Re TH
[2021] VSC 597
•17 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0231
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for Bail by TH
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2021 |
DATE OF ORDER: DATE OF REASONS: | 3 September 2021 17 September 2021 |
CASE MAY BE CITED AS: | Re TH |
MEDIUM NEUTRAL CITATION: | [2021] VSC 597 |
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CRIMINAL LAW – Application for bail – Applicant a 15 year old Aboriginal child – No prior convictions – Requirement to show exceptional circumstances – Whether exceptional circumstances established – Availability of supports – No unacceptable risk – Bail granted – Bail Act 1977, ss 1B, 3AAA, 3A, 3B, 4AA, 4A, 4D and 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Roth, Solicitor | Dotchin Tan Barristers and Solicitors |
| For the Respondent | Mr P Collins, Solicitor | Victoria Police |
HER HONOUR:
The applicant, TH, is a 15-year-old Aboriginal girl. On 3 September 2021 I admitted TH to bail. I indicated I would publish reasons for my decision at a later date. These are those reasons.
The alleged offending
In August 2021 the applicant was living in residential care in Reservoir. Prior to this, she had resided with her maternal grandparents in Briar Hill.
On 26 August 2021 at around 11.00pm, the applicant together with a 17-year-old co-offender, ER, stole a Ford Falcon belonging to the applicant’s grandfather. The vehicle was parked in the driveway with the keys inside. Soon after stealing the vehicle, the applicant, who was driving, lost traction, hit the curb and collided with a street sign. This caused damage to the front bumper of the vehicle.
The applicant then picked up two male co-offenders, MM aged sixteen and BP aged fifteen, followed by a third unknown male. MM became the driver and the applicant a passenger. At around 11.30pm police observed the stolen Ford travelling at a fast rate of speed. Police attempted to intercept the vehicle by activating their lights and siren, but the vehicle did not stop and continued at a fast rate of speed on Main Road in Eltham.
The next morning the accused and two of the co-offenders attended at a petrol station in Nagambie. The accused filled the vehicle with $98.56 of fuel and left without paying. This was captured on CCTV. At around 2.00pm the applicant returned to her residential care facility. Workers observed the stolen vehicle out the front, with an unknown male driver and two passengers. The applicant obtained a speaker from her bedroom and then returned to the vehicle. Carers attempted to follow but were advised by police to disengage.
On 29 August 2021 at around 8.30am, the applicant attended at her grandparents’ house and advised them that their stolen vehicle was located at a nearby intersection. The complainants recovered their vehicle, which had one plate attached. Whilst at her grandparents’ house, the applicant obtained a key for her grandmother’s Suzuki Swift, and hid the key in the footwell of the driver’s side. The vehicle was parked in the carport. Between 8.30am and 9.30am the same day, the applicant returned and stole the vehicle. She was again with the three co-offenders – ER, MM and BP.
At around 10.00am, police observed the stolen Suzuki in Broadmeadows. They attempted to intercept the vehicle by activating lights and sirens, but the vehicle took off at a fast rate of speed. At around 2.00pm, the applicant attended at a service station on Princes Highway, Little River, and stole $8.30 worth of fuel. This was again captured on CCTV.
On 30 August 2021 at around 8.30am, police attended at the applicant’s grandparents’ address in Briar Hill. The applicant was located asleep in her bedroom. She was arrested and taken to Heidelberg Police Station, where she was interviewed. She made full admissions to the offending. Police seized her mobile phone, which contained videos of the applicant and her associates driving the vehicles and using cannabis. One video shows a co-offender driving at speeds in excess of 160 kilometres per hour on the wrong side of the road.
In the ensuing days, co-offenders BP and MM were joined by a third fifteen year old male co-offender, EI. They continued to drive the stolen Suzuki dangerously and at speed, resulting in the involvement of numerous police units including the Air Wing. They were eventually arrested on 1 September 2021 at around 4.10am.
The applicant was charged by Informant Scalzo with reckless conduct endangering life, dangerous driving, failing to stop on police request, unlicensed driving, theft, theft of a motor vehicle and committing an indictable offence whilst on bail (‘the Scalzo charges’).
Procedural history
The applicant was arrested and presented before the Heidelberg Children’s Court on 30 August 2021. Bail was refused on that day. The threshold alleged by the police was wrongly said to be compelling reasons. The Magistrate was satisfied that compelling reasons existed, however was satisfied the applicant was an unacceptable risk of endangering the safety of the community. At this stage, Youth Justice had not assessed the applicant.
