R v Connor Fontaine (a pseudonym)

[2021] NSWSC 177

Supreme Court

New South Wales

Medium Neutral Citation:

R v Connor Fontaine (a pseudonym) [2021] NSWSC 177

Hearing dates:

3 March 2021

Date of orders:

3 March 2021

Decision date:

03 March 2021

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Application granted.

(2) Bail varied to delete curfew condition.

Catchwords:

CRIMINAL LAW – bail – conditions – ten-year-old boy – curfew – application for variation by deletion of curfew condition – where no evidence of offences committed at night – purpose of bail conditions – limitations on same – social engineering – paternalism – condition deleted

Legislation Cited:

Bail Act 2013 (NSW), ss 18, 20

Cases Cited:

State of New South Wales v Bugmy [2017] NSWSC 855

State of New South Wales v Carr [2020] NSWSC 643

Category:

Principal judgment

Parties:

Regina
Connor Fontaine (Applicant)

Representation:

Solicitors:
D Laird, Office of Director of Public Prosecutions (NSW) (Regina)
L Melhuish, Aboriginal Legal Service (Applicant)

File Number(s):

2021/51399

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. The applicant is a 10-year-old boy from Bourke. On 15 September 2020, he allegedly committed four offences against some other boys at the local skate park. Those offences were committed in the company of yet another young boy. On their face, the offences were very serious. They included two counts of assault with intent to rob. The offences are yet to be proved. The cases are listed for hearing on 15 March 2021. Given the applicant’s age, there may be a lively issue as to his capacity to form a criminal intent but, in any event, the charges are subject to pleas of not guilty.

2. The applicant was arrested on the same afternoon as the offences were allegedly committed. Since then he has been on bail, initially granted and fashioned by the local police. The bail has included, since his arrest, a curfew condition, namely, that he must remain at his residential address from 6.00pm until 7.00am each day. The applicant makes an application to this Court to vary his bail conditions to delete the curfew condition.

3. The applicant has been arrested for breaching the curfew condition on several occasions. It also seems that the police have attended his family home late at night to check on his compliance. Some applications have been made to the Local Court sitting in Bourke to remove the curfew condition. Those applications were refused.

4. Apart from one document, to which I will presently refer, there is nothing to suggest the applicant has committed any offence when he was out at night; that is perhaps, apart from the allegation that he breached the very curfew that is the subject of this application. On none of the occasions where alleged breaches of bail (by breaching the curfew) are asserted, was he committing any other offence. He was just outside in the forbidden hours.

5. I turn to the one document that might be thought to suggest otherwise. This is an email from a Senior Constable of police included in the prosecution bundle where it is asserted that, “[t]he offending has occurred in the early hours of the morning”. I take that to be a reference to the offending the subject of the current proceedings. The experienced prosecutor says it is, in fact, or he reads it as, a reference to the alleged breaches of curfew. The email also says that the applicant “is known to commit offences during the night”. Again, I am told on the hearing this morning that this must be a reference to the alleged breaches of curfew because, apparently, there is no other evidence that the applicant has ever committed any other offence during the night-time. It then says the “police want the POI [person of interest] at home during the night” (my emphasis).

6. Ms Melhuish of the Aboriginal Legal Service objected to that document and her objection is well justified and well-founded. However, I admitted it on the basis that I would disregard opinions of police desires. While not gainsaying what the police may “want”, the hopes, wishes and desires of the police are not relevant considerations under s 18 of the Bail Act 2013 (NSW). Further, if this email means to suggest that the current offences were committed at night - as I first read it, and still believe to be the case - it is false. It is contrary to the court attendance notice and to the facts sheet.

7. Bail conditions are calculated to mitigate risk. [1] Their imposition does not create an occasion for attempts at social engineering or paternalistic interventions in parenting decisions. [2]

   1. Section 20A(2) of the Bail Act provides, inter alia, a bail condition may “only” be imposed if it is “reasonably necessary to address a bail concern”, “is reasonable and proportionate” and “is no more onerous than necessary”.

   2. Compare, in the context of extended supervision orders, the observations of Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 at [89] adopted and applied by Hamill J in State of New South Wales v Carr [2020] NSWSC 643 at [5].

8. The applicant’s bail will be varied to delete the curfew condition.

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Endnotes

Decision last updated: 04 March 2021