Re HT [2025] VSC 310 (3 June 2025)

1. On 3 February 2025, the applicant, HT,[1] was arrested and charged with the murder of Kon Hsu Sein ("Sein") alleged to have occurred on 20 December 2024. He has been on remand since the date of his arrest.
2. HT applies for bail. He relies upon a number of matters in support of the existence of exceptional circumstances justifying the grant of bail.
3. These include issues with the prosecution case, his limited criminal history, compliance with conditions of earlier grants of bail, personal circumstances (including family support), accommodation and education, special vulnerability as a child, the availability of Youth Justice as a bail support service and the time it is likely to take for this matter to be listed for trial.
4. The prosecution opposes bail on the basis that HT has failed to demonstrate exceptional circumstances. Even if HT could establish exceptional circumstances, the prosecution submits he would present an unacceptable risk if released on bail.
5. For the reasons that follow, HT's application for bail is refused.

1. The following account is based on the prosecution case and comprises allegations only.

1. At 5.40pm on 20 December 2024, police attended a playground in Melton West and spoke to a group of 11 males in relation to consuming alcohol in a public place. During this interaction, it is alleged police spoke with one of the co-accused ("the First Co-accused"), who was sitting next to a second co-accused ("the Second Co-accused") and others, including another male associate who is suspected to have been involved in the alleged murder (but who has not been charged at this time) ("the Associate").
2. Later, at 6.59pm, a light green or silver 2003 Ford Futura sedan exited the area of the park and travelled to a street in Harkness, a suburb near Melton. Incidentally, closed-circuit television cameras from a number of locations, including petrol stations and fast food restaurants, have allegedly captured footage of this vehicle being used by one or more co-accused, including HT, to make various purchases of petrol and food in the days immediately preceding the alleged murder.
3. At 7.04pm, Sein and 2 male associates left Sein's home address in Kurunjang (another suburb near Melton) and walked towards a thoroughfare between Sein's home street and another street ("the Thoroughfare"). Sein's home was a short distance from the northern end of the Thoroughfare.
4. At 7.07pm, the Ford Futura sedan arrived at the Second Co-accused's home in Harkness. The Second Co-accused exited the vehicle and went inside for a short time.
5. At 7.14pm, the Second Co-accused, having changed his clothing, returned to the Ford Futura sedan.
6. At the same time, Sein and his 2 associates remained in the Thoroughfare.
7. At 7.15pm, the Ford Futura sedan drove past HT's home address in Harkness, before driving to Kurunjang.
8. At about 7.20pm, the Ford Futura sedan arrived at Sein's home street and drove the length of the street before performing a U-turn. The sedan then travelled to a neighbouring street which intersected with the southern end of the Thoroughfare.
9. At 7.21pm, a third co-accused ("the Third Co-accused") left his home in Kurunjang and walked in the direction of Sein's home street. Simultaneously, the Ford Futura sedan parked close to the southern end of the Thoroughfare. This was near to where Sein and his 2 associates were still standing around, and was approximately 100 metres from Sein's home.
10. Seconds after leaving his home, the Third Co-accused received a brief telephone call from HT. Moments after receiving this call, the Third Co-accused jogged towards the Thoroughfare.
11. At 7.22pm, HT, the First and Second Co-accused, a fourth co-accused ("the Fourth Co-accused") and the Associate got out of the Ford Futura sedan, leaving the car doors open. The First and Fourth Co-accused and the Associate walked to the southern entrance of the Thoroughfare and produced machetes, or long edged weapons.
12. The First and Fourth Co-accused and the Associate entered the Thoroughfare. They were followed by the Second Co-accused and HT respectively.
13. All 5 males initially charged at Sein and his 2 associates in the Thoroughfare. Sein and his 2 associates fled back toward Sein's home street.
14. Following this initial charge, HT returned to the Ford Futura sedan and sat in the driver's seat of the vehicle.
15. The Third Co-accused then arrived at the northern end of the Thoroughfare. Sein and his 2 associates ran past him.
16. Having fled the Thoroughfare, Sein and his 2 associates were back on Sein's home street.[2] They were followed by the First, Second and Fourth Co-accused and the Associate. One of Sein's associates was pursued by the Third Co-accused. The other of Sein's associates caught up to the Third Co-accused and struck him with a stick or pole, which caused the Third Co-accused to stop his pursuit. Both of Sein's associates then sought refuge in the back garden of a house in Sein's home street.

1. At the same time, Sein backed away from the First, Second and Fourth Co-accused and the Associate towards a driveway of a house at the end of Sein's home street. As Sein reached the driveway, he yelled words to the effect of "back off, back off". Immediately after this, one of the co-accused, or the Associate, yelled words to the effect of "get him, get him".
2. The Third Co-accused joined the group at the driveway.
3. Sein continued backing up the driveway, but was pursued by the 4 co-accused and the Associate.
4. Sein, who was armed with a knife, was now cornered in the narrow driveway. The group then began assaulting him. The First and Fourth Co-accused and the Associate were in possession of machetes or long edged weapons.[3] Sein sustained multiple lacerations or chop wounds, including 3 significant chop wounds to the left side of the head and 3 significant chop wounds to his face. His left hand was almost amputated at the wrist. He also sustained other sharp force wounds.
5. During the assault, in attempts to defend himself, Sein stabbed the Second Co-accused on the right cheek near his eye, and the Fourth Co-accused on the inside of his left forearm midway between his wrist and elbow.
6. After assaulting Sein in the driveway for approximately 1 minute, the Third and Fourth Co-accused ran back to the Thoroughfare. They were followed by the First and Second Co-accused and the Associate.
7. The Third and Fourth Co-accused then went back through the Thoroughfare to the Ford Futura sedan. Upon their arrival, the Fourth Co-accused placed a machete inside the vehicle and HT returned to the Thoroughfare, seemingly to aid the First and Second Co-accused and the Associate. HT was followed by the Third and Fourth Co-accused a moment later.
8. Closed circuit television footage from a neighbouring address provided both an audio and visual recording. It captured HT yelling "Swae", alleged to be a nickname for the First Co-accused, as he returned.
9. Seconds later, HT, the 4 co-accused and the Associate returned to the vehicle. The First Co-accused and the Associate were still in possession of machetes. The vehicle then departed.
10. Several members of the public called emergency services, and reported a brawl involving a large group of males in Sein's home street. It was reported that some of the males had machetes, or knives, and that one of the males involved was lying on the ground and was not moving.
11. Police arrived promptly.
12. Despite medical assistance provided to Sein by members of the public and police whilst awaiting paramedics, he died at the scene at about 7.45pm.

