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Supreme Court of Victoria |
Last Updated: 26 March 2024
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Respondents
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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18 March 2024
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW — Application for bail — DF, aged 16, charged with numerous offences, including intentionally causing serious injury, failing to stop after collision, theft of motor car — Police allege DF, while in stolen car with other youths, deliberately drove at cyclist, and then at another a short time later, knocking each rider off bike, thereby causing serious injury, and failed to stop — Incidents in part recorded on mobile phone and CCTV — Police allege that, eight days later, while holding an axe and in company, DF robbed another youth of phone — Whether compelling reason justifying bail — Whether, if bailed, unacceptable risk of endangering safety or welfare of others and of offending — On remand in youth detention for nearly seven weeks — DF, born in Samoa, living with uncle and extended family in Melbourne — Uncle and family overseas when most serious alleged offending occurred — Enrolled in school, but past history of truanting — Casual employment available with uncle on weekends — Assessed by Youth Justice as suitable for supervised bail program — Uncle undertakes to ensure DF, if bailed, taken to and from school, Youth Justice appointments and court hearings, and to report failures to comply with bail — No prior findings of guilt — Expected delay of another six to nine months before contested hearings in Children’s Court — Whether delay likely to exceed any custodial component of sentence, if found guilty — Compelling reason established — Asserted risk not unacceptable — Bail granted on own undertaking with conditions — Bail Act 1977 (Vic), ss 3AAA, 3B, 4, 4AA, 4C, 4D & 4E.
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APPEARANCES:
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Counsel
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Solicitors
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For the applicant
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Mr D. De Witt
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Claudia Grimberg Lawyers
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For the respondents
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Mr A. Albore
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Victoria Police, Legal Practice Group
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Summary of alleged offending
1 “Hit him, hit him! Hit him, hit
him!” This is what a passenger in a stolen car urged the driver to do as
they neared
a cyclist. The bike’s red tail light stood out starkly ahead
of them in the dark of the early morn of 23 January on Beach
Road in
Beaumaris. Someone — there seemed to be at least three on board, but it
is not clear which of them — then made
the sound
five‑year‑olds make when playing with Matchbox toys as the car
veered frighteningly close to the cyclist.
But, instead of the car swerving
away at the last moment — as one might expect, or at least hope — it
actually struck
the rider. The impact was so hard that the left side of the
car’s windscreen cracked in a spiderweb pattern, and the rider
was left
with a broken ankle and bleeding on the brain, among other
injuries.
2 Amid the laughter that followed —
perhaps nervous, perhaps not — one of the car’s occupants then said,
“Oh,
fuck! Oh, shit! My bad.” This might have been the passenger
who urged the driver to hit the cyclist, as his voice sounds
the same. It might
have been the driver. It’s not clear. A different occupant —
probably a back seat passenger —
immediately said something like,
“Hey, c’mon, pull over! C’mon, pull over.” But the
driver did not stop.
Instead, he drove on apace, leaving the seriously injured
cyclist for dead.
3 We know this horror show occurred
because boys — yes, children of 14 and 17 — in the car recorded it
on their phones,
in sound and vision. And, as is the way nowadays, the
recordings somehow ended up on social media.
4 It is
hard to believe that things could be worse. But they are. For it is alleged
that, only a short while earlier, the same driver
with the same passengers in
the same car did the same thing on the same road to another cyclist with the
same result — that
is to say, another rider was sideswiped from behind,
was seriously injured (including suffering three broken vertebrae), and was
given no assistance by those that caused the
harm.
5 It is also alleged that others connected with
the stolen car that struck the two cyclists — which was a Holden Astra
—were
just ahead in another stolen car — a Nissan
Pathfinder.
6 DF is alleged to be the driver of the
Astra that struck the cyclists. He is only 16. He now applies to this Court
for bail.
7 DF was arrested on 31 January and
charged with a series of offences, including two counts of intentionally causing
serious injury,
reckless conduct endangering life (in the alternative),
failing to stop after each incident, car thefts, and various other driving
offences. He was remanded in custody. On 28 February, he was refused bail
by the Children’s Court. Thus, he has been in
custody for the last
seven weeks on these and other charges.
