Director of Public Prosecutions (NSW) v GX

[2019] NSWCCA 84

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v GX [2019] NSWCCA 84
Hearing dates:	15 April 2019
Date of orders:	15 April 2019
Decision date:	15 April 2019
Before:	Johnson J at [1]; R A Hulme J at [51]; Wright J at [52].
Decision:	Publication of reasons for orders made on 15 April 2019 granting the detention application and refusing bail.
Catchwords:	CRIMINAL LAW - bail - detention application - Respondent charged with multiple counts of assault and assault law officer - offences against staff members in juvenile detention centres - assessment of bail concerns - unacceptable risk that Respondent would fail to appear, commit a serious offence and endanger the safety of the community - unacceptable risks not mitigated by terms of conditional bail - detention application granted - bail refused
Legislation Cited:	Bail Act 2013 Children (Detention Centres) Act 1987 Crimes Act 1900
Cases Cited:	Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 R v Marcus [2016] NSWCCA 237 Viavattene v R [2018] NSWCCA 197
Texts Cited:	---
Category:	Principal judgment
Parties:	Director of Public Prosecutions (NSW) (Applicant) GX (Respondent)
Representation:	Counsel: Mr GA Newton (Applicant) Mr J Brock (Respondent)   Solicitors: Solicitor for Public Prosecutions (Applicant) Aboriginal Legal Service NSW/ACT (Respondent)
File Number(s):	2019/114984
Publication restriction:	---

Judgment

1. JOHNSON J: On 12 April 2019, the Director of Public Prosecutions (NSW) (“the Director”) filed a detention application with respect to the Respondent, GX, under s.50 Bail Act 2013 (“the Act”). The Respondent is referred to by letters (which are not his initials) as he is 17 years old and should not be identified under the law.

2. This Court has jurisdiction to hear the application under s.67(1)(e) of the Act in circumstances where the Respondent had been granted conditional bail by a Judge of the Supreme Court (“the Bails Judge”) on 1 April 2019.

3. At the conclusion of the hearing of the detention application before this Court on 15 April 2019, the Court made orders granting the detention application and refusing bail with reasons for this decision to be published at a later time.

4. This judgment contains my reasons for joining in the orders made by the Court on 15 April 2019.

Nature of Hearing Before the Court of Criminal Appeal

5. The function being undertaken by the Court of Criminal Appeal under s.67(1)(e) involves a de novo (or fresh) consideration of the question of bail and not a review of the bail decision by the Bails Judge: Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 at [4].

6. Where the Crown makes a detention application following the grant of bail by a Supreme Court Judge, no principle of restraint operates nor does any form of the double jeopardy principle operate - the application is to be determined afresh on its merits: R v Marcus [2016] NSWCCA 237 at [22]-[30]. Nevertheless, the Court may have regard to the findings of the Judge at first instance: Viavattene v R [2018] NSWCCA 197 at [3].

Factual Background

7. The Respondent was born in August 2001 and is presently 17 years old.

8. In the period between 13 October 2017 and 12 April 2019, the Respondent was in juvenile detention as a result of a number of control orders, the longest being for a period of 18 months, for a number of firearm related offences as well as offences of assault of a law officer.

9. On 14 June 2018, the Respondent was charged with an offence of common assault under s.61 Crimes Act 1900. It is alleged that on that day he assaulted another young person then being held in juvenile detention at the Frank Baxter Juvenile Detention Centre at Kariong. The Respondent is to appear for sentence on this charge on 26 April 2019 at the Woy Woy Children’s Court.

10. On 2 October 2018, the Respondent was charged with three counts of assaulting three staff members at the Frank Baxter Juvenile Detention Centre and inflicting actual bodily harm on each of them contrary to s.60A(2) Crimes Act 1900. It is alleged that on that day, the Respondent began to argue with another detainee and three staff members attempted to calm him. It is alleged that the Respondent suddenly ran towards the detainee and the three staff members intervened with the Respondent throwing punches and biting two of the staff members on their arms resulting in bruising and bleeding. After the Respondent was restrained, he complained of neck pain and that he could not feel his legs. He was taken to Gosford Hospital, but on arrival it is alleged that he began spitting, kicking and punching officers and again bit an officer causing bleeding. The Respondent is alleged to have yelled “ISIS on my chest. I’ll bomb the hospital. I’ll come and get you when I get out. I’ll jump in front of a train at Gosford”. These matters are listed for mention at the Woy Woy Children’s Court on 26 April 2019.

