R v BH

[2024] NSWSC 1577

Supreme Court

New South Wales

Medium Neutral Citation:

R v BH [2024] NSWSC 1577

Hearing dates:

9 December 2024

Date of orders:

9 December 2024

Decision date:

09 December 2024

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

Bail granted.

Catchwords:

BAIL – Applicant 14 year old Aboriginal child – operation of s 22C of the Bail Act 2013 (NSW) – whether high degree of confidence requires certainty that the applicant will not reoffend – application of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to the bail proceedings – consideration of unacceptable risk – prosecution failed to establish that bail should be refused – conditional bail granted

Legislation Cited:

Bail Act 2013 (NSW), ss 5(1)(b), 16A, 17, 18(1), 19(1), 20A, 22C

Bail and Crimes Amendment Act 2024 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 6

Crimes (High Risk Offenders) Act 2006 (NSW), s 5B

Cases Cited:

R v Hamilton [2022] NSWSC 127

R v Lago (2014) 241 A Crim R 266; [2014] NSWSC 660

R v RB [2024] NSWSC 471

R v TW [2024] NSWSC 1504

Raad v R [2015] NSWSC 532

R v Tsintzas [2017] NSWCCA 172

Texts Cited:

Bail and Crimes Amendment Bill 2024 (NSW)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 March 2024

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 March 2024

Category:

Principal judgment

Parties:

BH (Applicant)
Rex (Respondent)

Representation:

Counsel:

Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2024/00446997

Publication restriction:

Nil

ex tempore JUDGMENT

1. The applicant, BH, is a 14 year old Aboriginal child who is bail refused in relation to offences of break, enter and steal; steal motor vehicle; knowingly being carried in a stolen conveyance; and destroying property by fire. The proceedings are listed on 19 December 2024 in the Children’s Court at Moree for mention only. The applicant was bail refused on 1 November 2024 and has been in custody for a period of 39 days.

2. The applicant is the sixth of eight children. He grew up in Moree and although he has not lived with his mother for approximately four years, he has a loving relationship with her. His relationship with his father has been sporadic because his father has been in and out of custody for significant periods of time.

3. The applicant also has a loving and supportive relationship with his maternal grandmother and his aunt. He has previously resided with both of them. Prior to his current period of detention, the applicant resided primarily with his older sister. He was living with her for 12 months.

4. The applicant is subject to s 22C of the Bail Act2013 (NSW) introduced by the Bail and Crimes Amendment Act 2024 (NSW) which commenced on 3 April 2024. The young person was on bail for another relevant offence when he allegedly committed the current offences. The relevant offence for which he was subject to bail has been subsequently withdrawn and dismissed.

5. The young person is alleged to have been in the company of three other children when they broke into the house of an elderly woman in Moree. The incident took place at about 12:00am on 31 October 2024. The complainant was confronted by four young people in her house demanding her car keys. After locating the keys, the perpetrators left the house, driving the vehicle away from the location. There is no doubt that the complainant must have been very distressed at being awoken to find the intruders in her home. However, it must be remembered that these are only allegations and that the young person is entitled to the presumption of innocence.

6. Some minutes later, police were conducting patrols of the Moree township when they saw the vehicle. They pursued it. During the pursuit, the stolen vehicle was driven at excessive speed, causing the pursuit to be terminated. The stolen vehicle was later destroyed by fire.

7. A snapchat account used by one of the co-accused, posted a story about the stolen motor vehicle. Police allege that the young person seated in the passenger seat of the vehicle is the applicant. It appears that the identification is based on items he was wearing, including a black hooded jumper and what is described as a “distinctive” red watch.

8. On the material available on this application, the prosecution case is not a strong one, let alone overwhelming. In any case, even if the young person were found guilty, it is highly unlikely that he would be dealt with by way of a control order. He has no criminal record. The offences with which he was previously charged were withdrawn by the prosecution. Although his criminal history records three breaches of bail, he has never been found guilty of a substantive offence.