8 The
other charges on which DF is in custody (and in respect of which bail is sought)
include theft of motor car, armed robbery and
more driving offences. It is
alleged that, before his arrest on 31 January, DF was again in the company
of other youths in a stolen
Lexus. He stepped out of the car and, while holding
an axe, robbed a boy of 17 of his mobile phone. Later in the day, the same
stolen Lexus was seen driving in a dangerous manner on the Monash Freeway until
it was abandoned at Chadstone Shopping Centre. It
is alleged that DF was the
driver. Four hours later, he was arrested along with three other youths in
Noble Park.
Other alleged offending
9 DF faces other charges for which he does not require bail. In particular, after his arrest and charge on the foregoing matters, on 1 February, he was charged on summons with robbery and aggravated burglary. It is alleged that, on 26 January, DF approached a boy of 15[1] at a food court outside the cinemas at Southland, slapped him in the face, showed him a black‑handled knife, and stole his phone. It is also alleged that, on 27 January, DF and two other youths were seen in the internal doorway and the garage of a suburban residence in Waterways. All three fled when seen.
DF’s personal circumstances
10 I turn now to DF’s personal
circumstances, which are outlined in part in a report from Youth Justice, and
about which I heard
more in viva voce evidence today from Senior
Constable Nicholas Heyne (the informant in the matter concerning the cyclists),
DF’s uncle GH, and
Tom McGregor, who is a team leader at Youth
Justice.
11 DF was born in Samoa. At the age of six,
his parents sent him (and his brothers) to live with an aunt and uncle in
Sydney. His
parents’ aim was to give DF and his older brothers the
opportunity of a better life. Further, DF was to be adopted by his
aunt and
uncle, and I was told today by GH that he was in fact adopted by those
relatives.
12 However, in 2022, DF was moved to
Victoria to live with GH and his wife (DF’s aunt). Also living there
are GH’s three
daughters, two adoptive cousins, and one of DF’s
older brothers. GH has a bakery business in suburban Melbourne. DF has worked
with GH in that business on weekends and before school on
occasions.
13 DF told Youth Justice that he believed
he was moved to Melbourne because of his challenging behaviours. His aunt in
Sydney found
it difficult to parent him because of his absconding, which, on one
occasion, resulted in police attending the home because he was
thought to be a
missing person.
14 In his evidence, Mr McGregor
explained that, in discussions with DF’s secondary school, Youth Justice
have been informed
that DF had strong school attendances until June 2023, when
he absconded from his home for an extended period and disengaged from
education.
He returned to school in October 2023, and when not in school was employed at
GH’s business.
15 In Mr McGregor’s
opinion, GH appears to be proactive in relation to DF. This was said to be
evidenced by his reporting DF
as a missing person on three occasions on which he
went missing during 2023, and by taking him to his workplace and monitoring him
when he was disengaged with schooling.
16 DF’s
most recent instance of absconding occurred on New Year’s Eve last year.
As GH explained in his viva voce evidence, this was nine days before
he and his family were due to depart for Samoa to connect with their wider
family, on 9 January,
with an eventual return date of 26 January.
Earlier, GH had explained to DF that he was welcome to come with them to Samoa,
and
he even bought him an airline ticket. But DF refused to go. GH believes DF
feared he would be left in Samoa if he went with
them.
17 GH also explained that an
18‑year‑old relative was left to care for DF while they were in
Samoa. GH told the relative
to tell DF to come home when he called. When he
got to Samoa, GH made an online police report that DF was
missing.
18 Importantly, this period while GH and his
family were away included the day when, it is alleged, DF committed the offences
concerning
the cyclists. For, as I have said, this alleged offending occurred
on 23 January, three days before GH and his family returned from
Samoa.
19 While it is easy to be wise in hindsight,
it strikes me that it was rather unwise to leave a 16‑year‑old boy
as troubled
as DF appeared to be without the supervision of his guardians. I am
also of the view that it was an inadequate substitute to leave
DF under the
(potential) supervision of a relative only two years older than
him.
20 Mr Albore, who appears for the informants,
submitted that this state of affairs also suggested that I should not be
confident in
the promised future supervision by GH of DF, were he to be released
on bail. However, I disagree. GH has now been made aware of
what DF is alleged
to have done, and I am satisfied that he realises the importance of supervising
him carefully, were he to be released
on bail. I also accept GH’s
assurances that, were DF bailed, he would ensure, with the assistance of his
family, that DF is
taken to and from school, to Youth Justice appointments and
to court appearances, and that he would report any breaches of bail to
Youth
Justice or the police.
21 I also accept Mr
McGregor’s evidence to the effect that DF appeared to be: genuine in his
promises to return to school; motivated
to attend any appointments with Youth
Justice and to engage in their supervised bail program; accepting of the need to
stay away
from his co‑accused; and prepared to comply with the proposed
conditions of bail.
