Re TP
[2018] VSC 748
•4 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0295
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by T P | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 November 2018 |
DATE OF JUDGMENT: | 4 December 2018 |
CASE MAY BE CITED AS: | Re TP |
MEDIUM NEUTRAL CITATION: | [2018] VSC 748 |
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CRIMINAL LAW – Application for bail – Children’s Court – Charges of burglary, criminal damage, theft, aggravated home invasion, false imprisonment, making threats to kill, theft of a motor vehicle, armed robbery, and committing an indictable offence whilst on bail – Applicant required to show exceptional circumstances – Bail granted subject to conditions – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms D. Dempsey | Victoria Legal Aid |
| For the Respondent | Mr D. Brown | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 26 September 2018, the applicant was arrested and charged with offences of burglary, criminal damage, theft (two counts), aggravated home invasion, false imprisonment, making threats to kill, theft of a motor vehicle, armed robbery, and committing an indictable offence whilst on bail (three counts). The charges relate to four incidents alleged to have occurred between 21 – 23 September 2018.
At the time of the alleged offending, the applicant was on bail for three charges of theft from a shop, allegedly committed on 17 September 2018. He was also subject to a 12 month good behaviour bond, imposed on 16 August 2018, for multiple offences of theft from a shop and theft, and committing an indictable offence whilst on bail.
In respect to the charges subject to this application, there are two known co-accused, who are aged 14 and 15. Both are currently on remand. It is alleged that additional offenders were involved, however they are yet to be identified.
The applicant is 17 years old and has been in custody since his arrest. On 8 November 2018, he applied to the Melbourne Children’s Court for bail, but it was refused on 9 November 2018.
On 14 November 2018, the applicant applied to this Court for a grant of bail.
The alleged offending
The first incident – burglary
The prosecution alleges that between 9.30am and 6.30pm on 21 September 2018, the applicant and a co-accused forced entry into a premises in Cairnlea via the rear door, and stole a laptop, iPad, camera equipment, headphones and $4,970 in cash. It is also alleged that the applicant and co-accused vandalised the premises, causing approximately $15,000 damage. The residents of the premises were not present at the time. The applicant and co-accused were identified by CCTV in a neighbouring street.
The second incident – robbery
At approximately 7.50pm on 22 September 2018, it is alleged that the applicant, another co-accused and an unknown male followed the complainant and his friend through Melbourne Central Shopping Centre. The applicant and the unknown male approached the complainant and punched him to the head eight to ten times. The complainant’s iPhone and wallet were stolen, and the applicant and co-accused were captured on CCTV absconding from the scene and swapping clothes on a nearby street.
The third incident – aggravated home invasion
At approximately 2.50am on 23 September 2018, it is alleged that the applicant, the two co-accused and one other unknown male broke into a residence in Delahey, while the two complainants were asleep.
One of the complainants woke up and observed four people in his bedroom, all armed with sticks and batons. The group allegedly hit the complainant and forced him into the living room. The applicant is not alleged to be one of these four people.
The other complainant also awoke to loud noises. As he walked towards the living room, he observed four or five people in the kitchen, all armed with sticks and a cricket bat. Three of the offenders were of African appearance, and a fourth offender, alleged to be the applicant, was of Caucasian appearance with olive skin and a bandana covering his mouth.
Two of the other offenders repeatedly yelled at the complainants, demanding property and car keys. It is alleged that the group threatened to kill the complainants and their families. Members of the group began searching the premises, and stole a wallet, a laptop and two iPhones.
Before leaving, the offenders instructed the complainants to go into the bathroom, and told them if they called the police, the offenders would return and hurt them.
The complainants remained in the bathroom for some time, before knocking on their neighbour’s door for assistance. Upon returning home, the complainants observed that one of their vehicles, a gold Toyota Camry, had been stolen. One of the complainants also suffered a broken leg as a result of the offending.
The fourth incident – armed robbery
At approximately 3.40am on 23 September 2018, the applicant, two co-accused and an unknown male arrived at a service station in Sunbury driving a gold Toyota Camry.
It is alleged that the offenders used a tyre lever to smash through a window and gain entry to the service station, where they ushered the service attendant behind the counter. The group were in possession of machetes, tyre levers and garden stakes. One of the offenders vandalised the store by throwing a computer screen and food items to the ground, before joining another to grab the service attendant in an attempt to force him to open the store safe.
