IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0068

IN THE MATTER of the Bail Act 1977		
		
and		
		
IN THE MATTER of an Application for Bail by TS		

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JUDGE:	BEACH JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	5 April 2024	
DATE OF JUDGMENT:	5 April 2024	
CASE MAY BE CITED AS:	Re TS	
MEDIUM NEUTRAL CITATION:	[2024] VSC 164	

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CRIMINAL LAW – Bail – Sixteen year old child applicant charged with intentionally causing serious injury in circumstances of gross violence and other offences – Applicant accused of Schedule 2 offence – Requirement to show compelling reason justifying grant of bail – Whether compelling reason established – Whether unacceptable risk of endangering safety or welfare of any person, or interfering with witnesses – Compelling reason test made out – Risk of endangering safety or welfare of other persons – Risk not shown to be unacceptable in circumstances – Bail granted on stringent conditions – Bail Act 1977, ss 3AAA, 3B, 4AA, 4C and 4E.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr C Tom	Victoria Legal Aid	
			
For the Respondent	Mr J Sheppard	Ms A Hogan, Solicitor for Public Prosecutions	

HIS HONOUR:
1	The applicant is a 16 year old child who has no prior convictions.  On 20 March 2024, he was arrested and charged with ten offences: one charge of intentionally causing serious injury in circumstances of gross violence (charge 1); one charge of intentionally causing serious injury (charge 2); one charge of intentionally causing injury (charge 3); one charge of affray (charge 4); one charge of assault with a weapon (charge 5); one charge of unlawful assault (charge 6); one charge of using a controlled weapon (charge 7); two charges of committing an indictable offence whilst on bail (charges 8 and 10); and one charge of theft (charge 9).
2	Following his arrest, the applicant was remanded in custody.  An application for bail, made in the Children’s Court, was refused on 28 March 2024.
3	The applicant now applies for bail in this Court.  Because he is accused of a Schedule 2 offence, ss 4AA(3) and 4C(1A) of the Bail Act 1977 (‘the Act’) require this Court to refuse bail unless satisfied that a compelling reason exists that justifies the grant of bail.
The alleged offending
4	Charges 1 to 8 are alleged to have occurred on 17 February 2024.  Charges 9 and 10 are alleged to have occurred 11 days later on 28 February 2024.
5	The Crown allege that, at approximately 5:00 pm on 17 February 2024, the victim of the offending alleged to occur on that day and an unknown male approached a vehicle in which the applicant and three co-accused had been travelling.  The applicant and his co-accused got out of the vehicle.  The applicant was armed with a baseball bat.  One of his co-accused was armed with a machete, one with a knife and one with a hammer.  The victim and the male accompanying him ran.
6	Ultimately, the victim was cornered and fell into a garden bed.  The applicant and his co-accused are alleged to have then struck the victim a number of times with their weapons, as he was holding up his arms to protect himself.  His injuries are alleged to include a deep laceration approximately 20 centimetres in length along his right arm; two stab wounds to his back and torso; and blunt force trauma to his head.  Photographs of the weapons allegedly used in the offending and of some of the victim’s injuries amply demonstrate the horrific nature of this alleged offending (charges 1 to 7).  At the time of this offending, the applicant was on bail — giving rise to charge 8.
7	As I have already said, charges 9 and 10 are alleged to have occurred 11 days later.  On that occasion, the applicant was allegedly a passenger in a motor vehicle when he filled the vehicle with petrol and then drove off without making any attempt to pay (charge 9).  At the time he allegedly committed this offence, the applicant was still on bail — giving rise to charge 10.
Applicant’s background
8	The applicant is 16 years and 9 months of age.  As I have already said, he has no prior convictions.  Prior to being remanded in custody, he lived with his mother and three siblings in their family home.  This is his first time in custody.