B.1.3 Events following the alleged murder

1. At 7.29pm, the Ford Futura sedan arrived at a medical centre in Melton West. The Second, Third Co-accused and Fourth Co-accused exited the vehicle and went inside the medical centre in order to obtain medical treatment for the injuries sustained by the Second and Fourth Co-accused. After dropping them off, the vehicle departed.
2. The Second and Fourth Co-accused received medical treatment for their injuries but the Third Co-accused departed.
3. Staff at the medical centre called emergency services. Police attended and seized the clothing worn by the Second and Fourth Co-accused. The Second and Fourth Co-accused were then transported to hospital.
4. At approximately 8.01pm, the Ford Futura sedan was refuelled at a BP service station in Grangefields. It is alleged that HT refuelled the vehicle and the fuel was paid for by the Associate.
5. At approximately 9.51pm, the vehicle attended the Airport West Westfield Shopping Centre.
6. At 10.20pm, the vehicle travelled along a road in Essendon. At about 11.10pm, the vehicle parked on a street in Brunswick West.
7. At about 11.25pm, the First Co-accused and HT attended an apartment building in Brunswick West, in the company of the Fourth Co-accused's brother and HT's brother. They entered at 11.55pm when they were granted access by a female.
8. More recently, police have recovered the Ford Futura sedan at a remote location. At the time it was located it had been extremely damaged by fire.

1. Both of Sein's associates remained at the scene. One of them told police that the 3 of them were waiting for an Uber in the Thoroughfare when a large group of people, who were fully covered and had knives, got out of a car and ran at them. He said the assailants tried to stab them, which caused them to run away in separate directions. He stated that he and the other associate went to one of Sein's neighbour's houses to seek refuge, but Sein went another way and was followed by some of the group.
2. The other associate declined to provide a formal account regarding the incident.
3. Around the time of the assault, a number of persons witnessed some of the events. It is not necessary to refer to the detail.
4. The Associate's female partner has stated that her partner and his friends, including HT, the Fourth Co-accused and the Fourth Co-accused's brother are members of a gang called "GDG",[4] and that Sein was killed as a result of a dispute between GDG and another gang referred to as "38".[5] The Associate contacted her sometime on 20 December 2024, and advised her that he and his friends had seen someone from an opposition gang and he could not talk about it on the phone. The following day, she met with him in the company of HT and the Fourth Co-accused. They spoke about the incident that led to Sein's death, telling her that Sein's friends ran away, they took Sein's vape, Sein was stabbed and that Sein was not innocent because he hurt someone at school.

1. The driveway and Thoroughfare were examined by the Victoria Police major crime scene unit on 20 and 21 December 2024. Among the items collected were a bloodstained knife and an Apple iPhone, both located next to Sein, blood swabs from the driveway, a metal rod on the road near the driveway, blood swabs from the Throughfare and a fingerprint impression, which appeared to have been made in blood, on a fence opposite the door to the address of the driveway.

1. On 21 December 2024, a forensic pathologist performed an autopsy on Sein's body at the Victorian Institute of Forensic Medicine. In her opinion, the cause of Sein's death was chop injuries to the head and limbs.

B.1.7 Arrest and formal interview of the Second Co-accused

1. The Second Co-accused was arrested while in hospital on 20 December 2024. He remained under hospital guard whilst receiving treatment for his injuries, until he was discharged on 23 December 2024 and formally interviewed.
2. During interview, the Second Co-accused stated that he had woken up at home in the morning of 20 December 2024 and sometime later went to a park near his house and smoked cigarettes and weed by himself. After leaving the park, he said he went to a nearby milk bar and purchased a drink before going home.
3. He said he drank about a quarter of a bottle of liquor in an alleyway beside the park near his house (where he was smoking earlier). He declined to comment on questions relating to what he did later in the day and his alleged attendance at the medical centre. He then stated that later that day someone attacked him while he was somewhere in Melton, and he was sliced with a knife when he was defending himself, but he could not remember much about the incident, except for "flashbacks", because he was drunk. He declined to comment concerning whether there were other people present during this incident. He then stated that he knew the other person who went to hospital as a result of the assault as "Bol", but he did not know him well. He said he did not have knowledge of the youth gang GDG.
4. He then identified himself in an image taken from closed-circuit television footage captured at his home. After being shown images, he acknowledged that he was present at the scene of Sein's death, but stated he could not recall what occurred but added that he was unarmed and was attacked first and he did not plan to kill Sein.
5. During a suspension of the formal interview, the Second Co-accused was returned to a police cell, where he conversed with a covert operative. During this conversation, the Second Co-accused said that he sustained injuries to his eye and arm during a fight; he was in custody in relation to a death, whom he referred to as "M"; the victim of the assault "had balls"; he had a "beef" with the victim but did not go into the details as it was a "long story"; the fight was 4 against 3 but the victim's 2 friends ran away, leaving only the victim, who ran towards a house but was cornered; the victim had a knife, about 15-20 centimetres in length; his 3 friends had machetes which were about 45 centimetres in length; he did not have a machete and used his fists; he and his friends bashed the victim and "sliced him up"; the victim sliced him on his right hand and eye; the victim was "fucked up" and his hand was sliced off; they ran away and left the victim and he and his friend went to hospital for medical treatment where they were arrested.
6. The Second Co-accused was charged with Sein's murder and remanded in custody.

