Re St

[2021] VSC 379

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0345

IN THE MATTER of the Bail Act 1977

and

IN THE MATTER of an application for bail ST

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2020
DATE OF JUDGMENT:	28 June 2021
CASE MAY BE CITED AS:	Re ST
MEDIUM NEUTRAL CITATION:	[2021] VSC 379

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CRIMINAL LAW – Application for bail – Murder – Child applicant – Exceptional circumstances established – No unacceptable risk – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Edney	Stary Norton Halphen
For the Respondent	Mr M Gibson QC	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

1. By application dated 9 December 2020 ST made application to this court for bail.  On 18 December 2020 I granted him bail and said that I would publish my reasons.  These are those reasons.  These reasons should be read in conjunction with the reasons published for the granting of bail to co-accused AP, IT, NT, DP and JR and the reasons published for granting bail to all VN, AK and CN.

1. All 11 co-accused have been charged with the murder of Solomone Taufeulungaki (‘the deceased’) at approximately 4.00pm on 16 June 2020.  The above accused and the applicant are all children.  The two adult accused have not been admitted to bail.

1. The significant difference relating to ST is that he is alleged to be the person who stabbed the deceased.

1. Although I accept that there is apparently credible evidence capable of establishing that fact, the question of intent is still open.  That is particularly so having regard to his age (15 years old at the time of the offence) and the alleged admission he is said to have made to Alofa Schuster, the mother of the co-accused AP and DP.  He is said to have admitted he was the stabber but denied any murderous intent.

1. I proceed on the basis that this is not necessarily a strong case for murder.

1. As with the other accused, the procedural history of the matter is that the applicant charged with violent disorder and affray on 17 June 2020.  He was released on bail.  On 22 October 2020 he was charged with murder and placed on remand.

1. As the applicant is charged with murder, a Sch 1 offence under the Bail Act 1977 (‘the Act’), he can only be admitted to bail if the Court is ‘satisfied that exceptional circumstances exist that justify the grant of bail’.[1]  If the court is so satisfied then bail will still be refused if there is an unacceptable risk that the Applicant would:

   [1]Section 4AA of the Bail Act 1977.

(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.[2]

[2]Section 4E(1) of the Bail Act 1977.

1. Pursuant to s 4E(3)(2) of the Act, the Court is required to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable one.

1. The applicant must establish exceptional circumstances but it is for the respondent to establish unacceptable risk. When applying either test I am obliged to have regard the surrounding circumstances set out in s 3AAA of the Act. ST is a child and the Court is obliged to have regard to the matters set out in s 3B of the Act.

1. In any event, the respondent conceded that exceptional circumstances were made out because of:

(v)  Delay;

(vi)             The impact of the COVID 19 pandemic;

(vii)            The Applicant’s youth; and

(viii)          The absence of prior convictions.

1. The respondent does contend that the Applicant is an unacceptable risk:

(ix)To the safety of the community; and

(x)   Of committing further offences while on bail.

1. The applicant has no prior convictions.  He has been in custody since 22 October.

1. The respondent relies upon four matters in opposition to the application for bail:

(a)   An incident which occurred at Parkville Youth Justice Precinct ‘Parkville’ on 9 November.  A similar concern had been expressed on the application of VN, AK and CN.  I dealt with the matter at [26] of my Second Reasons and adopt those paragraphs here;[3]

[3]Re applications for bail by VN, AK and CN [2020] VSC 782, [26].

(b)  The seriousness of the offending;

(c)   Strength of the Crown case; and

(d)  Poor school attendance.

1. The most important matter in support of the bail application was a Youth Justice Bail Service Report.  In that report the following matters were addressed:

(a)   The applicant has strong family support;

(b)  The applicant will go into year 11 at Copperfield College in the new school year;

(c)   The applicant had participated in educational opportunities whilst at Parkville in conjunction with Copperfield College;

(d)  The applicant appears to have no mental health problems; and

(e)   On bail, the Applicant would have the support of Youth Justice, Copperfield College and Youth Justice Community Support Service After Hours Programme, Caranichie Psychological Programs, Youth Support and Advocacy Service, School Holiday Programs and referral to a job readiness program.

1. In the report it was also indicated that ST was vulnerable in custody.  ST’s behaviour in custody has been satisfactory.  He has been the victim of assault but was also involved in the matters set out above.

1. On the application the following other material was tendered:

(a)   References; and

(b)  Certificates.

1. Since exceptional circumstances have been conceded by the respondent I find that exceptional circumstances have been made out.  I am not satisfied that the respondent has shown the applicant to be an unacceptable risk.  That is particularly so because of the extensive support offered by Youth Justice Bail Support and the detailed plan which is proposed for the applicant’s management in the community.  The applicant was released on bail on the following conditions:

(a)   He attend the Supreme Court of Victoria on 26 February 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.

(b)  He reside at an address known to the Court and the police in Victoria, and not change that address without the leave of the Court.

(c)   He remain at those premises between the hours of 9.00pm and 7.00am each day for the duration of bail, unless in the company of a parent/guardian or adult family member or nominee of Youth Justice.

(d)  He present himself at the front door of the premises during those curfew hour if and when called upon by a member of Victoria Police to do so.

(e)   He 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.

(f)    He provided a sample of his breath or oral fluid for testing if required to do so by any member of Victoria Police.

(g)  He not contract, directly or indirectly, the co-accused, being VN, IT, DP, NT, CTN, JRP, AP, AK, Taataa TAFA and Soreysa JIBRAEL for the duration of the bail period.

(h)  He engage in any school based programs as arranged by and directed by Youth Justice.

(i)     He not be present in any group of greater than five, except in the presence of a parent/guardian or authorised representative of Youth Justice, except when engaged in any program arranged or endorsed by Youth Justice or in any organised sporting program.

(j)     He not be within 200m of the Brimbank Shopping Plaza or Deer Park Library.

(k)  He obey all lawful directions of Youth Justice.

(l)     He attend and comply with all requirements of the Youth Justice Intensive Bail program.

(m)             He not access or use any form of social media.

(n)  He not contact, directly or indirectly, any witness for the prosecution, except the informant.

(o)   He not leave the State of Victoria.

(p)  He reappear before the Court for judicial monitoring to review his compliance with this order at 10.00am on 4 February 2021, and any further dates this Court appoints during the course of this order.