring 18 March 2023). Under this order, the applicant is to reside with his mother under DFFH’s oversight.
· Over the last six months, Youth Justice and Child Protection have worked with Fountain Gate Secondary School to re-engage the applicant in school, including referring him to the Navigator program.
· A Children’s Court magistrate ordered a report concerning the issue of doli incapax, and whether the applicant could be found guilty of the offences charged. In a November 2022 report, Dr Francis Puccio expressed the opinion that the presumption was rebutted.
· The applicant’s solicitor has sought another report concerning the issue of doli incapax. That report is pending.
· The applicant was assessed last year by a speech pathologist, Dawn Teo, and was diagnosed with a moderate language disorder, characterised by borderline/mildly below average receptive language skills; low expressive language skills; low word knowledge and vocabulary; and very low ability to apply memory to language tasks.
· Ms Teo’s diagnosis is consistent with the findings of Dr Frank Muscara, contained in a Children’s Court Clinic neuropsychological report in December 2022, in which it was found that the applicant would be slower than his peers to learn and understand new complex verbal information. It was also found that the applicant’s intellectual functioning falls within the borderline to low average range.
· The applicant’s mother is consistently described by Youth Justice as pro-social and willing to engage with professionals. She has been described as ‘open and honest with Youth Justice’ and ‘forthcoming with information’ regarding her son’s ‘behaviours’. She has been willing to report the applicant's absence from her home in contravention of his bail conditions.
· The applicant’s age, language disorder, and general cognitive functioning make him vulnerable in custody. He was recently involved in an incident where he received a misdirected punch and retaliated, resulting in him being placed on a Behavioural Plan.
In summary, the applicant’s counsel submitted that the following eight factors amounted to exceptional circumstances justifying a grant of bail:
· the need to consider all other options before remanding a child in custody;
· the applicant’s family support;
· his lack of criminal history;
· the likely sentence;
· delay;
· the applicant’s age;
· his language disorder and cognitive functioning; and
· the support of Youth Justice, Child Protection, and other services.
The respondent’s opposition to bail
As I have said, the respondent opposed bail. In an affidavit sworn on 10 January 2023, Nathan Watt, a solicitor with Victoria Police, set out the grounds of that opposition. The respondent contends that the applicant ‘has not discharged the burden of satisfying the Court as to the existence of exceptional circumstances that justify the grant of bail’; and that, in any event, there is an unacceptable risk that the applicant would, if released on bail, endanger the safety or welfare of a person, commit an offence on bail, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender himself into custody in accordance with the conditions of bail.
In written submissions, counsel for the respondent very fairly submitted that ‘on the material presently before the Court … the applicant may be able [to] establish that exceptional circumstances exist to justify the grant of bail’; but contended that ‘there is still a risk that the applicant would, if released on bail, continue to commit offences whilst on bail, and endanger the safety and welfare of other members of the community, and the risk is an unacceptable risk’.
With respect to the issue of unacceptable risk, counsel for the respondent submitted that, apart from one challenged brief of evidence affecting a handful of charges, the principal issue in all cases revolves around the doli incapax argument (the presumption of which has been ‘rebutted’ in an expert report).[5] Counsel submitted that most alleged offences were committed whilst the applicant was already on conditional bail, with strict conditions (including a curfew). Further, almost all offending occurred in company with co-offenders, usually in breach of ‘non-association’ bail conditions. In several reports filed with the application for bail, the authors describe a lack of willingness by the applicant to engage with them and workers trying to assist him. Owing to the continued lack of engagement with Youth Justice and other services, combined with the lack of insight and empathy shown by the applicant, it is likely that he will continue to commit further offences if released on bail, regardless of how onerous the conditions imposed may be. The risks identified, counsel submitted, are unacceptable, and no conditions of bail could reduce the risk of the applicant reoffending.
[5]See RP v The Queen (2016) 259 CLR 641, 647 [4], 648–9 [8]–[9] (Kiefel, Bell, Keane and Gordon JJ); 659 [38] (Gageler J).
The alleged offending
It is impractical to endeavour to give a detailed summary of the applicant’s alleged offending in these reasons. I note, however, that for the purposes of the charges, the police informants have in each case prepared a ‘Preliminary Brief – Statement Made by Informant’, containing summaries of the alleged offending. In order to comprehend the nature and extent of the offending alleged I have read those summaries, which are contained in Exhibit ‘DW-1’ to the Walsh affidavit. For the most part, the offending described is very serious, and cannot properly be characterised as childish mischief or as being merely of nuisance value. In large part, the alleged offending is emblematic of an individual who has no respect whatsoever for person or property being involved in a crime spree. I consider much of the offending to be outrageous, dangerous and very disturbing.