9	All of that said, at the time of his alleged offending, the applicant was on bail in respect of other alleged offending as follows:
(1)	On 5 July 2023, the applicant was bailed by Victoria Police in relation to charges of theft and theft of a motor vehicle.  The thefts were alleged to have occurred on 4 July 2023.
(2)	On 21 January 2024, the applicant was bailed by Victoria Police in relation to charges of robbery, affray and assault in company.  This offending is alleged to have occurred during an incident in early November 2023, when the applicant and a 15 year old co-accused robbed a 14 year old male who was waiting at a bus stop.  The co-accused is alleged to have punched the victim of this offending to the face, causing the victim to fall to the ground.  The applicant is alleged to have stood over the victim while the co-accused forcibly removed the victim’s black Nike TN runners.  The co-accused is also alleged to have kicked the victim three times in the chest as he lay on the ground.
(3)	On 23 February 2024, the applicant was bailed by Victoria Police in relation to charges of burglary, theft, criminal damage and trespass.  This offending is alleged to have occurred on 22 February 2024 when the applicant and three co-accused were found by police at a vacant residential property.
10	Additionally, the applicant is currently on summons in relation to charges of stating a false name and unlicensed driving.  This offending is alleged to have occurred on 1 January 2024.
Applicant’s material and contentions
11	The application for bail is supported by an affidavit affirmed by the applicant’s solicitor, Pascal Roth.  As appears to be customary in bail applications, the affidavit contains a mixture of fact and submissions.
12	The affidavit notes that the applicant is a child, before submitting that paragraphs (a), (b), (d)–(h), (j) and (k) of s 3B(1) of the Act apply.  Relevantly, those provisions are as follows:
3B	Determination in relation to a child
(1)	In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act) the following issues—
(a)	the child’s age, maturity and stage of development at the time of the alleged offence;
(b)	the need to impose on the child the minimum intervention required in the circumstances, with the remand of the child being a last resort;
…
(d)	the need to preserve and strengthen the child’s relationships with—
(i)	the child’s parents, guardian and carers; and
(ii)	other significant persons in the child's life;
(e)	the importance of supporting the child to live at home or in safe, stable and secure living arrangements in the community;
(f)	the importance—
(i)	of supporting the child to engage in education, or in training or work; and
(ii)	of that engagement being subject only to minimal interruption or disturbance;
(g)	the need to minimise the stigma to the child resulting from being remanded;
(h)	the fact that time in custody has been shown to pose criminogenic and other risks for children, including—
(i)	a risk that the child will become further involved in the criminal justice system; and
(ii)	a risk of harm;
…
(j)	the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort's over-representation in the criminal justice system—
(i)	Aboriginal children;
(ii)	children involved in the child protection system;
(iii)	children from culturally and linguistically diverse backgrounds;
(k)	whether, if the child were found guilty of the offence charged, it is likely—
(i)	that the child would be sentenced to a term of imprisonment; and
(ii)	if so, that the time the child would spend remanded in custody if bail is refused would exceed that term of imprisonment;
13	In relation to the paragraphs of s 3B(1) upon which the applicant relies, the applicant submitted:
(a)	The applicant is 16 years old.
(b)	The imposition of the Youth Justice Supervised Bail program is an appropriate alternative intervention than custody, with remand of the applicant being a last resort.
(d)	A grant of bail would assist in preserving or strengthening the applicant’s relationship with his mother.
(e)	A grant of bail would support the applicant to life at home in the community.
(f)	A grant of bail would support the applicant’s engagement with education or training with minimal disturbance.
(g)	A grant of bail would avoid the continued stigmatisation of remand.
(h)	The fact that time in custody has been shown to pose criminogenic and other risks for children including a risk of harm and a risk that the child would be further involved in the criminal justice system.
(j)	The Youth Justice report refers to some intervention by Child Protection, and a grant of bail would avoid the applicant joining the cohort of other young people in this category which are over-represented in custody.
(k)	A term of imprisonment is not certain, as there are other alternatives available to a sentencing Court should the applicant be found guilty, including a grant of summary jurisdiction and a supervisory order.
