R v DS

[2017] NSWSC 1842

Supreme Court

New South Wales

Medium Neutral Citation:	R v DS [2017] NSWSC 1842
Hearing dates:	19 December 2017
Date of orders:	19 December 2017
Decision date:	19 December 2017
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Release Application Granted
Catchwords:	BAIL – unacceptable risk test –Aboriginal juvenile - bad criminal record – alleged breach of bail – strength of prosecution case – overrepresentation of Aboriginal youths in custody – where child appears to be at turning point – positive influence of youth worker – presumption of innocence – stringent conditions proposed by ALS lawyer – conditional bail granted – no point of principle
Legislation Cited:	Bail Act 2013, ss 17,18, 19 Mental Health Act 2007, s 32
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Munda v Western Australia [2013] HCA 38
Category:	Principal judgment
Parties:	DS (Applicant) Regina (Respondent)
Representation:	Solicitors: Ms Hogan - Aboriginal Legal Service Mr Makin - Department of Public Prosecutions
File Number(s):	2017/00362676

EX TEMPORE Judgment

1. DS is a 16-year-old Aboriginal boy who is charged with serious offences committed in September and November 2017. He makes a release application under the provisions of the Bail Act.

2. As I understand it from the chronology it is the case that if he were an adult, that is just a year and a half or two years older, he would be required to show cause why his detention is not justified because of the serious offences committed in November 2017 and the fact they were committed whilst he was on bail for the offences committed in September of that year.

3. However, because he is a child the show cause provisions do not apply to him. Still he faces a difficult task in convincing the Court that his release application should be granted because, as the prosecutor Mr Makin submitted, there are a number of serious bail concerns which arise under s 17 of the Bail Act.

4. The real question for me is whether those concerns rise to the level where they can properly be described as “unacceptable risks”. That question requires a consideration of the exhaustive list of matters provided in s 18 of the Bail Act.

5. The applicant was arrested as I understand it on 2 November 2017 and has been in custody since that time. The matters are next before the Children’s Court for mention or hearing, it is not entirely clear which, on 11 January 2018. It is inevitable if bail is refused that he will remain in custody, enjoying as it were the presumption of innocence, for over two months if the matter is to be disposed of on 11 January 2018 and, if that is only a mention date and the matter is listed then for hearing, it may be that he is in custody for upwards of three months.

6. It is self-evidently undesirable that a 16-year-old child should be in custody pending the outcome of his court case even where, as here, he faces serious allegations, some of which at least involve random acts of violence against an innocent member of the community.

7. Whilst all alleged offenders must be treated equally, and whilst the High Court in Bugmy v The Queen [2013] HCA 37 and Munda v Western Australia [2013] HCA 38 made it clear in a somewhat different context there should be no special rules applying to Aboriginal offenders or any other group of offenders based on their ethnicity or racial or religious background, it is a notorious fact, if not a national shame and embarrassment, that Aboriginal people are grossly overrepresented in the gaols of New South Wales and Australia.

8. Nevertheless those matters must take a secondary place to the proper application of the provisions of the Bail Act and the risks identified by the prosecution in the present case.

9. It is appropriate first to consider the nature of the offences alleged against the applicant. There is at least one other urgent bail application to be heard today which looks like it has some length to it, and so my description of the offences must necessarily be brief.

10. The first two offences which I take to be alternatives were allegedly committed on 10 September 2017. There is one count of aggravated break and enter and another count of break enter and steal. The circumstance of aggravation asserted is that there was a person present in the premises.

11. In short, the victim of the alleged offence awoke to find the applicant in her room attempting to disconnect her mobile telephone. The allegation is that the applicant intended to steal the phone. When the victim saw the applicant she yelled at him “fuck off, get out”. At that point, on the prosecution case, the applicant ran away taking the phone with him.

12. The applicant allegedly dropped the phone on the front lawn of the premises and, according to the police facts sheet, his fingerprints or a fingerprint was detected on the mobile telephone during the course of the subsequent police investigation. On the material before the Court there appears to be no other explanation for the presence of the fingerprint other than it was the applicant who was in the victim’s room and the applicant who stole the telephone.

13. However, the information before a bail court or bail authority is necessarily incomplete. It might also be said this was a fairly unsophisticated criminal enterprise and the applicant’s response to being told to “fuck off” was to do just that.

