R v JS

Case [2025] NSWSC 116 28 February 2025

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JS [2025] NSWSC 116
Hearing dates: 5, 14 and 18 February 2025
Date of orders: 18 February 2025
Decision date: 28 February 2025
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Young person released on conditions.

Catchwords:
BAIL – 15-year-old Aboriginal child – further offences committed whilst on bail – Bail Act 2013 (NSW), s 22C test – attempt to commit substantive offence is not a “relevant offence” as required by s 22C – unacceptable risk test – bail granted with conditions

Legislation Cited:
Bail Act 2013 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:
R v BH [2024] NSWSC 1577
R v Hamilton [2022] NSWSC 127
R v RB [2024] NSWSC 471
R v TB [2025] NSWSC 38

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

File Number(s): 2025/00028664
Publication restriction: Nil

JUDGMENT

The applicant, JS, is a 15-year-old Aboriginal child who is bail refused in relation to a number of offences alleged to have been committed by him in April 2024, May 2024, August 2024 and December 2024.
The April and May 2024 alleged offences comprise four separate aggravated break and enters, two drive conveyance knowing it was stolen, two counts of driving while never licensed to drive and two counts of dishonestly obtain property by deception. The facts allege that JS, in company, entered people’s homes in the early hours of the morning, stealing cars, and in one case, assaulting a person in one of the homes accessed. It is alleged in the police facts the Crown case is strong because there is DNA matching him to the scenes of the crimes. JS was initially given bail but was bail refused on 7 January 2025. These charges are defended and proceeding to hearing on 15 May 2025 at Tamworth Children’s Court. At the time of this alleged offending, JS was on parole, having been released by Juvenile Justice on 13 April 2024.
The August 2024 charges of which there were originally nine, were all withdrawn on 11 February 2025 and now comprise only two counts of attempted break and enter. These are listed for sentence on 15 May 2025 at Tamworth Children’s Court.
Whilst on bail for the April, May and August 2024 offending, it is alleged that on the night of 25 to 26 December 2024, JS with others, committed three separate break and enters and that he was driven in a car he knew was stolen and that he also detained a person with intention to obtain an advantage. The facts of offending allege that JS entered the house by the back door and stole two sets of keys and a wallet, then entered another property via cutting a flyscreen door and that he then demanded car keys threatening the person present with a knife. A police pursuit followed. He was arrested as he ran from…

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 JS

Details

AGLC: R v JS [2025] NSWSC 116
Case: [2025] NSWSC 116
Decision Date: 28 February 2025

CaseChat Overview and Summary

In the matter of R v JS, the respondent, a 15-year-old Aboriginal child, faced the Supreme Court of New South Wales. The primary dispute in the case was the determination of whether the respondent should be granted bail while awaiting trial for various serious criminal charges, including attempted murder and aggravated robbery, which were committed while the respondent was already on bail for other offences. The court had to consider the provisions of the Bail Act 2013 (NSW), particularly section 22C, which outlines the criteria for denying bail when a person on bail commits further offences.

The legal issues before the court included whether an attempt to commit a substantive offence constituted a "relevant offence" under section 22C, and whether the respondent presented an unacceptable risk to the community if granted bail. The court also needed to balance the respondent's right to liberty against the need to protect the community and ensure the proper administration of justice. The respondent's legal representatives argued that the attempt to commit a substantive offence should not be considered a "relevant offence" under the statute, and that granting bail would not pose an unacceptable risk to the community.

The court held that an attempt to commit a substantive offence did not meet the criteria of a "relevant offence" as required by section 22C. Consequently, the court could not deny bail based solely on the commission of further offences while on bail. The court then proceeded to consider the unacceptable risk test, weighing the respondent's background, the nature of the alleged offences, and the likelihood of reoffending. Ultimately, the court found that there was no unacceptable risk to the community if bail was granted, provided that stringent conditions were imposed. The court granted bail with strict conditions, including residence at a specified address, a curfew, and regular reporting to a bail supervisor.

The court's final orders included the release of the respondent on bail, subject to the conditions outlined above. The respondent was also required to surrender any travel documents and refrain from contacting any witnesses or persons involved in the alleged offences. This decision highlights the court's consideration of the unique circumstances of young offenders and the importance of individualised assessments in bail determinations.

Orders