Re VD
[2020] VSC 576
•24 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0078
| IN THE MATTER OF the Bail Act 1977 (Vic) |
| - and - |
| IN THE MATTER OF an application for bail by VD |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 April 2020 |
DATE OF RULING: | 24 April 2020 |
CASE MAY BE CITED AS: | Re VD |
MEDIUM NEUTRAL CITATION: | [2020] VSC 576 |
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CRIMINAL LAW — Application for bail — Applicant 13 years old — Charges of committing Schedule 2 offences while on bail for Schedule 2 offences — No previous criminal history — Release supported by Youth Justice — Exceptional circumstances conceded — Whether unacceptable risk if released on bail — Risk can be ameliorated with conditions — Bail granted with conditions — Bail Act 1977 (Vic) ss 1B, 3AAA, 3B, 4AA, 4A, 4D and 4E —Children, Youth, and Families Act 2005 (Vic) 346.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Gibson | Victoria Legal Aid |
| For the Respondent | Mr P Collins | Victoria Police |
HIS HONOUR:
This is an application for bail by VD, who is a child of 13 years of age. The notice of application was filed, together with an affidavit in support of the application, on 23 April 2020.
This young man, despite his age, is charged with an array of offences, which are alleged to have occurred between 25 September 2019 and 22 April 2020.
In the first matter, Senior Constable Tim Walker charged the applicant on 25 September 2019 with robbery, dishonestly retaining stolen goods, unlawful assault, affray and stating a false name (the ‘Informant Walker matters’).
The next set of charges were laid by Detective Senior Constable Timothy Joustra on 26 November 2019. The applicant was charged with robbery, unlawful assault and theft (the ‘Informant Joustra matters’).
On 29 November 2019, Senior Constable Ashleigh Jung charged the applicant with robbery (three counts), attempted robbery (two counts), affray, theft (two counts), attempted theft, unlawful assault (10 counts), recklessly causing injury, and committing an indictable offence whilst on bail (the ‘Informant Jung matters’).
On 16 March 2020, the applicant was charged with theft of a motor vehicle, dishonestly retaining stolen goods, and committing an indictable offence whilst on bail by Senior Constable Sean Kelleher (the ‘Informant Kelleher matters’).
The most recent set of charges were laid on 22 April 2020 by Senior Constable Ashely McCooke, who charged the applicant with attempted aggravated burglary, theft of a motor vehicle (three counts), and committing an indictable offence whilst on bail (the ‘Informant McCooke matters’).
Previously, the Informant Walker, Joustra, Jung and Kelleher matters were the subject of grants of bail. However, the Dandenong Children’s Court revoked bail in all four matters and refused the applicant’s application for bail in relation to the Informant McCooke matters on 23 April 2020. That Court found that the applicant had failed to show exceptional circumstances, and that there is an unacceptable risk that he would commit an offence whilst on bail and/or endanger the safety or welfare of any person. That same day, a notice of application for bail and an affidavit in support of the application were filed in this Court.
All of the applicant's matters are next listed for mention before the Dandenong Children's Court on 30 April 2020.
The parties are agreed that bail must be refused unless the applicant can satisfy the Court that exceptional circumstances exist that justify the grant of bail as he is accused of committing a Schedule 2 offence under the Bail Act 1977 (Vic) (the ‘Act’) whilst on bail for another Schedule 2 offence.[1]
[1]Bail Act 1977 (Vic) ss 4AA(2)(c)(i), 4A(1A), sch 2 item 30 (‘Bail Act’).
It should be noted that Mr Collins, who appeared on behalf of the respondent, indicated the respondent accepted the existence of exceptional circumstances was open to be found by me. The respondent’s opposition to the application was ‘notional’, but stated there is a real issue about whether there is an unacceptable risk that, if released on bail, the applicant will commit further offences or endanger the public.
Circumstances of the alleged offending
In dealing with the application for bail, it is appropriate to briefly summarise the facts of each of the matters.
