SG v Ta

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

S CR 2015 0076

SG	Applicant
v
TA	Respondent

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JUDGE:	CROUCHER J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2015
DATE OF JUDGMENT:	29 May 2015
CASE MAY BE CITED AS:	SG v TA
MEDIUM NEUTRAL CITATION:	[2015] VSC 264

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CRIMINAL LAW – Application for bail by 15-year-old boy charged with robbery, theft, blackmail and Bail Act offences – Indictable offences allegedly committed while on bail for charges alleging other indictable offences – Whether applicant has shown cause why detention not justified – Whether respondent has shown an unacceptable risk of offending or interfering with the course of justice if applicant bailed – Applicant has prior and subsequent findings of guilt – Youth and impressionability of applicant in detention – Weaknesses in prosecution case – Youth Justice prepared to supervise applicant – Educational and employment opportunities available on bail – Real risk that, if bail refused,

time spent in custody before ultimate hearing could exceed any penalty imposed upon a

finding of guilt – Bail granted on own undertaking with strict conditions – Bail Act 1977,

ss 4 and 30B; Crimes Act 1958, ss 72-75 and 87.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K. Churchill	Turnbull Lawyers
For the Respondent	Mr J. Kibel	Victoria Police Legal Services
Department
HIS HONOUR:

Introduction

‘SG’[1] is a 15-year-old boy. He is charged with robbery, theft and blackmail and with
committing those indictable offences while on bail. On 29 May 2015, I heard and
granted SG’s application for bail. I gave ex tempore reasons for my decision but
indicated I would publish detailed reasons at a later time. These are those reasons.
[1] Section 534(1) of the Children, Youth and Families Act 2005 provides inter alia that a person must not
Summary of alleged offending
The following summary of alleged events is taken in part from the complainant’s
and other witnesses’ police statements and in part from the police summary.
On 28 April 2015, the applicant was involved, with four co-accused and some other
unidentified boys of a similar age, in an incident at a bus terminal at the railway
station at Roxburgh Park.
Alleged robbery (or theft): At about 4:00 p.m., the complainant, a 15-year-old girl,
was waiting for a friend in the bus terminal, on her way home from school, when the
group of boys approached her. Some of them sat next to her. The complainant was
holding her mobile telephone, as she was expecting a call from her friend. One of
the boys, ‘RF’, kept saying to her, ‘Hold my phone and I’ll hold your phone’. She
declined. He said, ‘Relax, I won’t take it’. ‘AY’, whom the complainant knew, and
RF began slapping the complainant’s legs with their bare hands. RF asked the
complainant for her phone a few more times. Then the applicant, who had been
sitting next to the complainant, leaned across from her right and grabbed the phone
from her left hand. He said, ‘Let’s take a cute photo’, and then went into the phone’s
camera function. The complainant looked away to see if her friend was coming.
When she looked back, the applicant no longer had her phone. She asked, ‘Where’s
my phone?’ He said, ‘I don’t have it; you can even check me’, and then unbuttoned
his trousers and pulled his zip down, gesturing that his pants were empty. It is
alleged that the applicant had passed the phone to RF.
Alleged blackmail: Some of the boys started saying that ‘MK’ had the phone, and
gestured to him. MK started saying to the complainant, ‘Come for a walk with us
and you will get your phone back’. The applicant grabbed the complainant’s arm
and pulled her off the seat. MK then said he would make a deal with the
complainant. He said, ‘If you come for a walk with us and have sex with us two’,
gesturing to the applicant, ‘you’ll get your phone back’. The complainant said,
‘Show me my phone first’. Then AY came over and said, ‘That’s not a fair call’.
Another witness alleges she could hear males saying, in response to the
complainant’s request for her phone, things such as, ‘Suck my dick and you will get
your phone back’.
As the complainant asked AY for her phone, a girl she did not know yelled at the
boys to return the phone, but none of them did. The girl threatened to call the police
and the boys then walked off. The boys had gone by the time police arrived.
The complainant was worried she might get hurt when her phone was taken because
she had been slapped on the legs earlier. She was also quite scared when the boys
were asking her to go for a walk with them because she did not know what they
were going to do to her.
Applicant charged but bail refused
On 6 May 2015, the applicant was arrested and charged with robbery, theft and
blackmail and with committing those offences while on bail. He did not apply for
bail.
The same day, the applicant’s four co-accused were charged with robbery, theft and
blackmail. All were released on bail. None had any prior criminal history.

