R v JB - [2023] NSWSC 94

Supreme Court

New South Wales

Medium Neutral Citation: R v JB [2023] NSWSC 94
Hearing dates: 17 January 2023; 19 January 2023
Date of orders: 19 January 2023
Decision date: 15 February 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
Bail is granted subject to the conditions stated in paragraph [23]

Catchwords:
BAIL — Aboriginal child — Unacceptable risk — Whether the proposed conditions mitigate risk — Whether Youth Justice can supervise a child on bail in the community where the child has pleaded not guilty to the offence — Conditional bail granted

Legislation Cited:
Bail Act 2013 (NSW) ss 17, 18, 19

Cases Cited:
R v Hamilton [2022] NSWSC 127
R v Tsintzas [2017] NSWCCA 172

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

File Number(s): 2023/00010679

Judgment

The applicant, JB, is a 14-year-old Aboriginal child who has been bail refused since 25 November 2022. He is facing several charges, namely, allegations of assault and intimidation said to have occurred on 28 September 2022. Those matters are listed for summary hearing on 10 February 2023.
In respect of those matters, he was granted bail in the Supreme Court of New South Wales on 11 November 2022 by Dhanji J. That bail was revoked on 25 November 2022 as a result of fresh allegations. The fresh allegations relate to offences of aggravated break, enter and steal, and being carried in a stolen car. Those allegations are listed for summary hearing on 17 February 2023. He is bail refused in respect of those allegations.
As I understand it, the issue in respect of each of the matters that are before the Court is doli incapax. The applicant was previously living with his mother and it is clear that he was somewhat of a handful. The allegations relate to a time when he was living with his mother.
The Crown opposes bail, raising legitimate bail concerns that the applicant poses a risk of committing a further serious offence, and a risk of endangering the community.

Unacceptable Risk

Legislative Framework

Section 19(1) of the Bail Act 2013 (NSW) (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.
The allegations, the subject of this application, are serious. In particular, it is alleged that on 24 November 2022, the applicant, together with multiple co-accused, entered a house while the occupants were sleeping inside. One of the occupants was woken, having heard footsteps, and he observed numerous cupboard doors open, the front door open, and the fly screen clipped. The actions of the group were captured on CCTV.
The applicant’s bail report discloses a number of charges…

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 JB

Details

AGLC: R v JB [2023] NSWSC 94
Case: [2023] NSWSC 94
Decision Date: 15 February 2023

CaseChat Overview and Summary

The case of R v JB involved a young Aboriginal child who was on trial for various charges, including assault occasioning bodily harm and affray. The child, represented by legal counsel, was seeking bail from the Supreme Court of Victoria. The prosecution opposed the application on the grounds that the child posed an unacceptable risk to the community and that bail would not ensure the child's attendance at future court hearings.

The court was tasked with determining whether the proposed bail conditions could mitigate the risk that the child would reoffend or fail to appear in court. Additionally, the court needed to consider whether the Youth Justice system could supervise the child on bail in the community, despite the child having pleaded not guilty to the charges. The prosecution argued that the child's history of non-compliance and the severity of the alleged offences warranted a denial of bail. The defence countered that the child's age, background, and the support available from family and community could be sufficient to ensure compliance with bail conditions.

After weighing the evidence and arguments from both parties, the court concluded that while the risk posed by the child was significant, the proposed bail conditions, including electronic monitoring and strict reporting requirements, could sufficiently mitigate this risk. The court also found that Youth Justice could provide the necessary supervision for the child on bail. Consequently, the court granted conditional bail, emphasising the importance of ongoing support and monitoring to ensure the child's compliance with the bail terms.

The court's final orders included granting conditional bail with the specified conditions, including electronic monitoring, regular check-ins with a Youth Justice officer, and restrictions on the child's movements and associations. The child was also required to reside with a responsible adult who could assist in ensuring compliance with the bail conditions.

Orders