Iordache v DJM[2023] QSC 134

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent is a child who, on 7 June 2023, was granted bail on 12 charges.

2. [2]
   For reasons which will become apparent, charges 1 to 6 are the important ones. They were allegedly committed between 2 June 2023 and 6 June 2023.

3. [3]
   Charges 7 to 12 were committed between 5 December 2022 and 8 December 2022 and predate a grant of bail on 27 April 2023.

4. [4]
   The June charges were allegedly committed while the child was on bail in respect of 94 offences. He was granted bail in relation to those 94 offences on 27 April 2023.

5. [5]
   The applicant did not seek to review the grant of bail made on 27 April 2023 but seeks to review the grant of bail made on 7 June 2023.

Relevant statutory provisions

6. [6]
   The Bail Act 1980, as its name suggests, empowers various courts to grant bail. It also authorises watch house bail. The Bail Act applies to children who have been charged with committing offences. The Youth Justice Act 1992 is, as its name suggests, legislation which regulates the criminal process as it applies to children. It is well-established that the Youth Justice Act sets up a separate and distinct regime to deal with child offenders.^[1]

7. [7]
   The Youth Justice Act contains various provisions relevant to the grant of bail, relevantly here, ss 48, 48AAA and 48AA. Those provisions are:

“48   Releasing children in custody in connection with a charge of an offence

1. (1)
   This section applies if a court or police officer is deciding whether to release a child in custody in connection with a charge of an offence or keep the child in custody.
2. (2)
   The court or police officer must decide to release the child unless required under this Act or another Act to keep the child in custody or exercising a discretion under this or another Act to keep the child in custody.

Notes—

1. See, for example, sections 48AAA(2), 48AE, 48AF and 48A for when a child must not be released from custody.
2. See also the Bail Act 1980, section 13 for when only particular courts may grant a person bail.

48AAA Releasing children in custody—risk assessment

1. (1)
   This section applies if a court or police officer is deciding whether to release a child in custody in connection with a charge of an offence or keep the child in custody.
2. (2)
   The court or police officer must decide to keep the child in custody if satisfied—

   1. if the child is released, there is an unacceptable risk that the child will commit an offence that endangers the safety of the community or the safety or welfare of a person; and
   2. it is not practicable to adequately mitigate that risk by imposing particular conditions of release on bail.
3. (3)
   Also, the court or police officer may decide to keep the child in custody if satisfied that, if the child is released, there is an unacceptable risk that—

   1. the child will not surrender into custody in accordance with a condition imposed on the release or a grant of bail to the child; or
   2. the child will commit an offence, other than an offence mentioned in subsection (2)(a); or
   3. the child will interfere with a witness or otherwise obstruct the course of justice, whether for the child or another person.

4. (4)
   Subsection (5) applies if—

   1. the child is before a court; and
   2. the court has information indicating there may be an unacceptable risk of a matter mentioned in subsection (2) or (3), but does not have enough information to properly consider the matter.
5. (5)
   The court may remand the child in custody while further information about the matter is obtained.” (emphasis added)

48AA  Matters to be considered in making particular decisions about release and bail

1. (1)
   This section applies if a court or police officer is making any of the following decisions in relation to a child in custody in connection with a charge of an offence (the alleged offence)—

   1. whether there is an unacceptable risk of a matter mentioned in section 48AAA(2);
   2. whether there is an unacceptable risk of a matter mentioned in section 48AAA(3);
   3. whether to release the child despite being satisfied there is an unacceptable risk of a matter mentioned in section 48AAA(3);
   4. whether to release the child without bail or grant bail to the child;
   5. whether the child has shown cause under section 48AF(2) why the child’s detention in custody is not justified.
2. (2)
   The court or police officer must have regard to the following matters of which the court or police officer is aware—

   1. any promotion by the child of terrorism;
   2. any association the child has or has had with a terrorist organisation, or with a person who has promoted terrorism, that the court or police officer is satisfied was entered into by the child for the purpose of supporting the organisation or person—
      1. (i)
         in the carrying out of a terrorist act; or
      2. (ii)
         in promoting terrorism.

Note—

See also section 48AB.