On 1 September 2021 the applicant sought to enter a plea to the Scalzo charges and requested release on Youth Justice supervised bail while a pre-sentence report was prepared. Only a fifteen minute WebEx link had been allocated, and the Magistrate was unable to hear the plea on that day. The applicant was further remanded until 22 September 2021.
Solicitors for the applicant made inquiries with the Children’s Court and were told a further bail application could not be listed before 9 September 2021, and that the date of 9 September may not be available in any event.
On 2 September 2021 the applicant filed an application for bail in this Court. The matter was listed on 3 September 2021 for hearing.
The application is opposed.
Other outstanding matters
On 18 February 2020, the applicant was charged on summons with an unlawful assault (‘the Green charge’). She was thirteen years old at the time of the alleged assault.
On 8 April 2020, the applicant was charged on summons with three counts of theft and one count of unlawful assault (‘the Wilkes charges’). She was also aged thirteen at the time of these alleged offences.
On 21 March 2021, the applicant was charged on summons with five counts of theft (‘the Wadeson charges’).
On 5 May 2021, the applicant was charged with nine counts of shop-theft (‘the Schofield charges’). She was bailed with the single condition that she not attend Westfield Doncaster.
All these outstanding matters are next listed at the Heidelberg Children’s Court on 22 September 2021.
The applicable legislation
As outlined above, on 21 March 2021, the applicant was charged on summons with an indictable offence. On 5 May 2021, she was charged with an indictable offence whilst subject to a summons to answer to a charge for another indictable offence. Thus, the Schofield charges are Schedule 2 offences.[1]
[1]Bail Act 1977, Schedule 2, Item 1(b).
Committing an indictable offence whilst on bail (one of the Scalzo charges) is a Schedule 2 offence.[2] The applicant has therefore been charged with a Schedule 2 offence whilst on bail for a Schedule 2 offence. It is common ground that the applicant must show exceptional circumstances that justify the grant of bail pursuant to s 4AA(2)(c)(i) of the Bail Act 1977 (‘the Act’).
[2]Ibid, Schedule 2, Item 1(a).
I am required to take into account the guiding principles in s 1B(1) when applying and interpreting the Act.
In considering whether exceptional circumstances exist, I must take into account the surrounding circumstances, including, but not limited to, the matters set out in s 3AAA(1) of the Act.
The applicant is a child and pursuant to s 3B I am required to consider the following:
(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 applicant is also an Aboriginal person, and pursuant to s 3A I must take into account any issues that arise due to the applicant’s Aboriginality, including –
(a)the person’s cultural background, including the person’s ties to extended family or place; and
(b)any other relevant cultural issue or obligation.
If I am satisfied that exceptional circumstances exist that justify the grant of bail, I must then apply the unacceptable risk test.[3] I must refuse bail if I am satisfied that there is a risk the applicant would, if released on bail, 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. I must also be satisfied the risk is an unacceptable risk.[4]
[3]Section 4D(1).
[4]Section 4D(1)(a)(i)-(iv) and (b).
The prosecution bears the burden of proving both the existence of the risk, and that the risk is unacceptable.[5]
[5]Section 4D(2).
Here, the respondent concedes that it is open to the Court to find that exceptional circumstances exist. The real focus of the respondent’s opposition to bail is that the applicant poses an unacceptable risk of committing further offences whilst on bail, and endangering the safety and welfare of members of the community.
The applicant
The applicant is fifteen years old. Her father is an Aboriginal man from South Australia. She was removed from her parents’ care when she was three years old, and her maternal grandparents agreed to care for her and her brother.
In October 2020, her grandparents advised Victorian Aboriginal Child Care Agency (VACCA) that they were unable to continue to care for the applicant and her brother due to their own health needs. The applicant was initially placed at the Armstead VACCA residential care unit, but she did not feel safe, and on 29 July 2021 she was moved to a therapeutic residential unit in Reservoir.
A letter from Ms Connell, VACCA Nugel Program, states the applicant is settling in well and starting to build positive relationships with her carers. She has commenced engaging with mental health and other support services.
The applicant self-reports that she regularly engages in substance use as it makes her feel better about her family situation. She is enrolled in school but struggled with the transition to high school. She is currently enrolled in year nine at St Joseph’s Flexible Learning Centre where her attendance has been poor.
Applicant’s material and contentions
The applicant relies on the affidavit of Pascal Roth, solicitor. Mr Roth deposes to many of the matters I have already referred to, including the procedural history of this matter and the applicant’s background.
The applicant also relies on the Youth Justice Bail Service Report dated 2 September 2021.
