Re SD
[2019] VSC 369
•31 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0113
| IN THE MATTER OF the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER OF an Application for Bail by SD |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 May 2019 |
DATE OF RULING: | 31 May 2019 |
CASE MAY BE CITED AS: | Re SD |
MEDIUM NEUTRAL CITATION: | [2019] VSC 369 |
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CRIMINAL LAW – Application for bail – Applicant charged with Schedule 1 offence – Whether exceptional circumstances established – Whether applicant, if bailed, presents an unacceptable risk – Application opposed – Applicant aged 17 years with criminal history – Current charges serious, violent and random – Release on supervised bail program supported by Youth Justice – Exceptional circumstances established – Risk can be mitigated to an acceptable level – Bail granted with conditions – Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D, 4E – Children, Youth and Families Act 2005 (Vic) s 346(6).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr H Moodie | Victoria Legal Aid |
| For the Respondent | Mr A Grant | Office of Public Prosecutions |
HIS HONOUR:
The applicant, SD, is currently facing charges of armed robbery, two counts of aggravated burglary, theft, aggravated carjacking, theft of a motor vehicle, and committing an indicatable offence whilst on bail (the ‘McCabe matter’).
The McCabe matter relates to an incident alleged to have occurred on 18 February 2019. During that incident, the applicant and two co-accused, WA and ZA, went to a residential address in Reservoir. The occupant of that address was robbed at knifepoint before his vehicle was stolen. The applicant was arrested in relation to this matter eight days later on 26 February 2019. The applicant and his co-accused have remained in custody since their arrest.
His first application for bail in the McCabe matter was withdrawn on 30 April 2019. On 15 May 2019, the applicant was refused bail at the Melbourne Children's Court on the basis that the applicant failed to demonstrate the existence of exceptional circumstances and was an unacceptable risk. The present application for bail was filed on 23 May 2019.
At the time these offences were alleged to have been committed, the applicant was on bail from the police in relation to offending alleged to have occurred on 14 February 2019 (the ‘Molan matter’). In the Molan matter, he is charged with handling stolen goods, dangerous driving, careless driving, unlicensed driving, reckless conduct endangering injury, and driving a vehicle with more than the prescribed concentration of drugs in his blood. And, as I understand it, he remains on bail in relation to that matter. The McCabe and Molan matters are next listed on 11 October 2019 at the Melbourne Children's Court for a contested committal hearing and a further mention, respectively.
Both of the co-accused in the McCabe matter have resolved their charges. WA has pleaded guilty to charges of theft of a motor vehicle, unlicensed driving, careless driving and loitering with intent to commit an indictable offence. His matter is next listed for a consolidated plea on 6 June 2019 at the Melbourne Children's Court. ZA pleaded guilty to charges of theft of a motor vehicle, committing an indictable offence whilst on bail, loitering with intent to commit an indictable offence, and trespass. His matter is next listed for a consolidated plea on 7 June 2019 at the Melbourne Children's Court.
The applicant is also under investigation for an allegation of armed robbery at a 7-Eleven store in East Melbourne on or about 18 February 2019. I am told that the applicant will be charged with offences related to that matter, and it is proposed that the informant will abide the outcome of this bail application.
The alleged offending
By way of background, on the evening of 17 February 2019, WA and ZA were seen to be loitering in the suburb of Reservoir; looking into various vehicles, front yards and houses. They later met with the applicant and two others at the Preston Railway Station. WA and ZA apparently engaged in conversation with the protective security officers (‘PSOs’) on duty at the railway station; during the course of which they told the PSOs that 'their job was to do carjackings and home invasions, and the PSOs' job was to look after the trains'. The group then boarded a train to the Reservoir Railway Station, arriving at approximately 12:15 am. They are captured on CCTV.
At approximately 3:28 am on 18 February, the applicant, WA and ZA attended the residence of Mohamed Abdul-Salam in Wilson Avenue, Reservoir, as he was arriving home from work. Mr Abdul-Salam parked his vehicle, a blue 2012 Audi Q3, across the road from his residence and began removing items from the boot.
