Re Nikkelson (Bail Application) [2025] VSC 392 (2 July 2025)

2 The applicant has been charged with a series of offences arising from an incident on 14 June 2025 at a mini mart in Box Hill. Those offences are:

(a) armed robbery;[2]

(b) assault with weapon;[3] and

(c) possess controlled weapon without excuse (two charges).[4]

3 In very short compass, it is alleged that the applicant and a 19-year-old co-offender entered the store at about 10:35 pm. A younger co-accused stood watch outside. Both the applicant and the older co-offender were carrying knives (the applicant carrying a large wooden-handled knife). There were two mini mart employees present when the applicant and his co-accused produced their knives. The older co-accused demanded money and threatened the staff. The staff refused and one of them told the intruders to get out. The older co-accused replied, 'Do you want to get stabbed? Give me cash. I'm not leaving until I get cash'.

4 I have viewed CCTV footage of the entire incident. Contrary to the police summary, the applicant does not try to stab the complainant at all, and for most of the minute or so that he is in the store, he is at the counter area, perhaps a meter from the victims of this offending. The victims were behind the counter near the till for most of this time. As far as I could see, the CCTV does not show the 19-year-old co-accused attempting to stab anyone either, although he does grab the male victim's arm and then unsuccessfully reached towards the cash register. The applicant left the store and waited in the doorway while his co-accused removed a vape (valued at $40) before he left the store. The younger co-accused remained outside throughout. This was no doubt a traumatic experience for the two victims.

5 The trio were arrested approximately 40 minutes later at Box Hill train station. The applicant was found to be in possession of a knife similar to that used in the earlier offending, and two Stanley knives which he said he had taken from the younger co-accused.

6 He made a 'no comment' interview and was remanded in custody. On 16 June 2025, he was refused bail at the Melbourne Magistrates' Court on the basis that he had failed to show compelling reasons why he should be granted bail. To date, he has been in custody for a week since 14 June 2025. He is currently being held in adult custody.

7 Armed robbery is a Schedule 2 offence under the Act.[5] Section 4AA(3) of the Act provides that the 'show compelling reason test' applies to a decision whether or not to grant a person bail if that person is charged with a Schedule 2 offence and, as in this case, subsection 4AA(2) does not apply.[6] Section 4AA(2) applies the exceptional circumstances test to certain specific types of schedule 2 offending.[7]

8 If the applicant is able to satisfy the 'show compelling reason test', the respondent (the prosecution) then bears the onus of demonstrating on balance that the accused if released on bail was at risk of:

(a) committing a Schedule 1 or Schedule 2 offence; or

(b) otherwise endangering the safety or welfare of any other person; or

(c) interfering with a witness or otherwise obstruct the course of justice; or

(d) failing to surrender into custody.[8]

This is referred to as 'the unacceptable risk test'.[9]

9 If the applicant has satisfied the compelling reason test, and the prosecution have failed to satisfy the unacceptable risk test, then I must grant bail. In any other circumstance, I must refuse bail.

10 In determining whether a compelling reason exists, I must take into account the surrounding circumstances, including but not limited to those prescribed in s 3AAA(1) of the Act. I shall return to that section and the surrounding circumstances shortly.[10]

11 The phrase 'compelling reason' speaks for itself; it is not as stringent as, for example 'the exceptional circumstances test' but is more stringent than the now-abandoned 'detention in custody is not justified test'.[11] The court has recently said in Re Alsulayhim:[12]

The expression 'compelling reason' was considered in Re Ceylan. In that case, the Court held:

(1) For an applicant required to show 'compelling reason', a synthesis or balancing of all relevant matters 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 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'.[13]

12 Finally, in reviewing the relevant provisions, I refer to ss 3A and 3AAA of the Act. Section 3A requires a court in an application for bail in this state to take into account any issues that may arise as a consequence of an applicant's Aboriginality, relevantly including:

(a) the ongoing systemic discriminatory factors that have resulted in Aboriginal people being overrepresented in the criminal justice system, including the remand population;