14	The affidavit records that while there are three co-accused, only two are currently known to police — and both of these have already been bailed: one on 29 February 2024, and the other on 20 March 2024.
15	In her affidavit, Ms Roth accepts that the alleged offending is ‘incredibly serious’.  She says, however, that it is difficult to assess the prosecution case at this early stage.
16	Exhibited to the affidavit is a Youth Justice Bail Service report (‘the report’), which is supportive of the application for bail.  The report notes that Youth Justice has assessed the applicant as suitable for the Youth Justice Bail Service and that, in making that recommendation, consideration has been given to the serious nature of the alleged offending; the applicant’s ‘lack of Youth Justice history’; the applicant’s ‘demonstrated capacity and willingness to engage with Youth Justice and comply with the requirements of the Bail Service and services in the community’; and ‘the availability of supports and services in place to mitigate risk’.
17	In relation to s 3AAA of the Act and the relevant surrounding circumstances of the application, the applicant submitted that the following matters supported a grant of bail:
(a)	The applicant has no criminal history.
(b)	It is the applicant’s first time on remand.
(c)	The applicant instructs to have had a difficult time in custody.
(d)	The applicant’s engagement with Youth Justice in the assessment phase is marked by open conversation, which it is submitted bodes well for his engagement with his first grant of bail by a Court.
(e)	The applicant is supported by his mother and has some community support as referred to by Youth Justice.
(f)	Youth Justice are available as a bail support service.
(g)	It is submitted the length of time the applicant would spend on remand would exceed the possible sentence, given the availability of a grant of summary jurisdiction and non-custodial dispositions in the Children’s Court.
18	In written submissions, the applicant submitted that a combination of the following matters established a compelling reason justifying a grant of bail:
•	the applicant’s status as a child;
•	the lack of any criminal record;
•	the availability of Youth Justice, who have assessed the applicant as suitable for their program;
•	the ‘real possibility’ that if the applicant were found guilty of charge one, he would not receive a custodial sentence;
•	the support and stable accommodation available to the applicant;
•	the opportunity for the applicant to engage in education while on bail;
•	delay;
•	the ‘salutary impact’ of the period of time he has currently spent in custody; and
•	parity (noting that bail has been granted to the two co-accused).
19	As to the issue of unacceptable risk, the applicant submitted that the risk can be ameliorated to an acceptable level as a result of a combination of support from Youth Justice; support and supervision from his family; the deterrence attributable to the salutary experience of the applicant’s first time in custody; the imposition of bail conditions; and the possibility of the Court ordering periodic bail reviews.
Respondent’s material and contentions
20	The respondent opposed bail.  In doing so, it relied upon an affidavit affirmed by a solicitor employed with the Office of Public Prosecutions Victoria, Jonathan Makary.  Like Mr Roth’s affidavit, Mr Makary’s affidavit contained a mixture of fact and submissions.
21	After describing the applicant’s alleged offending and his background in terms consistent with what I have said in [4]–[10] above, Mr Makary summarised the respondent’s position as follows:
It is contended that the threshold has not been met, considering the severity of the purported actions and their context. An assault was carried out by a group of males, armed, in a public area during daylight hours, targeting an unarmed individual.
Consequently, it is argued that the applicant presents an unacceptable risk of endangering the safety and well-being of the public.
Furthermore, it is suggested that the alleged offending appears to be escalating, commencing with an alleged robbery and assault, and now culminating in an accusation of intentionally causing serious injury in circumstances characterised by extreme violence.
22	That said, the affidavit goes on to note that the ‘prosecution concedes that it is open to the Court to find that a compelling reason exists that justifies the grant of bail’.  Bail is, however, opposed on the basis that the applicant is an unacceptable risk of endangering the safety or welfare of any person given that:
(i)	[The applicant] has demonstrated an extreme level of violence in an attack that appears premeditated; with parties known to the victim’s family disclosing to police that the attack he and others committed against the victim during the current incident was retribution for an affray that occurred earlier this year involving [one of the applicant’s co-accused].