B.1.8 Arrest and formal interview of the Fourth Co-accused

1. The Fourth Co-accused was arrested while in hospital. He remained under hospital guard while receiving treatment for his injuries, until he was discharged on 21 December 2024 and formally interviewed.
2. He provided an almost exclusively "no comment" interview but stated that he did not have a phone because he broke it a long time ago, that he did not know Sein or his associates and that he could not remember what clothing he was wearing on that day.
3. The Fourth Co-accused was charged with Sein's murder and remanded in custody.

B.1.9 Search warrant in relation to HT's home address

1. On 3 February 2025, police executed a search warrant at HT's home address in Harkness. Among the items seized were a machete and a counterfeit Apple iPhone. HT's father gave evidence during the hearing of this application that the machete was his, not HT's, and that he had bought it after the home invasion in November 2024 so he could defend his family. The father's evidence was that the machete was stored in his daughter's bedroom, but was not locked away. He said that HT did not know about this machete and could not get a hold of it.

1. Also on 3 February 2025, HT was arrested. He was taken to the Melton Police Station, where he was formally interviewed. Upon his arrest, police seized a mobile phone in his possession.
2. HT provided a largely "no comment" interview, but stated that he did not have a mobile phone number on 20 December 2024 and had not had one since being released from Youth Justice. He stated that the phone located in his possession on his arrest belonged to a family member, either his older sister or brother and that he had been using it recently.
3. HT was charged with Sein's murder and remanded in custody.
4. At the hearing of this application, 2 rap music videos were played that were allegedly found on the mobile phone seized from HT. In a video alleged to have been filmed in an apartment in Melbourne, HT appears with a friend and HT has a machete in his hand. In the second video alleged to have been filmed in HT's bedroom, HT is alone and again is holding a machete. These videos were played in response to a submission that there was no evidence associating HT with being in the possession of a machete and that it would take a number of steps before HT could get possession of a machete if he were released on bail.

B.1.11 Arrest and formal interview of the First Co-accused

1. The First Co-accused was also arrested on 3 February 2025.
2. Upon his arrest, the First Co-accused was found to be in possession of a pair of black shoes with red Nike symbols. These shoes were consistent with the shoes worn by the First Co-accused on 20 December 2024, as seen in closed-circuit television footage.
3. During a formal interview, the First Co-accused stated that he knew nothing about Sein's death and denied any involvement in it. He stated he thought that on 20 December 2024, he was staying at his father's house. He stated he did not know HT, the Fourth Co-accused or the Associate, and that while the Second Co-accused is his cousin, he stated he had not seen him since the end of October or the start of November 2024. He said he did not go by the nickname "Swae". He said he did not recognise the Ford Futura sedan and had not been in it. He said he did not recognise anyone in an image shown to him that was taken from police body worn camera footage from the park where the group had been spoken to by police in the early evening.[6] He denied that he was the person depicted in images taken from closed circuit television footage shown to him and stated that he owned a pair of shoes similar to those worn by the person, but they are a popular shoe; and he owned a blue hooded jumper similar to the one worn by the person, but he threw it out a long time ago.
4. The First Co-accused was charged with Sein's murder and remanded in custody.

B.1.12 Arrest and formal interview of the Third Co-accused

1. The Third Co-accused was arrested at a park in Harkness on 7 February 2025. He was formally interviewed and provided an exclusively "no comment" interview. He was charged with Sein's murder and remanded in custody.

B.1.13 Arrest and formal interview of the Associate

1. The Associate was arrested outside his home on 7 February 2025. He was formally interviewed and remained silent when asked questions relating to Sein's murder. He was released pending enquiries.

1. Police allege that the assault on Sein was a targeted attack related to a dispute between the 2 rival youth gangs, GDG and 38. It is alleged this rivalry and its ongoing nature is demonstrated by a number of matters, including the following.
2. As a precursor to Sein's killing, it is alleged that on 3 November 2024 numerous persons committed an aggravated home invasion at HT's home address. Until he was remanded, HT resided at his parents' home with his siblings, who range in age from 24 years to one year old. During this invasion, HT's father was allegedly held at gunpoint. The invaders allegedly attempted to gain entry to HT's and one of his brother's shared bedroom, but they were unable to do so as the bedroom door was barricaded. The invaders allegedly caused extensive damage to the house before departing. It is alleged that this incident is related to the dispute between the 2 gangs and that HT and his immediately older brother were the targets of this invasion. It is alleged that one of the persons responsible for the home invasion was a member of 38 (who was charged in relation to the incident, and was also present with Sein shortly before he was killed).
3. On 9 December 2024, this same person was allegedly attacked and stabbed with a machete by a group of approximately 8 unidentified males. This incident remains unresolved.
4. A review of the contents of the mobile phone seized from HT indicates that:

(1) At 11.37pm and 11.38pm on 15 December 2024, HT conducted internet searches for "bacchus marsh" and "teen stabbed in darley" respectively.

(2) At about 6.17pm on 18 December 2024, HT viewed a large camping knife with a sheath on a website, and conducted an internet search for "gerber", which is a knife manufacturer.

1. On 18 or 19 December 2024, a rap music video was published on YouTube that featured members of Sein's alleged gang, 38, including one member who was with him on 20 December 2024. The subject of this music video was the Fourth Co-accused and his alleged gang, GDG. The lyrics allegedly describe an event where members of 38 encountered the Fourth Co-accused. In the video they mocked him, alleging that he fled and abandoned his friend. Police believe that the assault on Sein was retribution for the release of the music video.

1. HT does not currently have any outstanding matters. At the time of the alleged offending, he was on bail for a number of matters, including:[7]

(1) Theft of a motor vehicle on 19 September 2023.

(2) Armed robbery, theft, intentionally causing injury and assault in company, all on 24 November 2023.

(3) Robbery, affray, assault in company and committing an indictable offence whilst on bail, all on 21 January 2024.

(4) Three charges of attempting to obtain property by deception, all on 24 January 2024.

(5) Handling stolen goods on 28 January 2024.

(6) Four charges of handling stolen goods, all on 1 February 2024.

(7) Theft and committing an indictable offence whilst on bail, both on 24 February 2024.

(8) Handling stolen goods and committing an indictable offence whilst on bail, both on 3 March 2024.

