TAS v The Queen - [2020] SASC 172

Supreme Court of South Australia
(Criminal: Application)
TAS v THE QUEEN
[2020] SASC 172
Judgment of The Honourable Justice Livesey (ex tempore)
15 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with robbery by force and arson. Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing her bail.
Held, allowing the application; bail is granted. Observations made regarding the presumption in favour of bail in the case of children subject to the Young Offenders Act 1993 (SA).
Bail Act 1985 (SA) s 14, s 10; Criminal Law Consolidation Act 1935 (SA) s 137(1), s 85(1); Summary Offences Act 1953 (SA) s 74AB; Young Offenders Act 1993 (SA) s 3, s 10, referred to.

TAS v THE QUEEN
[2020] SASC 172
Criminal: Application for review of bail

LIVESEY J: The applicant seeks a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) following the refusal of bail by a Magistrate in the Adelaide Youth Court on 4 September 2020.
The Magistrate refused bail on the sole ground of the seriousness of the alleged offending.
The circumstances of the alleged offending
The applicant has been charged on Information as follows:
1On 2 September 2020 at Elizabeth she committed robbery by force by taking a motor vehicle, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The offence is charged as an aggravated offence because it occurred in the company of another person.
2On 2 September 2020 at Largs North she committed arson by setting fire to a motor vehicle, with the damage amounting to more than $30,000, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA).
As the Magistrate rightly recognised, the alleged offending is indeed serious.
The prosecution alleges that at just before 4:00 pm the complainant was leaving the Elizabeth City shopping centre and walking to her vehicle outside a supermarket entrance when she heard a female yell “slut”. She was then accosted by a woman whom I am told is known as B, who said to the complainant “my friend said you called me a slut”. That woman then repeatedly punched the complainant’s face and, once the complainant had fallen to the ground, kicked the complainant’s face. It is alleged that the applicant then grabbed the complainant’s car keys, got into the driver’s seat and both the applicant and the female known as B drove off, taking the complainant’s handbag and its contents.
Both the applicant and B were wearing hoods covering their heads as well as surgical masks. The complainant managed to take a photograph of her assailants on her mobile phone. She was taken to the Lyell McEwin Hospital by ambulance and diagnosed with a fractured jaw which required surgery.
At around 9:50 pm that evening the complainant’s vehicle was located on fire at North Haven Football Club on Victoria Road at Largs North.
Acting on information received, police attended at an address in Salisbury North on 4 September 2020 and, under the authority of a general search warrant, entered and arrested the applicant. Police obtained closed circuit television footage from a store at Elizabeth which it will be alleged depicts the applicant and her co-accused wearing the clothing and face protection described by the complainant.
In addition, swabs, fingernail scrapings and photographs of the applicant’s forearms were taken pursuant to a forensic procedure application.
When interviewed, the applicant declined on legal advice to answer questions. However, when asked about the identity of the driver pursuant to s 74AB of the Summary Offences Act 1953 (SA), the applicant said that the vehicle was driven by B who attends the same school as the applicant.
Whilst the charges are very serious, counsel for the applicant submitted that there were likely to be “negotiations”, and in all probability “a plea of some sort”. It was thought that negotiations would likely take some months.
Circumstances of applicant
The applicant is 15 years of age. She lives with her mother and two sisters in Novar Gardens and, I was told, regularly attends school in Bowden. When it was pointed out that it was unlikely that the applicant could attend school in Bowden and be in a position to commit the offending in Elizabeth just before 4:00 pm no satisfactory explanation could be given.
The applicant has limited criminal antecedents. Three offences were committed in January and early February 2019 which resulted in a family conference under s 10 of the Young Offenders Act 1993 (SA). The applicant apparently told one of the prosecution witnesses that she had previously been “in trouble” at the Elizabeth City Shopping Centre for “bashing a security guard”.
I have little information about the applicant apart from the fact that her father died some years ago and she has a significant learning disability and severe difficulties across a range of capacities. These were the subject of an assessment and a report prepared by a speech pathologist on 24 November 2016. In addition, the applicant has been diagnosed with ADHD and has been prescribed medication.
It is apparent from the prosecution allegations that, though the applicant is said to be living with her mother and sisters, she was spending nights at the home of her boyfriend in Salisbury North. They have been in a relationship for two or three months. Apparently, the parents of the applicant’s boyfriend will say that they were asked to collect the applicant from the Salisbury Interchange late in the evening of 2 September 2020. They declined. A short time later the applicant arrived at their home in the early hours of 3 September 2020 and it was necessary to quieten the applicant.
The following morning the applicant showed one of the parents an image of the complainant’s stolen vehicle, and apparently admitted that “her mate” had “stomped on the lady’s head” and “took her money, keys, and bag”. The parent recognised the applicant in the image that she was shown, apparently taken from a service station.
The application that the applicant be released on bail into the care of her mother is complicated by the fact that her mother was also arrested in connection with assisting the applicant in respect of the subject alleged offending, contrary to s 241 of the Criminal Law Consolidation Act 1935 (SA). The prosecution will allege that an examination of the applicant’s mobile phone and her mother’s mobile phone revealed evidence of the applicant telling her mother that she was in the complainant’s stolen vehicle by reference to a South Australian Police news article. Messaging between the applicant and her mother is alleged to include advice from her mother to remove fingerprints from the vehicle as well as offering assistance to “torch the car”.
In these circumstances it is contended that it is inappropriate that the applicant reside with her mother.