11. On 26 October 2018, the Respondent is alleged to have assaulted another three staff members at the Frank Baxter Juvenile Detention Centre. It is alleged that whilst being escorted inside from a recreational area, the Respondent became agitated and started threatening staff, picked up a chair and swung it at staff. It is alleged that he struck and bit staff members. The Respondent was charged with one count of assault of a law officer whilst in the execution of duty and inflicting actual bodily harm under s.60A(2) Crimes Act 1900 and two counts of assault law officer whilst in the execution of duty under s.60A(1) Crimes Act 1900. It is said that CCTV footage of this incident has been obtained. These matters are listed for mention at Woy Woy Children’s Court on 26 April 2019.

12. On 21 December 2018, the Respondent is alleged to have assaulted two staff members whilst at the Cobham Juvenile Detention Centre at Werrington. It is alleged that staff went to the Respondent’s room where he was suspected of damaging property and he was restrained with a belt. The Respondent is alleged to have bitten one officer on the hand and spat at another officer. It is said that the entire incident was captured on CCTV footage. The Respondent was charged with two counts of assault law officer whilst in the execution of duty contrary to s.60A(1) Crimes Act 1900. These charges are listed for hearing at Parramatta Children’s Court on 11 June 2019. However, the Court was informed that the Respondent is to plead guilty to the first charge with the second charge to be withdrawn.

13. On 4 January 2019, the Respondent was released to parole, but he was returned to juvenile detention on 8 January 2019 as he breached parole by absconding whilst on an approved outing and not returning to the supervised accommodation where he was required to reside. Thereafter, the Respondent served the balance of his sentences which were to expire by effluxion of time on 15 April 2019.

14. On 15 January 2019, the Respondent is alleged to have committed two further offences of assault law officer whilst in the execution of duty occasioning actual bodily harm contrary to s.60A(2) Crimes Act 1900. It is alleged that officers attended the Respondent’s room at the Cobham Juvenile Detention Centre in response to a call for assistance. It is alleged that the Respondent bit and spat at staff members with the incident being recorded on CCTV footage. These matters are listed for mention at Parramatta Children’s Court on 18 April 2019.

15. On 1 April 2019, the Respondent was granted conditional bail by the Bails Judge with the conditions including reporting to police three days a week and residing at his mother’s home. On 5 April 2019, the Bails Judge varied the bail conditions so as to restrict the circumstances in which the Respondent could leave his mother’s house where he was otherwise required to live.

16. On 12 April 2019, the Director gave notice of a detention application which was sought to be brought before the Court urgently as the Respondent was due to be released on bail on 15 April 2019 in circumstances where his sentences would otherwise expire on that date.

17. The grant of bail made on 1 April 2019 related to the charges referred to at [9]-[12] and [14] above.

Hearing of the Application

18. The detention application was heard by this Court on 15 April 2019. Although the hearing before this Court proceeds as a de novo application and not an appeal from or review of the bail decision of a single Judge, it was made clear to the Court that a critical consideration in the Director bringing the detention application was the failure to provide to the Bails Judge very significant material concerning the risk assessment of the Respondent.

19. At the hearing of the detention application, a bundle of documentary material was tendered by the Director (Exhibit A) and a further bundle was tendered by counsel for the Respondent (Exhibit 1). In addition, written submissions were furnished to the Court on behalf of the Director and the Respondent.

20. A short Juvenile Justice NSW report dated 29 March 2019 had been placed before the Bails Judge on 1 April 2019.

21. A report dated 4 April 2019 from officers of Juvenile Justice NSW was tendered in this Court, with that report stating that “Due to the limited time allocated to Juvenile Justice to prepare the report [dated 29 March 2019], not all the required information was provided” to the Bails Judge on 1 April 2019.

22. The following reports were not furnished to the Bails Judge, but were provided to this Court:

1. a risk assessment report dated 23 July 2018 of Dr Andrew Ellis, forensic psychiatrist;

2. a risk assessment report dated 24 July 2018 of Mr Steven Barracosa, psychologist, and Ms Ruth Marshall, principal psychologist - Mr Barracosa is employed in the role of Countering Violent Extremism (“CVE”) psychologist with the Juvenile Justice NSW CVE team;

3. a supplementary report dated 18 September 2018 of Mr Barracosa; and

4. a further supplementary report dated 12 November 2018 of Mr Barracosa.