1. At a consolidated plea hearing in the Children's Court of Victoria on 13 February 2025, HT was sentenced in relation to each of these matters to a total of 10 months' probation without conviction. This was accompanied by requirements to report to Youth Justice and to engage in offence specific interventions as directed by Youth Justice.
2. Also at the time of the alleged offending, HT was the respondent to an interim personal safety intervention order. The protected person was a male whom it was alleged HT assaulted and robbed on 24 August 2024. This order lapsed on 12 March 2025.

1. HT is 17 years and 10 months old, having been born on 17 July 2007. He was 17 years and 5 months old at the time of the alleged offending.
2. HT was born in Juba in South Sudan and arrived in Australia with his family in 2009. Dinka and Arabic were the 2 languages spoken at home. At that time, his parents did not speak English. HT gradually learnt English, initially with assistance from his cousins, and then more generally. He is enrolled to start year 11 of the Victorian Certificate of Education on 30 January 2025. Evidence of his commitment to his studies and his desire to continue them was unchallenged.
3. HT's proposed bail address is the family home.

1. As HT is a child,[8] the Bail Act 1977 (Vic) applies to his application for bail, except insofar as it is inconsistent with section 346 of the Children, Youth and Families Act 2005 (Vic).[9]

1. In interpreting and applying the Bail Act, the court is required to take into account the guiding principles set out in section 1B.
2. The Bail Act was amended in March of this year so that the importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime must be treated as being of overarching importance, rather than being of equal importance to other guiding principles.[10] This reflects the importance that the Parliament of Victoria has conferred on this component of community safety.[11] That said, other guiding principles, being the presumption of innocence and right to liberty, the promotion of fairness, transparency and consistency in bail decision making and public understanding of bail practices and procedures remain important.[12]

1. Section 4 of the Bail Act establishes that a person accused of an offence and held in custody in relation to it is entitled to be granted bail unless the Bail Act requires the bail decision-maker to refuse bail.
2. Murder is a Schedule 1 offence.[13] Accordingly, the exceptional circumstances test applies to the decision of whether to grant bail.[14] It follows that bail must be refused unless HT demonstrates the existence of exceptional circumstances that justify the grant of bail.[15]
3. The phrase "exceptional circumstances" is not defined in the Bail Act. Numerous authorities have established that, to be exceptional, the circumstances must be such as to take the case out of the ordinary or norm so as to justify the grant of bail.[16] Although the threshold is high, it is not an impossible standard to reach. It may be met by a combination of matters, even when none of the individual circumstances is considered exceptional.[17]

1. If satisfied that exceptional circumstances exist, the court must then determine whether an applicant presents an unacceptable risk of the kind referred to in section 4E(1) of the Bail Act.[18] In assessing that risk, the court must consider whether the risk posed may be mitigated by any conditions of bail.[19]
2. The court must refuse bail if satisfied that there is an unacceptable risk, notwithstanding that the exceptional circumstances test has been met.[20] The notion of unacceptable risk does not concern merely any risk of offending. Rather, the question is whether such a risk is unacceptable.[21] The burden of proving that an applicant poses an unacceptable risk rests with the prosecution.[22]

1. In considering whether exceptional circumstances exist and whether an applicant poses an unacceptable risk, the court must take into account the surrounding circumstances.[23] Such surrounding circumstances include, but are not limited to, the following matters listed in section 3AAA(1) of the Bail Act:

(aa) whether, if the accused were found guilty of the offence with which the accused is charged, it is likely -

(i) that the accused would be sentenced to a term of imprisonment; and

(ii) if so, that the time the accused would spend remanded in custody if bail is refused would exceed that term of imprisonment;

(a) the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;

(b) the strength of the prosecution case;

(c) the accused's criminal history;

(d) the extent to which the accused has complied with the conditions of any earlier grant of bail;

(e) whether, at the time of the alleged offending, the accused -

(g) the accused's personal circumstances, associations, home environment and background;

(h) any special vulnerability of the accused, including -

(iii) experiencing any ill health, including mental illness; or

(i) the availability of treatment or bail support services;

(ia) if the bail decision maker is making an applicable decision within the meaning of Part 2A, the availability of electronic monitoring conditions;[24]

...

(k) the length of time the accused is likely to spend in custody if bail is refused;

(l) the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;

...

C.2.4 Considerations in relation to a child

1. When making a determination in relation to a child, the court is also required to have regard to the matters listed in section 3B(1) of the Bail Act, including:

(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;

...

(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;

(i) the need to ensure that the conditions of bail -

(i) are no more onerous than is necessary; and

(ii) do not constitute unfair management of the child;

(j) the fact that some cohorts of children, including the following cohorts, experience discrimination resulting in that cohort's overrepresentation in the criminal justice 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;

(l) any of the following issues that arise -

(i) any ill health the child experiences, including mental illness;

...

(iii) the impact on the child, and on the child's behaviour, of any experience of abuse, trauma, neglect, loss, family violence or child protection involvement, including removal from family or placement in out of home care;

(m) any other relevant factor or characteristic.

90 The significance of section 3B(1) is evident from the fact that it is a standalone provision, as opposed to being incorporated into the broader list of surrounding circumstances under section 3AAA(1).[25] Notably, subsections (b) to (j) must be taken into account whether or not any evidence or information in respect of these issues is put before the court.[26] An applicant's status as a child will often weigh heavily as a consideration in favour of establishing exceptional circumstances, as children applying for bail are afforded a special status.[27]

1. The recent changes to the Bail Act also removed from section 3B(1)(b) reference to the principle of remand of a child being a last resort, indicating an intention by the Parliament to clarify that where circumstances warrant it, remand may be the minimum intervention required.[28] By this amendment, Parliament has sought to remove the risk that bail decision makers may interpret the "last resort" consideration as requiring that all other options are exhausted before remand can be considered.[29] This is not to say that courts must not still take into account the need to impose on the child the minimum intervention required in the circumstances of each case.[30]
2. In making a determination in relation to a child, the court may also take into account any recommendation or information contained in a report provided by a bail support service.[31] Further, if bail is refused, the court must remand the child in custody to appear before a court at a later date, which must not be for a period longer than 21 clear days.[32]