22 Mr McGregor also opined that
DF was vulnerable to adverse peer influences in custody. In his view, some of
his poor behaviour
in custody was influenced by his exposure to youths who were
experienced in detention in a youth justice centre, and that DF was
unaware of
the “politics” of the custodial
environment.
23 I am satisfied that DF’s time
in custody over the last 47 days (or nearly seven weeks) has been
a salutary experience for
him, and that his assurances to Mr McGregor are
genuine.
Applicable tests for bail
24 Given the nature of some of the charges
he faces, in order to be bailed, DF must satisfy the Court that a compelling
reason exists
that justifies a grant of
bail.[2]
25 If
he meets that threshold, bail will still be refused if the prosecution satisfies
the Court that there is an unacceptable risk
that DF would, if released on bail,
endanger the safety or welfare of any person or commit an offence while on
bail.[3] If the prosecution fails to
satisfy the Court of the asserted unacceptable risk, DF is entitled to
bail.[4]
Compelling reason
Submissions
26 Mr De Witt, who appears for DF, submits
that a number of matters in combination should cause me to conclude that a
compelling reason
does exist that justifies
bail.
27 Mr Albore accepts that it is open to find
that a compelling reason exists.
Consideration
28 I agree. Notwithstanding the gravity
of the alleged offending — especially that involving the cyclists —
at least
the following factors, in combination, amount to a compelling reason
justifying bail.
29 First, DF, at 16, is only a
child in law.
30 In this connection, it is important
to note s 3B(1) of the Bail Act, which provides that, in making a
determination under the Act in relation to a child, a court must take into
account (in addition
to any other requirements of the Act) the following
things:
(a) the need to consider all other options before remanding the child in custody;
(b) the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers;
(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance;
(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(e) the need to minimise the stigma to the child resulting from being remanded in custody;
(f) the likely sentence should the child be found guilty of the offence charged; and
(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
31 Second, it is significant that DF has
no previous criminal history
whatsoever.[5]
32 Third,
this is his first time in
custody.[6]
33 Fourth,
Youth Justice have assessed him as suitable for their supervised bail
program.
34 Fifth, he has stable accommodation with
GH and his family, and, I accept, he would be supported by them were he released
on
bail.[7]
35 Sixth,
I accept that it would be desirable if DF’s education were to continue in
the
community.[8]
36 Seventh,
he would have part‑time employment with his uncle GH on weekends to assist
in keeping him
occupied.[9]
37 These
matters are sufficient to cause me to accept the submission, and the
concession, that there is a compelling reason justifying
bail.
Unacceptable risk
Submissions
38 As to unacceptable risk, Mr Albore
submitted that there were six factors compelling the view that, if bailed, there
would be an
unacceptable risk that DF would endanger the safety or welfare of
any person or commit an offence.
39 First, there was
the seriousness of the alleged offences, especially those concerning the
cyclists.[10] As he said, the fact
that the offending alleged concerned deliberately driving into two cyclists on
separate occasions, whose injuries
are serious, and a failure to stop on each
occasion, makes it particularly serious. Further, while he accepted that there
is no
evidence that DF distributed the images, Mr Albore submitted that he
must have been aware that the second incident was being
filmed.[11]
40 Second,
while Mr Albore accepted that the prosecution case was not strong on the charges
concerning the cyclists, he submitted
that it was not weak
either.[12] In this regard, I note
that Mr De Witt had submitted that there were triable issues at least
concerning identification and DF’s
alleged role in that alleged offending.
As for the armed robbery charge, Mr Albore submitted that the prosecution
case was strong,
but he accepted that, were this the only charge, DF would have
been bailed.
41 Third, Mr Albore submitted that,
contrary to the submission of Mr De Witt, I should be satisfied that,
if bail were refused, the
time spent on remand would not exceed the sentence in
detention likely to be imposed were DF convicted of all the offences
alleged.[13] In particular, he
submitted that the alleged offending concerning the cyclists was so serious that
even a first offender of 16 would
be sentenced to a period of detention in a
youth justice centre. Further, he submitted that the delay before contested
hearings
were reached was more likely to be six months, and not the
nine months or more submitted by
Mr De Witt.