Informant Walker matters
On 25 September 2019, the applicant, together with his co-accused, is alleged to have chased two victims in a Frankston mall, surrounding them and demanding their shoes, phones and money.
They then went to the Mornington McDonald’s restaurant, where they pushed an unknown youth and temporarily took his bike. After leaving the McDonald’s, the group attended at a nearby bus stop, where they demanded two other victims to hand over their phones. Both incidents were captured on CCTV.
When the applicant was arrested, he gave the false name of Richard Katipa. The applicant ultimately admitted the name was false and provided his correct name to officers. The applicant was later released on his own undertaking by the informant.
Informant Joustra matters
On 17 November 2019, the applicant, along with two unknown co-offenders, confronted the victim at the Fountain Gate Shopping Centre bus terminal. They are alleged to have demanded his jacket and bag, threatening to ‘knock the him out’. The victim resisted, and the applicant and both co-offenders punched and kicked him. They took his red iPhone 7, black jacket, bag, and beanie before running off the in the direction of the Narre Warren Railway Station.
The applicant was arrested on 26 November 2019 and taken to the Cranbourne Police station for interview. During his interview, the applicant allegedly admitted to being at the Fountain Gate Shopping Centre on 17 November. However, the applicant responded to all questions about the incident with ‘no comment’. The applicant was released on an undertaking by the informant with conditions.
Informant Jung matters
It is alleged that, on 1 October 2019, two victims were chased by the applicant and a group of youths down High Street in Cranbourne. The applicant and the co-accused demanded one victim’s phone and shoes. When he refused, the co-accused allegedly pushed his head into a wall. The applicant and others then punched and kicked the victim multiple times in the head, and his phone was taken.
The group the turned their attention to the other victim. The applicant and another male allegedly kicked and punched the victim before the applicant grabbed his bag and beanie and ran off.
The following day, at approximately 7:30 pm, another alleged victim was surrounded by a group, which included the applicant and co-accused, on High Street in Cranbourne. The group demanded his phone, watch and ring. The victim then went home and reported the incident to his parents.
Around 8:15 pm, yet another individual withdrew money from an ATM in the Cranbourne Park Shopping Centre. It alleged that the applicant and his co-accused chased the victim and made several attempts to grab his wallet. The incident was interrupted by an unknown bystander, and the group ran towards the High Street exit of the mall.
Around the same time, the victim from earlier returned to High Street with his parents to try and retrieve the items that had been taken. The applicant and others gathered around them and allegedly began to assault the victim and his parents. It is also alleged that the applicant approached the victim holding a kitchen knife. The fight was filmed by a passer-by on his phone, and the applicant was captured running away from the scene.
The next alleged incident occurred on 28 November 2019, when the victim was walking towards the Fountain Gate Shopping Centre. He was approached by a group of youths, which is alleged to have included the applicant. The group went through his pockets to get his phone and wallet. Another unknown male punched the victim in the face. As the victim walked away, one of the males yelled out that he ‘better not snitch’.
The victim reported the incident to security, and it is alleged that the applicant and his co-accused walked over to him and began demanding to know why he “snitched”. The applicant followed the victim into a restaurant in the shopping centre and kicked him twice in the leg. This incident was captured on CCTV.
Shortly afterwards, it is alleged that the applicant, along with others, began to harass another victim on a bus. The applicant allegedly demanded the victim’s phone before trying to grab it from him. The applicant kicked the victim multiple times. The group then pushed the victim off the bus at the Berwick Railway Station, where the assault continued. A witness who had been on the bus alerted the Protective Service Officers (‘PSO’) at the station and they assisted the victim. The witness and the victim were able to point out the applicant to the PSOs and identified him as the main offender and aggressor.
The applicant and his co-accused were arrested at the Berwick Railway Station. The applicant is alleged to have resisted the arrest and had to be taken to the ground with the assistance of a second police member. Both the applicant and the co-accused were taken to the Narre Warren Police Station for interview. The applicant made partial admissions during his interview in relation to all the alleged offending of the Informant Jung matters. The applicant was released on bail by the Dandenong Children’s Court on 29 November 2019.