The prosecution case is that the group approached him and, while the applicant brandished a kitchen knife, demanded that Mr Abdul-Salam hand over his phone, money and car keys. Mr Abdul-Salam attempted to escape by pushing the applicant in the chest. An altercation followed, which resulted in the victim's shirt being ripped off.
It is alleged that the applicant then chased Mr Abdul-Salam to the front door of his home and forced his way inside. The applicant is alleged to have held the knife at him and told him, 'Give me the car keys or I will stab you'. Mr Abdul-Salam handed over the keys, and the group left in the victim's Audi.
A few minutes later, the vehicle was captured speeding through a red light at an intersection in Northcote. The vehicle was again seen on CCTV at Northland Shopping Centre at about 9:47 am, with the applicant and two co-accused observed exiting the car and re-entering it after spending approximately 10 minutes in the shopping centre.
The stolen vehicle was ultimately located in Collingwood on 23 February 2019 and was processed by crime scene officers. The vehicle was found to contain ‘kits’ consisting of masks, plain dark clothing and shoes, and large knives. These items did not belong to the victim.
The informant, Detective Senior Constable McCabe gave evidence at the bail hearing that the items were brand new, and it is believed the kits were for the purpose of committing further offences. It is alleged by investigators that the applicant and his co-accused have a pattern of changing clothing whilst offending in order to confuse or avoid identification. This allegation was supported by DSC McCabe’s evidence that, over the course of 17 and 18 February 2019, CCTV captured the applicant in different clothing at different locations.
Cellular records also indicated that the applicant's mobile phone was in the Reservoir, Preston, Northcote and Collingwood areas at the relevant times.
Mr Abdul-Salam later attended the Mill Park Police Station and was assisted by a member of the Crime Identification Unit to compile a composite image of the offender who produced the knife. The shirt that Mr Abdul-Salam had been wearing at the time of the alleged offence was provided the police. A DNA analysis has identified four contributors to the DNA on the shirt. A previous request to the applicant for a sample of his DNA was refused. However, a magistrate recently granted an order to obtain the applicant’s DNA.
The applicant was interviewed in relation to this matter on the day of his arrest. He admitted to being on bail at the time of the alleged offending. He also admitted to attending Collingwood, Preston and Reservoir between 17 and 18 February 2019, but denied participating in an aggravated carjacking. Notably, it is alleged he told investigators that he 'would rather do an armed robbery than a carjacking'. He also denied exiting the stolen vehicle at Northland Shopping Centre. Instead, he claimed that he had walked over to the vehicle to meet with friends. When shown the composite image created by Mr Abdul-Salam, the applicant is alleged to have laughed and said, 'I know someone who looks like that'.
The applicable legislation
When applying and interpreting the Bail Act 1977 (Vic) (‘Act’), the Court must have regard to the guiding principles set out in s 1B of the Act, which reads, in part, as follows:
(1) 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; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
Additionally, the applicant was under the age of 18 at the time of the McCabe matter and is therefore a child for the purposes of this application. Section 3B of the Act provides additional factors that the Court must take into account when making a determination in relation to a child’s application for bail. In the present application, ss 3B(1) and (2) of the Act are of particular relevance:
(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.
I have taken these matters into account.
This application highlights the significant tension that exists in these applications. On the one hand, the criminal law is doing everything it can to make allowances for the youth of an alleged offender and to give them the opportunity to pursue a pro-social lifestyle. On the other hand, the McCabe matter alleges very serious offending that is violent and random, and would be terrifying from the point of view of the victim and the community.
The applicant has been charged with carjacking, a Schedule 1 offence, whilst on bail. In determining whether to grant bail when a person is accused of committing a Schedule 1 offence whilst on bail, s 4AA(1) of the Act states that the Court must follow a two-step test.