Section 22C

9. Section 22C of the Bail Act relevantly provides:

22C Temporary limitation on bail for certain young persons in relation to certain serious offences

(1) A bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence unless the bail authority has a high degree of confidence the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions. (Emphasis added.)

(2) A decision under subsection (1) may be made only after—

(a) an assessment of bail concerns is made under Division 2, and

(b) consideration of whether any bail conditions could reasonably be imposed to address any bail concerns or risk the relevant young person will commit a further serious indictable offence.

…

10. A decision under subsection (1) may only be made after an assessment of bail concerns and consideration of whether any proposed conditions could reasonably be imposed to mitigate the risk that the applicant will commit a further serious indictable offence. The words “may be made only” imposes a condition precedent to the exercise of the power. It appears that s 22C contemplates the following practical steps:

1. An assessment of bail concerns (as the Court would undertake in any bail application) in accordance with Division 2, which includes within it consideration of the bail conditions that could reasonably be imposed to address any bail concerns in accordance with s 20A; then

2. A consideration of whether any bail conditions could reasonably be imposed to mitigate any bail concerns or risk; then

3. A consideration of s 22C(1).

11. In the Second Reading Speech to the Bail and Crimes Amendment Bill 2024 (NSW), the Attorney-General said that s 22C is a “time-limited targeted amendment”. ^[1] It was described as a “circuit breaker” to address repeated alleged offending by young people aged between 14 and 18 years old who have been charged with serious break and enter or motor vehicle theft offences while on bail for another offence of that type. ^[2] Distinguishing it from the “show cause provision”, the Attorney-General stated that s 22C provides an “additional threshold for a bail decision-maker, directed at the consideration of the risk of certain young persons committing further serious offences while on bail.” ^[3]

    1. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 March 2024 at 17.

    2. Ibid.

    3. Ibid.

12. In the decision of R v RB [2024] NSWSC 471, Lonergan J observed at [6] that “the test – ‘a high degree of confidence’ is a test unknown to the criminal law.” There is no guidance as to what the phrase “high degree of confidence” means, or the matters that may inform that assessment. In the Legislative Assembly’s Second Reading Debate on 19 March 2024, in respect of the insertion of s 22C into the Bail Act, the Attorney-General referred to the test as “the Government’s bespoke test of ‘a high degree of confidence’” which is “intended to set an appropriately higher bar” for a young person’s release when they are charged with repeated serious breaking and entering and motor vehicle offences, including while on bail. ^[4]

    4. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 March 2024 at 83.

13. “High degree of confidence” is different from the test contained in legislation such as the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”), which requires the Court to be “be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”: s 5B of the CHRO Act. The “high degree of confidence” required under s 22C may require some probabilistic assessment. It may also import some value assessment based on the evidence. However, “probability” and “confidence” are not completely synonymous.

14. Section 22C involves an evaluative judgment requiring the Court to reach a state of satisfaction regarded as a “high bar” but not a state of certainty. The Court does not need to be certain that the young person will not commit a further relevant offence. However, the test is a more onerous one than the “show cause” requirement which applies to adults under s 16A of the Bail Act. Furthermore, considerations such as delay appear to have no bearing on the assessment required under s 22C.

15. In R v TW [2024] NSWSC 1504 Rothman J identified the possible issues posed by the wording of s 22C, including but not limited to, the possible inconsistency with notions of equal justice. His Honour observed at [11]:

“Obviously, there are circumstances that require an arbitrary delineation. Thus, juveniles, those under 18, are for most criminal offences treated under a different regime than adults. But the arbitrary differentiation now applicable under this bail provision treats those, on average, less mature and less capable of executive functioning (through no conduct on their account except their date of birth) as requiring stricter measures than adults.” (Emphasis added.)

