Re Wastell

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0284
S ECR 2022 0300

IN THE MATTER of the Bail Act 1977 (Vic)

-and-

IN THE MATTER of an application for bail by BRODIE WASTELL

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2022
DATE OF RULING:	9 December 2022
CASE MAY BE CITED AS:	Re Wastell
DATE OF REVISED REASONS:	31 March 2023
MEDIUM NEUTRAL CITATION:	[2022] VSC 832

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CRIMINAL LAW – Application for bail – Applicant charged with aggravated carjacking, theft of a motor vehicle, reckless conduct endangering serious injury, dangerous driving, unlawful assault with a weapon, committing an indictable offence whilst on bail, contravening condition of bail, unlicenced driving, failing to render assistance after an accident, make threats to kill and intimidating a witness involved in criminal investigation or criminal proceeding – Applicant with significant vulnerabilities – Exceptional circumstances established – Whether imposed bail conditions can mitigate any risk so that it is not unacceptable – Bail granted on own undertaking and conditions – Bail Act 1977 (Vic) ss 3AAA, 4A and 4E.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Andrew Waters	Victoria Legal Aid
For the Respondent	Mr Zubin Menon	Office of Public Prosecutions

HIS HONOUR:

This is an application for bail by Brodie Wastell (‘the applicant’), who is 18 years of age. He has significant vulnerabilities including a range of neurocognitive and psychosocial disabilities and he has a complex mental health history. His current remand period, which has been reasonably lengthy, represents his first time in adult custody.

Apart from a short period, he has been in custody since 17 October 2022, when he was arrested and charged by Senior Constable Glenn Morris with the following offences (‘the Morris matter’):

(a) aggravated carjacking;

(b) theft of a motor vehicle;

(c) reckless conduct endangering serious injury;

(d) dangerous driving;

(e) unlawful assault with a weapon;

(f) commit an indictable offence whilst on bail;

(g) contravene conduct condition of bail;

(h) unlicensed driving; and

(i) failing to render assistance after an accident.

Procedural history

The application for bail came on for a hearing before me on Tuesday, 8 November. On that day, for various reasons, I adjourned the hearing until 18 November and made what I described as an ‘interim bail order’. The purpose of the adjournment was to give the applicant an opportunity to demonstrate that he could comply with the conditions. The conditions were as follows:

(a) The applicant is to reside at [redacted] in the State of Victoria (‘place of residence’);

(b) The applicant is not to be absent from his place of residence between the hours of 10.00pm and 6.00am each day (the ‘curfew hours’), unless seeking urgent medical attention;

(c) The applicant is to present himself at the front door of his place of residence during curfew hours upon the reasonable request Senior Constable Glenn Morris (‘the informant’), or his nominee, being an authorised member of Victoria Police;

(d) The applicant is to report to the Officer in Charge, or their nominee, at the Caroline Springs Police Station on Thursday, 10 November and Thursday, 17 November 2022 between the hours of 9.00am and 6.30pm;

(e) The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant or any witness who also acts as a support worker for the applicant;

(f) The applicant must not use or possess any drug of dependence, as defined by the Drugs, Poisons and Controlled Substances Act 1998 (Vic), without lawful authorisation under that Act;

(g) Prior to the 18 November 2022, the applicant is to undergo a supervised drug test, the date and time of which is to be arranged by the informant or his nominee, being an authorised member of Victoria Police;

(h) The applicant must not consume or possess any alcohol, until further order;

(i) The applicant must not drive a motor vehicle of any description;

(j) The applicant is to comply with all lawful directions of Youth Justice Supervised Bail Support Service, unless evidence is provided of a reasonable excuse for non-attendance;

(k) The applicant must comply with the lawful directions of his NDIS-funded care team;

(l) The applicant is not to leave the state of Victoria;

(m) The applicant is not to attend at any international points of departure; and

(n) The applicant is to appear:

(i) at the Melbourne Magistrates’ Court on 11 November 2022, for committal mention, and thereafter as directed by that Court; and

(ii) at the Supreme Court of Victoria on 18 November 2022 at 12.00pm, for further bail application, and thereafter as directed by this Court.