1. If the court is considering the release of an accused on bail, it must impose any condition that, in the opinion of the court, will reduce the likelihood of risk that the accused may endanger the safety or welfare of any other person, interfere with a witness or fail to surrender into custody.[33] However, those conditions must be no more onerous than is required and must be reasonable, having regard to the nature of the alleged offence and the circumstances of the accused.[34]
2. Following further amendments to the Bail Act which came into effect in April this year,[35] if the court is making an "applicable decision", the court will be able to impose the "electronic monitoring conditions", and the availability of the electronic monitoring conditions is now included as a surrounding circumstance under s 3AAA of the Act.[36]
3. An applicable decision relevantly means a decision whether or not to grant bail where the decision maker is either the Children's Court of Victoria sitting in a prescribed region[37] or this court, in respect of an accused who is between 14 and 18 years of age at the time that the decision is to be made.[38]
4. The "electronic monitoring conditions" are:[39]

(a) a condition that the accused must for 24 hours of each day wear an electronic monitoring device fitted to the accused at the direction of the Secretary [to the Department of Justice and Community Safety]; and

(b) a condition that the accused must not, without reasonable excuse, tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring; and

(c) a condition that the accused must comply with any direction given by the Secretary, that is necessary for the Secretary to give, to ensure that the accused is electronically monitored.

1. There are restrictions on disclosure of personal or confidential information obtained as a result of the use of an electronic monitoring device.[40] Specified uses and disclosures of the information include use or disclosure that occurs to the extent necessary for a purpose related to law enforcement, including the detection, investigation, prosecution or prevention of contraventions of the law.[41]
2. If the court is making an applicable decision, it may impose the electronic monitoring conditions if each of the following requirements are met:[42]

(1) It is to impose, as conduct conditions, either or both of a curfew and a geographical exclusion zone, and the court is of the opinion that it is appropriate to impose the electronic monitoring conditions in order to monitor compliance with those proposed conduct conditions.

(2) It is to impose a conduct condition requiring that the accused is to reside at an address that is in a prescribed region of the State.[43]

(3) The court has received a suitability report[44] in respect of the accused and, having regard to the report, is of the opinion that the accused is a suitable person to be electronically monitored, and adequate resources and equipment are available to enable the accused to be electronically monitored on bail.

1. If all curfew and geographical exclusion zone conditions are revoked, the electronic monitoring conditions are also revoked.[45] The accused turning 18 or 19 years of age does not revoke or otherwise affect any electronic monitoring conditions already imposed.[46]
2. In addition, the unacceptable risk test has been amended so that in applicable decisions, the court must consider electronic monitoring conditions when considering whether there are conditions that may be imposed to mitigate risk.[47]
3. Finally, section 5AAA has been amended to clarify that the requirements that conduct conditions must be no more onerous than is required, must be reasonable, and must generally be consistent with conditions of certain other orders, apply to electronic monitoring conditions.[48]

1. In support of bail, the surrounding circumstances were addressed in submitting that exceptional circumstances were established by the combined weight of several factors, namely:[49]

(1) The nature and seriousness of the alleged offending, including whether it is a serious example of the offence. It was acknowledged on HT's behalf that the offence of murder is an inherently serious offence and that arguably there are no examples of murder that could be considered as "low level" or trivial.

(2) The strength of the prosecution case. The case against HT on the charge of murder will be put on a complicity basis. HT is not alleged to have been directly involved in causing Sein's death (that is to say, it is not alleged he struck Sein or had a weapon on him). It was submitted the prosecution would face substantial difficulties proving HT was "involved in the commission of an offence". It was noted that on the prosecution's case, HT was some distance away from where Sein was assaulted and killed. It was submitted the evidence the prosecution relies upon puts HT back in the vehicle before the attack and it is clear that there was no line of vision between the location of the vehicle and the driveway where Sein was attacked. In these circumstances, it was submitted there was a triable issue about whether there was any agreement, assistance or encouragement as alleged, particularly given the ages of the First and Second Co-accused, being 22 and 21 respectively.

(3) HT's limited criminal history. At the time of the alleged offending, HT had no criminal history. Subsequently, on 13 February 2025, he was sentenced without conviction and placed on probation for a period of 10 months.[50]

(4) The extent to which HT has complied with the conditions of any earlier grant of bail. It was submitted that he has no history or pending charges in relation to failing to answer bail or contravening conditions of bail. That said, it was conceded on his behalf that he does have a relevant history of having committed 3 indictable offences whilst on bail. It was further submitted that HT consistently engaged to a satisfactory level with his Youth Justice bail condition.

(5) It was conceded on HT's behalf that at the time of the alleged offending, he was on bail in respect of 6 matters to which he was sentenced on 13 February 2025.

(6) HT's personal circumstances, associations, home environment and background. HT proposes to reside with his parents and siblings at the family home. His parents are supportive of him doing so. Both parents were in attendance during the hearing of the application, and HT's father gave evidence in support. He also gave an undertaking to the court to report to police and youth justice if he became aware HT had breached his bail. It is intended HT would continue with his secondary school education if released on bail. Except for a diagnosis of post-traumatic stress disorder in late March 2025,[51] HT has not previously reported any mental health diagnoses or concerns. However, HT has expressed feeling upset and lonely during his time in custody and has had to suffer the restrictions imposed because of gang-related issues. HT has instructed that he was using cannabis a "few times" a week in the community, but no other substance or alcohol use. Reliance was also placed upon the extra security measures in place at HT's home, namely 8 security cameras and a security door to secure the front door, since the home invasion in November 2024.[52]

(7) HT's special vulnerability as a child.[53] Given his age, section 3B(1) of the Bail Act applies.

(8) The availability of support services. Youth Justice have a large number of proposed measures in place to assist HT if he were granted bail. Youth Justice have engaged with HT since March 2024. His case manager gave evidence on the application and confirmed her view that HT was not suitable for bail supervision and support, but it was clear she has a good relationship with HT and members of his family. It was submitted the extensive program and other proposals weighed heavily in favour of bail being granted.