Informant Kelleher matters
It is alleged that, between the hours of 10 pm on 14 March 2020 and 9 am on 15 March, unknown offenders entered a residence in Keysborough. The victim and her children were asleep upstairs. The offenders stole a set of car keys and the victim’s white Toyota Kluger.
On 16 March 2020, police observed the stolen Toyota Kluger in Cranbourne, driving in excess of 150 kph and running multiple red lights. Police commenced surveillance of the vehicle. The Toyota Kluger stopped outside of the applicant’s residence at [redacted]. One of the four occupants of the vehicle were later identified as the applicant. The vehicle then proceeded onto the Monash Freeway, and a spike belt was deployed. All occupants ran from the immobilised vehicle but were apprehended by police and transported to Narre Warren Police Station.
During his interview, it is alleged the applicant made full admissions to being in the stolen vehicle. The applicant was released on bail by the Dandenong Children’s Court on 16 March 2020.
Informant McCooke matters
The prosecution case is that on 17 March 2020, a burglary occurred at an address in Balwyn North, and two vehicles were stolen from the garage: a Subaru Outback and a 2019 Lexus sedan.
On 19 March 2020, the applicant and an unknown co-offender drove to an address in Camberwell. When they arrived at the residence, the victim was inside. It is alleged the applicant knocked on the front door several times while his co-offender tried to gain entry to the residence through a window at the back of the residence. The victim discovered the co-offender attempting to pull off the window’s screen. Both the applicant and his co-offender ran back to the Subaru Outback, before driving off at a high rate of speed.
On 2 February 2020, a black Mercedes sedan was stolen from a residence in Brighton. On 18 April 2020, police officers observed the stolen black Mercedes sedan reversing out of the driveway of the applicant’s residence at [redacted]. The vehicle’s occupants included the applicant and his sister. The stolen vehicle attended at a nearby store and then returned to the applicant’s residence.
On 21 April 2020, a Lexus sedan was stolen from another residence in Brighton. Later the same day, the applicant was observed entering the stolen vehicle along with four others. The group then drove to a residence in Dandenong and went inside. When police entered the premises, it is alleged that the applicant attempted to flee, but was tackled by member of police. The applicant continued to resist arrest and sustained minor injuries. He was taken to Dandenong Hospital for an assessment and was discharged to the Dandenong Police station.
Police also executed a search warrant on the applicant’s residence that evening, and they located the black Mercedes sedan in the garage of the premises.
The applicant
The applicant was born on [redacted] in New Zealand and is of Maori descent. He came to Australia with his family when he was aged three. He is now 13 years of age.
Prior to being on remand at the Parkville Youth Justice Centre, he resided with his father, mother and two sisters — one of whom is a newborn. I am told that his relationship with his parents is loving and supportive. It appears that his father moved out of the family home on 24 February 2020 but, as I understand it, both parents will be present to support him, if he were granted bail.
The applicant was also enrolled in Year 8 at the Alkira Secondary College on a modified schedule but reportedly has a poor history of attendance.
Although he faces a large number of charges, the applicant has no criminal history, which may not be surprising given his age. The last two days he has spent in the Parkville Youth Justice Centre is his first time in any form of custody.
The applicable legislation
As I stated earlier, the applicant is required to demonstrate that exceptional circumstances exist that justify the grant of bail.[2]
[2]Bail Act s 4A.
In considering whether exceptional circumstances exist, the Court is required to take into account the surrounding circumstances in s 3AAA of the Act, which sets out an non-exhaustive list, including:
(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)…
(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;
…
Further, the applicant in this matter is a child. Consequently, pursuant to s 346(6) of the Children, Youth, and Families Act 2005 (Vic), the Act applies to this application insofar as it is consistent with the Children, Youth, and Families Act. Section 3B(1) of the Act also provides additional factors to which the Court is to have regard to when determining a child’s application for bail:
(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.