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On 12 May 2015, the applicant applied for bail in the Children’s Court. On 5 May
2015, the applicant had been placed on probation for three months, without
conviction, for three offences of theft, and one of attempted theft, of a motor car, and
three offences of committing an indictable offence while on bail. Since the charges
alleged indictable offences committed while on bail for other indictable offences, the
applicant had to show cause why his detention in custody was not justified in order
to be granted bail. The magistrate was not satisfied that the applicant had shown
cause why his detention was not justified. Her Honour was also satisfied that, if
granted bail, there was an unacceptable risk that the applicant would commit further
offences and endanger the safety and welfare of the public. Accordingly, bail was
refused.
The application in this Court
The applicant now applies for bail in this Court.
Applicant must show cause why detention in custody is not justified
As was the case before the magistrate, in order to be granted bail, the applicant must
show cause why his detention in custody is not justified. This reverse-onus position
arises because he is charged with indictable offences alleged to have been committed
while on bail for another indictable offence.[2]
[2] See s 4(4)(a) of the Bail Act 1977. The applicant is also in a ‘show cause’ position because he is charged
Ms Churchill, who appeared for the applicant in this Court, submitted that a
combination of factors warranted the conclusion that such cause had been shown.
Those factors include the following:
First, SG has the support of his parents, with whom he would resume living if
granted bail. His mother and adult brother attended the application.
Secondly, there is SG’s youth and impressionability. The applicant is currently
housed in detention with several boys aged 15 to 18 years, most of whom are at the older end of that age spectrum. Today is his 24th day in that environment. Generally
speaking, a child of 15 with only a modest criminal history should not be in
detention awaiting trial on charges of the type the applicant faces, and with
detainees of up to the age of 18, if that can sensibly be avoided.
Thirdly, counsel submitted that the prosecution case is weak in some respects.
I agree. In order to establish robbery, it must be proved, beyond reasonable doubt,
that the applicant stole the phone, and immediately before or at the time of doing so,
and in order to do so, used force on the complainant or put, or sought to put, her in
fear that she would then and there be subjected to force.[3] Yet, on the complainant’s
[3] See s 75(1) of the Crimes Act 1958.
account, there does not appear to have been any force used or threatened by the
applicant at the time of or immediately before the taking of the phone. If the
relevant force is said to be the slapping of her legs, then it would have to be shown
that the applicant was complicit in the use of that force and that it was applied
immediately before, and for the purposes of, the stealing of the phone. It seems to
me that there may be difficulties in establishing those elements. Further, the initial
taking of the phone might be thought to suggest more of a childish lark – albeit a
very annoying and disrespectful one – than an intention to deprive permanently or
the requisite dishonesty.[4] While the subsequent passing of the phone to a co-accused
might be relied on as the necessary appropriation, the prosecution would have to
exclude, as reasonably possible, that the phone was simply taken from the applicant
by the co-accused, rather than passed to him by the applicant, and that such passing
was not linked in purpose to the earlier slapping. Thus, while the evidence at trial
may well be different, on the material before me, I accept that these are legitimate
arguments that make the case on robbery and theft (which I assume is laid as an
alternative charge) relatively weak.
[4] As to the elements of theft, see ss 72-74 of the Crimes Act 1958.
In order to establish blackmail, it must be proved, beyond reasonable doubt, that,
with a view to gain for himself or one of the other boys or with intent to cause loss to
the complainant, the applicant made an unwarranted demand of the complainant with menaces.[5] Counsel submitted that, while the informant alleges in his summary
that ‘youths in the group’ uttered sexually explicit conditions on which the phone
could be returned, the complainant does not, in her statement, attribute any such
remarks to the applicant. Thus, the prosecution case must depend on complicity in
the behaviour and remarks of others, perhaps together with the applicant’s alleged
‘grabbing’ of the complainant by the arm (the characterization of which,
Ms Churchill indicated, is disputed), as founding the charge of blackmail. Again,
I accept that the prosecution case on this charge seems to be less than watertight on
the evidence before me.
[5] See s 87(1) of the Crimes Act 1958.
Fourthly, counsel relied on the fact that Youth Justice are prepared to continue to
supervise the applicant if he is granted bail. On 10 February 2015, the applicant was
placed on a youth supervision order, without conviction, for four months for
numerous offences of theft, and attempted theft, of a motor car and other dishonesty
offences (including burglary), as well as a good behaviour bond, without conviction,
for a period of four months for offences including shop-lifting. These are the
applicant’s only ‘prior’ findings of guilt, since the matters the subject of the
probation order imposed on 5 May are ‘subsequent’ findings of guilt. None of the
applicant’s criminal history involves violent offending. The Youth Justice report put
before the Children’s Court on 5 May, which was also before this Court on the
application, indicated that the applicant’s compliance with the youth supervision
order had been satisfactory. Youth Justice are also prepared to continue with the
probation order should the applicant be released on bail.
Fifthly, counsel relied on the applicant’s educational performance in detention, and
his related plans for the future, as indicating the desirability of a grant of bail.
I received a report from a teacher from the school which operates within the
detention centre. The teacher explained that the applicant had been engaged in six
hours of formal tuition each day, including in the areas of numeracy, literacy, work
skills, sport and music. He described the applicant as consistently respectful and courteous with staff; as showing a keen desire to learn and improve; as one who
attempts most tasks set for him; as a contributor to positive class discourse; and as
one who will look out for the well-being and learning of his classmates. The teacher
related an incident in class during which the applicant helped another student to
calm down and stay out of trouble, which, in his view, displayed empathy and
maturity. The teacher also described the applicant’s plans for the future as positive.
Counsel advised that the applicant proposes to continue with the classes provided
by the detention centre, as an external student, until he secures admission to a TAFE
course concerning electrical work, which is due to commence in July. Counsel also
advised that the applicant’s adult brother is currently trying to secure the applicant
some paid work with a smash repairer, the hours of which work could fit around
educational commitments.
In my view, it is far preferable, from both the applicant’s and the community’s
perspectives, that a boy of the applicant’s age and history be in the community
furthering his education and employment prospects than housed in a detention
centre with older and probably more criminally-experienced boys and risking the
contamination that sometimes occurs in such an environment.
Sixthly, Ms Churchill submitted that, even if found guilty of the charges alleged and
allowing fully for the more serious aspects of the allegations, there is a real risk that
the period in detention until the final determination of this matter – which the
parties estimated would be around six months if the matter went to a contested
hearing – would exceed the term of any custodial sentence that might be imposed,
particularly given the applicant’s age, modest criminal history and his personal
circumstances. Counsel also submitted that the same factors suggested that a non-
custodial sentence was a real prospect in any event. Mr Kibel, who appeared for the
informant in this Court, accepted the thrust of those submissions. While there is an
element of guesswork in this, I think that, if findings of guilt were made, a
magistrate may well impose a non-custodial sentence given the nature of the
allegations, the applicant’s modest criminal history, his personal circumstances and