The statutory regime
Turning to the legislative regime governing the present application, s 346(6) of the Children, Youth and Families Act 2005 (‘CYFA’) provides that, to the extent that it is not inconsistent with s 346, the Act applies to an application for bail by a child.
Section 4 of the Act makes it plain that the applicant is entitled to bail unless the court is required by the Act to refuse it.
As I have indicated, by virtue of ss 4AA(2)(c)(i) and 4A(1), the applicant is subject to an exceptional circumstances test. Hence, s 4A(1A) requires this court to ‘refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail’. The applicant bears the burden of satisfying the court ‘as to the existence of exceptional circumstances’.[6]
[6]See s 4A(2) of the Act.
In considering whether exceptional circumstances exist, the court is required to take into account the surrounding circumstances.[7] Section 3AAA(1) of the Act sets out surrounding circumstances, so that (so far as relevant) the court
[7]See s 4A(3) of the Act.
must take into account all the circumstances that are relevant to the matter including, but not limited to, the following—
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b) the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused—
(i) was on bail for another offence; or
(ii) was subject to a summons to answer to a charge for another offence; or
(iii) was at large awaiting trial for another offence; or
(iv) was released under a parole order; or
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
(g)the accused’s personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness;
(i)the availability of treatment or bail support services;
(j)any known view or likely view of an alleged victim of the offending on the grant of bail, the amount of bail or the conditions of bail;
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
...
Moreover, s 3B of the Act makes special provision in relation to children. It is in the following terms:[8]
[8]Emphasis added.
3B Determination in relation to a child
(1) In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act)—
(a) the need to consider all other options before remanding the child in custody; and
(b) the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e) the need to minimise the stigma to the child resulting from being remanded in custody; and
(f) the likely sentence should the child be found guilty of the offence charged; and
(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
(2) In making a determination under this Act in relation to a child, a bail decision maker may take into account any recommendation or information contained in a report provided by a bail support service.
(3) Bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation.
With respect to the nature of exceptional circumstances for the purposes of the Act, I adopt the following observations made by Kaye JA in ER:[9]
The content of the term ‘exceptional circumstances’ has been discussed in a number of decisions of this Court. In effect, the applicant must establish circumstances that are ‘right out of the ordinary’, so that they are exceptional to the ordinary circumstances which would otherwise entitle an applicant to bail.[10] It is well established that exceptional circumstances may comprise a combination of circumstances which, individually, might not themselves be considered to be exceptional. One matter, that is commonly regarded as important in determining whether exceptional circumstances have been established, is the presence or absence of factors which might point to the applicant presenting as an unacceptable risk in any of the ways specified in s 4E(1) of the [Act].[11]
It is well accepted that the youth of an applicant may be a significant factor to be taken into account in determining whether exceptional circumstances have been established.[12] Similarly, in determining whether the risk of an applicant reoffending, while on bail, is unacceptable, the young age and attendant circumstances of the applicant are regarded as important considerations.[13]
[9]Re ER [2022] VSC 88, [30]–[31].
[10]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18]–[19] (Tinney J).
[11]Re Gloury–Hyde [2018] VSC 393, [30] (Priest JA).
[12]Re JO [2018] VSC 438, [14] (T Forrest J); Re JF [2020] VSC 250, [32] (Tinney J); Re Johnson [2021] VSC 800, [63] (Lasry J).
[13]HA (a pseudonym) v The Queen [2021] VSCA 64, [6], [73] (Maxwell P and Kaye JA); Re Andrew [2022] VSC 46, [25] (Kaye JA).
I also adopt the observations of T Forrest J in JO concerning the exceptional circumstances test as it applies to children:[14]
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.
[14]Re JO [2018] VSC 438, [14].
Moreover, as was observed in HA:[15]
Section 3B of the Act reflects the underlying principle in the criminal justice system that a decision to hold a child in custody should be made only as of a last resort. In considering whether to grant bail, and in the sentencing process, courts are astute to avoid imposing a term of detention, unless there is no other reasonable disposition available.
[15]HA (a pseudonym) v The Queen [2021] VSCA 64, [55] (Maxwell P and Kaye JA). See also Re FA [2018] VSC 372, [23] (Priest JA).