3. (3)
   Also, if the decision is being made by a court, the court must have regard to the sentence order or other order likely to be made for the child if found guilty.
4. (4)
   In making a decision mentioned in subsection (1)—

   1. the court or police officer may have regard to any of the following matters of which the court or police officer is aware—
      1. (i)
         the nature and seriousness of the alleged offence;
      2. (ii)
         the child’s criminal history and other relevant history, associations, home environment, employment and background;
      3. (iii)
         the history of a previous grant of bail to the child;
      4. (iv)
         the strength of the evidence against the child relating to the alleged offence;
      5. (v)
         the child’s age, maturity level, cognitive ability and developmental needs;
      6. (vi)
         whether a parent of the child, or another person, has indicated a willingness to the court or police officer that the parent or other person will do any of the following things—
      1. (A)
         support the child to comply with the conditions imposed on a grant of bail;
      2. (B)
         notify the chief executive or a police officer of a change in the child’s personal circumstances that may affect the child’s ability to comply with the conditions imposed on a grant of bail;
      3. (C)
         notify the chief executive or a police officer of a breach of the conditions imposed on a grant of bail;
      7. (vii)
         if the child is an Aboriginal person or Torres Strait Islander—a submission made by a representative of the community justice group in the child’s community, including, for example, a submission about—
      1. (A)
         the child’s connection with the child’s community, family or kin; or
      2. (B)
         cultural considerations; or
      3. (C)
         considerations relating to programs and services established for offenders in which the community justice group participates;

Note—

See also section 48AC.

8. (viii)
   any other relevant matter; and

2. (b)
   for a decision mentioned in subsection (1)(d)—the court or police officer may have regard to any of the following—

   1. principle 18 of the youth justice principles;
   2. the desirability of strengthening and preserving the relationship between the child and the child’s parents and family;
   3. the desirability of not interrupting or disturbing the child’s living arrangements, education, training or employment;
   4. the desirability of minimising adverse effects on the child’s reputation that may arise from being kept in custody;
   5. the child’s exposure to, experience of and reaction to trauma;
   6. the child’s health, including the child’s need for medical assessment or medical treatment;
   7. for a child with a disability—the disability and the child’s need for services and supports in relation to the disability;
   8. if the child is an Aboriginal person or Torres Strait Islander—the desirability of maintaining the child’s connection with the child’s community, family and kin;
   9. if the child is under 14 years—the particular desirability of releasing children under 14 years from custody due to their vulnerability and community expectations that children under 14 years are entitled to special care and protection.

5. (5)
   In deciding whether there is an unacceptable risk of a matter mentioned in section 48AAA(3), the court or police officer may—

   1. consider whether a condition could, under section 52A, be imposed on a grant of bail to the child; and

   2. (b)
      have regard to the effect on the risk of imposing the condition.

6. (6)
   The court or police officer must not decide there is an unacceptable risk of a matter mentioned in section 48AAA(2) or (3), or to refuse to release a child from custody, solely because 1 or both of the following apply—

   1. the child has no apparent family support;
   2. the child will not have accommodation, or adequate accommodation, on release from custody.
7. (7)
   In this section—

terrorist organisation see the Criminal Code (Cwlth), section 102.1(1).

8. [8]
   Examination by a court of a decision of a lower court with a power of correction can take many forms^[2] and difficult questions can arise.^[3] In Director of Public Prosecutions v Filippa,^[4] Douglas J determined that a review under s 19B of the Bail Act was a hearing de novo. It follows that this Court exercises afresh the discretion granted by the Bail Act (and here varied by the Youth Justice Act) to grant bail. No error need be shown in the decision below, as would need to be shown if the review was of the nature of an appeal by way of rehearing.^[5] The principles governing appellate interference with the exercise of discretion, as classically explained in House v The King,^[6] have no application here.
9. [9]
   Section 48 of the Youth Justice Act establishes a prima facie presumption in favour of granting bail to a child. Section 48(2) provides that except in some circumstances “the court … must decide to release the child”.

10. [10]
    Section 48AAA requires the Court to keep the child in custody if satisfied of the two things identified in subsection (2)(a) and (b).

11. [11]
    Those two sub-subsections are awkward because they suggest that there is a two part consideration, namely:

1. whether there is an relevant unacceptable risk; and then
2. whether it is practicable to impose conditions of release on bail which mitigate the risk.

12. [12]
    However, the mitigation of risk under s 48AAA(2)(b) must surely be mitigation to an “acceptable level”. It is difficult to see how a court could assess whether a risk is “unacceptable” under s 48AAA(2)(a) without considering conditions that could be imposed.

13. [13]
    In my view, the Court must consider all the evidence, including evidence of practically available conditions of release on bail in determining whether “there is an unacceptable risk the child will commit an offence which endangers the safety of the community or the safety or welfare of a person”.

14. [14]
    Questions then arise as to what is or is not an offence “that endangers the safety of the community or the safety or welfare of a person”.

