Re Visser
[2024] VSC 18
•7 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0301
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an application for bail by WILLEM VISSER |
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JUDGE: | Walker JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 December 2023 |
DATE OF ORDERS: | 21 December 2023 |
DATE OF RULING: | 7 February 2024 |
CASE MAY BE CITED AS: | Re Visser |
MEDIUM NEUTRAL CITATION: | [2024] VSC 18 |
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CRIMINAL LAW – Trial – Bail application – Applicant facing multiple charges including theft, assault, aggravated burglary and committing an indictable offence while on bail – Applicant 19 years old – Crown concession that exceptional circumstances existed justifying bail – Exceptional circumstances established – Whether unacceptable risk of reoffending – Risk of reoffending mitigated by imposition of bail conditions – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Ms A Wong | Victoria Legal Aid |
| For the respondent | Sergeant P McKimmie | Office of Public Prosecutions |
HER HONOUR:
Willem Visser (‘the applicant’) is a 19 year old youth[1] with a limited criminal history, who has been diagnosed with several mental health issues and who was remanded in custody for the first time on 21 November 2023. He sought bail in relation to 25 charges, arising from five distinct incidents. The majority of the charges concern offences alleged to have occurred when he was 17 and 18 years old.
[1]The applicant was born on 21 November 2004.
The first set of charges concern offending alleged to have occurred on 23 October 2022, namely theft and assault emergency worker on duty. The second set of charges concern offending alleged to have occurred on 27 February 2023, namely four charges of theft. The third set of charges concern offending alleged to have occurred on 14 May 2023, namely robbery, obtaining property by deception and committing an indictable offence whilst on bail. The fourth set of charges concern offending alleged to have occurred on 12 July 2023, namely theft and committing indictable offence whilst on bail. The applicant was bailed in relation to all of these charges.
The final set of charges — and the most serious — concern offending alleged to have occurred between 17 and 21 November 2023, namely:
(a) attempted aggravated burglary (three counts);
(b) aggravated burglary — person present;
(c) theft (two counts);
(d) theft of motor vehicle;
(e) attempt to obtain property by deception;
(f) committing an indicatable offence whilst on bail (two counts);
(g) retaining stolen goods;
(h) possessing a drug of dependence (two counts); and
(i) possessing a prohibited weapon without an exemption or approval.
The applicant was refused bail by a magistrate in relation to these charges on 22 November 2023, and bail in relation to the earlier charges was revoked. The magistrate concluded that exceptional circumstances existed so as to satisfy s 4C of the Bail Act 1977 (‘the Act’), but found that the applicant posed an unacceptable risk of further offending while on bail and a risk of endangering the safety and welfare of others.
The applicant sought bail in this Court on 7 December 2023. He relied upon a report provided by Youth Justice Court Advice Unit (‘Youth Justice’) in relation to the supports that will be available to him if bail is granted, on a letter from his treating psychiatrist, and on proposed bail conditions that will mitigate the risk he poses both to the safety and welfare of others and of further offending while on bail. His mother also gave evidence in support of his application, in relation to his living Circumstances should he be released on bail.
On 21 December 2023 I granted the applicant bail. These are my reasons for doing so.
Alleged offending
It is appropriate to set out in some greater detail the applicant’s alleged offending.
Informant Van Maarseveen Jones charges
On 23 October 2022 members of the public observed youths removing street signs in various locations in Wantirna. Police located the applicant, who as then aged 17, and two other youths on Mountain Highway, Wantirna, alongside a trolley containing seven street signs. An adjustable spanner was located on one of the other youths.[2]
[2]No prosecution has proceeded against the youth with the spanner; his involvement was managed via a caution.
Upon arrest, police handcuffed the applicant’s hands behind his back. He attempted to move his hands in front of his body, and then, as police held his arms, lifted his feet off the ground. As police searched the applicant’s clothes and body, he spat in the face of one of the police officers.
The applicant was interviewed by police, during which he denied involvement in the alleged theft of the street signs, stating that he did not steal any street signs, the trolley was not his, and he did not push it. In relation to the alleged assault on the police officer, the applicant stated that he did not understand why he was being arrested, he felt disrespected and in pain, and ‘that copper had it coming’.