In applying the exceptional circumstances test in the case of a child, T Forrest J made the following observations in Re JO [2018] VSC 438:
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 the Act, including the ‘exceptional circumstances’ test, a different exercise in the case of a child'.[3]
[3]Re JO [2018] VSC 438 [14].
If the Court is satisfied that exceptional circumstances exist that justify the grant of bail, the Court must then apply the ‘unacceptable risk’ test.[4] Pursuant to s 4E of the Act, that the Court must refuse bail if satisfied by the prosecutor 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.
[4] Bail Act s 4D(1)(a).
In considering whether any 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 not an unacceptable risk.[5]
[5] Bail Act s 4E(3).
Finally, s 1B of the Act sets out the guiding principles that the Court is to have regard to when applying and interpreting the Act. That section 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 extend possible; and
(b)taking into account the presumption of innocence and the right to liberty;
(c)promoting fairness, transparency and consistency in bail decision making; and
(d)promoting public understanding of bail practices and procedures.
The submissions of the parties
Counsel on behalf of the applicant, Mr Gibson, relied on a number of matters to establish the existence of exceptional circumstances.
As to the nature and seriousness of the alleged offending, it was conceded that the alleged offences are serious. I should note that they are not just offences of theft but they are also offences of violence and robbery — offences which, if proved, would have caused significant trauma to the people who were the victims of this offending. Nonetheless, Mr Gibson emphasised that the applicant is very young, and it is important that his rehabilitation be given priority as should his diversion from the criminal justice system.
In relation to the strength of the prosecution case, it was submitted that there is no evidence to rebut the presumption of doli incapax that applies given the age of the applicant. The Court was provided with a psychological assessment prepared by psychologist Gina Cidoni on 20 March 2020, which does seem to support the idea that doli incapax applies to the applicant in relation to, at least, the Informant Walker, Jung, and Joustra matters as they were the only matters charged when Ms Cidoni interviewed the applicant. I am not persuaded that the prosecution case is weak for that reason. However, that will, of course, be a matter for the Children's Court to determine.
Mr Gibson placed significant reliance on the fact that the applicant resides with his parents who seem to promote a prosocial family environment and who are respected members of the community. Counsel on behalf of the applicant drew the Court’s attention to the factors of s 3B(1) and submitted that they have a positive relationship with the applicant and provide a stable residence. His mother appeared by video link for the hearing of this application, and her willingness to support her son was not in contention.
It was also relied upon that the applicant is enrolled in secondary education and is also supported by the Regional Education Court Liaison Officer, who is assisting the applicant in exploring alternative education pathways. It was submitted that, if bail were refused, the applicant would not have access to education or programming as Parkville College closed as a result of restrictions imposed in response to COVID-19.
Counsel on behalf of the applicant also put that the applicant was vulnerable as he is only 13 years of age and he apparently also suffers from asthma. This diagnosis was not in contention. It was submitted that his asthma would make him particularly vulnerable in a custodial environment due to the COVID-19 outbreak. However, I do not understand that there is any case of COVID-19 in the Parkville Youth Justice Centre at this stage.
It was further submitted that this is his first time in custody and he has no prior criminal history. However, the applicant’s compliance with earlier grants of bail is appallingly bad, especially for someone so young. As I indicated earlier, there have been previous grants of bail, and they have basically been ignored. Counsel on behalf of the applicant acknowledged the alleged non-compliance, and submitted that Youth Justice remained supportive of the applicant and would provide supervision within the community if he were granted bail.
The applicant’s case worker from Youth Justice, Hayley Ellis, gave evidence before the Court in support of the application. Ms Ellis prepared three bail supervision reports in December 2019, February 2020 and March 2020, which were also exhibited to the applicant’s affidavit in support. As I raised with counsel during the hearing, it would appear that, notwithstanding the positive conclusion in each of those reports, the applicant has continued to offend. Ms Ellis’s evidence was that Youth Justice would support the applicant notwithstanding the alleged reoffending
Ms Ellis’s indicated that Youth Justice had a good relationship with the applicant and, with time, that relationship had become more candid — especially in relation to the applicant’s use of drugs and alcohol. She stated that Youth Justice have made arrangements for a drug and alcohol assessment with Youth Support and Advocacy Service (‘YSAS’), which would provide another level of support.
