R v JS

[2025] NSWSC 116

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

1. 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.

2. 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.

3. The August 2024 charges of which there were originally nine, were all withdrawn on 11 February 2025 and now comprise only two counts of attempted break and enter.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.

4. 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 the car. The Crown case is asserted to be strong given his apprehension running from the car, what is shown in CCTV footage, and things stolen from the homes found in JS’s possession. He was bail refused by police on 26 December 2024, and by the Parramatta Local Court on 27 December 2024. These charges are likely to also be set down for hearing on 15 May 2025 at Tamworth.

5. It appears, taking into account that JS has been given the benefit of Supreme Court bail on 3 occasions in 2024, his time in custody for the offending for which he is currently bail refused comprises 30 August 2024 to 12 December 2024, and 27 December 2024 to 18 February 2025, a period of 156 days or slightly over 5 months.

6. Because the December 2024 offending was alleged to have occurred whilst he was on bail for “relevant offences”, being the three break and enters in April and May 2024, and the motor theft offence, and that he was a “relevant young person” at the time, being a child 15 years of age, the requirements of s 22C of the Bail Act 2013 (NSW) apply. (The offences in August 2024 being “attempt”, rather than a substantive offence, do not amount to a “relevant offence” as defined in s 22C(6) and so s 22C obligations do not apply to those offences).

7. Section 22C of the Act provides:

22C Temporary limitation on bail for certain young persons in relation to certain serious offences

(1) A bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence unless the bail authority has a high degree of confidence the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions.

(2) A decision under subsection (1) may be made only after—

(a) an assessment of bail concerns is made under Division 2, and

(b) consideration of whether any bail conditions could reasonably be imposed to address any bail concerns or risk the relevant young person will commit a further serious indictable offence.

(3) To avoid doubt, the requirement under this section to establish that bail should be refused for the relevant young person remains with the prosecution.

(4) This section applies despite anything to the contrary in this Act.

(5) This section expires 12 months after this section commences.

(6) In this section—

motor theft offence means an offence under the following sections of the Crimes Act 1900—

(a) section 154A,

(b) section 154C,

(c) section 154F.

relevant offence means—

(a) a motor theft offence, or

(b) a serious breaking and entering offence, or

(c) an offence under the Crimes Act 1900, section 154K, if the underlying offence is a motor theft offence or serious breaking and entering offence.

relevant young person, for a relevant offence, means an individual who is, at the time the relevant offence is alleged to have been committed—

(a) 14 years of age or more, and

(b) less than 18 years of age.

serious breaking and entering offence means an offence under the Crimes Act 1900, Part 4, Division 4 that is punishable by imprisonment for a term of 14 years or more.

serious indictable offence has the same meaning as in the Crimes Act 1900, section 4(1).

8. Section 22C is an additional and separate requirement to the assessment of bail concerns set out in s 17 of the Bail Act:

17   Assessment of bail concerns

(1)  A bail authority must, before making a bail decision, assess any bail concerns.

(2)  For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will—

(a)  fail to appear at any proceedings for the offence, or

(b)  commit a serious offence, or

(c)  endanger the safety of victims, individuals or the community, or

(d)  interfere with witnesses or evidence.

…

9. If I do not release JS today it is inevitable that he will be waiting in custody for an additional three months. Quite apart from that concern, (a child on remand for over 8 months waiting for his charges to be dealt with), I am obliged to consider and apply the requirements of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to these proceedings as follows:

6 Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

10. Last month, in R v TB [2025] NSWSC 38 (“TB”), I made the following observations about the interaction between s 22C of the Bail Act and s 6 of the Children (Criminal Proceedings) Act:

“[6] As I already observed in April 2024 in R v RB [2024] NSWSC 471, and as observed by Rothman J in R v TW [2024] NSWSC 1504 and more recently by Yehia J in R v BH [2024] NSWSC 1577 (“BH”), the overarching obligations under s 6 of the Children (Criminal Proceedings) Act appear to have had violence done to them by the enactment of s 22C of the Bail Act 2013 (NSW) last year.