Nonetheless, it was urged that the applicant and her mother are both contrite. They were both tearful and plainly upset during the initial hearing of this bail review.
Consideration of the bail review
As might be expected, the applicant emphasised the presumption in favour of bail under s 10 of the Bail Act 1985 (SA), arguing that remand in custody, particularly in the youth jurisdiction, is “an option of last resort”.
The applicant urged that, notwithstanding the seriousness of the charges of aggravated robbery and arson, “strict simple bail” is appropriate with conditions that include a curfew and the requirement to attend school. I interpolate here that the applicant acknowledged that she could not continue to spend evenings with her boyfriend in the home of his parents.
Emphasis was placed upon the objects and statutory policies laid down by s 3 of the Youth Offenders Act 1999 (SA):
3—Objects and statutory policies
(1)The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential.
(2)The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
(a)     a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
(b)     the community, and individual members of it, must be adequately protected against violent or wrongful acts.
(2a)In imposing sanctions on a youth for illegal conduct regard should be had to the deterrent effect any proposed sanction may have on the youth.
(3)Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
(a)     compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
(ab)   compensation and restitution should also be provided, where appropriate, for persons who have suffered loss or damage as a result of offences committed by youths;
(b)     family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;
(c)     a youth should not be withdrawn unnecessarily from the youth’s family environment;
(d)     there should be no unnecessary interruption of a youth’s education or employment;
(e)     a youth’s sense of racial, ethnic or cultural identity should not be impaired.
(4)This section does not apply to a court imposing sanctions on a youth who is being dealt with as an adult, whether because the youth’s conduct is part of a pattern of repeated illegal conduct or for some other reason, including, for example, the gravity of the illegal conduct (and the laws applying in relation to the sentencing of an adult apply to such a youth).
It is well recognised that, speaking generally, the approach taken under the criminal law in South Australia to the prosecution, sentencing and rehabilitation of children differs from the approach taken to adults. For example, general deterrence is not normally an appropriate matter to take into account when sentencing children.[1] This approach accords with the approach in Victoria.[2] By contrast, general deterrence and denunciation appear to be relevant factors when sentencing children in Western Australia[3] and New South Wales.[4]
[1]    R v S (1982) 31 SASR 264, 265 (King CJ), 268 (Zelling J). See also R v Homer (1976) 13 SASR 377, 382-383 and Hallam v O'Day (1979) 22 SASR 133, 135-136.
[2]    CNK v R (2011) 32 VR 641, [10] and [26]-[27] (Maxwell P, Harper JA and Lasry AJA).
[3]    JA (a child) v The State of Western Australia [2008] WASCA 70, [17] (McLure J, with whom Steytler and Pullin JJ agreed).
[4]    R v JDP (1991) 53 A Crim R 112, 116 (CCA) and R v NMTP [2000] NSWSC 1170 (Bell J).
The different approach required for children under the criminal law is a product of the objects and statutory policies laid down by the Youth Offenders Act 1999 (SA). Whilst there is nothing explicit in the Bail Act 1985 (SA) addressing the approach required in the case of children in custody, it seems to me appropriate that I have regard to objects and policies mandated by the Youth Offenders Act 1999 (SA), including the emphasis which must be given to education, rehabilitation and the need to preserve and strengthen family relationships.[5] Nonetheless I do not lose sight of the need for adequate protection of the community, and individual members of it, against violent or wrongful acts by children.
[5] Section 10(1)(g) of the Bail Act 1985 (SA) "any other relevant matter".
In my view, the presumption in favour of bail must therefore carry particular weight in the case of children, albeit balanced by the need to have regard to the matters set out in s 10 of the Bail Act 1985 (SA), including the need for protection of the community, in general, and the complainant, in particular.
So, in this case, it is understandable that the complainant remains anxious about the risk of further offending in circumstances where her handbag and its contents have not yet been recovered. I must also have regard to the gravity of the offences for which the applicant has been taken into custody.
Though the applicant pressed for simple bail with strict conditions, I wished to consider the option of strict home detention bail with electronic monitoring and, after hearing the parties, on 10 September 2020 I ordered that a home detention inquiry report be obtained with expedition. Accordingly, I adjourned the matter for further hearing to today. That report has now been received (for which I am thankful) and it indicates that the proposed premises are suitable. However, the report also emphasises concerns about whether the applicant should reside with her mother in the circumstances earlier described.
Disposition of the bail review
Though the respondent maintains that strict home detention bail in the home of the applicant’s mother is inappropriate because they are both co-accused, there is, realistically, no alternative. Though it is suggested that there is a risk that these co-accused will confer and that this may affect the available evidence, the evidence against the applicant’s mother, as I understand it, is based upon mobile phone messages which are in the hands of police and which cannot now be altered.
As well, I think it appropriate to have regard to the preservation and strengthening of the applicant's family relationships and the evident need for her to attend school. To some extent, concern about the oversight of the applicant can be met by a condition that she be supervised by the Department of Human Services, Youth Justice and subjected to their lawful direction.
I think that these objectives can be met whilst protecting the community by requiring that the applicant be subjected to electronic monitoring so that her whereabouts can be known and detected. I make these observations well recognising that it is a very serious matter to subject a child to electronic monitoring.
Accordingly, and in these circumstances, I have determined to grant bail on strict home detention conditions, which include requirements for electronic monitoring and for the applicant to attend school.
I will ask my associate to hand out a draft bail agreement and allow the parties to confer regarding the precise terms of that agreement.