The applicant was charged by Senior Constable Van Maarseveen Jones in relation to the above matters on 12 July 2023. The charges were theft contrary to s 74 of the Crimes Act 1958 and assault of an emergency worker on duty contrary to s 31(1)(b) of the Crimes Act. He was bailed for these charges on his own undertaking, until bail was revoked on 22 November 2023.
Informant Day charges
On 27 February 2023 the applicant, then aged 18, was at Westfield Shopping Centre in Knox where he allegedly stole:
(a) 10 packs of mini M&Ms valued at $50 from Woolworths;
(b) 15 packs of mini M&Ms valued at $52.20 from Kmart;
(c) various grocery items valued at $153.05 from Coles;[3] and
(d) two boxes of donuts valued at $10 from 7/11.
[3]Two other youths were involved in the alleged theft from Coles. However, they were not prosecuted in relation to the incident.
Police located the applicant at a bus stop near the shopping centre, with the stolen items.
The applicant was interviewed by police, during which he made admissions to the thefts from Woolworths, Kmart and Coles and stated that his mental health issues were the cause of this, adding ‘[i]t’s not much of a reason it's a pretty shit one but honestly this is the sort of stuff I’ve grown up around the past few years. I stress steal.’ He denied stealing from 7/11.
The applicant was charged by Constable Day with four counts of theft contrary to s 74 of the Crimes Act. He was bailed for these charges on his own undertaking, until bail was revoked on 22 November 2023.
Informant Day — matter on summons
On 27 February 2023, following his arrest in relation to the alleged thefts that day, the applicant was searched and found to be in possession of 20 Alprazolam tablets.[4] During interview, the applicant stated that it was his prescription medication and that he had really bad anxiety. He was released pending summons and requested to provide a copy of the prescription to police, but did not do so. Constable Day issued him with a summons on 15 April 2023 in relation to possession of a drug of dependence, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Also known as Xanax; a medication used to treat panic disorder and generalised anxiety disorder.
Informant Jones — matter on summons
On 7 March 2023, the occupant of a home in Wantirna South returned to his home and saw a person run out of his backyard. The occupant chased the person and contacted police. Police attended and the person ran from them. The applicant was located shortly afterwards, hiding in some bushes with a bag containing gloves, bolt cutters, multiple packets of meat, and strawberry milk.
The applicant appeared to be drug affected. Police interviewed him, and during the interview he stated that he went to the Wantirna South house because he thought a single woman lived there and he wanted to do a nice thing and give her some meat. He stated that he wasn’t wearing gloves because ‘I only wear gloves when I’m using bolt cutters’. He denied having any intention to use the bolt cutters at the Wantirna South home.
He was issued with a summons by First Constable Jones in relation to entering a private place without authority contrary to s 9(1)(e) of the Summary Offences Act 1966 and possession of articles for burglary contrary to s 9(1) of the Crimes Act.
Informant Bearcroft — matters on summons
On 14 March 2023, the applicant was at Westfield Shopping Centre in Wantirna South with a group of young people. Witnesses observed that the group appeared intoxicated and that the applicant was holding a bottle of alcohol. The applicant is alleged to have kicked a sign post at a bus bay outside the shopping centre, kicked a large pot plant inside the shopping centre and damaged it, and then returned to the damaged sign outside and urinated on it. The police were called and they arrested the applicant. During the arrest he began to smash his head against a bench. Police restrained him, and he is alleged to have resisted and threatened to have them fired.
Police transported the applicant to Rowville Police Station for interview, restraining him at various points. The applicant was described by police to be in an erratic and aggressive state. Police initially attempted to calm the applicant, however five police officers subsequently became involved in escorting him to the cells. During this time, the applicant allegedly spat at three of the arresting officers, kicked one of them to the shin, and threatened one of them. Inside the cell, the applicant attempted to strangle himself with several clothing items. He was subsequently transported to hospital via ambulance to be assessed by a mental health clinician.