14. It must be said that the prosecution case against the applicant in respect of those offences or that offence, on the limited and imperfect material available, appears to be a very strong and compelling one.

15. As I read the material, and I could be wrong about this, the applicant was arrested on 1 November 2017 and I think was released to bail on that day or the next and it was very soon thereafter that the applicant is alleged to have committed the two offences of violence which form the second series of charges in relation to which he seeks bail. Each can be described as a random act of gratuitous violence committed in the streets of the town of Gunnedah against an innocent and unsuspecting victim.

16. The first offence is an offence of common assault in which the applicant allegedly approached the victim for no apparent reason and punched him in the face. The force of the punch caused the victim to fall off his bicycle and he felt pain. When the victim stood up he saw that the applicant was carrying a knife which was tucked in his pants and the applicant then brandished the knife and threatened the victim.

17. The victim went home and some short time later returned to the area of the earlier incident with his father. An altercation then occurred between the applicant and the victim’s father and the applicant and an associate threatened the victim’s father with weapons.

18. It is difficult to assess at this distance the precise strength of the prosecution case in relation to those allegations but again the case appears, at least from a reading of the facts sheet, to be a relatively strong one. Both the seriousness of the offending and the strength of the prosecution case are matters to be taken into account pursuant to s 18 in assessing whether there are unacceptable risks in releasing the applicant to bail.

19. The next matter to be considered and which militates against the applicant’s release to bail is his criminal history. For a person of his young age he has accumulated a lengthy criminal record. That record commenced in 2015 when he was just 14 years of age. The applicant has a number of offences of violence committed when he was 14 and 15. A number of these offences were dealt with pursuant to the provisions of s 32 of the Mental Health Act 2007 which gives rise at least to an inference that the applicant at that time at least was suffering from some form of psychological or psychiatric ill-health.

20. The offences included common assault. In 2016 he was subject to a series of control orders, that is, periods of custody in juvenile institutions. Again over the next year or so the applicant committed a number of offences of violence, being offences of common assault and affray mostly, there are multiple such offences.

21. In 2016 he was sentenced to a three-month control order for possession of a prohibited drug. He was sentenced to a one-month control order for assault occasioning actual bodily harm in November 2016 and he also has a number of offences of stealing or shoplifting and at least one previous offence of breaking into someone’s home.

22. In addition to the large number of offences of dishonesty and violence the applicant’s criminal record also discloses that he has failed on a number of occasions to comply with bail undertakings made to the court. These included breaches of conditions in relation to his behaviour as well as failures to appear at court as and when required.

23. In the face of the current allegations, the alleged breach of bail by the commission of a second series of offences, and this unattractive criminal history, I accept that the prosecution is well justified in making a submission that there are a number of bail concerns and that those bail concerns are unacceptable risks. If I accept that submission s 19 of the Bail Act means that I must refused bail.

24. 24    The prosecution identifies the unacceptable risks as follows:

1. That the applicant will not appear at court;

2. That the applicant will commit a serious offence or offences if granted bail.

3. The applicant represents an unacceptable risk to the safety of the victim, individuals and the community at large; and

4. There is an unacceptable risk that the applicant will interfere with witnesses and evidence.   

25. I accept that each of those matters raised by the prosecution are real and serious bail concerns under the Act although there is very little evidence to support the proposition that he may interfere with witnesses and evidence. That concern is mitigated by the fact that the proposed bail conditions would involve the applicant living away from the town of Gunnedah where the current spate of offences was allegedly committed.

26. Pursuant to s 18 of the Bail Act I have given each of those matters serious consideration and significant weight in reaching the conclusion that I have. As is customary in cases involving children, the Court has been provided with a report prepared by the office of Juvenile Justice. In this instance there was a three-page report under the hand of a caseworker and the assistant manager of the Juvenile Justice Centre in Tamworth.

27. Since he went into custody the applicant has received counselling by the officers of Juvenile Justice and his conduct in custody was described as largely “compliant”. Until 30 November he had not received any misbehaviour reports. However, on that day he was said to have been “disobedient” and caused damage to one of the housing units and was transferred to what I understand to be a more disciplined centre.