Within hours of that order, the applicant had breached the conditions attached to the interim order by threatening to kill or physically assault two witnesses.

When the matter returned to court on 10 November 2022, I vacated the interim order and adjourned the further hearing of the application until 18 November 2022. When the matter resumed on 18 November 2022, after hearing some further evidence and observing the applicant in the way that he behaved in relation to the proceedings, I adjourned the matter again until today, Friday, 9 December 2022 and the applicant has been remanded in custody throughout.

At the time of the alleged offending in the Morris matter, the applicant was on bail in relation to a number of matters. First, offences charged by the informant, Whittaker (‘the Whittaker matter’), which relate to offending on 24 May 2022 and charged on 25 May 2022 include the following offences:

(a) robbery;

(b) theft;

(c) intentional cause injury;

(d) recklessly cause injury;

(e) violent disorder;

(f) affray; and

(g) assault in company.

As to the offending changed by the informant, Barth (‘the Barth matter’), which relates to charges laid on 27 July 2022, which were listed for mention on 11 November 2022 and again in January 2023, the following offences:

(a) robbery;

(b) unlawful assault;

(c) contravene conduct condition of bail (two charges); and

(d) committing an indictable offence whilst on bail.

The applicant remains on bail for both of those matters.

On 19 October 2022, the applicant was refused bail in the Melbourne Children’s Court on the basis that if he were granted bail, he posed an unacceptable risk of endangering the safety and welfare of any person and committing an offence whilst on bail.

On 3 November 2022, the applicant filed his application for bail in this matter in this court. The remand matter, which is involving the informant, Morris, is, as I understand it, still next listed on 10 January 2023 in the Melbourne Magistrates' Court for a committal case conference and mention.

The Whittaker matter

In relation to the charges laid by Whittaker, at approximately 8.00pm on 24 May 2022, the complainant, a man called [redacted], was approached by a group of approximately eight males at the Southern Cross station. It is alleged that the group approached the complainant in the toilets, robbed him, threatened to hurt him and led him to Batman Park. At Batman Park, the group is alleged to have kicked and punched the complainant to the ribs and head, stripped him naked, thrown his clothes into the Yarra River, knocked his glasses from his face and stole his phone and shoes.

At approximately 12.05am the following morning, 25 May, the applicant called police from St Vincent’s Hospital in Fitzroy having attended due to breathing difficulties to report the incident. He was arrested, charged and interviewed. During the interview, he admitted assaulting the complainant by punching him, kicking him and using the applicant's crutch to hit the complainant. The applicant was released on police bail subsequently.

The Barth matter

In relation to the matters charged by the informant, Barth, at approximately 3:00am on 27 July 2022, the complainant, a man called [redacted], was approached by the applicant outside the Collins Street McDonald's in the CBD. After a short conversation, the applicant is alleged to have demanded the complainant's phone. When the complainant refused, the applicant is then alleged to have said, 'We can do this the easy way or the hard way’ and hit the complainant to the back of the neck.

The complainant then handed the applicant his phone. Following this, the applicant allegedly punched the complainant on the back of the neck at least twice more, resulting in the complainant handing over his headphones. The applicant then returned the complainant’s mobile phone.

Three witnesses approached the applicant and requested he return the complainant’s headphones. When the applicant refused one of the witnesses punched the applicant approximately 15 times, causing him to fall to the ground and then kicked him once as he lay on the ground. The applicant subsequently gave the witness the headphones, who returned them to the complainant.

Police attended the McDonald’s store and arrested the applicant, as well as the witness alleged to have assaulted him. The applicant was taken to the Royal Melbourne Hospital for assessment of his injuries before being taken to the Boroondara Police Station later that day where he answered, ‘No comment’, in his record of interview. He was charged and bailed by the Melbourne Magistrates' Court on the same day.

The Morris matter

In relation to the Morris matter, the most recent matter, at approximately 12.05am on 17 October 2022, a care worker, [redacted], attended the applicant's home address to collect the applicant’s friend.