During the offending it is alleged that the applicant used a machete to hit the anti-theft wire in a menacing manner, and threw bottles of soft drink at the service attendant when he was unable to open the safe.
The offenders stole cash, cigarettes and food products, which they placed into a doona cover before exiting the store. The incident was captured on CCTV.
Arrest and interview
On 26 September 2018, a search warrant was executed at the applicant’s premises. Police located items of clothing alleged to have been worn by the applicant during the incidents, a laptop, an iPad, an iPhone, a machete and a large quantity of cigarettes. These items allegedly corresponded with those referred to in the above incidents.
The applicant was arrested. During a record of interview, he stated that he had been at his girlfriend’s house between 8.00pm on 22 September and 11.00am on 23 September 2018. He made no admissions in relation to the charges against him.
Enquiries made with the mother of applicant’s girlfriend revealed he was not present at her premises at any time between 5.45pm on 22 September and 8.30am on 23 September 2018.
Outstanding matter
At the time of the alleged offending, the applicant was on bail in respect to three counts of theft from shops at Watergardens Town Centre. This matter is next listed for plea on 4 February 2019 at the Melbourne Children’s Court.
The applicable legislation
Pursuant to s 346(6) of the Children, Youth and Families Act 2005 (the ‘CYF Act’), the Bail Act 1977 (‘the Act’) applies to the present application, except insofar as it is inconsistent with the CYF Act.
Pursuant to s 3B(1) of the Act, the Court is required to take into account the following matters in making a determination in relation to an application made by a child:
(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 charged with a Schedule 1 offence under the Act, namely aggravated home invasion.[1] Section 4AA(1) of the Act provides that the ‘exceptional circumstances test’ applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence.
[1]Bail Act 1977 (Vic) sch 1 item 4.
As such, pursuant to s 4A(1A) of the Act, the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the burden of satisfying the Court that exceptional circumstances exist.[2]
[2]Ibid s 4A(2).
In considering whether exceptional circumstances exist, the Court must take into account the ‘surrounding circumstances’.[3] Section 3AAA of the Act provides the Court must take into account all the circumstances that are relevant to the matter, including, but not limited to:
[3]Ibid s 4A(3).
(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;
(f)whether there is in force –
(i)a family violence intervention order made against the accused; or
(ii)a family violence safety notice issued against the accused; or
(iii)a recognised DVO made against the accused;
(g)the accused's personal circumstances, associations, home environment and background;
(h)any special vulnerability of the accused, including 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;
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, s 4D(1)(a) of the Act provides the Court must apply the unacceptable risk test.
Pursuant to s 4E(1) of the Act, the Court must refuse bail if the prosecutor satisfies the Court 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.
In considering whether any relevant risk is unacceptable, s 4E(3) requires the Court to again have regard to 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, s 1B of the Act provides it is the intention of the Parliament that the Act is to be applied and interpreted having regard to principles set out in sub-s (1), including:
(a)maximising the safety of the community and persons affected by crime to the greatest extend possible; and
(b)taking into account the presumption of innocence and the right to liberty[.]
Meaning of exceptional circumstances
In the decision of Re CT,[4] which involved a 16-year-old applicant charged with multiple offences of armed robbery, I observed:
The Act does not define what may amount to exceptional circumstances. It is well established that, ‘in order to be exceptional, the circumstances relied on must be such as to take the case out of the normal, so as to justify the admission of the applicant to bail’. It has been observed that ‘the hurdle confronted by an applicant in establishing exceptional circumstances ‘is a high one’. That having been said, it is not an impossible standard to reach.
It is widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors, including matters involving the nature of the Crown case, as well as personal factors pertaining to the applicant. Frequently, matters involving the nature of the Crown case involve issues concerning the strength or weakness of the case; undue delay in bringing the matter to trial; or, unusual features of the alleged offending, or the investigation, which might either solely, or in combination, make the circumstances exceptional.[5]
[4][2018] VSC 559.
[5]Ibid [64] citing Re Sam [2017] VSC 91 [22]; Armstrong v R [2013] VSC 111; Re Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990; Re Whiteside [1999] VSC 413; Re Fairest [2015] VSC 375 [17]–[18], [22].