The first step is the ‘exceptional circumstances test’, where bail must be refused unless exceptional circumstances are established that justify the grant of bail. The burden of satisfying the Court that the exceptional circumstances exist rests with the applicant.[1] Exceptional circumstances can be constituted by one circumstance or by a combination of a number of circumstances which might not be exceptional on their own.[2] In considering whether there are exceptional circumstances, the Court must take into account the surrounding circumstances of the kind referred to in s 3AAA of the Act.
[1]Bail Act 1977 (Vic) s 4A(2) (‘Bail Act’).
[2]R v Chung [2015] VSC 487.
If the Court is satisfied that the applicant has shown that exceptional circumstances exist, then the second step of the test is engaged.[3] This step, called the ‘unacceptable risk test’, is made of two components.
[3]Bail Act (n 1) s 4D(1)(a).
First, the prosecution must satisfy the court that there is a risk that, if released on bail, the applicant would endanger the safety or welfare of any person; commit an offence while on bail; interfere with a witness or otherwise obstruct the course of justice in any matter; or fail to surrender into custody in accordance with the conditions of bail.[4]
[4]Ibid s 4E(1)(a).
Second, the prosecution also must establish that the risk identified is unacceptable.[5] In considering whether the risk is unacceptable, the Court must again have regard to the surrounding circumstances and consider whether there are any conditions of bail that may mitigate the risk so that it is no longer at an unacceptable level.[6]
[5]Ibid ss 4D(2) and 4E(2).
[6] Ibid s 4E(3).
The applicant’s personal circumstances
The applicant was born in Sudan on [redacted] and is now 17 years old. He came to Australia with his family in 2005. Prior to being on remand, he lived in public housing in Frankston with his mother. It is noted in the Youth Justice Bail Service Report (‘Bail Report’) filed in this matter that the applicant has a history of drug and alcohol abuse, although the nature and extent of that substance abuse is not particularly detailed.
He has a criminal history that is most unfortunate for someone so young. It dates back to 2016 and includes convictions and findings of guilt for aggravated burglary, theft of a motor vehicle, theft and assault. Relevantly, the history also discloses a finding of guilt for breach of a youth supervision order in 2017 and committing an indictable offence whilst on bail in 2016. He was also placed on a 16-month youth detention order in 2017. More recently, he was made the subject of a 12-month adjourned undertaking with respect to a finding of guilt for the offence of assault in company. It was dismissed on 18 October 2018, following compliance with the undertaking.
The applicant’s submissions
In this case, the applicant relies on a number of matters as amounting exceptional circumstances. Reliance is placed primarily on the youth of the applicant, which engages the considerations required by s 3B of the Act. Counsel for the applicant also relies on relevant delay in the matter being resolved. Additionally, he relies on the availability of Youth Justice support for treatment and bail support services. Finally, there is the availability of stable accommodation in his family home.
The applicant has been recommended for Youth Justice intensive bail. As mentioned, the Bail Report was prepared to assist the Court with this application. The report was prepared by Ms Karina Fourman, a Youth Justice case manager, and was filed with this Court on 23 May 2019. The Bail Report has attached to it a proposed intensive bail plan, which also includes a proposed weekly timetable and a non-compliance response plan.
The supports available to the applicant include ‘one-on-one’ psychosocial programming to address his attitudes and behaviours. There are also linkages to a community engagement programs at Youth Activating Youth Centre, including music production activities, which the applicant has previously enjoyed. The applicant will be connected with the Centre for Multicultural Youth, which will support the applicant to engage in African cultural events.
It is also proposed that he will have after-hours and weekend support from the Youth Justice Community Support Services, which will assist him in engaging with after-hours activities, form positive relationships and provide additional supervision.
In the affidavit filed in support of the application, sworn by Barbara Tindall on 23 May 2019, the applicant had been enrolled in the TRY Build certificate in building and construction. He completed the first module whilst in custody. The Bail Report indicates that he has expressed interest in continuing his education by participating in a Trade Taster program offered through Youth Learning Pathways. This program would commence on 4 June 2019.