On 7 August 2023, Constable Bearcroft issued the applicant with a summons in relation to the above matters, for the following alleged offences: criminal damage contrary to s 197 of the Crimes Act (two counts); assault emergency worker contrary to s 31(1)(b) of the Crimes Act (eight counts); assault contrary to common law (four counts); unlawful assault contrary to s 23 of the Summary Offences Act (four counts); sexual exposure contrary to s 19(1) of the Summary Offences Act; offensive behaviour and behave in an indecent manner contrary to s 17(1)(d) of the Summary Offences Act; use intimidation to a law enforcement officer contrary to s 31D(1) of the Crimes Act (three counts); enter a place in a manner likely to cause a breach of the peace contrary to s 9(1)(g) of the Summary Offences Act; and wilful damage contrary to s 9(1)(c) of the Summary Offences Act.
Informant Stephenson — matters on summons
On 10 April 2023, the applicant and four other youths[5] are alleged to have stolen a large quantity of alcohol, valued at $326, from BWS in Bayswater. Shortly after, police located the applicant at the Bayswater Railway Station with the bags of stolen alcohol and arrested him. During interview, the applicant denied stealing the alcohol, stating that he had paid $90 in cash for it.
[5]The co-offenders were identified to be under the age of 18 and were cautioned.
On 19 April 2023, Constable Stephenson issued the applicant with a summons in relation to the above matter, for the alleged offences of theft contrary to s 74 of the Crimes Act and committing an indictable offence while on bail, contrary to s 30B of the Act.
Informant Kermac charges
On 14 May 2023, a young person (‘the complainant’), aged 16, allegedly met with the applicant on Maidstone Street in Ringwood for the purpose of buying cannabis. The applicant was joined by four other youths, unknown to the complainant.
The applicant allegedly provided the complainant with his mobile phone number, and the complainant transferred him $30 via Osko. The complainant briefly allowed one of the other youths to ride his electric scooter, but upon requesting it back, was allegedly told by the applicant ‘you better get out of there before you get hurt’.
As the complainant walked away, the applicant allegedly demanded that he hand over his iPhone. The complainant pleaded with the applicant not to take his phone, and was slapped to the face by one of the other youths. The applicant allegedly made further demands for the complainant’s iPhone, as well as for his two jumpers and shoes. The complainant gave the applicant the items, and the applicant allowed him to leave.
Police enquiries confirmed that the mobile number provided to the complainant was registered to the applicant, and that the $30 payment was made to a bank account in the applicant’s name. On 1 September 2023, police executed a search at the applicant’s home and located the complainant’s iPhone. The applicant’s phone records confirmed that he placed his sim card in the complainant’s iPhone on 14 May 2023, the day of the alleged theft.
The applicant was interviewed by the police, during which he confirmed his mobile number but otherwise made no comment.
On 1 September 2023, Detective Senior Constable Kermac charged the applicant with the offences of robbery contrary to s 75(1) of the Crimes Act, obtaining property by deception contrary to s 81(1) of the Crimes Act and committing an indictable offence while on bail, contrary to s 30B of the Act. He was bailed for these charges on his own undertaking, until bail was revoked on 22 November 2023.
Informant Day charges
On 12 July 2023, the applicant stole 12 cans of premixed Jim Beam drinks valued at $60 from Liquorland at Westfield Shopping Centre in Knox. He initially ran away from police, but was located and arrested shortly afterwards. During interview, he made full admissions in relation to the theft. He was bailed for these charges on his own undertaking, and on condition that he not attend Westfield Knox Shopping Centre, until bail was revoked on 22 November 2023.
Informant Iordanov charges
In the early hours of 17 November 2023, the applicant and an unidentified co-offender are alleged to have unsuccessfully attempted to gain access to three homes on a street in Ringwood by trying their doorhandles. The applicant and co-offender allegedly then found the front door of a fourth house unlocked, entered while the occupants were asleep inside, and stole their wallets and car keys. The pair then used the keys to steal two cars from the property.
The applicant was allegedly captured on CCTV driving one of the stolen cars in Cranbourne later that day, and messages located on the applicant’s mobile phone allegedly detailed the potential sale of the stolen cars. The same day, police located the stolen cars in Ringwood and Cranbourne. Also on that day the applicant is alleged to have used a stolen bank card to purchase a machete and make other online purchases, during which he provided a phone number registered in his name.