It is also widely accepted that exceptional circumstances may, in an appropriate case, be established through a combination of factors.[6] In the unreported judgment, Re Maloney, Vincent J summarised:
A number of decisions which have been handed down by judges in this court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[7]
[6]See e.g. Armstrong v R [2013] VSC 111 [31].
[7]Re Maloney, unreported judgment, Supreme Court of Victoria, Vincent J, 31 October 1990.
I note the statutory provisions which applied to Re CT were amended on 1 October 2018, however the expression ‘exceptional circumstances’ remains and I find no reason to depart from these analyses.
In Re JO, Forrest J further held, in the context of a child applicant:
Whilst the burden of demonstrating ‘exceptional circumstances’ is, as I have said, a stringent one, the age of the applicant weighs heavily in his favour. Children are rightly afforded a special status by the Act and any assessment of ‘exceptional circumstances’ in the case of a child must be viewed through the prism of s 3B(1). In the case of an adult, a combination of circumstances may fall short of constituting exceptional circumstances, while the same combination when considered in the case of a child may achieve a wholly different outcome. The suite of considerations enumerated in s 3B(1) make the evaluation of any determination under this Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child.[8]
[8][2018] VSC 438 [14].
The applicant
The applicant is 17 years old. Before his arrest and incarceration, he was living with his parents and six siblings in St Albans. He has a limited but relevant criminal history. On 5 December 2017, he received a 12 month good behaviour bond without conviction in respect to charges of robbery and attempted robbery. On 16 August 2018, he received another 12 month good behaviour bond without conviction for several charges of theft and committing an indictable offence while on bail.
Youth Justice report
A Youth Justice report dated 7 November 2018, prepared for the applicant’s previous application for bail, indicates that he has been assessed as suitable to engage with the Youth Justice Intensive Bail Support Program (‘YJ Intensive Program’).
The author of the report, Olawale Olaitan, Advanced Case Manager, described the applicant as confident and outspoken, and reported that he participated and engaged well during assessments and meetings. Mr Olaitan confirmed the applicant has not been involved in any incidents, and has participated meaningfully with his education program while in custody. Positively, he reported the applicant has demonstrated some insight into his alleged offending and the associated consequences.
In view of the gravity of the alleged offending , Mr Olaitan opines that extra supports will be necessary for the applicant to transition into the community. The report attaches a plan, which identifies risks, strategies to manage these risks, and relevant support services that may be required. In this regard, referrals have been made to St Joseph’s Flexible Learning Centre, Inner Melbourne VET Cluster, Youth Justice Community Support Service, Youth Health and Rehabilitation Service (‘YHARS’), and Youth Support and Advocacy Service (‘YSAS’).
Mr Olaitan noted that any ‘low-level’ non-compliance with bail conditions would initiate a Youth Justice warning process, and the informant would be notified within 48 hours if behaviour did not improve. In relation to anything more serious, including absconding, behaviour presenting immediate risk or engaging in offending behaviour, the informant would be immediately notified.
Overall, Mr Olaitan is of the opinion that the applicant has demonstrated a positive attitude and willingness to engage fully with the YJ Intensive Program and associated referrals, should bail be granted. Mr Olaitan gave evidence in the application, and confirmed the report dated 7 November 2018 was still accurate.
The applicant’s contentions
The applicant submitted the following matters are established by the evidence and together show exceptional circumstances exist that justify the grant of bail:
·the applicant is 17 years old and a child for the purposes of the application; the matters set out in s 3B of the Act are to be at the forefront of the decision making in respect of this application;
·the applicant is able to reside with his parents in St Albans should bail be granted;
·the applicant is supported by his parents and, if bail is granted, his father is willing to provide an undertaking to notify police of any non-compliance with conditions of bail;
·the applicant has been assessed as suitable to engage with the YJ Intensive Program, and has also been referred to the Youth Justice Community Support Service for additional case support and community reintegration;
·the applicant suffers unresolved grief following the sudden death of his aunt earlier in the year; a referral to YHARS has been made to support the applicant develop skills to deal with his grief and to manage areas of his life that contribute to offending behaviour;
·due to concerns raised by the applicant’s parents, he has been referred to YSAS for an assessment relating to drug and alcohol counselling;
·should bail be granted, arrangements have been made for the applicant to attend St Joseph’s Flexible Learning Centre five days per week, and to have additional support through the Inner Melbourne VET Cluster, which assists young people transitioning into school;
·the applicant has a limited proven criminal history; and
·the length of time the applicant is likely to spend in custody if bail is not granted is likely to exceed the sentence he would receive if found guilty of the charges against him.