Ms Ellis was asked about the frequency of the contact Youth Justice would have with the applicant. She initially indicated that, under present circumstances, contact might only be possible through one phone call per week. However, during cross-examination by Mr Collins, and with some assistance from me, she noted that it would be feasible, if the Court desired it, to establish daily contact between herself or her delegate from Youth Justice and the applicant. That is what I want to occur.
In the course of evidence, Ms Ellis also indicated that she has a positive relationship with the applicant’s parents and has engaged in discussions with them about different strategies to implement at home for the applicant. She stated that she had had discussions with the applicant’s mother about the Multisystemic Therapy service available through OzChild, which would provide a worker to conduct intensive training with his parents to reduce the risk of his reoffending.
Counsel on behalf of the applicant also submitted that it was ‘inevitable’ that, at the age of 13 and without a prior history, the applicant’s time on remand, should bail be refused, would exceed any sentence that would be imposed on him, even if he were found guilty of all the charges. In the respondent’s written submissions, the respondent did not accept the characterisation that was inevitable that the applicant will not receive a period of detention, but did concede that his time on remand is likely to exceed any sentence he may receive.
Finally, in relation to unacceptable risk, the applicant proposed that the imposition of stringent conditions would ameliorate any risk posed. It was submitted that the applicant’s had a ‘salutary experience’ of being in custody and now understood the importance of compliance with bail. Additionally, the psychological report from Ms Cidoni indicated that the applicant had developed some insight into his offending, apart from anything else, due to his experience on remand.
Analysis
Ordinarily, an application on behalf of someone who is aged 13 would not permit of much argument but, given the breadth of offending that this applicant has alleged to have been involved in, I am concerned that the risk of him reoffending whilst released on bail is of significance.
I have proposed to counsel, and they have accepted, that a method of dealing with this matter is to adjourn the further hearing of this bail application for a week and to release him on bail during that period. Next Thursday, the applicant will be required to attend before the Dandenong Children's Court. I emphasise that nothing that I say in relation to this matter in these brief reasons should in anyway inhibit any order that the Children's Court thinks is appropriate to make, but I contemplate that, next Friday, the matter return to me so that I can be informed as to the applicant's compliance with the orders that I propose to make and, assuming his compliance, I will consider what next step I shall take, subject to the wishes of the presiding Magistrate in the Children's Court.
Conclusion
The application for bail will be adjourned to Friday, 1 May 2020 and, in the interim period, the applicant will be released on bail on the basis that I am satisfied that exceptional circumstances have been established, at least for this purpose, and that the risk can be ameliorated, at least for this purpose, through the imposition of conditions and the matter being adjourned for further consideration.
I therefore propose that the applicant be released on bail on his own undertaking and with the following conditions:
1. The applicant is reside at [redacted], in the State of Victoria (‘place of residence’) and not to change his place of residence without giving seven days’ notice to the informants or their nominees;
2. The applicant is not to be absent from his place of residence between the hours of 7 pm and 7 am (‘curfew hours’) each day except in the company of a parent or grandparent, and is to present himself at the front door of his place of residence during the curfew hours if and when called on by a member of Victoria Police to do so;
3. 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;
4. The applicant is not to contact or associate with, directly or indirectly, with [redacted];
5. The applicant is to comply with all lawful directions of the Youth Justice worker or her nominee;
6. The applicant is not to be within 500 m of the Cranbourne Park Shopping Centre or the Fountain Gate Shopping Centre at any time unless in the company of a parent or grandparent;
7. The applicant is not to attend the Frankston CBD at any time unless in the company of a parent or grandparent;
8. The applicant is not to drive any motor vehicle of any description at any time;
9. The applicant is to appear at the Dandenong Children’s Court on 30 April 2020 and thereafter as directed by that Court; and
10. The applicant is to appear at the Supreme Court of Victoria at 2:15 pm on 1 May 2020.
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