It is alleged that the applicant confronted the care worker with a toy gun which shoots soft foam bullets and stated, ‘Get out of the car or I’ll shoot you’. Realising that this threat was ineffective, the applicant is alleged to have produced a large knife from the front of his pants and said, ‘If you don't get out of the car, I’ll stab you’. The care worker left the vehicle.

The applicant then entered the vehicle, followed by his friend, however before leaving the address, the applicant’s friend asked to be let out of the vehicle, which the applicant agreed to and then drove away on his own. The care worker reported the incident to police. At about 5.00am, the applicant briefly returned to his home address where he is supported by care workers, before leaving again in the stolen vehicle. The applicant's care workers reported the applicant’s attendance to police.

At approximately 7.40am, the applicant contacted two school friends and told them he would drive them to school and then picked them up approximately five minutes later. At about 7.50am a witness on K Road, Werribee South, observed the stolen vehicle drive past at high speed before colliding with a street sign and power pole, the driver having failed to take a sharp, left-hand turn.

The applicant, who the police allege was the driver, then exited the vehicle and began to walk along K Rd. The applicant’s friends exited the vehicle and sat down nearby. The witness stopped briefly and spoke to the applicant’s friends who pointed out the applicant, and explained he was the driver. As the applicant continued to walk away on foot, the witness followed in his car. At one point, the applicant turned towards the witness and produced a large knife which he had pointed at the witness while saying 'I’ll come and stab you with this knife’. The applicant then placed the knife in his bag and walked away.

The witness called police to report the incident and continued to follow the applicant. The witness observed the applicant attempt to flag down a bus and then after the bus failed to stop proceeded on foot to Warringa Park School.

At about 8.35am, police attended the school and arrested the applicant and searched his bag. A knife matching the description given by the witness was located inside the bag. The applicant complained of chest pains and was conveyed to Footscray Hospital for assessment before being then taken to the Sunshine Police Station where he was interviewed and provided a ‘no comment’ statement.

At the time of that offending, the applicant was not licensed to drive a motor vehicle in Victoria and was subject to bail undertakings in the matters of Whittaker and Barth, which included a 9.00pm to 5.00am curfew condition.

The applicant’s friends who were in the vehicle at the time of the collision were both injured and conveyed to the Royal Melbourne Hospital by ambulance for treatment. The respondent states the injuries consisted of bruising and whiplash.

The applicable legislation

Because the applicant is charged with a Schedule 1 offence within the meaning of the Bail Act 1977 (Vic) (‘the Act’), bail must be refused unless he can satisfy this court that exceptional circumstances exist that justify the grant of bail.[1] In determining whether exceptional circumstances exist, the court must take into account the relevant surrounding circumstances including but not limited to those set out in s 3AAA(1) of the Act.[2]
[1]Bail Act 1977 (Vic), s 4AA(1), 4A(1)-(2).
[2]Ibid s 4A(3).

In this matter, there is effectively a concession on the part of the respondent that it would be open to me to find that exceptional circumstances have been established. If satisfied that exceptional circumstances exist that justify the grant of bail, the Court must consider the unacceptable risk test, which means that bail must be refused if the respondent satisfies the court there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is unacceptable.[3]
[3]Ibid s 4E(1)-(2).

In considering whether the relevant risk is unacceptable, the Court must again have regard to the surrounding circumstances referred to in s 3AAA(1) of the Act, and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.[4]
[4]Ibid s 4E(3).

The applicant’s personal circumstances

The applicant is an 18-year-old male with high support needs secondary to multiple disabilities and a complex mental health history, which includes autism spectrum disorder, attention deficit hyperactive disorder, psychosis, brain legions, which compromise executive functioning, emotional control, impulse control, planning and prioritising, organising and flexibility. He also has an intellectual disability. He suffers from depression. He has an opposition defiance disorder, a conduct disorder, complex trauma and various related issues. He also has a history of self-harm behaviour and threats of suicide.

The applicant is currently a client of the Department of Fairness, Families and Housing, the Multiple and Complex Needs Initiative, the National Disability Insurance Scheme and the Origin Forensic Youth Mental Health Service.

Accommodation

Prior to his remand, the applicant was the sole resident at a funded specialist disability accommodation where he had access to care workers and their support 24 hours a day.