(b) the risk of harm and trauma that being in custody poses to Aboriginal people;

(c) the impact of trauma and intergenerational trauma including abuse, neglect, loss and family violence;

(d) any experience of out of home care, including foster care and residential care; and

(e) any experience of social or economic disadvantage, including homelessness and unstable housing.[14]

13 Section 3AAA sets out a non-exhaustive list of surrounding circumstances that I must take into account when considering whether or not the compelling reason test is satisfied. In particular, I have taken into account:

(a) the likely outcome if the applicant were to be found guilty, including the likely sentence;

(b) the nature and seriousness of the alleged offending;

(c) the strength of the prosecution case;

(d) the applicant's criminal history, or in this case, his absence of the same, and the associated absence of a bail or remand history;

(e) his personal circumstances, associations, home environment and background;

(f) any special vulnerability including Aboriginality;

(g) the availability of support services while on bail;

(h) the view of the victims to the proposed bail; and

(i) the likely length of time in custody.[15]

14 I am satisfied that the applicant has shown a compelling reason exists to grant him bail. That satisfaction is derived in particular from the following combination of factors:

(a) the applicant is 18 years old and has no prior convictions. There is some asserted history of FVIO[16] misconduct, however no history of grants of bail and no outstanding criminal charges are alleged against him;

(b) he is an Aboriginal man of the Gunditjmara People;

(c) I consider the case against the applicant on the most serious charge of armed robbery is generally strong, although it may be argued on his behalf that he had retreated from the agreement to carry out the armed robbery by the time the co-accused appropriated the vape. If this argument were accepted, the correct charge would be attempted armed robbery. Either way, this is serious offending. If the applicant is dealt with for armed robbery (as opposed to attempted armed robbery) to avoid a custodial order, he would need to demonstrate that 'there are substantial and compelling circumstances that are exceptional and rare and that justify not making such an order'.[17] As the Court of Appeal recognised in Buckley v The Queen[18] this is an extraordinarily stringent test that is all but impossible to satisfy.[19] Having said that, certain aspects of the applicant's deprived early life may be sufficient to satisfy a sentencing judge that the test is satisfied. I shall refer to these aspects in paragraph [14(d)] of these reasons;

(d) the applicant's maternal grandmother was a member of the stolen generation. As a very young child, he was exposed to substantial violence and alcohol abuse in the family home. It seems he had little, if any, contact with his natural father. He ran away from home at the age of 8 years, to avoid violence at the hands of his stepfather. At age 10, he witnessed his maternal grandfather commit suicide. At age 13, his mother placed him in care; he remained in care until his 18th birthday, 2 months ago. Throughout his childhood, he was the victim of racism at school in the Ballarat area. At the time of offending, he was effectively homeless, although some transitional housing was in the process of being made available. His cards were marked from the moment he was born;

(e) as an indigenous man, the Act contemplates that he has a special vulnerability in custody;[20]

(f) the applicant recently obtained transitional housing in a suburb of Ballarat. He was supported to obtain this accommodation by Uniting Care's child and family support services ('CAFS'). This is available to him for 12 months;

(g) after an initial lack of engagement with Youth Justice, he was assessed on the morning of this bail hearing by Ms Bridget McGeoch, and was found to be suitable for their supervisory services in the event this application was successful. I considered Ms McGeoch to be a most impressive witness;

(h) the applicant is also now - to some extent - engaged with BADAC's[21] Better Futures program;

(i) I consider that the likely delay in resolving this matter will be in the range of 9-12 months, assuming it proceeds as a plea in either the County Court or the County Koori Court. It is set down for committal mention at the Melbourne Magistrates' Court on 8 September 2025; and

(j) I consider the potential outcomes for the applicant are (in no particular order):

• a term of detention at a Youth Justice centre;
• time served (7 days) (should the applicant be granted bail) with an onerous community correction order ('CCO');
• an onerous CCO. This option would only be available should he plead guilty to attempted armed robbery or if he were able to demonstrate 'special' circumstances on a plea to armed robbery;[22]
• I think it is highly unlikely that the matter will end up being determined by a jury in a criminal trial;
• I think it is highly unlikely that the applicant would be sentenced to a term of adult imprisonment; and
• should bail be refused, the applicant would be remanded to adult custody for the next 9-12 months, having spent the previous five years in residential care. This would be incompatible with the best interests of both the community and the applicant.