28. That centre’s caseworkers described him as participating well in counselling sessions and he appeared to be showing some insight into the impact of alcohol use on his behaviour. He said that he was safe and secure while living with [REDACTED] at [REDACTED] but the author of the report was unable to confirm this. I should say that the idea of allowing him to return to Gunnedah is not an appealing one in view of the matters to which I have already referred.

29. The report noted that because the applicant had not entered a plea of guilty Juvenile Justice were not able to supervise him while on bail. However, because he is currently subject to parole orders or parole conditions arising out of an existing control order he can be supervised by Juvenile Justice as part of that order.

30. Ms Hogan of the Aboriginal Legal Service, who appears on the applicant’s behalf, proposed a stringent set of conditions which became Exhibit 3 on the bail application. Ms Hogan submits that those conditions would mitigate the bail concerns and convince me that those concerns do not rise to the level of unacceptable risk for the purpose of the application of s 19 of the Act.

31. In addition to that exhibit there were also tendered two documents. The first was a report by Hannah McDonald, a caseworker from Family and Community Services, and that report provides me with considerable comfort in reaching the conclusion that the applicant is entitled to one more chance on bail.

32. The report refers to the kinds of conditions that might appropriately meet the concerns raised by the Crown. It refers to the applicant’s history and difficulties and, most importantly perhaps, refers optimistically to his desire to start to improve his behaviour and to accept the supervision that previously he seemed to be very reluctant to accept.

33. Of equal importance in reaching that conclusion is a letter written by the applicant himself. This was transcribed by the Aboriginal Legal Service and became exhibit 1. The applicant says and acknowledges that he has messed up in life, but he does not mean to mess up his future. He said that he never really took any notice of Family and Community Service officers because, when he was younger, he thought that they were there to “screw him over”. He says that ever since he met Hannah, which is a reference to Hannah McDonald, the case worker who provided the most recent report, he started to make sense of some of his difficulties. He sets out his goals as getting a job, getting his L-plates for driving, buying a car, getting into a gym and fixing up his life. Hannah, he says, has helped him with his goals and he asks for "one last chance to get out and make this my last time". He says, with a great degree of insight, that I (that is, the Judge) am probably thinking that, because of his history and previous lack of insight, he does not really want to change. However, I accept his letter that that is truly his desire.

34. In addition to the documentary material, Ms McDonald gave brief evidence about what would happen if bail was granted. Regrettably, the options for his residential conditions are somewhat limited and, as I understood her evidence, a number of programmes that might have previously been available are no longer available. However, if bail is granted, she tells me that, Family and Community Services are obliged to and will provide him with short term crisis accommodation and that he would be supervised 24 hours a day by a programme known as LEAP, which is specifically geared towards assisting young Aboriginal offenders.

35. The Crown, ably represented by Mr Makin, submits that the proposed conditions are insufficiently strict to ameliorate the bail concerns that are raised and there is a degree of force in that submission. However, it is the case, because I accept the evidence of Ms McDonald that, if he is released into crisis accommodation (which might be a motel or a hotel, or it might be a youth refuge at Parramatta) the applicant will be subject to supervision 24 hours a day.

36. It is, of course, axiomatic that no grant of bail is risk free. At this stage, the young person is presumed to be innocent of the offences with which he is charged, notwithstanding the apparent strength of the prosecution case. The prosecutor submits that if he is convicted of these offences there is a chance that he will receive a further custodial sentence. I think the circumspection with which that submission is made is very fair. The prosecutor goes on to submit it is difficult to say how lengthy any such sentence will be. I agree with those submissions. The risk is that he will have served the entirety of the custodial sentence, if one is ultimately imposed.

37. I found the application a difficult one to resolve because of the repeated nature of the applicant’s offending and non-compliance since he was 15 or 16, and because of the serious nature of the allegations. But, ultimately, Ms Hogan has persuaded me that the kinds of bail conditions she proposes will mitigate the risks identified by the Crown.

38. It is also the case that releasing him at this stage when there seems to be an extremely positive influence in his life in the form of Ms McDonald will give him an opportunity to prove himself before the Children's Court, if it is the case that he is convicted and stands to be sentenced.

39. I propose to grant stringent conditional bail. [For conditions see file.]

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Decision last updated: 13 March 2018