[7] …

[8] Section 22C creates a tension for bail authorities, magistrates, and judges hearing release applications for children when they have been charged with certain identified types of offending whilst on bail. As each of Yehia J, Rothman J and I have observed as mentioned above, s 22C requires children to be treated less favourably, and their liberty treated less favourably, than if the same circumstances applied to a person aged 18 or older.”

11. Section 4 of the Children (Criminal Proceedings) Act requires s 6 of that Act to apply to any criminal proceeding notwithstanding any law or practice to the contrary, yet s 22C of the Bail Act, by its terms, requires a bail authority to not act in accordance with the principles prescribed in s 6 of the Children (Criminal Proceedings) Act and to specifically not treat a child in this situation as having “rights and freedoms before the law equal to those enjoyed by adults”: (s 6(a)), and to put to one side the “desirability” of children “being assisted with their reintegration into the community so as to sustain family and community ties”: (s 6(f)), by imposing an additional obstruction to their release to their family and community, despite that child being entitled to the presumption of innocence. Section 50 of the Children (Criminal Proceedings) Act which provides that the Act is “generally subject to the Bail Act” does nothing to clarify this apparent tension, given what is stated in s 4 of that same Act.

12. As Yehia J observed in R v BH [2024] NSWSC 1577 (“BH”) at [13], the test under s 22C requires some probabilistic assessment. It may also import some value assessment based on the evidence. “Probability” and “confidence” are not completely synonymous. Section 22C involves an evaluative judgment to reach a state of satisfaction regarded as a “high bar”, but not a state of certainty. I do not need to be certain that the young person will not commit a further relevant offence. The test is more onerous than the show cause requirement that applies to adults under s 16A of the Bail Act. Considerations such as delay appear to have no bearing on the assessment required under s 22C. As I observed in R v RB [2024] NSWSC 471 (“RB”), the test of “a high degree of confidence”, is not known in criminal law.

Assessment of risk – Bail Act

13. I must first carry out an assessment of any bail concerns presented by JS. I must refuse bail if I am satisfied on the basis of an assessment of bail concerns that there is unacceptable risk: s 19(1). I must grant bail if I am not satisfied there is any such risk: s 20. I can impose bail conditions only if I am satisfied that there are bail concerns: s 20A. The imposition of bail conditions to address bail concerns is a mandatory consideration under s 18(1)(p)). An assessment of whether the risk presented by release of the applicant is unacceptable includes a consideration of whether the risk can be mitigated by bail conditions: R v Hamilton [2022] NSWSC 127 at [14] per Beech Jones CJ at CL.

14. Only after that analysis do I turn to the question of whether the Crown has persuaded me that bail should be refused because of the requirements of s 22C, and as part of that analysis I must consider whether any bail conditions could reasonably be imposed to aid in giving me a high degree of confidence that JS will not commit a further serious indictable offence: s 22C(1).

15. Dealing first with s 17(2) concerns, the Crown points to concerns that because JS has been moving with a group of other young persons and engaging in dangerous activity in the nature of break and enters and stealing cars and being involved in police pursuits, he is a risk to the community: s 17(2)(c), and there is a risk that he will engage in that behaviour again and commit a similar serious offence: s 17(2)(b).

16. The Crown submitted that there is a repetitive pattern of offending illustrated by JS’s criminal record since March 2023, which comprises seven separate incidents of being carried in conveyance without consent of owner, one count of aggravated take and drive motor vehicle in company and robbery in company, and three counts of enter building or land with intent to commit an indictable offence.

17. JS has been given the benefit of probation, control orders and suspended control orders for those offences. He has breached bail conditions and has been given multiple judicial warnings about that, and there have been a number of detention applications.

18. Given that record, I acknowledge that there is at least some risk that he would engage in similar conduct again, some of which comprises “serious offending” and some of which can be seen to endanger the safety of the community, if bail conditions cannot be fashioned to address those risks.

Section 18(1) factors

19. Section 18(1) of the Bail Act sets out a list of matters that I must consider when assessing bail concerns under s 17 of the Bail Act.

20. The detailed Youth Justice report dated 4 February 2025 provides background about JS, his family, his education and programs and support available to assist him on release in the community.