Support services

He has an NDIS-funded care team of 12 people including an alcohol and drug worker, justice support worker, speech pathologist, behaviour support clinician, clinical mental health case manager, youth mentors, and NDIS and MACNI coordination. This team is co-ordinated and meets on a fortnightly schedule, liaising in between those meetings on an ad hoc basis, as required. The volume and quality of these supports demonstrate what an important resource the NDIS is.

Prescribed medication

In addition, the applicant is prescribed several medications to support emotional regulation and to assist him to manage his behaviour. A Youth Justice pre-sentence report from earlier this year indicates that the applicant has a history of intermittent non-compliance with medication.

In a letter dated 18 October 2022, care plan coordinator, Aiesha, stated the following regarding the applicant's focus and goals with his care team:

Currently the care team are focusing on working with the applicant to achieve his MACNI goals of wanting to be fit and exercise and his NDIS goals of learning to read and write, emotional control, living independently, engaging safely in the communicating with others. The most recent focus areas by his care team are promoting pro-social relationships and belonging, safe interactions with others, supporting the applicant maintain healthy ways of coping with emotional distress.
As you're aware, the applicant's behaviours of concern have led him to offending behaviours and combined with his multifaceted and complex history growing up with damaging experiences, trauma and disabilities, makes him a vulnerable young man at risk. Since his Youth Justice order ended in September 2022, he's only recently met with a voluntary justice service, Youth Junction, which provide up to nine months of case management support to target his offending behaviours.

Family history and support

The applicant’s parents are separated. The applicant’s mother was present in court to hear the conclusion of this application. The applicant has three maternal half-siblings aged 9, 25 and 28, and two paternal half-siblings, aged 23 and 26.

The applicant reports that he was exposed to incidents of family violence between his parents when he was a child. The applicant has a significant history of involvement with Child Protection that began when he was aged seven, due to his challenging and complex behaviours.

Between the ages of 14 and 17, the applicant had a number of out of home placements in residential care and continues in placements, as his behaviour was considered to place his younger sister and mother at significant risk of harm. In 2019 alone, the applicant changed placements 18 times. Since 2021 the applicant transitioned into NDIS funded accommodation and Child Protection withdrew their involvement.

It is the case, including to date, that the applicant remains in contact with his family members, and it would appear that those contacts are important to him. He is particularly close with his mother and maternal siblings, who all live together in Geelong. When he was in the community the applicant would visit his mother on the weekend and enjoy family connections and activities, such as horse-riding.

Drug use

Unfortunately, the applicant has previously admitted occasionally using cannabis and crystal methamphetamine on an occasional basis. He has reported the belief that the crystal methamphetamine has the same effect on him as his prescribed medications. Due to this belief, the applicant has a tendency to use that drug when he absconds from his accommodation and does not have access to his prescribed medication.

Education

The applicant had attended Warringa Park School. His engagement with schooling was affected by remote learning and the periods in which he was in Child Protection placements. Prior to his remand, the applicant was engaged in the Hand Brake Turn program in Sunshine West, a five week automotive program that provides participants with necessary skills and experience to gain employment in the automotive industry. He has expressed to Youth Justice that he is eager to resume the program and obtain his certificate of completion. Upon successful completion of that program, the applicant would have the opportunity to complete the Fix It program, a three month paid employment opportunity.

Criminal history

The applicant has a criminal history in the Children’s Court which began in 2018, when he was 14 years of age. That includes offences of violence, including with a weapon, and various dishonesty, driving and bail offences. His most recent outcome was on 25 March 2022, when he was sentenced to six months’ probation without conviction for the following 12 charges:

(a) criminal damage;

(b) commit indictable offence whilst on bail (three charges);

(c) attempted armed robbery;

(d) affray; unlawful assault (two charges);

(e) make threat to kill;

(f) wilfully damage property;

(g) assault with a weapon; and

(h) theft of a bicycle.

A condition of his probation was to engage with Youth Justice.

The applicant has no criminal history in the adult jurisdiction and has not previously received a sentence of imprisonment.