I also heard from two witnesses, Ms Fourman from Youth Justice and Emily Hurley from Parkville College, who gave evidence in support of the applicant. Neither Ms Fourman nor Ms Hurley were able to reconcile this history of offending and the present allegations with the person they have come to know and, apparently, admire.
With great respect to Ms Fourman, she was a very conscientious and committed witness. She met the applicant in early March 2019 and has visited him in custody several times since. Ms Fourman expressed confidence in the applicant’s willingness to engage with the proposed bail plan because of his active participating in psychosocial program whilst in custody. I have been told the applicant has completed a group program in relation to anger management, and drug and alcohol abuse whilst being in custody at Malmsbury. According to the report, the applicant has engaged well with Youth Justice during his period on remand including active participation in programs aimed at developing insight in respect of his substance abuse issues and the consequences of his offending.
Ms Fourman advised that she would be personally involved with the applicant twice-weekly, and will administer a program called Changing Habits and Reaching Targets, with the goal of challenging offending behaviour; addressing problem-solving skills, consequential thinking and coping strategies; and assisting the applicant in recognising high-risk situations and how to avoid them.
According to the Bail Report, the applicant has a current referral to the Youth Justice Support and Advocacy Services at Frankston for drug and alcohol treatment. He has an appointment booked for next Monday, 3 June 2019. Ms Fourman gave evidence that she believed the ‘one-on-one’ format of this treatment would be more effective than the group treatment programs available at Malmsbury.
Ms Fourman has apparently met with the applicant's mother on several occasions. According to Ms Fourman, the applicant’s mother has expressed a willingness to support and encourage the applicant to engage with the program. The applicant also has the support of his maternal aunt, with whom he has a significant and positive relationship.
It is also proposed that the applicant and his family will attend the Multisystemic Therapy (‘MST’) Program through Youth Justice, which is an intensive family and home-based treatment program designed to address how environmental factors can impact a young person within the youth justice system. Ms Fourman advised that the applicant’s mother is also willing to engage with the MST Program for family support to manage the applicant’s high risk behaviours.
Mr Moodie of counsel, on the applicant’s behalf, referred to stable accommodation available to him at the family home in Frankston. It is important to note, however, that even Ms Fourman has concerns about that, and refers to it in the following terms in her report:
‘[SD] is due to return to reside with his mother in the Frankston area where they live in an Office of Housing flat. The area is known to be populated with anti-social peers, increasing [SD]'s risk of reoffending if he chooses to associate with negative peers from this area'.
She advised the Court that these issues have been taken up with the Office of Housing.
In this case, the applicant's alleged offending relates to associates in the northern suburbs, rather than the Frankston area. At the hearing, Ms Fourman expressed the belief that the proposed bail plan would help to mitigate these concerns as the Trade Taster course and other appointments are kept within his local area, such that he will have no reason to frequent the northern suburbs
The Court also heard from Ms Hurley. She has known the applicant for three years; having met when she was running programs at the Malmsbury Youth Justice Centre. Ms Hurley gave evidence that that she has observed the applicant voluntarily mentoring younger children. She described the applicant as mature and a young man who has tried to make serious steps to improve under significant challenges.
As I have said, Mr Moodie also relies on the delay between this hearing and the committal date in October 2019, and the likely further delay before a trial is conducted. The applicant has been in custody as at today for a period of 94 days. If the applicant is not granted bail, by 11 October, he will have been in custody on this matter for 226 days.
The respondent’s submissions
Mr Grant, who appears on behalf of the respondent, has fairly accepted that the decision in this case is a most difficult one. However, he remains opposed to the application for bail on the basis that exceptional circumstances have not been demonstrated, and alternatively, if they have, the applicant remains an unacceptable risk of endangering the safety and welfare of any person, and committing an offence whilst on bail.
Although the applicant has not specifically raised an issue with the strength of the prosecution case, Mr Grant notes that if the applicant's DNA is recovered from the shirt taken from the victim in this matter, the prosecution case will be a very strong one indeed.