If the applicant is able to clear the hurdle presented by the ‘exceptional circumstances test’, the court must next consider the ‘unacceptable risk test’ in s 4E(1), which requires the court to refuse bail if the prosecutor satisfies the court[16] that there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail;
…
[16]Subsection 4E(2).
When considering whether any relevant risk is unacceptable, s 4E(3) of the Act once more requires the court to take into account the ‘surrounding circumstances’, and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Finally, I note that when interpreting the Act, the court is required by s 1B to take into account two competing factors:[17]
The Parliament recognises the importance of —
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; …
[17] See Re Ceylan [2018] VSC 361, [32] (Beach JA).
Analysis
In my view, none of the eight factors relied upon by the applicant — whether considered alone or in combination — amount to exceptional circumstances.
Self-evidently, the most important aspect to be taken into account in this case when assessing whether exceptional circumstances exist which justify the grant of bail is the applicant’s age. His age, of itself, emphasises the need to consider all other options before remanding him in custody.
In my view, however, the importance of the applicant’s age is related principally to his cognitive functioning, which, contrary to the thrust of his counsel’s submissions, I do not regard as being significantly impaired. As to that, I note that in assessing the issue of doli incapax, Dr Francis Puccio, clinical psychologist, said in his report dated 18 November 2022:[18]
Doli incapax assessments involve consideration as to whether the child knew, at the time of the offence(s), that what they were doing was seriously wrong and not merely naughty or mischievous. The age of the accused, together with developmental and social competence indices, are crucial variables that influence the acceptance or rebuttal of the doli incapax presumption. Here, knowing that an act is seriously wrong involves more than a simple understanding of the difference between right and wrong, but also the ability to foresee consequences of actions, decision-making capabilities in the particular circumstances of the offence, and the understanding of why an action is wrong in a particular context.
Whilst it is difficult to establish retrospectively if [RN] knew that his conduct was seriously wrong, there are several factors that suggest he did understand these issues. First, at interview, [RN] refused to discuss most aspects of his offences as he stated he did not want such information documented in this report, suggesting he is aware that any self-disclosure(s) might have legal ramifications. Next, he said he is aware that committing acts including smoking cannabis, stealing property, breaking into private premises, and driving a car without a license are illegal, highlighting his insight into the wrongfulness of such acts. At interview [RN] claimed he understood that committing crime can result in consequences including being arrested by Police, being placed on Bail (he was able to articulate what ‘Bail’ meant), and/or being incarcerated. To this end, he noted that his current detention to [Parkville Youth Justice Precinct] was his fifth to date and that he had received numerous Bail Orders, again suggesting an awareness that perpetrating crime can result in significant legal consequences.
[RN] was also able to demonstrate a nuanced understanding of the relative seriousness of committing different crimes (e.g., he stated that stealing a car was more serious then stealing a pencil), and appears to have internalised a ‘code’ for committing violence whereby he believes it is wrong to punch a female but acceptable to punch a male, indicating he is aware that physically assaulting individuals has the potential to harm them. Finally, he has utilised methods to avoid being caught by Police for committing crime (e.g., wearing gloves to ensure he would not leave fingerprints at the scene of a crime, paying taxi drivers cash to avoid being linked to the scene of a crime) again implying he is aware that such acts are illegal and would result in negative consequences to himself should he be caught.
[18]See Exhibit ‘DW-6’ to the Walsh affidavit.
Based on Dr Puccio’s opinion, I consider that it is open to conclude that, despite his age, the applicant was capable of understanding that his conduct was seriously wrong; and that, despite that understanding, he was capable of making a deliberate choice nonetheless to engage in serious offending.
Furthermore, with respect to that matter I note also that a neuropsychologist, Dr Frank Muscara, in a report dated 5 December 2022, expressed the view that the applicant did not present as having an intellectual disability.[19] On my reading of it, little or nothing in the report would tend to establish that the applicant was particularly vulnerable in custody (as his counsel submitted that he was) due to any language disorder or impaired cognitive functioning. Among other things, Dr Muscara said that the applicant
is a 13-year-old boy who was referred for neuropsychological assessment to determine his current cognitive capacity, in the context of a previously diagnosed moderate Language Disorder. Currently, [RN’s] level of intellectual functioning fell within the ‘Borderline’ to ‘Low Average’ range. He was found to be performing within the ‘Average’ range regarding his speed of processing, with these skills being a significant strength in his cognitive profile. He performed is at a consistent level in all other cognitive domains. These scores indicate that his cognitive profile is not consistent with an intellectual disability. Given [RN’s] lack of motivation and engagement in some of the tasks, it is possible that his true scores are at a higher level. Despite this, he had significant difficulties with verbal comprehension, and had limited word knowledge, which is consistent with his previously diagnosed moderate Language Disorder. This means that [RN] will be slower than his same aged peers to learn and understand new and complex verbal information.[20]
[19]See Exhibit ‘DW-8’ to the Walsh affidavit.