(ii)	[The applicant] has previously engaged in similar victim-based offending as recent as November 2023, in relation to robbery and affray, for which he was charged and bailed.
(iii)	Finally, [the applicant’s] willingness to perpetrate such a violent attack against the victim at a busy and highly visible intersection, in broad daylight, further demonstrates his propensity to endanger the safety and welfare of persons in our community.
23	In written submissions, the respondent submitted that the applicant had not established that there is a compelling reason justifying the grant of bail.  In support of that submission, the respondent relied upon the seriousness of the alleged offending, the strength of the prosecution case, and the applicant’s lack of compliance with previous grants of bail.  In relation to the strength of the prosecution case, the respondent submitted:
The prosecution considers that it can adduce evidence in support of the charges against the applicant that leaves no reasonable doubt as to his guilt. Multiple witnesses saw four males attack an individual. There is CCTV footage of the applicant and co-accused running from the scene of the attack, with the applicant holding a baseball bat.
24	The respondent also submitted that the likely length of time on remand militated in favour of a finding that the applicant had not demonstrated that there is a compelling reason justifying the grant of bail.  In making that submission, the respondent said:
If the defence wishes to resolve the matter, it could easily proceed within the next two to three months.
25	As to the issue of unacceptable risk, in its written submissions, the respondent contended that the risk that the applicant will endanger the safety and welfare of others if granted bail was unacceptable for three reasons: first, ‘There appears to be a likelihood that the applicant will commit further violent offences’; secondly, ‘There is a likelihood that further offending will be serious’; and thirdly, ‘The applicant’s alleged offending appears to have escalated’.
Consideration
26	Sections 4C and 4D of the Act require the Court, as step one, to consider the show compelling reason test; and then to move, as step two, to the unacceptable risk test.  At both stages of the analysis, the Court must take into account all the circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act.  Additionally, because the applicant is a child, the Court must take into account the issues set out in s 3B of the Act.  Moreover, in applying and interpreting the Act, the Court is required to have regard to the matters set out in s 1B(1).
27	The applicant bears the burden of satisfying the Court as to the existence of a compelling reason.  The prosecutor, however, bears the burden of satisfying the Court as to the existence of a relevant risk and that that risk is an unacceptable risk.
28	In Rodgers v The Queen, the Court of Appeal summarised the principles to be applied when considering the compelling reason test as follows:
(1)	For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)	It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)	A compelling reason is one which is forceful and therefore convincing — a reason which is ‘difficult to resist’.
29	Having considered all of the circumstances of this case (including the matters set out in s 3AAA and the issues referred to in s 3B), I am satisfied that a compelling reason exists that justifies the grant of bail in this case.  While I do not accept the submission that, if the applicant is not granted bail then (in the event he is convicted), the time he would spend on remand would exceed the possible sentence, the critical factors in the applicant’s favour on the compelling reason test are his age (being a child); his lack of prior convictions; the extent of family support (specifically from his mother); the favourable Youth Justice Bail Service Report; the support Youth Justice is prepared to provide; and the detailed program prepared by Youth Justice for the applicant in the event he is granted bail.
30	While the very serious nature of the allegations made against the applicant (including the escalation in his alleged offending between November 2023 and February 2024) are matters that tell against the existence of a compelling reason justifying a grant of bail, I have ultimately concluded that, when synthesised with all of the other circumstances of the case, a compelling reason justifying a grant of bail has been established.
31	If the applicant had been an adult at the time he is alleged to have committed the offending constituting charges 1 to 7, there would be little to be said in his favour on the compelling reason test.  As the provisions of the Act make plain, however, the applicant’s status as a child weighs heavily in his favour.  As has been said before, children are rightly afforded a special status by the Act.  Specifically, any assessment of the compelling reason test in the case of a child must be viewed through the prism of s 3B(1) and the issues set out therein.  In the case of an adult, a combination of circumstances may fall short of constituting a compelling reason justifying a grant of bail, while the same combination, when considered in the case of a child, may achieve a wholly different outcome.