On 21 November 2023, police executed a search warrant at the applicant’s address and located:
(a) a machete;
(b) headphones allegedly taken from one of the stolen cars;
(c) student cards and a driver’s licence allegedly relating to previous unreported thefts;
(d) a pill containing an unknown substance;[6]
(e) two suboxone strips;[7] and
(f) clothing allegedly matching that worn by the applicant during the aggravated burglary and attempted aggravated burglaries in Ringwood, as depicted on CCTV.
[6]The charge sheet alleges that the substance is an amphetamine.
[7]Suboxone strips contain Buprenorphine, a prescription medication used to treat opioid dependence.
The applicant was arrested and interviewed. In relation to the alleged offending on 17 November 2023, he stated that he was at his partner’s address in Rowville. In response to the other allegations, he stated that he did not remember or did not know.
On 21 November 2023 Senior Constable Iordanov charged the applicant with the following sch 2 offences:
(a) attempted aggravated burglary contrary to s 321M of the Crimes Act (three counts);
(b) aggravated burglary contrary to s 77 of the Crimes Act;
(c) theft contrary to s 74 of the Crimes Act (two counts);
(d) theft of a motor vehicle contrary to s 74 of the Crimes Act;
(e) attempt to obtain property by deception contrary to s 321M of the Crimes Act;
(f) committing an indicatable offence whilst on bail contrary to s 30B of the Act (two counts); and
(g) possessing a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act (two counts).
He was also charged with two other offences:
(a) retaining stolen goods contrary to s 88(1) of the Crimes Act; and
(b) possessing a prohibited weapon without an exemption or approval contrary to s 5AA of the Control of Weapons Act 1990.
As already noted, he was refused bail for these charges.
Finally, I note that the respondent’s affidavit set out further incidents in relation to which the applicant may face further charges. It is not necessary to set out the details of those incidents.
Relevant statutory provisions
Section 4AA(2)(c)(i) of the Act provides that the ‘step 1—exceptional circumstances test’ applies to a person who commits a sch 2 offence while on bail for a sch 1 offence or a sch 2 offence. The exceptional circumstances test requires a bail decision maker to refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.[8] The burden of proving exceptional circumstances rests on the bail applicant.
[8]The Act, s 4A(1A).
In the present case, the parties agree the applicant falls into the category of having to satisfy the Court that exceptional circumstances exist that justify the grant of bail, on the basis that he is accused of sch 2 offences that are alleged to have been committed while on bail for other sch 2 offences. Bail must therefore be refused unless this Court is satisfied by the applicant that exceptional circumstances exist to justify the grant of bail. In considering whether exceptional circumstances exist, this Court must take into account the surrounding circumstances, including but not limited to those in s 3AAA(1) of the Act.[9]
[9]The Act, s 4A(3).
If satisfied that exceptional circumstances exist that justify the grant of bail, this Court must then apply the ‘step 2—unacceptable risk test’.[10] Bail must be refused if the Court is satisfied by the respondent that there is, relevantly for present purposes, a risk that the applicant would endanger the safety or welfare of any person or commit an offence while on bail, and that such a risk is an unacceptable one.[11] In the present case, the respondent submits that there is an unacceptable risk that the applicant will further offend while on bail and/or that he will endanger the safety or welfare of others. In applying the unacceptable risk test, this Court must take into account the surrounding circumstances and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[12]
[10]The Act, ss 4A(4), 4D(1)(a).
[11]The Act, ss 4E(1)–(2).
[12]The Act, s 4E(3).
In determining an application for bail, the Court is required to have regard to the guiding principles as set out in s 1B(1) of the Act.[13] Of particular relevance in the present context are the following principles in s 1B(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….
[13]Namely, maximising the safety of the community and persons affected by crime to the greatest extent possible; taking account of the presumption of innocence and the right to liberty; promoting fairness, transparency and consistency in bail decision making; and promoting public understanding of bail practices and procedures.
Consideration
The first question for determination is whether the applicant has established exceptional circumstances that justify the grant of bail.