The applicant relies on the following combination of factors to establish exceptional circumstances:
·The applicant has no criminal history;
·The applicant has the support of VACCA;
·The applicant has been assessed as suitable for Youth Justice supervised bail;
·The applicant has found incarceration difficult and being in custody has had a salutary effect on the applicant;
·The applicant’s youth and the factors contained in s 3B of the Act;
·The applicant’s Aboriginality and the factors contained in s 3A of the Act; and
·It is unlikely a custodial sentence will be imposed for the offending and as such time spent on remand would exceed any sentence that may be imposed.
The applicant relies on the same factors in support of the submission that the respondent has not established that the applicant is an unacceptable risk of committing further offences whilst on bail, or endangering the welfare and safety of any person. Further, the applicant submits that to the extent there are risks, the imposition of conditions would render the risk acceptable. In particular, Mr Roth submitted the applicant has the support of Youth Justice and a capacity and willingness to engage with their services, which will significantly ameliorate any risk.
Respondent’s material and contentions
The respondent relies on the affidavit of Nathan Watt, a solicitor employed with Victoria Police. The respondent tendered three short video clips taken on the applicant’s mobile phone. These show the applicant inside the stolen car, and the applicant and co-offenders smoking what appears to be cannabis. One clip shows the car travelling at night on the wrong side of the road, with headlights approaching, before the car crosses back to the correct side of the road.
The respondent concedes the applicant has no prior convictions, but submits the applicant’s criminal conduct is repetitive, persistent and apparently escalating. She has demonstrated a propensity to commit thefts and assaults, and offend whilst on bail. The conduct involved in stealing and driving the vehicles involved a high risk of serious harm to innocent road users, as well as to the applicant and her co-offenders.
The respondent fairly concedes that there have been two significant changes since the applicant was refused bail in the Children’s Court. First, the stolen Suzuki has been located and police are no longer concerned she has access to that vehicle. Secondly, she has been assessed by Youth Justice as suitable for supervised bail.
Exceptional circumstances
The Act does not define what may amount to exceptional circumstances. For the circumstances to be exceptional, the circumstances relied upon must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail. The threshold is high, but it is not an impossible standard. Exceptional circumstances may be established by a combination of factors which, by themselves, may not be considered exceptional.[6]
[6]See, eg, Re CT [2018] VSC 559 at [64]-[66] and the cases referred to therein.
In Re JO, T Forrest J (as he then was), held the following in the context of a child applicant facing the exceptional circumstances test:
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.[7]
[7]In the matter of an application for bail by JO [2018] VSC 438 at [14].
I am satisfied that exceptional circumstances have been established. The applicant has stable and suitable accommodation; she is well-supported through VACCA; she is a fifteen year old Aboriginal girl; she has no prior convictions; she has never been in custody before; she will be supported by Youth Justice whilst on bail; and finally, she is very unlikely to receive a custodial sentence for the alleged offending and any time spent on remand would likely exceed the ultimate sentence imposed.
Unacceptable risk
The burden rests with the respondent to satisfy the court that there is an unacceptable risk of any or all of the matters set out in s 4E(1)(a). Bail must be refused if the Court is satisfied that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that the risk is an unacceptable one.
In applying this test, I must again take into account the surrounding circumstances in s 3AAA of the Act, the matters contained in ss 3A and 3B, and consider whether there are any conditions of bail that may be imposed to mitigate risk so that it is not an unacceptable risk.[8]
[8]Section 4E(3)(b).
When considering the capacity for the imposition of conditions to mitigate risk, the mandatory considerations in ss 3A and 3B are important. As Bell J stated in DPP v SE:
…(t)he purpose of ss 3A and 3B is that children, and especially Aboriginal children, should, where possible, be released on bail on appropriate conditions rather than remanded in custody. Their purpose is to ensure that children, and especially Aboriginal children, are protected as far as possible from that physical and emotional harm and that negative formative influence to which they are especially vulnerable in detention on remand, acknowledging that such detention may be necessary as a matter of last resort.[9]
[9]DPP v SE [2017] VSC 13 at [38].
Here, the applicant is very unlikely to be sentenced to a term in custody if she is found guilty of all the charges. The respondent concedes the applicant ‘is not necessarily facing a period of detention on these charges’. This is a very significant consideration in deciding whether any risk is acceptable. As the Court of Appeal stated in HA (a pseudonym) v The Queen:
Once it was conceded that it is unlikely that a custodial sentence would be imposed (given the appellant’s age and disability and the nature of the offences charged), his continued incarceration pre-trial would be akin to a form of preventative detention. That is, he would be being held in custody solely because of the risk that he might commit an offence in the future.