In respect of risk, the applicant submits the aforementioned matters, in conjunction with his willingness to comply with strict bail conditions, would ameliorate any unacceptable risk of the applicant endangering the safety and welfare of the community, or committing offences whilst on bail, to an acceptable level.
The respondent’s contentions
The respondent opposes bail, submitting that the applicant has failed to demonstrate exceptional circumstances that justify the grant of bail. Moreover, the respondent contends that the applicant poses an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail and no conditions of bail would ameliorate these risks.
In support of these submissions, the respondent argues that the applicant has demonstrated a propensity towards violence and disregard for court orders. It is submitted this is evidenced by the current charges and that he was subject to court orders, including bail and a good behaviour bond, at the time of the alleged offending.
Additionally, the respondent notes the alleged offending had a traumatic impact on the complainants. In particular, the victim of the third incident sustained leg fractures and remains in a hip-to-ankle cast, and the victim of the fourth incident has expressed fears that the applicant could return to his workplace for retribution.
Conclusions
There is no doubt the allegations made against the applicant are very serious. Some of the alleged offending involved significant violence, weapons and co-offenders. In the course of the alleged aggravated home invasion, a victim was injured, although it does not appear that the applicant was personally responsible for those injuries. Further, there were three distinct occasions of alleged offending over a period of days.
At the time of the relevant charges, the applicant was subject to a grant of bail. The applicant was thus provided with an opportunity to demonstrate good behavior while awaiting the outcome of his earlier charges. The present set of allegations demonstrate he has breached the confidence of police in granting him bail. I take this into account in considering the current alleged offending and the degree of confidence this Court might have that he will comply with conditions of bail.
However, as observed, the applicant is a child and some special considerations apply. In particular, pursuant to s 3B(1)(a) of the Act, the court must consider all other options before a child is remanded into custody.
Taking into account all the material before me, it appears all other options have not yet been exhausted. The applicant is supported by Youth Justice who are prepared to engage with him. The applicant appears to have been well motivated during his time in custody, and there have been no instances of poor behavior. Youth Justice seem encouraged by his attitude. He may well have learnt some hard lessons.
In evidence before me, Mr Olaitan acknowledged the severity of the applicant’s offending, but advanced the recommendation that he be placed on the YJ Intensive Program. He stated Youth Justice abide by a principle ‘to support young people and keep them away from the cycle of reoffending’ and, in respect to the applicant:
Our position is we identified the risk but we think with the resources and services put in place, we are in a position to adequately mitigate against the identified risk.
The applicant has not previously been offered the support of intensive bail, and I place considerable weight on the Youth Justice report in reaching my decision.
Further, the applicant retains the support of his parents, and can live at home. I note that around the time of the alleged offending his aunt, to whom he was apparently close, had died and this had adversely affected him. I also note there will be some delay before the matters alleged against the applicant are resolved.
In my opinion, taking into account the combined force of all the circumstances, the applicant has shown exceptional circumstances exist that justify the grant of bail.
Additionally, I am of the opinion that conditions can be imposed to substantially ameliorate the risks of granting the applicant bail, so he does not pose an unacceptable risk. These conditions will impose restrictions on the applicant, but are necessary to ensure he does not re-offend on bail, or otherwise pose an unacceptable risk as set out in the Act. In making this assessment I have again considered the surrounding circumstances.
The conditions of bail will be that the applicant, in summary, undertake to:
(a)reside at his home address and not change that address without the leave of the Court;
(b)remain at those premises between the hours of 8:00pm and 6:00am each day for the duration of bail;
(c)present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so;
(d)report Monday, Wednesday and Friday to an identified police station;
(e)report to Youth Justice within two working days of this order coming into force;
(f)attend the Youth Justice Intensive Bail Program, and attend all appointments and engage with any support services as directed by any Youth Justice officer;
(g)attend all activities and appointments of a number of identified projects;
(h)not contact, directly or indirectly, the co-accused for the duration of the bail period;
(i)not contact, directly or indirectly, any witness for the prosecution, except the informant;
(j)not leave the State of Victoria; and
(k)reappear before the Court for judicial monitoring to review his compliance with bail on 18 December 2018, and any further dates this Court appoints during the course of this order.