R v Hamilton

[2022] NSWSC 127

Supreme Court

New South Wales

Medium Neutral Citation:

R v Hamilton [2022] NSWSC 127

Hearing dates:

16 February 2022

Date of orders:

16 February 2022

Decision date:

16 February 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

Bail granted

Catchwords:

BAIL – no question of principle

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Category:

Principal judgment

Parties:

Jacob Hamilton (Applicant)
Crown (Respondent)

Representation:

Counsel:
D Bhutani (Applicant)
S Makin (Crown)

Solicitors:
KPW Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2022/13934

EX TEMPORE Judgment

1. In the circumstances which I will outline, the applicant for bail, Jacob Hamilton, stands charged with an offence under s 33(2)(b) of the Crimes Act 1900, arising out of a cowardly and vicious attack on a police officer. The prosecution case identifying him as the attacker appears to be strong.

2. Mr Hamilton has no prior criminal convictions, and strong family support. He has been in custody for almost six months. If the offence with which he was charged were a show cause offence under the Bail Act 2013, then I would have no hesitation in refusing him bail. However, it is not a show cause offence, and instead his application falls to be considered by reference to an assessment of the bail concerns in s 16A of the Bail Act. A consideration of those criteria obliges me, with some reluctance, to grant bail on conditions.

3. According to the police facts, on the evening of 2 October 2021 the applicant was out with his friends. At around 8.30pm there was a confrontation between his group and another group of males in the street. The confrontation dissipated. However, shortly afterwards one of his friends commenced fighting another male who was with a separate group on the footpath.

4. Two police officers intervened to separate the men. At one point the two officers subdued the applicant's friend on the ground. The police facts record that until this time the applicant was not involved, but then he “looked around before taking several steps towards” the officers, kicked one of the officers in the head, that being the victim, and then absconded.

5. The balance of the police facts describes the subsequent events including the applicant's friend identifying him via an item of clothing from CCTV footage, the police attending at his home, but he was not there, and the applicant later attending at the police station and identifying the clothing depicted in the CCTV footage as his own.

6. Three matters should be noted about the offence at this stage. First, to describe the attack on the victim as "a kick to the head" is to risk significantly underestimating the force of the blow. The victim immediately felt immense pain, dizziness, noticed a large depression in the middle of his forehead and had blood dripping from his nose. He was transported to a local hospital. In the weeks following he underwent specialist surgical intervention, involving the insertion of titanium plates in his head. A photo of the victim has been tendered on the application, showing him after the surgery. It is confronting. The victim has been diagnosed with a mild to complex brain injury.

7. A statement from the victim was tendered on this application. It describes in detail the trauma of the incident and the follow-up treatment. He also describes the ongoing effects of his brain injury including headaches, fatigue, loss of sleep and nerve damage. Every facet of his life is affected, including work and his caring for his young children.

8. Second, an assessment of the strength of the Crown case is a difficult matter on a bail application. Part of the material before me includes a strong submission from the officer-in-charge opposing the grant of bail. The submission notes that the CCTV footage shows the assailant wearing an item of clothing that, as noted, the applicant admitted was his. Thus, the Crown case appears to be strong.

9. Third, the maximum penalty for this offence is 25 years' imprisonment. It carries a standard non-parole period of seven years' imprisonment. It seems to me almost inevitable that if convicted the applicant will receive a custodial sentence of some length, regardless of the strength of his subjective case.

10. The applicant is 20 years of age. He was born in Wodonga and has lived in the Wodonga-Albury area his whole life. Since 2018 he has been working as an apprentice plasterer. He is due to complete his apprenticeship shortly. At the time of the offence, he was living with his mother. His mother has sworn an affidavit in support of her son. She has agreed to have him continue to reside with her if he is released on bail.

11. Both the applicant's stepmother and father have provided affidavits in support of his application. They have offered to provide security of $50,000 in support of his application for bail. The applicant's employer has provided a letter confirming his support of the applicant and his dedication to his work.

12. As noted, the applicant has no criminal convictions. He has now been in custody for almost six months. He has provided a letter outlining his experiences in custody including witnessing gaol assaults, the effects of COVID and his inability to see his family.

13. The applicant's bail proposal involves his being released to live with his mother, observing a curfew enforceable by police attendance at his home, his not consuming alcohol, which is also enforceable by police supervision, reporting to the police station and an acceptable person lodging $50,000 which would be forfeited if his application is refused.

14. As stated, this is not a show cause offence. The bail application is to be assessed by reference to whether the bail concerns stated in s 17 exist and, if so, whether the level of risk presented by those concerns is "unacceptable" (s 19). An assessment of whether the risk is unacceptable includes consideration of whether the risk can be mitigated by bail conditions. The bail concerns are the applicant failing to appear at any proceedings for the offence, the risk of the applicant committing a serious offence, the risk of the applicant endangering the safety of victims, individuals or the community or the risk of his interfering with witnesses or evidence.

15. In addressing these bail concerns the court should consider, amongst other matters, the nature and seriousness of the offence and the strength of the prosecution case (s 18(1)(b) and (c)). I have already undertaken that task. However, those matters are only relevant to the extent that they inform the assessment of the bail concerns. It is not the function of the court on a bail application to somehow determine that a person should start serving a custodial sentence in advance of it actually being imposed.

16. In this case there is a very remote likelihood of the applicant attempting to interfere with witnesses. As I understand it, those witnesses are police officers. The prosecution did not contend that there was a risk of him approaching any of the officers involved.

17. In relation to the risk of non-appearance, the prospect that the applicant is likely to be convicted and gaoled for a serious offence of violence clearly provides him with an incentive not to attend court. Against that, the applicant has spent his whole life in Albury-Wodonga, has all of his community ties to the region, and there is no suggestion that he has the means or the wherewithal to live anywhere else. If he absconded, it is most likely that his step-parents would lose their home. Given that and his record, the proposed bail conditions reduce the risk of non-appearance below a level that is unacceptable.

18. The findings I have made about the nature and the strength of the Crown case mean that there is also a risk that the applicant may commit a serious offence and endanger the safety of victims, individuals and the community. There is a strong Crown case that the applicant committed an unprovoked, cowardly and vicious attack on a police officer.

19. Can the risk of something like that re-occurring be reduced below a level that is unacceptable? A consideration of the Crown facts and the applicant's prior good record strongly suggest the offence was some sort of reaction fuelled by alcohol and response to his friend's arrest. All the other materials suggest that, absent the applicant being in the same or similar context, the risk of him acting violently is low.

20. Added to that is the circumstance that he has now spent almost six months in custody. He must have the knowledge that it is very likely he will return to custody. At the very least, his good behaviour in the meantime seems to be one of the means of at least minimising any further period of time he will serve in gaol.

21. The bail proposal involves a curfew being observed by his staying indoors from 7pm to 6am. I have no doubt that will be the subject of supervision by the local police. Bearing all that in mind, I am forced to the conclusion that the risk of him committing further offences and endangering the community if he is released on bail are reduced below a level that is unacceptable.

22. I have no doubt about the level of community shock and outrage arising from such an assault on a police officer. However, the task imposed on me by the Bail Act is to address the risk from the release of the applicant going forward. The outcome of that assessment requires the applicant's release on bail. Accordingly, there will be a grant of bail on conditions.

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Decision last updated: 18 February 2022