[20]Emphasis in original.
On the issue of delay, it is difficult to determine with precision when the charges are capable of finally being disposed of. There is nothing, however, that would suggest that any delay would be inordinate. I note in that regard that the overarching issue on all charges (save for one incident) is doli incapax. It appears that the expert opinion sought by the defence on that issue — which will either support Dr Puccio’s opinion or it will not — will be available in a couple of weeks. Presumably, if that opinion fails to contradict Dr Puccio’s, the issue of doli incapax will fall away. But even if it does traduce Dr Puccio’s opinion, it is difficult to see any impediment to the Children’s Court dealing with the discrete issue of doli incapax in a timely fashion.
As to the suggested support available to the applicant if bailed — both from his family and other sources such as Youth Justice — I note that the evidence tends to establish that the applicant has in the past been an enthusiastic serial offender despite the existence of such supports. I doubt that the future availability of those supports will do much to curb the applicant’s violent, anti-social, criminal behaviour. In that regard, it is noteworthy that the evidence appears to establish that, having been granted supervised bail on 21 November 2022, the applicant absconded from his mother’s home and did not return until 25 November 2022. Indeed, despite having been granted supervised bail on several occasions in the past, the applicant has manifested no perceptible change in behaviour, and has regularly re-offended (often during his hours of curfew).
Finally, even putting to one side the applicability of principles of general deterrence to the sentencing of children, I am far from persuaded that any sentence of detention imposed upon the applicant will fail to exceed the period that he has spent in custody on remand. I note in that regard that the applicant’s offending is of the utmost seriousness, in circumstances where the Children’s Court would have available to it a sentence of up to two years’ detention in a youth residential centre.[21]
[21]See CYFA, s 411(2)(b).
For these reasons, the applicant has failed to satisfy me that exceptional circumstances exist which justify the grant of bail.
But even were I satisfied that the applicant had established the existence of exceptional circumstances, I would nonetheless refuse bail, since I consider that there is an unacceptable risk that the applicant would, if released on bail, commit an offence on bail and endanger the safety and welfare of persons. In my view, it is highly probable that, if released on bail, the applicant will continue to commit serious offences, likely involving the exposure of individuals to (or actually resulting in) bodily injury. Indeed, I regard it as being a near inevitability that the applicant will continue to offend if released on bail.
As to that, the summaries of the applicant’s offending to which I have had regard are disturbing enough. But I also note, and take account of, the following, contained in a report by one of the many informants, Senior Constable Olivia Caso,[22] dated 5 January 2023:
The Applicant’s offending is of a serious nature, taking place in the middle of the night whilst people are asleep in their homes. He has a complete lack of regard for the wellbeing of others, repeatedly offending in ways that leave victims feeling traumatised.
Throughout the offending where I am the informant, the stolen high-powered vehicles that were driven by the Applicant and his associates were captured on Dash Cam driving at speeds of up to 213 km/h through residential areas, often on the wrong side of the road. Not only is the Applicant committing offences that emotionally affect his victims, his offending involves extremely high risk behaviour that if continued will undoubtably cause death or serious injury to the public, his associates or himself.
This concern is further exacerbated by the evidence that the Applicant is most likely committing these offences whilst affected by illicit drugs as detailed [in] Dr Puccio’s, Children’s Court Clinic Report.
[22]See Appendix, para 19.
I note also that Dr Puccio assessed the applicant’s risk of future offending as ‘very high’, and his risk of perpetrating further violence as ‘high’. In his report he said that the applicant’s
history indicates that he is in the highest risk categories respectively for both future general offending and for perpetrating future violence. He presents with many vulnerability markers for general offending including: family circumstances/parenting, education/employment, peer relations, substance abuse, leisure/recreation, personality/behaviour and attitudes/orientation. He also presents with multiple risk factors for both targeted and impulsive violent offending including: history of violence, history of nonviolent offending, early initiation of violence, past supervision/intervention failures, exposure to violence in the home, poor school achievement, peer delinquency, peer rejection, stress and poor coping, poor parental management and lack of personal/social support, negative attitudes, risk taking/impulsivity, substance-use difficulties, anger management problems, low empathy/remorse, poor compliance, and low interest/commitment to school.