16. I respectfully agree with and adopt his Honour’s observation.

17. It is both curious and troubling that a stricter and higher test applies to children (as opposed to adults), who seek release to bail. On its face, it is inconsistent with the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”). Section 6 provides:

6   Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a)  that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b)  that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c)  that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d)  that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e)  that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f)  that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g)  that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h)  that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

18. By operation of s 4 of the CCPA, s 6 applies to any court that exercises criminal jurisdiction and in any criminal proceedings before any such court, notwithstanding any law or practice to the contrary. Section 5(1)(b) of the Bail Act provides that proceedings for an offence means criminal proceedings against a person for an offence (whether summary or indictable), and include proceedings relating to bail.

19. The desirability, wherever possible, to allow a child to reside in their own home, engage in education and employment, and reintegrate into the community, are relevant considerations. Furthermore, a child’s state of dependency and immaturity requires guidance and assistance. A structured community supervision and treatment plan will often instil a high degree of confidence that a young person will not commit a serious indictable offence while subject to bail conditions. Of course, each case must depend upon its own facts.

20. I will deal with the assessment of bail concerns and return to the question as to whether the Crown has persuaded me that bail should be refused.

Unacceptable Risk

Legislative Framework

21. Section 19(1) of the Bail Act provides that “a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk”. Accordingly, in determining if there is an unacceptable risk, I must have regard to the bail concerns as set out in s 17(2) of the Bail Act.

22. In R v Lago (2014) 241 A Crim R 266; [2014] NSWSC 660, Hamill J indicated that the provisions of the Bail Act casts an onus on the party who is opposed to the grant of bail. In relation to the assessment of unacceptable risk, his Honour stated at [8]-[9]:

“[8] The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states, in sentencing cases and also in applications for detention under various statutory schemes: see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1: Fardon v Attorney-General (Qld) (2004) 223 CLR 575 per Gleeson CJ at [22], McHugh J at [34], Gummow J at [60] and Callinan and Heydon JJ at [225]; M v M (1998) 166 CLR 69; Beldon v R [2012] NSWCCA 194 at [53].

[9] The cases on bail recognise that ‘no grant of bail is risk free’: see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said:

‘Bail when granted is not risk free. Williamson v DPP (Qld). As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld).’”

23. The Crown submits that the young person poses the following unacceptable risks:

1. The risk that the applicant will commit a serious offence (s 17(2)(b)); and/or

2. The risk that the applicant endangers the safety of individuals and the community (s 17(2)(c)).

24. Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) of the Bail Act sets out a list, which is both mandatory and exhaustive, of the factors to be considered by the bail authority in assessing bail concerns under s 17 of the Bail Act: see Raad v R [2015] NSWSC 532.

Section 18(1) Matters

25. The Youth Justice Report sets out the young person’s background. His mother is Aboriginal and his father Maori. He has strong family and community ties, including the loving and strong support of his maternal grandmother, aunt and older sister. As previously stated, although the applicant has not lived with his mother for four years, he has a loving relationship with her.

26. The applicant lived primarily with his sister for over 12 months before he was detained. It appears he is more stable in his behaviours when residing with his sister. However, there were difficulties including his absence from school for a period of three months.

27. The applicant was diagnosed by Dr Powers as having Attention Deficit Hyperactivity Disorder (“ADHD”). He was not, however, medicated for this condition while in his sister’s care. It appears that the young person missed his medical appointments because he often moved between residences. What is described as “transient living arrangements”, should not necessarily be viewed in a negative context. A proper understanding of kinship relationships in many Aboriginal communities, requires a more nuanced approach to a child who is residing with different family members at different times.

28. The applicant’s sister was in the process of acquiring a new referral to Dr Powers when her brother was detained. Youth Justice is willing to assist the applicant and his sister in arranging an appointment with the relevant medical practitioners.

