Keeping children out of custody wherever possible – the Supreme Court of Victoria overturns decision to refuse bail to 15-year-old child

HA (a pseudonym) v The Queen S EAPCR 2021 0019 (19 March 2021)

Summary

The Victorian Supreme Court overturned a decision to refuse bail to a 15 year old child. In deciding to grant a child bail, Justice Maxwell and Justice Kaye were guided by the “fundamental principle” of the youth legal system to “keep children out of custody wherever possible.”[1]

Their Honours also raised the “unacceptable” rate of over-representation of Aboriginal and Torres Strait Islander people in the criminal legal system and considered that the “courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates.”[2]

Facts

The child’s identifying factors were anonymised in the case; for the purpose of this case summary we will refer to the appellant as “the Child”.

The Child was arrested, while on bail for three separate groups of offences, and was charged with 18 new offences. The Child’s application for bail was refused, and the grant of bail in relation to the prior offending was revoked. The Child appealed this decision.

The Child was charged with ‘schedule 2’ offences under the Bail Act 1997 (the Bail Act). When considering a bail application in relation to these offences, the court must consider whether there was an “unacceptable risk” that the Child would endanger the safety and welfare of a person or commit an offence while on bail.

The trial judge found that there was an unacceptable risk that the Child, if released on bail, would endanger others or commit an offence while on bail. The question on appeal was whether the trial judge erred in forming that conclusion.

Key Findings

The appellate judges, Justice Maxwell and Justice Kaye, concluded that although there was a “real risk” that the Child, if released on bail, would endanger others or commit an offence, this risk was not “unacceptable.”

In evaluating the risk, section 3AAA(1) of the Bail Act requires the court to consider the “surrounding circumstances.”

Firstly, a key circumstance requiring consideration as part of the “surrounding circumstances” was the Child’s intellectual and psychological profile. The Child has an intellectual functioning equivalent to that of a four to six year old child.

Secondly and relatedly, the Child has a significant intellectual disability, severe global speech and language disorder and attention deficit hyperactivity disorder. The Child has also been diagnosed with Post Traumatic Stress Disorder, attributable to significant trauma he experienced during his infancy and early childhood.

Thirdly, the Child had also been assessed as being particularly vulnerable to the influence of other young people in prison. Their Honours acknowledged that if the Child were to be detained in prison, this could put his personal safety at risk and also further entrench him in the criminal legal system.

Fourthly, section 3A of the Bail Act requires the court to “take into account any issues that arise due to the person’s Aboriginality.” Their Honours provided:

The provisions in the Act are also a recognition of the unacceptable over-representation of Aboriginal and Torres Strait Islander peoples in custody, which regrettably persists some 30 years after the landmark report of the Royal Commission into Aboriginal Deaths in Custody. That report addressed the factors that contributed to those incarceration rates, including a number of failures by the criminal justice system to deal justly with Aboriginal and Torres Strait Islander persons who come before the courts.[3]

Their Honours considered that “[t]he courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates, unless there is good cause to do so.”[4]

Finally, it was “common ground” that it was unlikely the Child would be sentenced to a term in custody if found guilty of the charges. This proved to be the most significant factor for their Honours.

Once this had been established, their Honours considered that detaining the Child in custody pre-trial “would be akin to a form of preventative detention.”[5] Preventative detention is “alien to the fundamental principles” underpinning the justice system.[6]

Their Honours reflected that this is particularly relevant to young people who are denied bail, given that 80 percent of children who are refused bail are not sentenced to custody if found guilty.

Their Honours deemed this as an afront to the “long standing concern of the criminal justice system – and the community – to keep children out of custody wherever possible.”[7]

Outcome

Upon evaluating all of the above the “surrounding considerations”, their Honours found the degree of risk to not be “unacceptable” and granted the Child bail. They found that, as is true of almost every grant of bail, there will remain a degree of risk. Nevertheless, it was not reasonably open to the trial judge that the risk was unacceptable in the circumstances of this case:

Given the powerful considerations to which we have referred — the appellant’s youth and childlike cognitive capacity, his vulnerability in custody and the probability that he will not receive a custodial sentence — what might in other circumstances have been viewed as unacceptable risk had properly to be viewed as acceptable.[8]

Their Honours concluded that the appeal should be allowed, and that bail be granted to the Child subject to appropriate conditions.

Commentary

Their Honours acknowledged that their decision regarding the fate of an Aboriginal child was being made in the context of a criminal legal system that has, due to discriminatory laws and practices, over-policed and over-imprisoned Aboriginal and Torres Strait Islander people for generations. Their Honours implored the courts to be conscious of, and accountable for, their role in this system.

The Judges also provided that the youth legal system should not be wielded as a tool to punish children. The youth legal system should instead be focussed on addressing the individual needs of children in order to properly support them in a life outside of the criminal legal system.

Given the trend across Australia at the moment – particularly in Queensland and the Northern Territory where governments have proposed legislative reform that will likely result in more children being denied bail – this decision is a salient reminder that a fundamental principle of the youth legal system is to “keep children out of custody wherever possible”.

The case can be read in full here.

Cassandra Hamill is a graduate lawyer on secondment at the Human Rights Law Centre.

[1] HA (a pseudonym) v The Queen S EAPCR 2021 0019 (19 March 2021), [64].

[2] Ibid, [59].

[3] Ibid, [59] (emphasis added).

[4] Ibid.

[5] Ibid, [64].

[6] Ibid.

[7] Ibid. 

[8] Ibid, [73].