Exceptional circumstances — relevant principles
The phrase ‘exceptional circumstances’ is not defined in the Act. However, in order 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’.[14] Although the threshold of ‘exceptional circumstances’ is high, it is not an impossible standard to reach.[15] Furthermore, and relevantly for present purposes, exceptional circumstances may be established by a combination of circumstances, which may by themselves, not be considered exceptional. Thus, in An application for bail by Moloney, Vincent J said as follows:
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.[16]
[14]See Re CT [2018] VSC 559, [64]–[65] (Champion J) citing Re Sam [2017] VSC 91, [22] (Beach JA); Re Fairest [2015] VSC 375, [17] (Weinberg JA); Armstrong v R [2013] VSC 111, [31]–[32] (Lasry J); An application for bail by Moloney (unreported, Supreme Court of Victoria, Vincent J, 13 October 1990).
[15]See Re CT[2018] VSC 559, [64] (Champion J). See also Re Whiteside[1999] VSC 413, [10] (Warren J) and the cases there cited.
[16]An application for bail by Moloney (unreported, Supreme Court of Victoria, Vincent J, 13 October 1990), 1–2.
More recently, in Roberts v The Queen, the Court of Appeal said as follows:
A review of bail decisions in ‘exceptional circumstances’ cases reveals certain types of circumstances which recur as justifications for bail in such cases: unreasonable delay before trial; unacceptable adverse impacts of continued pre-trial incarceration (whether on the accused person or on his/her dependants); and the likelihood that time spent on remand will exceed any term of imprisonment which would be imposed in the event of conviction. What these different kinds of circumstances appear to have in common is that they are capable of rendering continued pre-trial incarceration unjust, notwithstanding the statutory prohibition on bail which otherwise applies.
The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’).[17]
[17][2021] VSCA 28, [9]–[10].
Exceptional circumstances — the parties’ submissions
In the present case, the applicant relied upon the following matters which, he submitted, in combination demonstrated exceptional circumstances that justify the grant of bail:
(a) his youth;
(b) his lack of any significant criminal history;
(c) his mental health issues and his special vulnerability;
(d) the availability to him of treatment and support services that would not be available to him in custody;
(e) the fact that there is a real possibility that the time he is likely to spend in custody pending the resolution of the potentially contested charges will exceed the likely sentence that he might receive for those charges.
As already noted, the applicant placed before the Court two reports from Youth Justice, supporting a grant of bail and setting out the supports that Youth Justice would provide to him during a period of bail. Those supports included weekly Youth Justice appointments at the Ringwood Justice Service Centre, substance use counselling appointments through the Youth Support and Advocacy Service and employment supports through AGA employment. He also provided a letter from his treating psychiatrist, Dr Gardner.
The respondent accepted that it was open for this Court to find that the applicant has established exceptional circumstances.
Exceptional circumstances are established
In my opinion, having had regard to the matters set out in s 3AAA, the applicant has made out exceptional circumstances.
The principal basis for that conclusion is that, if the applicant is not granted bail, it is likely that he will spend more time on remand than the ultimate sentence likely to be imposed.
If the informant Iordanov charges and/or the informant Kermac charges are contested, the earliest date for a single day contested hearing would be May or June 2024. The applicant submitted that that date is ‘optimistic’, and I accept that submission, particularly given that some of the forensic testing is yet to be completed. Thus it is likely that, if he contests those charges, the applicant would spend at least six months — and most likely more than six months — on remand awaiting trial.[18]
[18]See s 3AAA(1)(k) of the Act.
I accept that the most recent offending with which the applicant was charged — the informant Iordanov charges — was serious offending.[19] In particular, the aggravated burglary, committed while a couple and their two your daughters were asleep in their home, was serious offending. I also accept that the prosecution case is strong. Furthermore, if the applicant committed this offending, he did so while on bail for other alleged offending. In light of these matters, I accept the respondent’s submission that a custodial sentence for the informant Iordanov charges would be within range.
[19]See s 3AAA(1)(a) of the Act.
However, and without expressing any views about the appropriate sentence for the applicant’s offending, it appears to me likely that, given his age and vulnerabilities, and his very limited criminal history, the applicant may receive a sentence involving no custodial element, or a custodial element of less than six months.[20] In that regard, the respondent provided to the Court a copy of the Sentencing Advisory Council statistics for sentencing outcomes for aggravated burglary in the Magistrates’ Court from 1 July 2018 to 30 June 2012. That revealed that, for offenders aged 18 to 24 years of age, around 30 percent of offenders are sentenced to a community correction order.
