TM v AH
[2014] VSC 560
•5 November 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0166
IN THE MATTER of an Application for Bail by TM (a child)
Between:
| TM (a child) | Applicant |
| and | |
| AH & Ors (police officers) | Respondents |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2014 | |
DATE OF JUDGMENT: | 5 November 2014 | |
CASE MAY BE CITED AS: | TM v AH & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 560 | First revision: 18 February 2015 |
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CRIMINAL LAW - Application for bail by Aboriginal boy aged 14 with intellectual disability – Applicant refused bail by magistrate pending appeal against ten-month sentence of detention in youth residential facility and in respect of several other charges for offences, some of which allegedly committed while on bail – Whether applicant has shown cause why detention not justified – Whether respondents have shown an unacceptable risk of offending on bail – Bail granted on own undertaking with conditions including as to residence, a curfew, a prohibition on driving a motor vehicle and compliance with directions of the Department of Human Services.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms D. Caruso | Victorian Aboriginal Legal Service |
| For the Respondent | Mr J. Kibel | Victoria Police Legal Services Department |
HIS HONOUR:
Introduction
“TM”[1] is a 14-year-old boy of Aboriginal heritage. On 31 October 2014, I heard TM’s application for bail in respect of numerous charges. At that time, I indicated I would grant bail today, 5 November 2014, albeit on restrictive conditions. My reasons for that decision and the proposed orders follow.
[1] Section 534(1) of the Children, Youth and Families Act 2005 (Vic) provides inter alia that a person must not 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 TM; and the various police informants, witnesses, other persons and other relevant pieces of information will be described elliptically as well.
Background
TM did not get much of a start in life. He was born in a youth detention centre in Melbourne. He does not know the identity of his father. His mother was only 16 at the time of his birth – not much older than he is now. She had been detained on charges of criminal offending arising out of a car accident in which two of her passengers were killed.
TM’s luck did not improve. He is intellectually disabled. While opinions vary, his IQ has been estimated at 70 when aged six, 50 when aged eight, 52 when aged 11 and as low as 43 when aged 12. As recently as last year, a psychologist opined that he was doli incapax. He reads, but barely at the level of a prep child. He does not understand concepts such as time, in terms of the hour of the day, but recognizes sunset and sunrise. He finds difficulty grasping the notion that his case in this Court was adjourned from a Friday to the next Wednesday. A psychologist has advised that any spoken instruction must be given to TM in brief sentences presenting just one idea at a time.
For most of his short life, TM has been in the care of his grandparents, whom he loves. His mother relinquished him to her parents’ care when he was only a few weeks old. He has several half-siblings and a large extended family. A psychologist has reported that TM “was raised in a chaotic home [on a mission], and exposed to alcohol abuse, drug abuse, and ongoing family violence in sometimes fraught family dynamics, in a home where extended relatives came and went”. There is also evidence that he has engaged in “chroming” in recent times.
Since October 2013, TM has been in the care of the Secretary of the Department of Human Services (“DHS”) pursuant to a custody to the Secretary order. He has lived in a therapeutic residential unit (“the unit”) for Aboriginal children in a large country town in Victoria. The unit is run by an Aboriginal service organization in agreement with the DHS.
Family is important to TM. Perhaps not surprisingly, he has left the unit quite often, sometimes without permission, to visit his grandparents or extended family. However, when his grandparents are not home, TM has on occasions wandered off and got himself into trouble of varying degrees of seriousness. Sometimes by himself, but at other times in the company of cousins, some of them adults and some of them young, TM has engaged in criminal offending. The offending has ranged from the child-like (such as damaging fly wire screens at the unit and stealing another boy’s BMX bike) to the more concerning (such as stealing cars, unlicensed driving, burglaries and even an aggravated burglary – albeit of the “persons present/intention to steal” variety).
Sadly, because of such behaviour, TM is now back where he was born. He is serving a ten-month period of detention in a youth residential centre in Melbourne. On 4 September 2014, a magistrate imposed that sentence in the Children’s Court for the offences just mentioned, which were committed late last year and early this year. Her Honour (who is a magistrate of considerable experience in the criminal law) imposed such a sentence despite the fact that TM was only 13 and without any prior convictions or findings of guilt (albeit he had previously engaged in behaviour that, but for his doli incapax status, would have amounted to crimes of the same type). To date, he has served almost six months of that sentence – all of it a long way from his home and family.