Having regard to the foregoing, balancing the presumption of innocence and the applicant’s right to liberty against the importance of the safety of the community and persons affected by crime ‘to the greatest extent possible’, and taking account of the matters referred to in ss 3AAA and 3B of the Act, I am persuaded, first, that the applicant relevantly presents an unacceptable risk, and, secondly, that there are no conditions available that would render the risks posed by the applicant to be acceptable.
Conclusion
The application for bail is refused.
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APPENDIX
The applicant seeks bail for the following 19 matters upon which he is remanded:
Informant Senior Constable Jeremy Devlin — offences 16 May 2022; charged 26 June 2022:
• burglary (three charges); and
• theft.
Informant Detective Senior Constable Charlie Love — offences 18 – 21 May 2022; charged 21 May 2022:
• affray;
• intentionally causing injury;
• assault in company;
• attempted aggravated burglary;
• aggravated burglary (three charges); and
• theft (eight charges).
Informant Detective Senior Constable Jamie Shanks — offences 23 May 2022; charged 31 May 2022:
• aggravated burglary (three charges);
• theft (four charges); and
• burglary (five charges).
Informant Senior Constable Paul McCooke — offences 27 May 2022; charged 31 May 2022:
• burglary (three charges).
Informant Detective Senior Constable Susanna Hughes — offences 27 May 2022; charged 4 August 2022:
• theft;
• obtaining property by deception;
• obtaining a financial advantage by deception; and
• committing an indictable offence whilst on bail.
Informant Detective Senior Constable Ashley Jung — offences 28 May 2022; charged 31 May 2022:
• attempted aggravated burglary (two charges);
• home invasion;
• aggravated burglary;
• theft (eleven charges);
• burglary (thirteen charges);
• attempted burglary (two charges);
• damaging property; and
• committing an indictable offence whilst on bail.
Informant First Constable Laura Johns — offences 30 May 2022; charged 2 October 2022:
• robbery; and
• unlawful assault.
Informant Senior Constable Matt Anderson — offences 30 May 2022; charged 31 May 2022:
• robbery;
• attempted robbery;
• committing an indictable offence whilst on bail; and
• unlawful assault (three charges).
Informant Detective Senior Constable Jason Budge — offences 2 – 3 June 2022; charged 3 June 2022:
• aggravated burglary (four charges);
• theft (ten charges);
• burglary (eight charges);
• attempted burglary;
• committing an indictable offence whilst on bail (two charges); and
• damaging property.
Informant Detective Senior Constable James Soane — offences 21 June 2022; charged 20 July 2022:
• burglary
• theft; and
• committing an indictable offence whilst on bail.
Informant Detective Senior Constable Leah Gladstone — offences 26 June 2022; charged 18 August 2022:
• burglary (eight charges);
• attempted theft (five charges);
• theft (two charges); and
• committing an indictable offence whilst on bail.
Informant Constable Luke Potter — offences 27 June 2022; charged 27 June 2022:
• burglary (fifteen charges);
• damaging property;
• theft (thirteen charges); and
• committing an indictable offence whilst on bail.
Informant Senior Constable Michael Huggan — offences 2 June – 19 July 2022; charged 20 July 2022:
• aggravated burglary;
• burglary;
• theft (two charges);
• attempted theft;
• unlicensed driving; and
• committing an indictable offence whilst on bail (three charges).
Informant Constable Angela Stapleton — offences 19 July 2022; charged 28 July 2022:
• home invasion;
• aggravated burglary;
• burglary;
• theft; and
• committing an indictable offence whilst on bail.
Informant Detective Senior Constable Luke Jones — offences 11 August 2022; charged 11 August 2022:
• home invasion;
• theft; and
• committing an indictable offence whilst on bail (two charges).
Informant First Constable Nicholas Senior — offences 23 October 2022; charged 3 November 2022:
• robbery (two charges);
• attempted robbery;
• committing an indictable offence whilst on bail; and
• unlawful assault (two charges).
Informant Senior Constable Dale Burns — offences 2 November 2022; charged 30 November 2022:
• affray;
• unlawful assault (three charges);
• theft; and
• committing an indictable offence whilst on bail.
Informant Detective Senior Constable Adam Stafford — offences 22 November 2022; charged 24 November 2022:
• home invasion;
• theft; and
• committing an indictable offence whilst on bail.
Informant Senior Constable Olivia Caso — offences 23 November 2022; charged 24 November 2022:
• aggravated burglary; and
• theft (two charges).
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