The applicant’s submissions

On behalf of the applicant, his counsel relies on a number of matters in combination to demonstrate that exceptional circumstances are established, and those factors are the nature and seriousness of the alleged offending, which the applicant submitted was not at the upper end of the range in terms of seriousness. It was also argued on behalf of the applicant in the written material that an assessment of the strength of the prosecution case is difficult, although I must say, it seems to me it is a strong prosecution case.

Vulnerability of the applicant in a custodial setting

The criminal history of the applicant is conceded and perhaps the most important argument, in summary, was that the applicant is vulnerable in a custodial setting for the reasons that are obvious from the history I have recited, and that custody is difficult for him having regard to his age and to his higher support needs, due to his various disabilities and complex mental health situation.

On 3 November 2022 it appears, according to Youth Justice, that he was placed in a safety cell, and that was because he had expressed some level of intention at suicide.

Support services

The evidence led before me today, and on the previous occasions, indicates that the multidisciplinary team will continue, should he be granted bail.

Youth Justice

In addition, it is proposed that he receive support through the Youth Justice supervised bail program. He has previously engaged well with Youth Justice and at the time of the offending in the Morris matter was not engaged with Youth Justice as his probation had finished on 24 September 2022.

Youth Justice have assessed the applicant to be a suitable candidate for the supervised bail service. During his most recent involvement with Youth Justice, the applicant attended the majority of appointments and on occasions when he did not attend, he had contact with the Youth Justice worker on a telephone. Youth Justice concur that the applicant has demonstrated capacity and ability to adhere to their requirements. There are a series of programs that were proposed if he were to be released on bail.

Likely sentence

In relation to the likely sentence, bearing in mind the time the applicant has been in custody, it is conceded on his behalf in relation to the aggravated carjacking charge that if found guilty, a term of imprisonment must be imposed and a non-parole period of not less than three years must be fixed, unless the sentencing court finds that a special reason exists.

The applicant submits that it may well be open to the sentencing court if the applicant is found guilty to find that special reasons do exist due to his complex mental health disabilities and high support needs and youth. That will be a matter for the sentencing judge when that arises.

It was proposed initially that there be a series of bail conditions affixed if the applicant were granted bail and I will return to that in a moment.

The respondent’s contentions

The application for bail has been opposed by the respondent. Mr Menon, on behalf of the respondent, has effectively conceded, for obvious reasons, that the exceptional circumstances are open to be concluded.

Unacceptable risk

This application has proceeded on the basis that because the applicant is alleged to have committed serious offences whilst on bail, including aggravated carjacking, reckless conduct endangering serious injury and threatening two members of the public with a knife, those allegations indicate that the risk of releasing the applicant on bail is unacceptable and that the public are at risk.

Risk of re-offending

The respondent also argues that there is a significant prospect that if released on bail the applicant will commit further similar offences.

To a degree, that is corroborated by the history of this application. The most recent hearing before me, I was less than impressed with the way the applicant conducted himself. It seemed to me despite all his disabilities that he showed a disregard and complete ambivalence about the situation that he was in.

Expert evidence

Today, I heard evidence from Mr Andrew McPherson, who is the provisional psychologist, who has been primarily involved in the applicant’s care and has devised a behaviour program. He gave evidence and produced a document which became Exhibit A on the application, which is entitled ‘Behavioural measures to reduce the risk of recidivism’. The document reflects a good deal of thought and a complex set of proposals designed to assist the applicant to resist the temptation to commit further offences should he be released on bail. Mr McPherson's evidence was questioned but certainly not challenged.

Analysis and conclusion

In my view, the applicant has easily established the existence of exceptional circumstances which would justify a grant of bail. As I said, such was virtually conceded on behalf of the respondent.

In relation to the risk, the applicant has been in custody now for effectively seven weeks in adult custody. Mr Waters, on his behalf, submits that that period of time has had its effect and that there is a degree of contrition in the applicant’s attitude. The other difficulty about his custody continuing is that he cannot be effectively assisted while he is in custody. It really depends on him being free and Mr McPherson’s evidence suggests that the applicant is amenable to the measures or at least some of the measures that have been discussed with him that are proposed under the document I have referred to.

