R v GW - [2023] NSWSC 664

Supreme Court

New South Wales

Medium Neutral Citation: R v GW [2023] NSWSC 664
Hearing dates: 8 June 2023
Date of orders: 8 June 2023
Decision date: 16 June 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
Bail is granted

Catchwords:
BAIL — Aboriginal child — Multiple offences — Whether the unacceptable risks can be ameliorated by the proposed conditions — Where Youth Justice can provide “bail support” but not “bail supervision” because child has pleaded not guilty — Where a number of service providers are prepared to actively engage with the child — Multiple underlying issues that need to be addressed — Where it is necessary to ensure that a suitably qualified individual coordinates the various services — Bail granted

Legislation Cited:
Bail Act2013 (NSW), ss 17, 17(2), 18(1), 19(1), 74
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 4

Cases Cited:
Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
R v Hamilton [2022] NSWSC 127
R v JB [2023] NSWSC 94
R v JH [2023] NSWSC 93
R v Lago [2014] NSWSC 660
R v Peter Tsallas [2017] NSWSC 64
R v WB [2023] NSWSC 591
Raad v R [2015] NSWSC 532
Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172

Texts Cited:
A Safer Northern Territory through Correctional Interventions: Summary Report of the Review of the Northern Territory Department of Correctional Services (31 July 2016)
Final Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (17 November 2017)
Vanessa Edwidge and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (June 2021)

Category: Principal judgment
Parties: GW (Applicant)
Rex (Respondent)
Representation:
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2023/00176655
Publication restriction: Pursuant to ss 12A and 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any matter which is likely to lead to the identification of the child in the proceedings

Judgment

GW, the applicant, is an 11-year-old Aboriginal child, who was residing in Dubbo with his mother prior to being bail refused and detained on 12 April 2023. He appeared by way of audio-visual link on 8 June 2023, to apply for bail. He was represented on that day by Mr Eshow from the Aboriginal Legal Service.
The applicant has been charged with multiple offences which include, but are not limited to: offences of aggravated break, enter, and steal; armed robbery; larceny; destroying property; being carried in a conveyance without consent; and riot. Some of the allegations are more serious than others, but the sheer volume of offences that are alleged to have been committed between February 2022 and April 2023, is a cause for concern both in terms of protecting the community and in addressing, in a meaningful way, the underlying issues that give rise to such alleged conduct.
The allegations are defended. In light of the applicant’s very…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v GW

Details

AGLC: R v GW [2023] NSWSC 664
Case: [2023] NSWSC 664
Decision Date: 16 June 2023

CaseChat Overview and Summary

In the case of R v GW, the defendant, an Aboriginal child, was charged with multiple offences. The matter was heard in the Children’s Court of New South Wales, where the primary concern was whether the child could be granted bail given the nature and seriousness of the charges, and whether the risks associated with bail could be sufficiently mitigated through appropriate conditions. The court was tasked with balancing the child’s right to liberty with the need to protect the community and ensure the child’s rehabilitation.

The court considered several legal issues, including the principles governing bail for children, particularly Aboriginal children, and the specific conditions that could be imposed to address the risks associated with granting bail. The defence argued that the child had strong support networks and that various service providers were willing to engage with the child to address the underlying issues that contributed to the offending behaviour. The prosecution, on the other hand, highlighted the seriousness of the charges and the potential risk to the community if bail were granted.

After considering the arguments and the evidence presented, the court determined that while the offences were serious, the risks associated with granting bail could be managed through stringent conditions. The court recognised the importance of ensuring that a suitably qualified individual would coordinate the various services to be provided to the child. The court also acknowledged the need to address the multiple underlying issues that contributed to the child’s offending behaviour. Ultimately, the court concluded that bail could be granted with conditions, including close supervision and engagement with the relevant service providers, to mitigate the risks to the community and support the child’s rehabilitation.

The court granted bail for the child with specific conditions to ensure the child’s attendance at court, supervision by a suitable individual, and engagement with the various service providers. The conditions were designed to address the risks associated with bail while supporting the child’s rehabilitation and addressing the underlying issues that contributed to the offending behaviour.

Orders