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Re DF [2024] VSC 122 (18 March 2024)

Last Updated: 26 March 2024

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2024 0048

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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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HIS HONOUR:

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.