15 I am fortified in this conclusion that the applicant has satisfied the 'show compelling reason test' by the very sensible concession by Ms Duckett, counsel for the respondent.

16 No grant of bail is without risk. I accept that the applicant presents a risk of reoffending and I am acutely aware of the serious nature of his alleged offending conduct. After anxious consideration, I have concluded that with the imposition of quite strict conditions, the applicant's risk can be managed to acceptable levels. Put more correctly, with these conditions in place, I consider that the respondent has failed to satisfy the 'unacceptable risk test'.[23]

17 The special conditions that will be attached to the grant of bail on the applicant's own undertaking are as follows:

CONNOR NIKKELSON be admitted to bail on his own undertaking and upon the following special conditions:

He is to appear at the Melbourne Magistrates' Court at 2:00 pm on 8 September 2025 and then surrender himself into custody, and must not depart without leave of the Court;

He reside at [address], Redan in the State of Victoria ('his residence');

He not change his residence without leave of the Court;

He remain at, and not depart from his residence between the hours of 9:00 pm and 6:00 am each day for the duration of bail, unless travelling to and from Melbourne for the purpose of attending Court;

He present himself at the front door of his residence during those curfew hours if called upon by a member of Victoria Police to do so;

He not communicate (either directly or indirectly) or associate with the co-accused, Jai SASS;

He not have any contact or seek to contact any witnesses for the prosecution, except the Informant.

He complies with all lawful directions of Youth Justice;

He not enter the suburb of Box Hill;

He not leave the state of Victoria;

He not attend any points of international departure, and if he has a passport, to surrender this to Victoria Police;

He not apply for passports or travel documents or have someone do this on his behalf;

He appear before the Melbourne Supreme Court at 11:30 am on 4 July 2025 for bail monitoring, and must appear on any further dates for bail monitoring appointed by this Court during the course of this Order.

18 It will be apparent from these conditions that whilst the applicant has been bailed to appear at Melbourne Magistrates' Court on 8 September 2025, I have imposed a condition that he attend at this Court on Friday 4 July 2025 so that I may monitor his progress in the first fortnight on bail. I may, on that date, impose a further monitoring condition.

19 The application for bail is granted with the above special conditions.

[1] Bail Act 1977 ss 3A, 3AAA.

[2] Contrary to s 75A of the Crimes Act 1958.

[3] Contrary to s 24 of the Summary Offences Act 1966.

[4] Contrary to s 6 of the Control of Weapons Act 1990.

[5] Bail Act 1977, s 22.

[6] Ibid s 4AA(3).

[7] Ibid s 4AA(2).

[8] Bail Act 1977, s 4E.

[10] Ibid s 3AAA(1).

[11] Section 4(4) of the Bail Act 1977, repealed in 2018, provided that for certain offences, 'the court shall refuse bail unless the accused shows cause why his detention in custody is not justified'.

[12] [2018] VSC 570.

[13] Ibid [27] (Beach JA). See also, Re Ceylan [2018] VSC 361, [46] (Beach JA).

[14] Bail Act 1977, s 3A.

[15] Ibid s 3AAA.

[16] Family Violence Intervention Orders.

[17] Sentencing Act 1991, s 5H(e). This legislative provision provides that the court must impose an imprisonment sentence for an offender of a category 2 offence unless certain exceptions are met.

[18] (2022) 71 VR 218; [2022] VSCA 138.

[19] Ibid 230 [44] (Maxwell P and T Forrest JA).

[20] Bail Act 1977, s 3A(b).

[21] Ballarat and District Aboriginal Cooperative.

[22] See paragraph [13(i)] of these reasons.

[23] Ibid s 4E.