29. This has been the young person’s first experience in full-time custody. He has not had an easy time of it. There are several misbehaviour reports including for swearing and fighting. The applicant has had no contact with his family members since entering custody, except for his older brother who is currently held in the same detention centre.

30. If the young person is granted bail, Youth Justice will support him on a s 22C Casework Plan. This means that Youth Justice will identify the applicant’s needs and create a holistic support plan, which will include connections to services and tailored responses to address his needs. The plan may include support, referrals and interventions in respect of education, health, recreation programs, cultural programs and support services, accommodation, and the National Disability Insurance Scheme (“NDIS”).

31. In R v Tsintzas [2017] NSWCCA 172, N Adams J said at [50] (Bathurst CJ and McCallum J, as her Honour then was, agreeing):

“Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, ‘The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk’. I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk.”

32. An assessment of whether the risk is unacceptable includes a consideration of whether the risk can be mitigated by bail conditions: see R v Hamilton [2022] NSWSC 127 at [14].

33. The proposed conditions include home detention and witness protection; and a direction that the applicant obey all reasonable directions given to him by Youth Justice and his parents or sister.

34. Considering the nature of the allegations, I am prepared to find that there are two bail concerns established on the material, namely a risk of commission of a serious offence and a risk of endangering the safety of individuals and the community. However, these do not rise to the level of being unacceptable risks in this case. The applicant has no criminal history. He has the strong support of family members. Although there are three instances of breaching bail, he does not have a lengthy history of non-compliance with court orders.

35. I return then to 22C of the Bail Act. Is the Court satisfied, to a high degree of confidence, that the young person will not commit a serious indictable offence while on bail? Put another way, has the Crown discharged its onus in asserting that bail should be refused?

36. In determining this question, I have had regard to the Youth Justice report. The young person will be subject to the supervision of Youth Justice through the s 22C Casework Plan. He will have comprehensive supports including, but not limited to, family and Youth Justice. The young person has recently been referred to Keep on Track which has been facilitated through HeadSpace. The services are available on an outreach basis.

37. Intervention through the engagement of community supports and services at this early stage in the young person’s interactions with the criminal justice system is essential. Such intervention reduces the risk of reoffending and thereby enhances the protection of the community. By stepping in now to support the young person in the community as opposed to in custody, also assists in reducing the vicious cycle of intergenerational trauma.

Orders

38. Accordingly, I grant bail on the following conditions:

1. I grant the Release Application.

2. Bail is granted (“BAFG”) on the following conditions:

1. The applicant is to be of good behaviour.

2. The applicant is to appear at the Children's Court at Moree on 19 December 2024, and thereafter as directed.

3. The applicant is to live at [redacted] and nowhere else.

4. The applicant is to comply with a home detention condition: not to leave the premises at which the applicant is required to live except in the company of [redacted] or a staff member of Youth Justice or for the purposes of obtaining emergency medical treatment.

5. The applicant may only travel away from the Juvenile Detention Centre from which the applicant is to be released on bail when in the company of an individual nominated by Youth Justice. This is a pre-release condition and must be complied with before the applicant is released on bail.

6. The applicant is not to approach or communicate with, or attempt to make contact with, [redacted] by any means, including telephone and internet social media platforms, or through another person, other than a legal representative.

7. The applicant is not to approach or communicate with, or attempt to make contact with, any complainant or prosecution witness [any person who the applicant has been notified as a prosecution witness] other than a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.

8. The applicant is to obey any reasonable direction given to him by:

1. The applicant's parents or sister; and

2. An officer of the Juvenile Justice Office.

9. The applicant is to comply with any regime of medical treatment recommended by a medical practitioner, including taking medication as prescribed. The applicant is to show confirmation to the Officer in Charge of a medical appointment within 48 hours of returning to the community for the purpose of a paediatrician referral.

10. The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the:

1. Home detention condition.

This must not occur more than twice a week and only between the hours of 6:00am and 12:00am.

Endnotes

Decision last updated: 09 December 2024