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the considerations peculiar to sentencing children, including the matters spelt out in
s 362(1) of the Children, Youth and Families Act 2005.

Seventhly, counsel also relied on the fact that the four co-accused were on bail,
although she acknowledged that ‘parity’ was not usually a significant factor in bail
matters and that, in any event, unlike the applicant, none of the co-accused had a
criminal history.
Eighthly, Ms Churchill submitted that the proposed strict conditions of bail (which
I shall detail below) would ensure that there is no unacceptable risk of offending,
associating with co-accused or interfering with witnesses (particularly, the
complainant) if released on bail.
Respondent must show applicant an unacceptable risk of offending etc on bail
Before announcing my conclusions on whether cause has been shown, I shall
address the informant’s alternative submission that, if released on bail, there is an
unacceptable risk that the applicant will commit offences or interfere with the course
of justice by contacting his co-accused or the complainant or by any other means,
such that bail should be refused.[6]
[6] See s 4(2)(d)(i) of the Bail Act 1977.
In an affidavit filed on the application, it was explained that the informant relies
upon the following matters as supporting the conclusion that there is an
unacceptable risk of those things occurring should bail be granted:
First, there is evidence that the applicant’s Facebook account ‘tried to add [the
complainant’s] Facebook account the night [of the incident]’. The complainant, it is
said, is in fear of the applicant and believes he will attempt to contact and threaten
her. Ms Churchill submitted that seeking to ‘friend’ the complainant on Facebook is
arguably consistent with a belief in the applicant that he had not committed a
criminal offence. She informed me that it is quite common for young people to ‘add’
others to Facebook, particularly when they have acquaintances in common, as was the case here. In any event, she submitted, a bail condition prohibiting the applicant
from such behaviour, or from contacting the complainant at all, whether by social
media or otherwise, could address that concern. I accept the latter submission.
Secondly, the informant was concerned that there was a ‘pack mentality’ about the
alleged offending, which involved unlawful demands concerning sexual acts. Based
on the accounts given in the statements I have read, that seems to be an apt
description of aspects of the behaviour alleged. But Ms Churchill submitted that a
condition not to contact the co-accused could offset any concerns in that regard.
Further, counsel relied on the fact that the applicant has no history of violent
offending. Again, I accept those submissions.
Thirdly, the informant pointed to the applicant’s being on bail at the time of the
alleged offences and his criminal history, including for committing offences while on
bail, as demonstrating an unacceptable risk that he will offend again if released on
bail. Ms Churchill submitted that all of the factors that go to ‘showing cause’, as well
as the proposed conditions of bail, also go to defeat the submission that there is an
unacceptable risk that he would offend, contact the co-accused or the complainant or
otherwise interfere with the course of justice if released on bail. I accept that
submission.
Mr Kibel and Ms Churchill both submitted that, if I were disposed to grant bail, the
conditions proposed on behalf of the informant in the affidavit, with some minor
adjustments, would be satisfactory.
Conclusions and orders
I have reached the following conclusions:
First, I am not satisfied that there is an unacceptable risk that, if released on bail, the
applicant will commit offences or interfere with the course of justice by contacting
his co-accused or the complainant or by any other means. Secondly, while those
risks cannot be excluded absolutely, I am positively satisfied that such risks as there
might be are not unacceptable. Thirdly, for the same reasons, I am also satisfied that