In the absence of any specific statutory provision, preventative detention is alien to fundamental principles that underpin our system of justice. This is an area of particular concern in relation to young offenders who are denied bail. As the Hon Paul Coghlan QC noted in 2017, in Bail Review: First Advice to the Victorian Government, 80 percent of children who have had bail refused do not go on to attract a term of detention for the offending in question. Given the longstanding concern of the criminal justice system – and the community- to keep children out of custody wherever possible, these are alarming statistics.[10]
[10]HA (a pseudonym) v The Queen [2021] VSCA 64 at [63]-[64].
Of the co-offenders, the three males are currently in custody. All are known to police, all have prior convictions, and two were on probation orders at the time of the offending. The female co-offender, ER, remains at large. The applicant’s association with the co-offenders is concerning and a source of some risk. The offending itself, particularly the driving, is very serious. It placed all other road users at serious risk of harm, as well as the applicant herself and the co-offenders. The applicant played a key role as she procured both the vehicles, and at times was the driver.
The applicant is an Aboriginal child. Although Aboriginal people make up only 1.5% of the young people aged ten to twenty three years in Victoria, they make up 15% of children and young people aged ten to seventeen years under Youth Justice supervision (in the community and in custody).[11] According to a recent report, Our youth, our way: inquiry into the over-representation of Aboriginal children and young people in the Victorian youth justice system:
Any period in custody can be harmful to a child, and can impair healthy development and exacerbate trauma and mental illness.[12]
Aboriginal children aged 10 to 15 years are substantially over-represented in, and disproportionately harmed by, youth justice custody. Custody removes Aboriginal children from their families, communities, Country and culture and dislocates them from their protective factors. It often exacerbates existing mental health concerns among Aboriginal children and young people, and creates new ones.[13]
[11]Commission for Children and Young People, Our youth, our way: inquiry into the over-representation of Aboriginal children in the Victorian youth justice system, 2021, p 21.
[12]Ibid p 24.
[13]Ibid p 25.
In her letter to the Court, Ms Connell states that the applicant has experienced multiple developmental traumas, but has shown great resilience and courage. She describes the applicant as an intelligent and capable young person, with many strengths. VACCA continue to support the applicant, including encouraging and exploring educational options, facilitating cultural connections and supporting her mental health.
The applicant engaged positively with Youth Justice throughout her assessment. She intends to continue her education and will be able to attend school on-site twice a week. She has agreed to attend a VACCA women’s group, which will provide strong, positive role models. Youth Justice described the applicant as respectful, open, engaging and optimistic. She admitted her substance use, and it is anticipated she will be allocated an AOD outreach worker through the Youth Support and Advocacy Service (YSAS) and engage in weekly appointments.
In my view, there are a number of available conditions that will mitigate risk. They include supervision by Youth Justice, mandated compliance with Youth Justice directions, a non-association condition and a curfew. The applicant has not previously had the support of Youth Justice, and she does not have a history of breaching special conditions of bail. Whilst there is of course some risk of reoffending, I have concluded that with appropriate conditions the risk is not an unacceptable risk.
Conclusion
The Court is satisfied that exceptional circumstances are established that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk of committing further offences on bail or endangering the safety and welfare of any person.
The applicant will be released on bail on her own undertaking on the following conditions:
(a)She attend the Heidelberg Magistrates’ Court on 22 September 2021 and then surrender herself, 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 herself into custody.
(b)She reside at [redacted] (“the residence”) and not change that address without the leave of the Court.
(c)She remain at the residence between the hours of 9.00pm and 5.00am (“curfew hours”) each day for the duration of bail unless in the company of a Youth Justice or VACCA worker.
(d)She present herself at the front door of the residence during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e)She not contact, directly or indirectly, including electronically, any of the co-accused, namely ER, MM, BP or EI, for the duration of the bail period.
(f)She not contact, directly or indirectly, any witness for the prosecution, except the informant, Norman Cook and Heather Ferguson.
(g)She obey all lawful directions of Youth Justice attending all appointments as directed by them, or their nominee/s, including the following:
(i)Youth Support Advocacy Service, alcohol and drug assessment and treatment.
(h)She attend and comply with all requirements of the Youth Justice Supervised Bail program.
(i) She not drive a motor vehicle.
(j) She not possess or consume illegal drugs or alcohol.
(k) She not leave the State of Victoria.
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