42 Fourth, Mr Albore submitted
that the notion of parity in bail was of little weight here. I
agree.[14]
43 Fifth,
he submitted that the level of supervision offered by Youth
Justice[15] would not be sufficient
to offset the risk to something short of an unacceptable risk. While it was
accepted by Mr Albore that DF
was a suitable candidate for supervision by
Youth Justice, he submitted that the effectiveness of that supervision depended
in large
part on his staying at school, whereas he had shown in the past that he
would disengage from schooling frequently.
44 Sixth,
he made a similar submission about the level of supervision offered by
DF’s uncle.[16] He reiterated
the concern that GH had not reported DF missing immediately when he left the
home at the end of last year but instead
had done so only when in Samoa, which
had to be on or after 9 January.
45 On the
question of unacceptable risk, Mr De Witt relied on the same factors that he
relied on as going to whether there was a compelling
reason justifying bail. In
addition to those matters mentioned earlier, he submitted the
following.
46 First, in his submission, there is a
real possibility that, if DF were found guilty at contested hearing, he would
not receive
a custodial sentence.
47 Second, he
submitted that there is likely to be a substantial delay associated with
disclosure and listing contested hearings in
the Children’s Court, perhaps
in the order of nine months. As I said a moment ago, Mr Albore
submitted that that delay is
more likely to be about
six months.
48 Third, Mr De Witt also
emphasised DF’s status as a child and the importance of the factors
mentioned in s 3B of the Bail
Act.
49 Fourth, he submitted that there is a
risk of contamination were DF, an alleged first offender, held in custody until
hearing.
This submission was supported by the concerns expressed by
Mr McGregor in his evidence.
Consideration
50 As I indicated before I went off the
bench to consider this matter, I have found it more difficult than
usual.
51 I accept Mr Albore’s submission
about the seriousness of the alleged offending concerning the cyclists. Indeed,
it is behaviour
that must send a chill down the spine of every cyclist. For a
person to drive a car, deliberately, in a way that involves side‑swiping
or otherwise colliding with a cyclist from behind is a terrible thing to do, and
is all the worse when the cyclist is seriously injured,
and is left on the side
of the road without stopping or providing any assistance. Further, that the
same thing was allegedly done
twice within a short space of time makes the
behaviour, collectively, all the more
serious.
52 That said, after anxious consideration,
having regard in particular to the evidence I have heard from Mr McGregor
and GH, which
I accept, and the proposed conditions of bail, I am not satisfied
that the risk of endangering the safety or welfare of others or
of committing an
offence while on bail is unacceptable.
53 The
conditions proposed are designed to ensure that DF attends school, his
appointments with Youth Justice and his work commitments
with his uncle of a
weekend. Because these conditions will mean that most of his daylight hours are
spent undertaking educative
or other pro‑social activities, he will have
less opportunity to engage in offending behaviour. If he can do so without an
unacceptable risk of the kind asserted, as a boy of 16, he should be on bail so
that he can attend school and Youth Justice appointments
during the week, and
work on the weekends.
54 These conditions are
bolstered in that effect by the other conditions, including a night curfew, a
requirement that he present
himself to the door of his residence during the
curfew hours (if requested to do so by police), a prohibition on driving a motor
car (notwithstanding he has a leaner’s permit), and a prohibition on
contacting or associating with his co‑accused in
the cyclist
matters.
55 Further, I am satisfied by the evidence
of Mr McGregor and GH that DF is motivated to comply with these conditions.
Moreover, I
am satisfied that he understands that, if he were to fail to comply
with these conditions, his failures would be reported to the
informants, which
in turn would risk an application to revoke his bail, with the consequence that
he may lose his liberty again.
56 Thus, I do not
accept Mr Albore’s submission about the ineffectiveness of the Youth
Justice Bail Supervision Program or GH’s
promised supervision in
curtailing the risk DF would present on bail.
57 Of
course, I cannot know whether DF will succeed in adhering to these conditions.
However, it must be remembered that this is
his first time in custody, and that
he is a child with no prior convictions or findings of guilt who has never had
the opportunity
to show that he can comply with conditions like these.
Section 3B(1)(a) of the Bail Act compels me to have regard to
“the need to consider all other options before remanding the child in
custody”. In the
circumstances of this case, notwithstanding the
terrifying and grave nature of the alleged offences concerning the cyclists, I
am
satisfied that this other option — namely, release on bail on these
proposed conditions — is worth trying for its own
sake, and because I
accept that it does reduce the relevant risk to a level that is not
unacceptable.