[20]See s 3AAA(1)(l) of the Act.
Thus in my view it is likely that the applicant would spend more time on remand that any sentence imposed for the offending. That, alone, constitutes exceptional circumstances that justify a grant of bail.[21]
[21]See, eg, HA (a pseudonym) v The Queen [2021] VSCA 64, [61]–[64] (Maxwell P and Kaye JA).
Furthermore, even if that were not the case, I consider that there is a combination of other matters that mean that the applicant meets the exceptional circumstances test. As both parties accepted, the applicant is a youthful offender, having recently turned 19 years old. He has a very limited criminal history:[22] two prior convictions as an adult, for possession of cannabis and committing an indictable offence on bail. For that offending he received a bond without conviction at the Ringwood Magistrates’ Court on 10 August 2023. He also completed diversion ordered by the Ringwood Children’s Court on 31 August 2022.
[22]See s 3AAA(1)(b) of the Act.
The material before the Court reveals that the applicant has previous diagnoses of autism spectrum disorder, attention deficit hyperactivity disorder, anxiety and depression.[23] Immediately before being remanded in custody he was under the care of psychiatrist Dr Gardner and psychologist Graeme Lamont. Dr Gardner provided a letter stating that the applicant had recently begun psychological evaluation, and that he and Mr Lamont ‘strongly suspect [the applicant] has an underlying Bipolar I Disorder’. The applicant is also on medication, which he could continue to receive while in custody. However, he could not continue to receive care from Dr Gardner and Mr Lamont while on remand. I accept the applicant’s submission that he has complex mental health issues and would benefit from continuity of care in the community with Dr Gardner and Mr Lamont to ensure that his mental health conditions are promptly diagnosed and optimally treated.
[23]See s 3AAA(1)(h) of the Act.
The material before the Court satisfied me that the applicant is vulnerable in adult custody by reason both of his young age and his mental health issues. In that regard, the author of the Youth Justice Bail Service Report dated 19 December 2023 stated that the applicant ‘presents as vulnerable in a prison environment due to his trauma history, poly substance abuse and mental health diagnoses, including history of suicide ideation’.
Importantly, the applicant has been assessed as suitable for Youth Justice supervised bail, the purpose of which is to support young persons to comply with bail conditions and to reduce the risk of reoffending.[24] The author of the Youth Justice Bail Service Report stated that the applicant’s ‘complex support needs are best addressed through a coordinated care response in the community’. I consider that an opportunity for supported bail of this kind, which was not available to the applicant in relation to his previous periods of bail, is likely to support the applicant’s rehabilitation and in that regard is an important aspect of my assessment of the combination of factors on which the applicant relied.
[24]See s 3AAA(1)(i) of the Act.
Having regard to these factors in combination, I am satisfied that exceptional circumstances exist that justify a grant of bail.
It is thus necessary to consider whether the respondent has satisfied me that the applicant would, if released on bail, endanger the safety or welfare of any person or commit an offence while on bail.
Unacceptable risk — the parties’ submissions
The respondent submitted that there is a real risk that the applicant will offend again while on bail and/or put the safety or welfare of others at risk, given that he faces charges of offending while on bail and has previously received a bond in relation to committing an indictable offence while on bail. The respondent also pointed to the escalation in the applicant’s alleged offending, and his alleged purchase of a machete immediately after the aggravated burglary for which he has been charged. The respondent submitted that the proposed bail conditions would not mitigate that risk.
The applicant accepted that there is a risk that he will offend on bail, and the concomitant risk of endangering the safety or welfare of the public. That concession was appropriate given his criminal history. The applicant submitted, however, that the risks posed by the applicant can appropriately managed by appropriate bail conditions, given the fact that the applicant has now had experience of adult custody, which will have a deterrent and ‘circuit-breaking’ effect on him, together with the availability of bail support services, in conjunction with mental health treatment in the community and the support of his family.
No unacceptable risk
I am not satisfied that the applicant poses an unacceptable risk to the safety or welfare of others or of offending again while on bail.