23. These reports focused on the risks surrounding the Respondent being designated as a National Security Interest detainee during his period in Juvenile Justice NSW custody. The information contained in these reports had been considered by the Children’s Court under the Children (Detention Centres) Act 1987 for the purpose of a parole decision, at which time it was accepted that the Respondent was a “terrorism-related offender” within the meaning of s.59(1)(e) of that Act.

24. The Bails Judge had observed that the bail decision in the Respondent’s case was “very finely balanced”. It is apparent that these reports would have played a significant part in the bail determination made on 1 April 2019. It is, to say the least, regrettable that these reports were not made available to the Crown by Juvenile Justice NSW so that they could be placed before the Bails Judge on 1 April 2019.

25. Reference will be made to parts of these reports later in this judgment.

Reasons for Granting the Detention Application and Refusing the Respondent Bail

26. The Court assessed bail concerns with respect to the Respondent in accordance with s.17 of the Act. In doing so, the Court had regard to the matters referred to in s.18 of the Act.

27. On the basis of an assessment of bail concerns with respect to the Respondent, the Court was satisfied for the purpose of s.19 of the Act that there is an unacceptable risk that, if released from custody, the Respondent would:

1. fail to appear at any proceedings of the offences;

2. commit a serious offence; and

3. endanger the safety of the community.

28. As to the Respondent’s background, including criminal history, circumstances and community ties, for the purpose of s.18(1)(a), the Court noted a substantial body of evidence that the Respondent’s background, antecedents, mental health and substance abuse issues combined to lead to a conclusion that he would commit serious offences of violence, endanger both individuals and the community and fail to comply with conditions and to appear at Court if granted bail.

29. Despite his youth, the Respondent has a lengthy criminal history involving offences of violence in which a range of non-custodial orders and control orders have been imposed for offences committed in the community and in a custodial setting. The Respondent has committed offences of assaulting law officers in 2015, 2016, 2017 and 2018. In October 2017, he committed offences of possession of an unregistered firearm (pistol) and possessing a loaded firearm in a public place for which control orders were imposed.

30. The Respondent has breached conditional orders by way of bond, probation or suspended control orders in 2015, 2017 and 2018. There have been breaches of bail by the Respondent in 2014, 2015 and 2016. There have been a significant number of misbehaviour reports involving the Respondent whilst in custody.

31. It is the unhappy fact that, since December 2014, the Respondent has been at large in the community for a period of eight months only in a total period of four years and four months. This bleak history causes significant concern as to the prospects of the Respondent complying with a bail regime if conditional bail was granted.

32. Dr Ellis considered that the Respondent met the diagnostic criteria for schizophrenia, substance use disorder and conduct disorder. The report of Mr Barracosa dated 24 July 2018 referred to the Respondent’s “life long pattern of behavioural issues including consistent criminal offending and institutional misconduct from 2014 onwards”. Mr Barracosa stated that the Respondent has a history of serious mental illness and periods of non-compliance with psychiatric medications. Even when the Respondent was subject to a forensic community treatment order in the past, he displayed intermittent periods of non-compliance with interventions. The Respondent has a history of use of cannabis, amphetamines and “Ice”.

33. The report of Dr Ellis noted that the Respondent’s mother had “shown poor ability to manage him” and that he “lacks any personal support other than his mother”. Dr Ellis considered that accommodation with the Respondent’s mother was “not likely to be tenable or sustainable”.

34. As noted earlier, the Respondent was released on parole on 4 January 2019, but was returned to custody on 8 January 2019 after he had absconded from the residential placement to which he had been allocated.

35. The Respondent has been residing in the Austinmer Unit at the Forensic Hospital since 19 February 2019. He had been admitted to the Austinmer Unit on an earlier occasion in 2017 for some four weeks. In the strict and ordered regime at the Forensic Hospital, the Respondent has progressed to an extent in a manner outlined in the report of Ms Leanne Thame, social worker, dated 28 March 2019 which was before the Bails Judge and this Court.

36. However, the bail conditions granted on 1 April 2019 would have seen the Respondent living from 15 April 2019 at his mother’s home with a number of persons to provide support and assistance to him. A major concern with this arrangement was the reliability of the Respondent to attend in the first place and to continue living at his mother’s residence against his very chequered history referred to in the evidence.