There is no question that the release of the applicant on bail carries with it a risk. In a sense, to release the applicant on bail now is to recognise two things:

(a) the complex range of disabilities that the applicant is suffering from, which he needs to be assisted with; and

(b) to acknowledge the intensity of the assistance which is proposed to be provided to him.

Mr McPherson deserves great credit for his persistence in what is obviously a difficult case and I have no doubt of his commitment to assist the applicant, should the applicant be released from custody.

I also suspect that the applicant has perceived or understood the Court’s displeasure at his conduct, the court's condemnation of his conduct, the Court’s view that the matters which are alleged against him for one so young are, if they are proved, disgraceful, violent conduct in the community and ultimately everything that can be done must be done to prevent reoccurrence of those things.

Given the evidence I have heard today and given the knowledge I have obtained during the course of these hearings about the intensity of the assistance that is offered to the applicant, it seems to me that I should release him on bail with a complex set of conditions. I do so and this is really directed at the applicant himself.

He can be certain, given the history of this matter, that if any breach of bail occurs from today onwards, he will be back in custody and he will be there for the duration, not necessarily because I say that is what is going to happen, but because any court reading this ruling and reading the history of this matter would quickly come to the conclusion that the only place for him, if he breaches another bail order, is in custody, notwithstanding the needs he has and the supports he is getting. So he should clearly understand if he breaches these conditions, he will spend the foreseeable future in custody.

The order will be that Brodie Wastell will be admitted to bail in his own undertaking with the following special conditions:

(a) The applicant is to reside at [redacted] in the State of Victoria (‘place of residence’), unless residing with his mother at [redacted], and doing so with the approval of his caretaker;

(b) The applicant is not to be absent from his place of residence between the hours of 10.00pm and 6.00am each day (the ‘curfew hours’), unless seeking urgent medical attention, in the immediate company of an authorised caregiver or with his mother;

(c) The applicant is to present himself at the front door of his place of residence during curfew hours upon the reasonable request of Senior Constable Glenn Morris (‘the informant’), or his nominee, being an authorised member of Victoria Police;

(d) The applicant is to report to the Officer in Charge, or their nominee, at the Caroline Springs Police Station each Tuesday and Thursday, between the hours of 9.00am and 6.30pm;

(e) The applicant is not to contact or associate with, either directly or indirectly, any witness for the prosecution, other than the informant or any witness who also acts as a support worker for the applicant;

(f) The applicant is to provide the informant or his nominee, with the phone number and any password or PIN of the mobile phone he possesses or uses, within 24 hours of first having access to that phone, and notify the informant or his nominee of any change of password or PIN of that mobile phone within 24 hours of that change;

(g) The applicant is to produce the mobile phone he possesses or uses for inspection upon the reasonable request of the informant or his nominee;

(h) The applicant must not use or possess any drug of dependence, as defined by the Drugs, Poisons and Controlled Substances Act 1998 (Vic), without a lawful authorisation under that Act;

(i) Prior to the 16 December 2022, the applicant is to undergo a supervised drug test, the date and time of which is to be arranged by the informant or his nominee, being an authorised member of Victoria Police;

(j) The applicant must not consume or possess any alcohol, until further order;

(k) The applicant must not drive a motor vehicle of any description including a motorcycle;

(l) The applicant is to comply with all lawful directions of Youth Justice Supervised Bail Support Service, unless evidence is provided of a reasonable excuse for non-attendance;

(m) The applicant must comply with the lawful directions of his NDIS-funded care team and must comply with all the lawful directions of Andrew Macpherson, his Behavioural Support Practitioner;

(n) The applicant is not to leave the state of Victoria;

(o) The applicant is not to attend at any international points of departure; and

(p) The applicant is to appear at the Melbourne Magistrates’ Court on 13 December 2022, for mention, and thereafter as directed by that Court.

I do not propose to impose conditions of judicial monitoring by me. I am not going to be in a position to do it anyway because I will be on leave so, as you would understand, Mr Waters, in the event of a breach of those conditions and the respondent can make the application for a revocation of bail to the Melbourne Magistrates' Court and as I indicated, I would be confident that application would be successful.

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Re Wastell [2022] VSC 832

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[2022] VSC 832

9 December 2022