(9) The length of time HT is likely to spend in custody if bail is refused. The matter was listed for committal mention on 27 May 2025, at the Children's Court. It was adjourned to 19 June 2025. Should the matter not resolve, a trial is not likely to commence until the latter half of 2026. HT may have to spend more than approximately 16 months in custody on remand if bail is refused. That said, it was conceded on HT's behalf that the likely sentence to be imposed should he be found guilty of murder would be a term of imprisonment, including a non-parole period, and that the time spent on remand would not exceed that prison term.

1. It was submitted that given HT's limited criminal history and supports in the community, there ought be no real concern that he poses an unacceptable risk of endangering the safety or welfare of any other person or interfering with witnesses. Further, it was submitted that it would be possible to sufficiently mitigate any such risk associated with a grant of bail by the imposition of the following conditions, namely that HT must:

(1) Reside at [his parents' residential address] ("the Residence").

(2) Comply with a curfew imposing times at which he must be at the Residence, supported by electronic monitoring.[54]

(3) Not contact any witness for the prosecution other than the informant.

(4) Not contact or associate with any co-accused.

(5) Attend and comply with all requirements of the Youth Justice supervised bail program.

(6) Not attend near Sein's residence, with an exclusion zone supported by electronic monitoring.

1. Further, HT was willing to agree to any other conditions the court deemed appropriate.

1. The prosecution submitted that HT had not reached the high threshold of establishing exceptional circumstances. Particular reliance was placed on the seriousness of the alleged offending and what the prosecution submitted was a strong case against HT when viewed under the provisions of statutory complicity.[55]
2. It was submitted that there are numerous pieces of evidence that inculpate HT in the alleged offending, including, but not limited to: (1) call charge records between HT and his co-accused in the days before and after the alleged murder; (2) phone cell tower evidence indicating his presence at the scene of the alleged murder; (3) HT travelling with his co-accused in the Ford Futura sedan in the days immediately prior to and on the day of the alleged murder, including driving and refuelling the vehicle; (4) closed circuit television footage depicting him arrive with a number of his co-accused in the Ford Futura sedan at the southern end of the Thoroughfare and run toward Sein and his associates; (5) the machete found at HT's address;[56] and (6) the evidence of a clear motive.
3. The prosecution made no submissions in relation to matters personal to HT, but contended that he previously had family and other supports which evidently did not prevent him from engaging in the alleged offending, as well as the offending for which he was sentenced on 13 February 2025.[57]
4. The prosecution submitted that even if exceptional circumstances could be established, HT posed an unacceptable risk of endangering the safety or welfare of any other person.
5. In this regard, it was noted that HT has been found guilty of committing serious violent offences in the community whilst subject to bail. Further, his alleged offending occurred whilst he was subject to 6 grants of bail. Furthermore, the prosecution allege HT is a member of a youth gang, and this alleged offending was undertaken as retribution against a rival youth gang. Police hold concerns if HT is released on bail, that he will continue to associate with members of his youth gang and engage in further violent offending.
6. Moreover, the prosecution submitted that HT posed an unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice.
7. In particular, the prosecution referred to 2 civilian witnesses present at the crime scene known to HT as being associated with the rival youth gang. One of these eyewitnesses is yet to make a statement in this matter. Police hold concerns that HT will interfere with these witnesses if released on bail. It was also noted that HT father has also made a statement in this matter.
8. In any event, the prosecution submitted that the proposed conditions of bail did not mitigate these risks to an acceptable level, including for the following reasons.
9. First, the prosecution referred to messages between HT and his father on 18 and 23 November 2024, indicative of HT allegedly breaching his curfew condition as part of his previous bail. Evidence of his father on this topic indicated his father was attempting to get HT to comply with his curfew.[58] Further, HT's father conceded that HT has been in the community in breach of his curfew on a number of occasions without HT's father having knowledge at the time of his son's breaches.
10. Secondly, in relation to the proposal that HT be granted bail to comply with Youth Justice directions, the prosecution highlighted that HT was subject to Youth Justice supervised bail at the time of his alleged offending and the offending for which he was sentenced on 13 February 2025. The prosecution disputed the assertion that HT has a satisfactory relationship with Youth Justice, as HT continued to offend whilst on Youth Justice supervised bail.
11. Thirdly, although conceded that HT does not have any prior convictions for failing to answer bail, it was submitted that he has a history of poor compliance. It was contended that this was exhibited by his committing 3 indictable offences whilst on bail. Reference was also made again to the fact that, at the time of his alleged offending, he was subject to 6 grants of bail by the Children's Court.
12. Fourthly, HT has allegedly been involved in 2 staff assaults whilst on remand.[59]
13. Fifthly, Sein's family hold significant safety concerns if HT is released on bail. Police allege that HT is aware of Sein's home address, given its close proximity to the location where he was allegedly murdered. After the alleged offending, memorials located outside the home address were destroyed, and a vehicle parked at the address damaged. These incidents are currently being investigated by police, and at this stage it is suspected that these actions have been undertaken by members of HT's gang, GDG. The prosecution submitted that if bail were granted, HT ought be excluded from attending the vicinity of the crime scene unless he had a legitimate purpose to attend there.
14. Sixthly, while acknowledging it was ultimately the court's decision, it was submitted the recommendation of Youth Justice that HT was unsuitable for bail service weighed heavily against it being granted.

1. It was common ground between the parties that the alleged offending is objectively serious. The nature and gravity of Sein's slaying was shocking. If convicted of the offence of murder, HT would be sentenced to a term of imprisonment, which would be highly likely to exceed any time spent on remand.
2. While it is not the court's role on this application to reach final conclusions about the evidence, it is necessary in having regard to the surrounding circumstances to form a broad view about whether, taking the prosecution's case at its highest, it might be regarded as a strong or weak case.[60] Here, the case could not be described as weak. The matters highlighted by HT's counsel were largely directed to showing HT did not perform any of the acts that resulted in Sein's death. So much is not in dispute. Suffice to say that there is a substantial body of circumstantial evidence that could be considered to support a case of complicity.
3. That said, having considered all the surrounding circumstances (including those referred to in section 3AAA as set out above and the matters in section 3B(1)), largely by reason of the other 4 "core matters" relied upon by HT, I am satisfied that exceptional circumstances exist. Briefly, HT, as a child, is likely to spend up to 1½ years or so on remand. When this is considered in conjunction with his considerable family support (he is presently visited by at least 1 member of his family on a weekly basis) and the services available to him from Youth Justice, HT's circumstances may readily be described as out of the ordinary or exceptional. This conclusion is buttressed by HT's limited criminal history.
4. Accordingly, HT has discharged the onus of establishing exceptional circumstances.