15. [15]
    That was considered by Henry J in both Re JTL^[7] and Re JOD.^[8] In Re JTL (and affirmed in Re JOD^[9]), Henry J explained that burglary and the unlawful use of motor vehicles is offending of a nature which endangers the safety of the community. This, his Honour explained, was because of the risk of violence occurring if a juvenile offender encounters a home owner during a burglary and because of the inherent danger of motor vehicles in the hands of untrained children divers.^[10]
16. [16]
    The statements of his Honour were put to me as if they were principles of law; that, as a matter of law, offences of burglary and unlawful use of motor vehicles are offences “which endanger the safety of the community”. It seems to me that his Honour’s comments were far more factually based. Experience tells the courts that those type of offences often, as a matter of fact, give rise to the relevant dangers. There may of course be offences of that genre where there is, as a matter of fact, no danger to the safety of the community.

17. [17]
    Section 48AAA(2)(a) concerns risk that the child will commit, in the future, offences of a particular type, namely those which “endanger the safety of the community”, etc. If there is an unacceptable risk of commission of offences such as burglary or unlawful use of motor vehicles, the circumstances under which those offences are often committed would generally lead to the conclusion that they are offences likely to endanger the safety of the community, etc. I echo and endorse his Honour’s remarks.

Application of the principles here

18. [18]
    The respondent was born on 22 November 2005. On 20 July 2021, he was convicted in the Ipswich Childrens Court of various offences, including several of unlawful use of motor vehicles. He was placed on probation for a period of six months. From that point, he has accumulated a criminal history of many pages. He has been dealt with for burglary and break and enter offences, stealing, drug offences, unlawful use of motor vehicles, traffic offences, some general offences of dishonesty and assault. In relation to those dozens of offences, he has been the subject of probation, restorative justice orders, reprimands, community service, detention, and a good behaviour bond.

19. [19]
    The 94 offences for which he was on bail by the order of 27 April 2023 include 28 offences of unlawful use of a motor vehicle and 38 offences involving house breaking.Two of the alleged offences involve assault and one involves dangerous operation of a motor vehicle while adversely affected by substances.

20. [20]
    As already observed, at the time of the alleged offending in June 2023, the respondent was on bail for the 94 alleged offences. He was on bail subject to a residential condition and a curfew. The curfew prevented him leaving his mother’s home where he was living between 7.00 pm and 7.00 am unless in her company or in the company of another adult approved by his mother or Youth Justice. Further conditions were that he was to have no contact with five alleged co-offenders and was to engage in a conditional bail program.

21. [21]
    There is evidence from Ms Katrina Moran, a case worker at Logan Youth Justice Service Centre and an employee of the Department of Youth Justice. She deposed that the respondent has been engaging actively in his conditional bail program and feedback is positive.

22. [22]
    The problem for the respondent is that despite the conditional bail program and the other conditions of bail, he allegedly committed the June 2023 offences.

23. [23]
    These were committed, as earlier observed, between 2 and 6 June 2023. They were therefore committed about six weeks from the grant of bail on 27 April 2023.

24. [24]
    The alleged offending is very serious.

25. [25]
    Charges 1 and 2 allege entering a dwelling house with intent to commit an indictable offence by break at night in company and enter premises and commit indictable offence by break. These offences concerned a property at Redland Bay. Both the house itself (charge 1) and a motor vehicle (charge 2) parked at the property were broken into and ransacked. The respondent’s fingerprint was located at the scene. CCTV footage taken at the house showed two vehicles arriving with three males. They exited the vehicles and committed the offences.

26. [26]
    For the reasons explained by Henry J in JTL, the potential danger to members of the community is obvious. Had anyone been present at the house at the time, or had arrived home and confronted the intruders, the potential for violence is clear. Also disturbingly, the offence involved three offenders hatching some plan which they then carried into effect with the use of motor vehicles.

27. [27]
    The events of 4 June 2023 are even more disturbing. Those offences are unlawful use of a motor vehicle – use intended for commission of an indictable offence (charge 3), robbery with actual violence while armed and in company involving personal violence (charge 4) and a further count of unlawful use of a motor vehicle (charge 5).

28. [28]
    Charge 3 concerns a Mazda CX5 motor vehicle which was stolen from an address in Sherwood on 1 June 2023.^[11] That vehicle then appears in Bulimba on 4 June 2023 when the other two offences were committed. It was parked opposite an address in Harrison Street, Bulimba. The resident of that address sought to enter his Audi motor vehicle parked in the driveway.  Two males armed with a shovel and machete confronted and threatened that person who effectively surrendered the vehicle. It was then driven off in convoy with the Mazda.

