Commissioner of Police v Richard Jones (a pseudonym)

[2023] QChCM 1

MAGISTRATES  COURT OF QUEENSLAND

CITATION:Re Richard Jones (a pseudonym) [2023] QChCM 1

PARTIES:  COMMISSIONER OF POLICE

v

RICHARD JONES (a pseudonym)

FILE NO:Mount Isa CCM 5/23

PROCEEDING:                   Bail Application

COURT:  Children’s Court, Mount Isa

DELIVERED ON:                19 January 2023

DELIVERED AT:                Mount Isa

HEARING DATE:               18 January 2023

MAGISTRATE:                   E. Mac Giolla Ri 

APPEARANCES:                Snr Const Fourcard-Roptig, Prosecution
  Mr  Maltby Resolute Legal, Defence
  Ms Green, Youth Justice

1. Richard Jones is a 15 year old aboriginal boy with foetal alcohol spectrum disorder and an acquired brain injury who has been imprisoned in the Mount Isa watchhouse for the last 15 nights.

2. Richard has applied for bail. Bail is opposed. Bail was previously considered when Richard was first arrested on 3 January 2023. At that time bail was refused on the basis that Richard is as an unacceptable risk of committing further offences if released.

3. Richard is charged with two offences: unlawful use of a motor vehicle and unlawfully taking a child under 16. Both offences occurred on 31 December 2022

4. The police allegation is that the owner of the car left it unlocked with the engine running in the driveway of a house. While the owner was away from the car, Richard and his juvenile co-accused drove away in the car. Richard is not alleged to have been the driver.

5. There was a 3 year-old child in a child seat in the back of the car. It is not clear that the alleged offenders knew the child was in the car before taking it, but the child’s presence must have been obvious from very shortly after they entered the car. Richard and his co-accused are alleged to have driven around Mount Isa for 20-30 minutes before taking the child out of the car and leaving the child on the side of the street.

6. Richard and his co-accused proceeded to drive the stolen car around Mount Isa for an unknown further period before dumping the car. The affidavit of objection to bail suggests that Richard is identified on CCTV as being in the car, though Mr Maltby has indicated that the charges are contested.

7. Continuing to drive with the child in the car for even 20 minutes was extraordinarily callous and one can only imagine the profound terror that the child’s parent must have experienced in that period.

8. Richard has a substantial criminal history, including several offences of burglary and unlawful use of a car in September and October of 2022. Richard’s last offence before these alleged offences was on 24 October 2022. Richard has shown that he can go for extended periods without committing offences, including between February and September 2022.

9. Richard was on probation at the time he is alleged to have committed these offences. Youth Justice report that he was performing well on probation.

10. The basis for this application for bail is that Richard has been in the Mount Isa Watchhouse since his arrest and there appears to be no prospect of getting Richard to a detention centre in the near future.

11. The QPS’ Operational Procedural Manual (OPM) is clear that children should not be held overnight in a watchhouse.[1] There are many sound reasons for this policy that I do not need to discuss in these reasons. It suffices to say that conditions in watchhouses are harsh and that adult detainees are often drunk, abusive, psychotic or suicidal. Although children may be kept in separate cells, those cells are usually open to the sights and sounds of the watchhouse. Equally, there is no facility to deliver education or the therapeutic interventions that are sometimes available in detention centres.[2]

    [1] OPM 16.17.5

    [2] Though I understand that Youth Justice officers and other agencies regularly visit a child detained for extended periods in the watchhouse.

12. The OPM is clear that the detention of a child beyond 1 night in a Watchhouse should only ever occur in “extraordinary circumstances” but Ms Green of Youth Justice advises that all three detention centres in Queensland are at capacity and that there is no prospect that Richard will be transferred to a detention centre in the near term.

1. There is another child in the Mount Isa watchhouse who has been there since 1 January 2023, i.e. 18 nights.

2. A preliminary question is whether the circumstances under which a child is imprisoned is relevant to the question of bail. In my view it is relevant in at least three ways:

a)The conditions of imprisonment are relevant to the calculation of sentence.[3] Bail will often be more appropriate where a defendant is at or close to the likely period of imprisonment he will be expected to serve.[4]

b)s48AA(4)(a)(viii) requires me to have regard to “any other relevant matter”.

c)s48AAA of the Youth Justice Act requires me to remand Richard in custody if I find there is an unacceptable risk that he will commit an offence that will endanger the community and any available bail conditions will not adequately mitigate risk. The factors that I may or must consider to as to what constitutes an unacceptable risk or adequate mitigation are not defined in the Act. In my view, what might be an unacceptable risk of committing an offence  mitigation of risk if a child is being imprisoned in a suitable detention centre may become acceptable if the alternative to bail is imprisonment in harsher than usual. The circumstances of detention are just one of a vast array of matters that can be considered in deciding the acceptability of otherwise of the relevant risk.

[3] Callanan v Attendee X [2013] QSC 340 at [21]

[4] S48AA(3)

1. The factors against granting Richard bail are:

(a)The seriousness of the offence

(b)His criminal history, including offending as recently as 24 October 2022

(c)The risk to the community of him committing further offences.

1. The factors in favour of granting Richard bail are:

(a)Although the offence is serious, Richard was not the driver of the car. In light of his various intellectual disabilities I am reluctant to infer that he would have had substantial influence on the decision not to abandon or return the car once it was clear there was a child in the car.

(b)Richard has shown that he is capable of refraining from offending for extended periods.

(c)Richard was not on bail at the time he committed the offences and although he was on probation, he was performing well on that order.

(d)Richard’s mother is actively involved in assisting him and Richard maintains a good relationship with her and his siblings. This is likely to be a protective factor.

(e)Richard’s application for bail is on the basis that he would reside with his mother, accept a 24 hour curfew and have no contact with his alleged co-accused.

(f)Richard’s intellectual disabilities will make any period in detention more onerous that it would be for a child without his disabilities.

(g)In circumstances where Richard is serving his time in a watchhouse it is arguable that he may be approaching an adequate amount of punishment, even if he is convicted of the offence, particularly if at sentence it is accepted that he was not the driver while the child was in the car. At present the police accept that he was not the driver, at least initially.

(h)For the reasons set out above, Richard’s continuing detention in the watchhouse, particularly where he has an intellectual disability allows me to find the conditions suggested for bail are adequate in all the circumstances.

I am satisfied that the risk to the community can be adequately mitigated by the suggested conditions. I will hear the parties on the precise terms of the bail conditions.