I accept the respondent’s submission (and the applicant’s concession) that the applicant poses a risk both of further offending and to the safety or welfare of others. I also note that the victims of the aggravated burglary with which the applicant has been charged oppose a grant of bail for that offending. However, in my opinion the proposed bail conditions, along with Youth Justice supports, continued mental health treatment with his current treating professionals, and the support of his family, mean that that risk will be mitigated to an extent that renders it not an unacceptable risk.
Importantly, the applicant has never before had any significant conditions imposed on his bail. Thus the fact that he has previously committed at least one offence while on bail (and is charged with several offences involving committing offences while on bail) is not determinative. Rather, attention must be given to the proposed bail conditions,[25] which are that the applicant must:
[25]See s 4E(3)(b) of the Act.
(a) reside at his family home in Bayswater VIC 3135 (‘the Residence’);
(b) comply with all lawful directions of the Youth Justice Supervised Bail Program;
(c) remain within the Residence between 9pm and 6am (‘the Curfew Hours’), except when he is in the company of his mother or his brother;
(d) present himself at the front door of the Residence during Curfew Hours if and when called upon by a member of Victoria Police to do so;
(e) report to Boronia Police Station as required by the court;
(f) surrender any passport he may have to informant Iordanov within 48 hours of his release from custody;
(g) not attend any international points of departure;
(h) not leave the State of Victoria;
(i) not contact any prosecution witnesses other than the informants;
(j) not associate with any co-offenders; and
(k) comply with any judicial monitoring required by the Court.
I note that the respondent accepted that proposed conditions (f) to (h) were not required. Furthermore, I do not consider it necessary for this Court to impose judicial monitoring. The applicant’s bail will be returnable to the Magistrates’ Court and, as at the date of this Court’s orders, he had three further attendances in that court in the next two months, on 19 January 2024, 5 February 2024 and 24 February 2024. I consider that the applicant’s bail will be subject to adequate supervision in that court.
With those exceptions, I consider that the above conditions are likely to significantly mitigate the risk of the applicant reoffending and/or endangering the safety or welfare of others. In particular, the curfew and the requirement to report to police are likely to have this effect.
Also important is the fact that the applicant has not previously had available to him the supports offered by Youth Justice. As noted above, these include monitoring of bail compliance, substance use intervention and employment supports, with first appointments scheduled for late December 2023 and early January 2024, respectively. In addition, the applicant will continue treatment with his mental health treating practitioners. I consider that these supports are also likely to substantially mitigate the risk of the applicant reoffending and/or endangering the safety or welfare of others.
Finally, the support offered by the applicant’s family will provide an important mitigation of the risk that the applicant will reoffend or endanger the safety or welfare of others. I accept that the applicant’s family has previously been supportive of him, and that that support has not, to date, prevented the applicant from engaging in the prior offending or the alleged offending. However, having heard the evidence of the applicant’s mother, it was plain that she understood the seriousness of the applicant’s offending, and the important role she, and the applicant’s adult brother, will need to play in relation to the applicant’s bail, including a duty to report any breach of his bail conditions to police or Youth Justice. She also explained some of the steps she proposed to take to ensure that the applicant does not offend again.
For these reasons, I am not satisfied that the applicant poses an unacceptable risk to the safety or welfare of others or of offending again while on bail.
Conclusion
In light of the above matters, I granted the applicant bail on the following conditions:
(a) The applicant attend the Ringwood Magistrates’ Court on 19 January 2024 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) The applicant reside at the family home in Bayswater, and not change that address without the leave of the Court.
(c) The applicant remain at the family home between the hours of 8:00 pm and 6:00 am each day for the duration of bail, except when he is in the company of his mother or his brother.
(d) The applicant 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, save when he is absent in the company of his mother or his brother.
(e) The applicant report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Boronia between the hours of 7:00 am and 8:00 pm.
(f) The applicant comply with all lawful directions of any officer of Youth Justice Supervised Bail Program and attend all appointments as directed by Youth Justice.
(g) The applicant comply with all lawful directions of his treating psychiatrist, Dr Gardner.
(h) The applicant not contact, directly or indirectly, certain other persons for the duration of the bail period.
(i) The applicant not contact, directly or indirectly, any witness for the prosecution, except the police informants.
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