1. As observed by the Court of Appeal, "[t]he question of risk is forward-looking and involves a predictive exercise often based on incomplete material".[61] On the evidence as it stands, and taking into account all the surrounding circumstances, the prosecution has satisfied the court that, at the very least, if HT were released on bail it would endanger the safety or welfare of persons in our community, whether by committing an offence that has that effect or by any other means. There are numerous factors which support this conclusion.
2. First, even with electronic monitoring, HT has been assessed by Youth Justice as unsuitable for enhanced bail supervision and support. Although the evidence clearly established that Youth Justice has gone to great lengths to assist HT and his family since March 2024, it is also plain that the measures Youth Justice has proposed will not be likely to reduce the risk HT poses to an acceptable level.
3. To elaborate, in a very detailed report provided the day before the hearing, Youth Justice outlined various matters relevant to this application. They included that HT was unsuitable for enhanced bail supervision and support because of the serious nature of the alleged offending (which allegedly occurred while he was on bail), the significant risk of harm in the community if he were granted bail (linked to his involvement in a youth gang conflict) and the need to finalise HT's enrolment at a school in the community.[62]
4. The entirety of the report is highly relevant. However, some matters deserve emphasis. The existence of gangs as alleged by the police is confirmed by Youth Justice, including that HT is known to associate with GDG. It was reported that HT's engagement with GDG was complex, stemming from a long-standing relationship with peers and a strong sense of loyalty to these individuals. Youth Justice was of the opinion (which was not seriously challenged when the case manager gave evidence) that HT may struggle to disassociate from negative peers and could revert to familiar peer networks if he were released. It was observed that the alleged offending had occurred in a group context which was consistent with HT's previous offending.
5. Youth Justice reported being aware of ongoing tensions in the community between GDG and 38. It was reported that the gang known as 38 had recently merged with another gang and that there were ongoing tensions in the community that had led to "high-harm retaliation incidents".
6. Further, in Youth Justice providing a timetable for the fortnight commencing 26 May 2025, it was apparent that HT would have a considerable amount of unsupervised time. Furthermore, as things presently stand, there was no guarantee that he would recommence his schooling in the near-term.
7. In summary, the evidence demonstrated that it was highly likely HT would have the ability and the inclination to reaffiliate with gang members if bail were granted in an environment where there are ongoing tensions and acts of retaliation between the rival gangs.
8. Indeed, as his older brother is also allegedly a member of the gang and resides at home, it would appear impossible for him to refrain entirely from association in this regard. Although his mother and father are plainly willing to take the risk, in light of the events that occurred in November last year and the ongoing tensions, it is likely that other members of HT's family would be put at serious risk of being subjected to violent behaviour if bail were granted and HT were to return to his home. In response to this suggestion, HT's counsel submitted that such a risk could be discounted because HT's older brother was already living at the home and there had been no further home invasions in the last 6 months. In my view, whatever may be the present risk, it is likely to be heightened if HT were to return to the family home. Further, this submission also appeared to discount the evidence of Youth Justice that the gang tensions had been linked to HT's home having been targeted on several occasions.
9. Secondly, a condition requiring electronic monitoring would not address the issues referred to above so as to make the obvious and serious risk an acceptable risk. Although the affixing of an electronic monitoring device would be likely to discourage HT to some extent from breaching his curfew or visiting any exclusion zone, it would not prevent him from being in the community outside his curfew hours. Further, while the ability to detect any crimes committed at such times may well be improved because of electronic monitoring,[63] in circumstances where HT is easily influenced by his peers, such monitoring would be unlikely to prevent him endangering others in the community if he is subject to peer group pressure to do so.
10. Thirdly, HT's recent history demonstrates that the fact that he is the subject of bail has not proven a meaningful disincentive with respect to committing offences while on bail. It bears repeating that he was bailed 6 times before the alleged offending the subject of this application.
11. Fourthly, HT has had substantial support in the past which has not prevented repeated offending over an extended period of time. It is incontrovertible that his father (and his mother), no doubt despite their best efforts, have been unable to prevent HT from breaching his conditions of bail in the past, including by repeated offending. HT's father has worked very closely with Youth Justice over an extended period of time, but to no avail. Equally, HT's case manager has worked diligently for over a year to try and curtail HT's repeated offending. In giving her evidence on this application, she demonstrated she is still very committed to doing so.
12. Without attempting to be exhaustive, the above matters viewed collectively are more than sufficient to establish that HT would pose an unacceptable risk if he were released on bail. In such circumstances, the court is compelled to dismiss the application.
13. It follows that it is unnecessary to determine whether or not HT also presents an unacceptable risk of interfering with a witness or otherwise obstruct the course of justice. Suffice to say, there are also well-founded concerns in this regard.

1. The prosecution has established there is an unacceptable risk that HT would, if released on bail, endanger the safety or welfare of persons in the community by committing an offence that has that effect or by any other means. Accordingly, bail must be refused.

[1] The pseudonym "HT" has been used to protect the identity of the applicant and to ensure compliance with s 534(1)(a)(ii) of the Children, Youth and Families Act 2005 (Vic).

[4] Police allege that "GDG" or "Get Da Guap" is a youth gang and that, amongst others (including one of HT's brothers), HT, the Fourth Co-accused (and his brother) and the Associate are all members.

[5] Police allege that "38" or "38 Babyz" is a youth gang, which is also known as "BRS" or "SRT" (Serious Risk Takers), and that, amongst others, Sein was a member and his 2 associates are members.

[7] There were additional charges, but these were withdrawn on 13 February 2025.