29. [29]
    The respondent is linked to this offending because he was one of three males seen a few minutes before the robbery offence exiting the Mazda and attempting to enter the front yard of a residence. The respondent is identified on this footage. The inference is that he is either one of the two persons who stole the Audi or was the driver of, or passenger in, the Mazda. A description given by the owner of the Audi matches the physical description of the respondent.

30. [30]
    The last charge (committed on 6 June 2023) concerns the possession of about five grams of cannabis hidden down the respondent’s pants.

31. [31]
    The alleged offending on 4 June 2023 is certainly offending of a nature to endanger the public. Weapons were brandished, including a machete. Two motor vehicles were involved, both of which were driven away from the scene of the robbery.

32. [32]
    Both the respondent and his mother provided affidavits. There is no doubt that the respondent has had a difficult life. He explains in his affidavit periods of homelessness. He said though:

“14. From the age of 14 to when I was granted bail on 27 April 2023 by the Brisbane Childrens Court, I had been reliant on myself to find accommodation. Since 27 April 2023, I have been lucky enough to live in a house where I have my own bedroom. My mum and sister had decorated it for my return.”

33. [33]
    He then swore that given his periods of detention he had found it difficult settling back into the community. He said “I am determined to break this cycle and live my best life”.

34. [34]
    The respondent said in his affidavit that he has been complying with the conditional bail program.

35. [35]
    The respondent’s mother corroborates the respondent’s version of his early life and says that she is willing to have the respondent live with her. She says that she will support him. She says that she has noticed significant changes in the respondent’s behaviour since his release on 27 April 2023.

36. [36]
    Through his counsel, the respondent submits that there are conditions which would make any relevant risk acceptable. Essentially, this is a 24 hour a day curfew where the respondent could not leave his mother’s house except in company with his mother or some other responsible person.

37. [37]
    It is also submitted that the evidence linking the respondent with the offending of 4 June 2023 is thin.

38. [38]
    The imposition of a curfew does not fill me with confidence that it will prevent offending. It is likely that the offending of 2 June 2023 occurred in breach of an existing curfew.

39. [39]
    I reject the submission that I should regard the evidence of the respondent’s involvement in the offending of 4 June 2023 as weak.

40. [40]
    True it is that on a bail application only a preliminary assessment of the evidence is possible. However, a few minutes before the robbery, the respondent is identified with two other people with the Mazda. Two persons effect the robbery of the Audi and there must have been someone else, a third person, who drove the Mazda from the scene. In the absence of any further evidence, there is a relatively strong inference that the respondent was one of those three people.

41. [41]
    Even if the respondent was not one of the two who actually committed the robbery, there is a strong inference that the driver of the Mazda was a party to the robbery. The Mazda was parked opposite the house where the robbery occurred and the Mazda drove off after the robbery. The driver of the Mazda would face a strong case that he was an aider of the robbery.

42. [42]
    The evidence that the respondent has undertaken some change since being granted bail on 27 April 2023 is difficult to accept. It is well and good to say that the respondent has been engaging in the conditional bail program. However, the point of the conditional bail program is to contribute to the respondent leading a lawful life. He has not been. He has allegedly been involved in the break-in of a house and motor vehicle and has been involved in a public act of violence in company with others involving the theft of a motor vehicle.

43. [43]
    It was submitted that if not granted bail there is a danger that the respondent will serve more time in detention than that to which he would be sentenced. There is little evidence either way on that topic. However, any period of detention would have to be significant given the respondent’s history and the large number of serious offences which he has allegedly committed.

44. [44]
    What is not before me is a transcript of the reasons given by the Childrens Court in granting bail on 7 June 2023. As already observed, it is not necessary for the applicant to identify error in that decision as this hearing is one conducted de novo. However, the Childrens Court decision is one where the case has been reasoned to a point where bail has been thought to be justified. Ordinarily, that would be a relevant consideration.^[12] No party has suggested that this application ought not proceed until the transcript of the reasons below are obtained. It is my view though that in applications such as these, the reasons of the Childrens Court or Magistrates Court ought usually be produced.

45. [45]
    It is undesirable to have children in custody and that is recognised by the Youth Justice Principles which provide that custody is the last resort.

46. [46]
    However, s 48AAA is a clear statutory command that bail should be refused where, having regard to the available conditions of release on bail, there is an unacceptable risk the child will commit an offence that endangers the safety of the community or the safety or welfare of a person.

47. [47]
    Here, over a lengthy period, the respondent has consistently committed such offences. He committed the June offences while on bail for 94 other charges. The 94 charges include ones which would endanger the safety of the community. Five of the six of the June charges are also in that category. Previous orders including bail conditions and curfew have not prevented the respondent from committing such offences.