In response to the issue of delay, Mr Grant also referred to the likely sentence to be imposed; if the applicant is found guilty of the alleged offences of aggravated burglary and aggravated carjacking, it is likely that he would spend further time in custody.
In relation to the applicant’s family support, both the informant and Mr Grant noted that the applicant was residing at the proposed bail address with his mother at the time of this offending. They expressed concern about the lack of control that the applicant's mother has over his movements and behaviour. While he has completed positive programming in custody, he was subject to 24-hour supervision. If he were to be granted bail, he may not comply with the bail program.
In support of the contention that the applicant poses an unacceptable risk of endangering the safety and welfare of any person, Mr Grant noted that the alleged offending involves the use of a weapon, being in the stolen vehicle driven by an unlicensed driver, and that the applicant 'drives stolen cars at high speeds whilst unlicensed as evidenced by his criminal history'.
There is a concern on the part of the respondent, if he is released on bail, that the applicant will continue to use drugs and commit offences whilst drug affected, which is apparently his pattern.
Further, these offences are alleged to have occurred within three days of being granted bail by police in the Molan matter, which demonstrates that the applicant had no regard for orders or indeed for the willingness of police to offer him some opportunity, at least at that stage. He also has been found guilty of committing offences whilst on bail.
The respondent also expressed concern that, at the moment, the applicant has no source of income and, given the opportunity, he would continue to associate with people who are known criminal offenders in the Collingwood, Fitzroy and Reservoir areas.
Finally, it is clear that the victim of the alleged offending has suffered quite significantly: emotionally, physically, psychologically and financially. He expressed some fear that the applicant may return to his home should he be granted bail.
Conclusion
In my opinion, applying the principles set out in the Children Youth and Families Act and the Bail Act, coupled with the delay and the bail program that has been assembled with some considerable effort, do result in exceptional circumstances being established.
In all the circumstances, it seems to me I have no option but to take the principles which apply to young people, such as the applicant, seriously.
Taking those principles into account, with some considerable hesitation, I have reached the conclusion that the bail program provided will make the risk of releasing the applicant on bail acceptable – at least in the short term.
I therefore propose that the applicant be released on bail on his own undertaking and with the following conditions:
1. The applicant is to reside at [redacted] in Victoria, and not change that address without the leave of this Court or the Children’s Court;
2. Other than in the case of emergency, the applicant is not to be absent from his place of residence between the hours of 7 pm and 7 am (the ‘curfew hours’) each day for the duration of bail;
3. The applicant is to present himself at the front door of the premises during the curfew hours if and when called upon by a member of Victoria Police to do so;
4. The applicant is to report to the Officer in Charge of the Frankston Police Station each Monday, Wednesday and Friday between the hours of 7 am and 7 pm;
5. The applicant is to abstain from the consumption of any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 (Vic) without lawful authorisation under that Act;
6. The applicant is to comply with all lawful directions of the Youth Justice worker or their nominee;
7. The applicant is not to contact or associate with, directly or indirectly, any complainant or witness for the prosecution other than the informants or their nominees;
8. The applicant is not to contact or associate with, directly or indirectly, the co-accused WA and ZA;
9. The applicant is not to drive a motor vehicle of any description;
10. The applicant is to provide a sample of his DNA to the informant as and when requested by the informant;
11. The applicant is not to attend the suburbs of North Fitzroy or Reservoir;
12. The applicant is not leave the State of Victoria;
13. The applicant is to surrender any passport he may have to the informant within 24 hours;
14. The applicant is not to attend any points of international departure;
15. The applicant is to appear at the Melbourne Children’s Court on 11 October 2019, and thereafter as directed by that Court; and
16. The applicant is to appear at this Court on 7 June 2019 at 9.30am and each Friday thereafter until further order.
[Note: On 21 June 2019, this order for bail was revoked due to several breaches of conditions.]
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