37. The Court had regard to the nature and seriousness of the offences and the strength of the prosecution case for the purpose of s.18(1)(b) and (c) of the Act. The prosecution case with respect to each of the charges brought against the Respondent appears to be very strong with an indication that incidents were captured by CCTV footage. The Respondent is pleading guilty to a number of charges.

38. The Respondent’s history of violence and his criminal history do not assist the Respondent for the purpose of s.18(1)(d) of the Act.

39. The Respondent has committed serious offences whilst on bail in the past (s.18(1)(e)) and has a history of non-compliance with various types of conditional liberty for the purpose of s.18(1)(f) of the Act. Reference was made earlier to breaches of non-custodial orders which appear regularly in the Respondent’s criminal history.

40. With respect to s.18(1)(g), the report of Dr Ellis notes that the Respondent stayed with adult males associated with criminal activity when he was last in the community.

41. With respect to the matters contained in s.18(1)(h) and (i), the Respondent is to appear for sentence on 26 April 2019 for one matter with later dates fixed for sentencing or other hearings. The charges will come before the Children’s Court in the not-too-distant future. The Court has kept in mind the capacity of the Respondent to be dealt with as a young offender until his 18th birthday in August 2019 and the advantages which may flow from sentencing and other options available with that Court regime. However, even allowing for that consideration, the period of time before the Respondent will come before the Courts is not substantial.

42. With respect to s.18(1)(k), the Court notes the special vulnerability or needs of the Respondent and that he is 17 years old and is Aboriginal and has been diagnosed with mental illness.

43. An important aspect on this application is the additional material which was not before the Bails Judge on 1 April 2019. This additional evidence points to the Respondent having associations with a terrorist organisation (s.18(1)(q)) and the Respondent having made statements or carried out activities advocating support for terrorist acts or violent extremism for the purpose of s.18(1)(r) of the Act. Mr Barracosa and Ms Marshall noted that the Respondent had been converted to Islam by a detainee charged with terrorism-related offences. Although the Respondent appears to have a tenuous ideological link to Islamist extremism, the reports of Dr Ellis and Mr Barracosa make clear that he is susceptible to influence by persons who may seek to involve him in violent extremist activity.

44. The report of Mr Barracosa dated 12 November 2018 concluded that the “overall judgment for extremist violence intervention needs is now estimated in the moderate high range”. Mr Barracosa noted that the Respondent had made “ongoing threats of a violent extremist nature” and that his history of violence was “of concern considering his commitment to an ideology that justifies the use of violence”.

45. In his report of 23 July 2018, Dr Ellis noted that “There is an absence of usual protective factors which might otherwise ameliorate the above risk factors in the absence of external controls”. Dr Ellis stated that the Respondent may be vulnerable to being used by others in terrorist organisations.

46. The additional evidence contained in the reports of Dr Ellis and Mr Barracosa sheds new light on the Respondent and the risks to be considered for the purpose of bail. The bail conditions granted on 1 April 2019 would see the Respondent living with his mother in a suburb of Sydney with some community support by way of persons attending the house and with the Respondent reporting to police as a condition of bail.

47. I was satisfied that the significant level of unacceptable risk applicable to the Respondent was not capable of being mitigated by a bail regime such as this. As at 1 April 2019, alternative accommodation was available for the Respondent in a funded Family & Community Services location. This was the same alternative accommodation from which the Respondent departed in breach of his parole in January 2019. However, the Respondent was not prepared to reside there and the Court was informed on 15 April 2019 that this alternative accommodation was no longer available so that the Respondent was on a waiting list only for that location. There was no other accommodation in the community available to the Respondent apart from his mother’s home.

48. There are very real concerns that the Respondent would leave his mother’s house and not comply with bail conditions including attendance at Court. In addition, there is a very significant risk that the Respondent would commit offences of violence which would place members of the community at risk.

28. I have had regard, as well, to the relative proximity of the dates upon which the Respondent will appear before the Children’s Courts at Parramatta and Woy Woy. Magistrates sitting at those Children’s Courts will be in a position to make sentencing decisions concerning the Respondent in light of the evidence placed before those Courts on those occasions.

29. For these reasons, I was satisfied that the Director’s detention application should be granted and that bail ought be refused.

30. R A HULME J: The reasons provided by Johnson J coincide with mine for joining in the orders made by the Court on 15 April 2019.

31. WRIGHT J: I agreed with the orders made on 15 April 2019 for the reasons given by Johnson J.

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Decision last updated: 18 April 2019