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the applicant has shown cause why his detention is not justified.

In particular, the following matters, in combination, satisfy me that the applicant’s
detention in custody is not justified and that such risks as the informant is concerned
about were bail to be granted are not unacceptable: the accommodation and support
provided by the applicant’s parents; the applicant’s youth; his impressionability in
detention; the weaknesses in the prosecution case; the preparedness of Youth Justice
to supervise him; the applicant’s behaviour while in detention; the educational
regime proposed upon his release; the potential employment opportunity his brother
is seeking; the real risk that, if bail were refused, the time spent in custody before the
ultimate hearing could exceed any penalty imposed upon a finding of guilt; and the
proposed conditions of bail.
Accordingly, I order that the applicant be released on bail on his own undertaking
with the following special conditions:
1)    The applicant is to reside at […] in the State of Victoria.
2)    The applicant is to remain at his place of residence between the hours of 9.00
p.m. and 6.00 a.m. (‘the curfew hours’), unless in the company of a parent or a
sibling.
3)    The applicant is to present himself at the front door of his residence during the curfew hours, when requested to do so by police.
4)    The applicant is not to attend within 200 metres of the Roxburgh Park Railway station and its adjacent bus terminal unless accompanied by a parent.
5)    The applicant is to report to Fawkner Police Station between 7.00 a.m. and 8.00 p.m. every Wednesday.
6)    The applicant is to obey the lawful directions of the Youth Justice Department.
7)    The applicant is not to associate with any co-accused.
8)    The applicant is not to contact, or attempt to contact, either directly or indirectly, by any means, including via social media, the complainant or any witnesses for the prosecution, except for the informant.
9)    The applicant is to continue with the educational programme commenced

while at the Youth Justice Centre […], but as an external student, and
thereafter is to attend the […] electrician course at […] TAFE, scheduled to
commence in July 2015, subject to his obtaining employment.
10) The applicant is not to publish, or to cause anyone else to publish, any information concerning the complainant on social media.
11) The applicant is to appear at the Children’s Court at […] on 9 June 2015 and
thereafter as directed by that court.

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publish or cause to be published, except with the permission of the President of the Children’s Court,
a report of a proceeding in that court, or of a proceeding of any other court arising out of a proceeding in that court, that contains particulars likely to lead to the identification of (i) the particular venue of
the Children’s Court in which the proceeding was heard, (ii) a child or other party to the proceeding
or (iii) a witness in the proceeding. Section 534(4) deems various particulars as likely to lead to the identification of a person. In conformity with s 534, the child in this case is described as SG; and the police informant, witnesses, co-accused and other persons and other relevant pieces of information will be described elliptically as well.

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with (summary) offences against the Bail Act, namely committing each of the indictable offences
alleged whilst on bail, contrary to s 30B (see s 4(4)(d) of the Bail Act).

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[2015] VSC 264

29 May 2015