Ordinarily, TM would have been released on youth parole well before now. But there have been complications. TM has been charged by different police officers with numerous other offences, including car thefts and burglaries, most of which, it is alleged, were committed early this year before he was sentenced. He was bailed on some of those charges but not on others. Also, he has been charged with additional offences allegedly committed while in the youth residential detention centre, including damaging property and assault. Some of these outstanding charges allege indictable offences committed while on bail for charges alleging other indictable offences.
Following the imposition of the ten-month sentence in September, TM’s solicitors filed a notice of appeal against sentence to the County Court. On 2 October 2014, TM applied to the Children’s Court for bail in respect of both the matters on which he had been sentenced and the other outstanding charges in respect of which he had not been bailed. The magistrate (another of considerable experience in the criminal law) refused bail. His Honour found that TM presented an unacceptable risk of offending while on bail.
The appeal to the County Court is not yet listed for hearing. It is expected to be heard on or about 24 November 2014, which is when the next circuit of that court commences in the relevant country town. The appeal was not able to be listed earlier because the last circuit was in August, before the sentence was imposed.
Some of the other outstanding charges have resolved to pleas of guilty; others have not. Some charges have been laid only recently. The likelihood is that the outstanding matters will not be resolved and heard in the Children’s Court until after the appeal to the County Court is determined.
The application in this Court
Applicant must show cause why detention in custody is not justified
In order to be granted bail, because he is charged with some indictable offences alleged to have been committed while on bail for another indictable offence, TM must show cause why his detention in custody is not justified.[2]
[2] See s 4(4)(a) of the Bail Act 1977 (Vic).
Ms Caruso, who appeared for TM in this Court, submitted that a combination of factors warranted the conclusion that such cause had been shown. Those factors included the following:
First, there is TM’s tender age.
Secondly, he is intellectually disabled.
Thirdly, he had no prior convictions or findings of guilt before the sentence under appeal.
Fourthly, there is the requirement in s 3A of the Bail Act 1977 (Vic) that, in “making a determination under the Act in relation to an Aboriginal person, a court must take into account … any issues that arise due to the person’s Aboriginality, including (a) the person’s cultural background, including the person’s ties to extended family or place; and (b) any other relevant cultural issue or obligation”. TM’s ties to his family and home are strong, yet he is a long way from them at the moment and has been in that situation for nearly six months.
Fifthly, Ms Caruso submitted that, even allowing fully for the number and nature of the offences he committed, given the foregoing, it is unusual that TM was given a custodial sentence in September. It follows, the submission continued, that there is a reasonable prospect that, on his de novo hearing on appeal, TM would receive a non-custodial sentence – such as probation or a youth supervision order. She submitted that the same is true in respect of the outstanding charges.
Sixthly, Ms Caruso submitted that measures put in place for TM’s release (which I shall detail below), and the fact that he has now spent a total of six months in custody, reduce the risk of his offending while on bail to a level that is not unacceptable and in turn will render a non-custodial sentence all the more likely.
Mr Kibel, who appeared for the respondent police informants, did not dispute that TM had shown cause. Without conceding that the sentence imposed by the magistrate was wrong, he accepted that a non-custodial sentence would be the more usual outcome for a child of TM’s age and circumstances on the charges he faced.
Respondent must show applicant an unacceptable risk of offending on bail
Mr Kibel’s submission, however, was that there is an unacceptable risk that TM will commit offences while on bail and endanger the safety of members of the public, and/or his own safety, by committing such offences (including driving in cars).[3]
[3] See s 4(2)(d)(i) of the Bail Act 1977 (Vic).
One of the informants, “DA”, whose affidavit was received without objection on the application, said that police were particularly concerned that TM had been involved in the theft of a car that was subsequently involved in a police pursuit at high speed. While it is not alleged that TM was the driver, police are concerned that his willingness to participate in such behaviour poses a significant risk to himself and other members of the community.
Further, DA also pointed out that the incidents giving rise to some of the outstanding charges twice occurred within days of TM’s being bailed in May this year; that he has been charged with breaching bail conditions; that TM repeatedly has failed to abide by the directions of Youth Justice and his care providers at the unit; and that he has been charged with offences of criminal damage and assault in respect of incidents that occurred even while in custody at Melbourne.
Ms Caruso accepted that there was a risk that TM might commit offences while on bail. However, she submitted, correctly, that it is only if that risk is shown to be unacceptable that bail is to be refused. Her submissions, and the evidence on which she relied, were directed at showing that the risk of TM committing offences, and thereby of endangering the public or himself, is not at an unacceptable level.