58 It is unnecessary to decide whether
refusing DF bail would amount to a form of preventative detention. That said,
there would
be at least some risk of that outcome were I to refuse bail. This
is because there will be at least a six‑month delay before
a final hearing
and because a magistrate may well consider that, in view of the principles that
apply to sentencing children, DF’s
lack of criminal history and all other
relevant considerations, and notwithstanding the gravity of the alleged
offending, a non‑custodial
sentence would be appropriate were he found
guilty of those alleged offences. Further, it is also possible that a
magistrate would
consider that seven‑and‑a‑half months in
immediate custody would be more than enough for this alleged
16‑year‑old
offender and these alleged offences. But, as I say, it
is unnecessary to decide whether that is a “likely”
outcome,[17] for the other matters I
have mentioned are sufficient to cause me to conclude that I am not satisfied
that the risk asserted amounts
to an unacceptable
risk.
59 Finally, I note that, in coming to this
view, I have also taken into account the guiding principles in s 1B of the
Bail Act, which include that the Parliament recognises the
importance of, on the one hand, maximising the safety of the community
and persons
affected by crime to the greatest extent possible and, on the
other, taking account of the presumption of innocence and the right
to
liberty.
60 Accordingly, I shall grant DF’s
application for bail and make the following orders.
Orders
61 I order that DF be admitted to bail on his own undertaking and on the following conditions, namely that he:
(a) is to reside at [redacted] (“the residence”);
(b) is to be present at the residence between the hours of 9:00 p.m. and 6:00 a.m. (“the curfew hours”) unless in the company of [GH], [GH’s wife] or a nominee of Youth Justice;
(c) is to present himself at the door of the residence during the curfew hours, if requested to do so by a member of Victoria Police;
(d) is not to contact witnesses for the prosecution, except the informants or their nominees;
(e) is to comply with all lawful requirements of the Youth Justice Supervised Bail Program;
(f) is not to contact (whether by telephone, messaging or social media) or associate with any co‑accused, namely [redacted], [redacted], [redacted], [redacted] or [redacted];
(g) is not to drive a motor vehicle; and
(h) is to appear at the Children’s Court at [redacted] for mention at 9:30 a.m. on 20 March 2024, and thereafter as directed by that court.
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[1] In one part of the materials before the Court, this boy’s age is given as 15, whereas in another part it is said that he was 14.
[2] This is because intentionally causing serious injury and armed robbery are Schedule 2 offences (see Schedule 2, items 6 and 22(a), and ss 4AA(3) and 4C of the Bail Act 1977 (Vic)).
[3] See ss 4D and 4E of the Bail Act 1977 (Vic). There was no assertion, pursuant to s 4E(1)(a)(iii) or (iv), that there was an unacceptable risk that DF would, if released on bail, interfere with witnesses or otherwise obstruct the course of justice in any matter or fail to surrender into custody in accordance with the conditions of bail.
[4] See s 4 of the Bail Act 1977 (Vic).
[5] See s 3B(1)(e) of the Bail Act 1977 (Vic).
[6] See s 3B(1)(e) of the Bail Act 1977 (Vic).
[7] See s 3B(1)(b) and (c) of the Bail Act 1977 (Vic).
[8] See s 3B(1)(d) of the Bail Act 1977 (Vic).
[9] See s 3B(1)(d) of the Bail Act 1977 (Vic).
[10] See s 3AAA(1)(a) of the Bail Act 1977 (Vic).
[11] I note also that, in Senior Constable Heyne’s report, the two cyclists and the boy who was allegedly the victim of an armed robbery are “strongly opposed” to bail (see s 3AAA(1)(j) of the Bail Act 1977 (Vic)).
[12] See s 3AAA(1)(b) of the Bail Act 1977 (Vic).
[13] See s 3AAA(1)(i) of the Bail Act 1977 (Vic).
[14] In this regard, I note that four of the other boys alleged to be part of the offending connected with the cyclists were charged with theft of motor car only. The fifth was charged with offences concerning the reckless conduct endangering life with respect to only the second incident, and that boy was only 14 and had a limited criminal history.
[15] See s 3AAA(1)(k) and (l) of the Bail Act 1977 (Vic).
[16] See s 3AAA(1)(g) of the Bail Act 1977 (Vic).
[17] See s 3AAA(1)(k) and (l) of the Bail Act 1977 (Vic), which refer to the length of time the accused is “likely” to spend in custody if bail is refused and to the “likely” sentence to be imposed should the accused be found guilty.
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