CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION,
REVIEW AND APPEAL – where Police Prosecutions applied
pursuant to s 19B(2)
Bail Act 1980 (Qld) for a review of a Magistrate’s decision to
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION,REVIEW AND APPEAL – where Police Prosecutions appliedpursuant to s 19B(2)Bail Act 1980 (Qld) for a review of a Magistrate’s decision togrant the respondent bail – where the charges for which the respondentwasgranted bail included enter a dwelling and commit an indictable offence andunlawful use of a motor vehicle – where thealleged offending involvedbreaking into a residential property and the unlawful use of a vehicle stolenfrom this property –where the respondent is a juvenile – where therespondent had a significant criminal history – where the respondent wason bail for periods of the alleged offending – whether burglary andunlawful use of motor vehicles by juveniles endangers thesafety of thecommunity – whether if released there is an unacceptable risk that thechild will commit an offence that endangersthe safety of the community –whether it is not practicable to adequately mitigate that risk by imposing
particular conditions
– whether the bail granted to the respondent should
be revoked
Bail Act 1980 (Qld), s 19B(2)
Youth Justice Act 1992 (Qld), s 48AA(4)(b), s 48AAA
Judgment (6 paragraphs)
[1]
[1] HENRY J: Police Prosecutions made an application pursuant to s19B(2) Bail Act1980 (Qld) for a review of a Magistrate's decision granting bail to the respondent on 12 July 2021. The charges for which the respondent was granted bail are:
[2]
(1) unlawful use of a motor vehicle on 12 May 2021;
[3]
(2) enter a dwelling and commit an indictable offence on 11 July 2021; and
[4]
It is the grant of bail for the charges of 11 July which particularly prompts the application, they being offences allegedly committed after her most recent sentence.
[5]
[2] The respondent is a juvenile. She turned 15 late last year. She is a recidivist juvenile offender. Her appalling juvenile criminal history commenced in late 2019. It is littered with burglaries and unlawful uses of motor vehicle. Her alleged offending of 11 July 2021 - the evidence of which is strong in light of the fact of her admission and apparently the fact that it has now been listed for sentence in the Magistrates Court next week - appears to perpetuate that pattern. She, on her own admission to police, was one of four juvenile offenders involved in breaking into a suburban house, she acting as lookout, and the group later using a stolen car from that home, she riding as a passenger while one of the other juveniles drove.
[3] It is as well to reiterate, as I have in previous reviews, that juveniles breaking into homes and later unlawfully using vehicles stolen from those homes are committing offences which endanger the safety of the community, including themselves. That is because of the risk of violence occurring as between them and the dwelling occupants, many of whom will be tempted to apply force to detain or repel offenders breaking into their home. It is also because of the risk of vehicles in the hands of untrained children drivers crashing and doing injury. Such dangers do not always crystallise into actual harm or injury but it is the very real risk of such harm or injury occurring which means such offending "endangers the safety of the community".
[4] In considering this review it is unnecessary to identify a specific error below, it being a hearing de novo. The respondent was below in a show-cause position, which thus continues here. That is because she was on bail for the unlawful use of a motor vehicle offence of 12 May 2021 at the time of the alleged offending of 11 July 2021. Even approaching the matter as if she were not in a show-cause position, I would conclude this application in favour of the applicant and not her.
[5] Consideration of juvenile bail requires, as with adult bail, consideration of risk. However, a much more benevolent approach notoriously needs to be taken for juveniles. Pursuant to s 48AA Youth Justice Act1992 (Qld), the decision-maker may have regard to a host of considerations in , including ; considerations which tend inevitably to weigh in favour of a grant of bail. Of course, it is a significant consideration that I am dealing with a young and obviously immature person and I bear in mind at the forefront of my mind that and other aspects favourable to her, to which I have generically referred by reference to the section. However, the problem is her repeated pattern of behaviour.
[6]
[13] I revoked the bail granted to the respondent on 12 July 2021, yesterday, so that the default position pending disposition of this matter was that she was remanded in custody.
[14] It follows the only formal orders required are the granting of the application and the further remanding of the child in custody to appear next in the Cairns Magistrates Court on 6 August. A notice to appear will issue requiring her appearance in the Cairns Magistrates Court on that date.
[6] She was sentenced for many offences on 6 April 2021 and even more on 29 June 2021. On the former occasion she was sentenced to four months detention to be served by a conditional release order. On 29 June, less than a fortnight before she appears to have reoffended, she received a like such sentence to be served concurrently with the former.
[7] There comes a point in time when the interests of the community and the safety of the community trumps the specific interests of the community in treating juveniles with care and avoiding their incarceration, particularly whilst awaiting sentence. Section 48AAAYouth Justice Act contemplates that if satisfied, if the child is released, there is an unacceptable risk that the child will commit an offence that endangers the safety of the community and that it is not practicable to adequately mitigate that risk by imposing particular conditions, then the Court must decide to keep the child in custody.
[8] Given the recidivism and the apparent repeat pattern of offending represented by the offences which were the subject of the grant of bail - that is to say the offences in particular alleged to have occurred on 11 July 2021 - and in light of the reasons I have already given, it seems to me there is clearly an unacceptable risk that the child will commit further like offences and that, because of their nature, they are intrinsically offences that endanger the safety of the community.
[9] The only remaining issue then that, in effect, might be in the respondent's favour is the prospect, as was urged upon me, that it is practicable to adequately mitigate the risk by imposing particular conditions of release on bail. The submissions in support of that particularly highlighted that other than breaking curfew to commit the alleged offences, there are only two other breaches of curfew, one of which in particular was, in effect, committed on the direction of a parent. But that is just a small fragment of the relevant picture about mitigation of risk. It overlooks that less than two weeks after yet again being sentenced, she was back at her same modus operandi. It rather demonstrates not only being subject to bail conditions but indeed being subject to a conditional release order appears not to have adequately mitigated the risk. Those supervising the two orders that were imposed on 6 April and 29 June 2021 outline, through the affidavit of Ms Duncan, in a variety of ways a number of failures of the respondent to comply with the carrying out of the requirements of that order. Indeed, it is contemplated that there should be a meeting on 30 July to provide her with a formal warning about her noncompliance.
[10] All of that then is quite unattractive in supporting the argument that it is practicable to adequately mitigate the risk. It is not suggested that any additional conditions are open to adequately mitigate the risk, rather perpetuation of the existing conditions is suggested. I am not persuaded that they adequately mitigate the risk in any practical sense. The most obvious way in which the risk would be mitigated is that she is properly supervised by those responsible for her. That has not been happening.
[11] It is difficult not to feel considerable sympathy for the juvenile involved, given that she has been let down by adults who should be properly supervising her conduct. Ultimately though, the consideration of community safety in circumstances of such obviously hardnosed recidivism trumps the other considerations which normally mitigate strongly against remanding a juvenile in custody whilst awaiting disposition of their matter.
[12] In the circumstances, the application is granted.