I received in evidence, without objection, three affidavits from TM’s solicitor (to which various reports of psychologists were exhibited) and another from “GN”, a case worker with the Aboriginal service organization that administers the unit in which TM was living. I also heard viva voce evidence from “MT”, a DHS protective worker who has the day-to-day case management responsibility for TM.
In his affidavit, GN explained that a person approved by the authorities has offered to have TM stay with him and his wife at their station in country New South Wales. The stay would be for a minimum of two weeks from today, 5 November 2014, but could be for longer. The station, which some might say is in the middle of nowhere, is two hours’ drive from the town in which TM usually resides. TM would engage in various activities of cultural significance, including camping, hunting and fishing. If bailed, GN would drive TM directly to the station. He would be supervised while there. In her evidence, MT explained that she had spoken to GN about the possible placement and is satisfied it would be appropriate and potentially beneficial for TM. MT is satisfied that GN and the persons who run the station would notify the authorities were there to be any failure to comply with bail conditions.
MT also gave evidence about the DHS’s longer-term plans for TM should he be released on bail. After his stint at the station, TM would return to live at the unit but with an intensive structured programme involving education, activities and family contact. Recent work with TM has indicated that he learns more effectively through diagrammatic, rather than written, presentations. These will be encouraged. Another aim is that TM will be enrolled in a modified school programme next year. TM will also receive visits from a behavioural support worker on a fortnightly basis. Further, the team of people charged with TM’s care will receive support and consultation from an outside agency. The DHS will also facilitate weekly professional meetings.
The programme is designed not only to educate TM and improve his lot in life but also to ensure that he has plenty to do. It seems that the more time TM has on his hands, the more likely he is to get into trouble. The thinking is that, if he is occupied, TM is more likely to stay out of trouble.
In cross-examination, MT accepted that, while TM is capable of understanding that a breach of the directions given by those charged with his care may have consequences for whether his bail is continued, he had breached those directions on numerous occasions in the past. She also conceded that the staff at the unit could not physically stop TM from leaving the unit if he chose to do so. Be that as it may, TM will simply have to understand that a failure to comply with his bail conditions may well see his bail revoked or his being charged with the offence of contravening a “conduct condition” of bail,[4] which in turn could impact on his liberty.
[4] See s 30A of the Bail Act 1977 (Vic).
Conclusions and orders
I have reached the following conclusions:
First, I am satisfied that TM has shown cause why his detention in custody is not justified. In particular, I am satisfied that TM’s tender age, his intellectual disability, his lack of prior convictions, the requirements of s 3A of the Bail Act, the reasonable prospect that he will receive a non-custodial sentence on appeal, and on the outstanding charges, and the proposed regime put in place for his release all, in combination, compel the view that his further detention in custody is not justified.
Secondly, in view of the same considerations, and particularly the plan put in place for his release, together with the conditions of bail I intend to impose, I am not satisfied that there is an unacceptable risk that, if granted bail, TM will commit offences or endanger his own or the public’s safety. In fact, I am positively satisfied that, while there will always be a risk of those things occurring, that risk is not unacceptable in the present case.
Thirdly, accordingly, I order that, in respect of all matters on which he does not have bail,[5] TM be released on bail on his own undertaking with the following special conditions:
[5] As I understand it, the maters on which TM does not have bail are the charges in respect of which the sentence was imposed on 4 September 2014 (where the informants are “AH”, “KT”, “IA” and “RP”) and the charges in respect of which the informants are “MC” and “KL”. On all other matters, TM was either charged on summons or has bail. If I am wrong about that, then the grant of bail should be taken as extending to any other matters before me on which TM does not have bail.
1)that he reside at [the station in New South Wales] and thereafter at [the unit] or at an address as directed by the Secretary of the Department of Human Services (“DHS”) or his or her nominee;
2)that he not be away from his place of residence between sunset and sunrise unless with the permission of, or in the company of an adult approved by, the Secretary of the DHS or his or her nominee;
3)that he not drive a motor vehicle;
4)that he comply with all lawful directions of the Secretary of the DHS or his or her nominee;
5)that he surrender into custody at the County Court on 24 November 2014, or on any date thereafter that his proposed appeal is listed for hearing, and then not depart without leave of that court and, if leave is given, must return at the time specified by that court and again surrender into custody; and
6)that he surrender into custody at the Children’s Court on the next mention of the matters in respect of which bail has been granted by this Court, and then not depart without leave of that court and, if leave is given, must return at the time specified by that court and again surrender into custody.
I will attempt to explain these conditions, and the potential consequences of failing to comply with them, to TM in simple language, and ask Ms Caruso and/or her instructor to do the same.
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