32	More specifically, as has also been said before, the community’s interest in taking a child out of detention (with all the downside that the detention of a child by the criminal justice system entails) is a matter of great importance.  The detrimental effects of detention on a young person to that person and to the wider community are well known.  As the Act mandates, the remand of a child is a course of last resort.  Every possible step that can reasonably be taken to avoid the detrimental effects of the detention of a child, in the proper application of the Act and more generally, should be taken.  It is with these considerations in mind that I have been persuaded that a compelling reason justifying a grant of bail exists in this case.
33	That is not, however, the end of the matter.  I turn now, as step two, to the unacceptable risk test.
34	The critical issue so far as this bail application is concerned is whether the respondent has established that, if the applicant is released on bail, there is an unacceptable risk that he would endanger the safety or welfare of any other person.  While, in a statement made by the informant in the preliminary brief, there is reference to a risk that the applicant would, if released on bail, interfere with witnesses, the material tendered on this application provides little basis upon which that might realistically occur.  The real risk in this case is that the applicant, if released on bail, might endanger the safety or welfare of others by committing a violent assault of the kind with which he is currently charged.
35	The fact that the applicant is alleged to have engaged in such serious offending after having been granted bail on two occasions (5 July 2023 and 21 January 2024) is of considerable concern, as is the escalation in the seriousness of the applicant’s alleged offending and its brazenness.  That said, I am not persuaded that there do not exist conditions (albeit stringent ones) which I can impose on a grant of bail which would make an otherwise unacceptable risk acceptable.
36	Put more positively, in circumstances where I am able to impose stringent conditions on a grant of bail (including judicial monitoring), the respondent has not persuaded me that, if released on bail, the risk that the applicant would endanger the safety or welfare of any other person, is an unacceptable risk.  While history shows that circumstances can change and such assessments may have to be revisited, I am currently not persuaded that the risk which the applicant poses if released on bail is unacceptable in all of the circumstances as I have explained them.  I thus propose to grant bail on the following terms:
(1)	The applicant be admitted to bail on his own undertaking to appear at the Children’s Court on 9 May 2024, and on any other date upon which any of his matters are listed in that Court, and then surrender himself and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(2)	The following conditions apply to this grant of bail:
(a)	The applicant reside at [redacted address].
(b)	The applicant attend and comply with all the lawful directives of the Youth Justice Supervised Bail Support Service.
(c)	The applicant remain at his place of residence between the hours of 7.00 pm and 7.00 am each day for the duration of bail unless in the company of his mother or a nominee of Youth Justice.
(d)	The applicant present at the front door of his residence during curfew hours if called upon by a member of Victoria Police to do so.
(e)	The applicant engage with support services as directed by Youth Justice.
(f)	The applicant not, directly or indirectly, either in person, by telephone, or electronically, contact or associate with any co-accused.
(g)	The applicant attend places as directed by Youth Justice and participate in school, educational activities and any other programs as directed by Youth Justice.
(h)	The applicant not contact, whether directly or indirectly, any complainants, or witnesses for the prosecution in any of the matters where he is named as an accused other than the informants in those matters.
(i)	The applicant not consume any alcohol or any drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1998 without lawful authorisation under that Act.
(j)	The applicant not leave the State of Victoria.
(k)	The applicant not drive any motor vehicle or motorcycle.
(l)	The applicant is to appear in this Court on Monday 6 May 2024 at 9:30 am for judicial monitoring, and thereafter as directed by this Court.
(m)	The applicant report to the Officer in Charge of the Police Station at [redacted] or his or her nominee, once a week on the Saturday of each week between the hours of 9.00 am and 6.00 pm.
(n)	The applicant not possess in any public place any knife, machete, hammer or baseball bat.
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