[8] Pursuant to s 3 of the Bail Act, "child" has the same meaning as the definition found in the Children, Youth and Families Act. In the case of a person who is alleged to have committed an offence, a child is defined as a person who at the time of the alleged commission of the offence was under the age of 18 years, but is of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the court: see Children, Youth and Families Act, s 3.

[9] Children, Youth and Families Act, s 346(6).

[10] Section 4 of the Bail Amendment Act 2025 (Vic) repealed s 1B(1)(a) of the Bail Act, removing the importance of maximising the safety of the community of persons affected by crime to the greatest extent possible from the list of guiding principles in s 1B, and introduced that principle as a separate matter of overarching importance in a new s 1B(1AA). See also Re MMA (a pseudonym) (Bail Application) (No 2) [2025] VSC 154, [4(a)] (Gorton J).

[11] Bail Amendment (Tough Bail) Bill 2025 (Vic), Explanatory Memorandum, cl 4.

[12] Re Cartledge (Bail Application) [2025] VSC 177, [41] (Taylor JA).

[13] Bail Act, sch 1, item 2.

[14] Ibid, s 4AA(1).

[15] Ibid, s 4A(1A).

[16] See, for example, Re Brown [2019] VSC 751, [65] (Lasry J), and the cases there cited.

[18] Bail Act, s 4D(a).

[19] Ibid, s 4E(3)(b).

[20] Ibid, s 4E(1).

[21] Hall v Pangemanan [2018] VSC 533, [25] (Croucher J).

[22] Bail Act, s 4E(2).

[23] Ibid, ss 4A(3), 4E(3)(a).

[24] See pars 94-101 below.

[25] Separate and in addition to the surrounding circumstance of special vulnerability of an accused due to being a child: Bail Act, s 3AAA(1)(h)(ii).

[26] Bail Act, s 3B(1B). In this case, s 3B(1)(c) does not apply.

[27] Re JO [2018] VSC 438, [14] (T Forrest J). In relation to children seeking bail on the basis of exceptional circumstances, see also: FT v The King [2024] VSCA 90, [34]-[42] (Beach, McLeish and Niall JJA); Re PJ [2024] VSC 97, [55]-[60]; [70] (Incerti J); Re GA [2022] VSC 148, [25]-[30]; [60] (Fox J); Re AM [2020] VSC 569, [29]-[37] (Tinney J); Re TP [2018] VSC 748, [31]-[34] (Champion J).

[28] Bail Amendment (Tough Bail) Bill 2025 (Vic), Explanatory Memorandum, cl 5.

[29] Such as continuous grants of bail with increasingly strict bail conditions even when alleged reoffending is particularly dangerous to the community: Victoria, Parliamentary Debates, Legislative Assembly, 18 March 2025, 916-917 (Jacinta Allan).

[30] Re MMA (a pseudonym) (Bail Application) (No 2) [2025] VSC 154, [4(b)] (Gorton J).

[31] Bail Act, s 3B(2).

[32] Ibid, s 12(4)(a).

[33] Ibid, s 5AAA(1).

[34] Ibid, s 5AAA(2).

[35] Youth Justice Act 2024 (Vic), s 2.

[36] Section 3AAA(ia). See par 88 above.

[37] Regulations have been made prescribing 31 local council areas, being the local council areas in metropolitan Melbourne - see Bail Amendment (Electronic Monitoring) Regulations 2025 (Vic), rr 27 and 29.

[38] Bail Act, s 17D. An accused is also of an eligible age if the accused is 18 years of age at the time the decision is to be made and the accused was under 18 years of age at the time of the alleged offending. Additional criteria for an applicable decision may be prescribed, but no such criteria have been prescribed at this time: Bail Act, s 17D(2)(c).

[39] Bail Act, s 17E(1).

[40] Ibid, s 17N(1).

[41] Ibid, s 17N(2)(d). Evidence was given at the hearing of this application by the Practice Lead with the Enhance Bail Supervision and Support Service that, if HT was suspected of committing an offence, police could make an application to the Youth Justice Commissioner to access the Global Positioning System data from HT's electronic monitoring device. HT's counsel was unable to provide any information as to the likelihood of such an application being successful or unsuccessful, and acknowledged this information may not be available because the electronic monitoring scheme is still in its infancy.

[42] Bail Act, s 17G.

[44] Bail Act, s 17F.

[45] Ibid, s 17J.

[46] Ibid, s 17K.

[47] Ibid, s 4E(4).

[48] Ibid, s 5AAA(3A).

[49] Items (2), (6), (7), (8) and (9) were identified as the 5 "core matters" that, in combination, established exceptional circumstances.

[51] Only scant details of this diagnosis were provided.

[52] There is still work to be done. An application to the Victims of Crime Assistance Program for roller shutters to be added to doors remains outstanding. It would appear that the windows of HT's family home are yet to be secured.

[53] In this context, Re IM [2023] VSC 360 (Champion J) esp at [90] was referred to. It was submitted that case was not too dissimilar to the facts of this case.

[54] Evidence was given by the Practice Lead with the Enhanced Bail Supervision and Support Service to the effect that HT's home had been assessed as appropriate for the installation of devices necessary for electronic monitoring to be implemented. HT was also physically assessed and considered suitable for an electronic monitoring device to be fitted to his body.

[55] Crimes Act 1958 (Vic), s 324.

[58] For completeness, HT's father was not previously the subject of an undertaking to report any breach of conditions of HT's bail.

[59] It was accepted that this was only a relatively minor factor.

[60] Re Wetzler [2023] VSC 626, [71] (Champion J). See also s 3AAA(1)(b) of the Bail Act and FT v The King [2024] VSCA 90, [78] (Beach, McLeish and Niall JJA).

[61] FT v The King [2024] VSCA 90, [79] (Beach, McLeish and Niall JJA).

[62] As to the last of these matters, if HT were granted bail it was intended that he would be assessed on 29 May 2025 as to whether or not he could commence school on a part time basis of 2 days a week, from 10.00am to 3.00pm.

[63] See fn 41 above, however, for the limited extent to which there was any evidence to support the likelihood of this.