21. Before turning to those matters, I should acknowledge that two of the mandatory considerations in s 18(1) are: the nature and seriousness of the offence(s), and the strength of the prosecution case. Some of the offences with which JS has been charged are serious, and the prosecution case in respect of some of the charges appear on their face to have some strength.

22. I am also obliged to consider the length of time JS would spend in custody if bail is refused, and the likelihood of a custodial sentence being imposed. I know he will remain in custody for 3 months if bail is now refused, and whilst difficult to assess, there is no guarantee that a custodial sentence will be imposed, even if the charges are established, given the sentencing court’s requirement to apply s 6 of the Children (Criminal Proceedings) Act. I say that in the knowledge of the guilty pleas that have apparently been entered for the two attempted break and enters in August 2024. It is a significant matter to leave a child on remand for a further 3 months in all of the circumstances.

23. JS is 15 years old and the fourth of six children. He has good relationships with his siblings who are currently aged 20, 18, 16, 10 and 4. He also gets on well with his other siblings on his father’s side of the family who mostly live in Walgett.

24. There have been difficulties with JS settling into adolescent life. In May 2024 he was placed into the care of Pathfinders for ongoing accommodation support, but he found living with family better for him, and ultimately went back to live with his mother. He was, before the current remand, living with his grandmother who also has the care of other siblings and cousins.

25. The current proposal is that JS live with his Auntie [REDACTED] who has provided an affidavit stating that she is prepared to have JS live with her and her 8-year-old son. [REDACTED] works 5 days a week but only lives a few minutes from work and usually comes home for lunch and will check on him during the day and supervise him after hours and on the weekend. [REDACTED] deposed to having had JS live with her before, and that he is good to have around, and she enjoys his company. He would have his own room, and she is happy to provide what he needs for him to feel like he is in a settled home. Importantly, [REDACTED] confirmed that she had spoken to JS, and that he had said to her that he is “ready to come out”. In context, I interpret that to mean that he knows he has to behave and is ready to do so. JS’s mother has told Youth Justice that she is content with the arrangement for him to stay with [REDACTED].

26. JS expressed a willingness to go back to school and Youth Justice will assist.

27. JS expressed willingness to return to the Ganungu Warruwi program for some activities and cultural mentoring. He also had agreed to see the Youth Justice psychologist for support and coordination with NDIS for which he needs some further updating assessments.

28. Arrangements are also in place for cultural mentoring through the Gomeroi mentoring program.

29. The Youth Justice report includes a statement of risk for JS, factors which include anti-social attitudes, anti-social peer influences and his criminal record.

30. The report noted that JS understands what he needs to do: “stop hanging around with the boys” and “stay home”. I interpolate that bail conditions that address those risks will have an important role to play.

31. The Youth Justice report sets out additional supports available to JS which include regular supervision and appointments with Youth Justice, tailored intervention targeting his offending behaviour, weekly appointments with the Youth Justice psychologist, support to engage with education and health services, support for further NDIS assessments and support to get to and engage with the programs set out above. I also note that given the Youth Justice supervision, any breaches of bail will be reported to the Court.

32. Given the pattern of behaviour in the past, I asked JS why I could be confident that this time he will comply with bail conditions. He stated that he wanted to “be there for his mother” and his younger brother, and that he believes with family support he will be able to do that. He said that he loves his family members and does not want to be a poor example for his younger brother.

33. The bail conditions proposed are strict, and include house arrest unless with his [REDACTED], or an NDIS or Youth Justice worker, or his mother.

34. I am satisfied that any risks can be managed to below the level of unacceptable in all the circumstances.

35. Returning to s 22C of the Bail Act, the question is whether the Crown has discharged its onus in asserting that bail should be refused.

36. I have carefully considered the Youth Justice report and the supervision plan. It is multi-faceted and has a real prospect of keeping JS engaged and out of trouble. His [REDACTED] providing a home for him is also an important protective matter, as is his appreciation of his need to be there for his mother and brother, which he will not be if he commits another serious offence.

37. The Crown has not dissuaded me from having a high degree of confidence that JS will not commit a serious indictable offence on bail while subject to the structure and supports in place under the bail conditions and the associated Youth Justice supports. I release the applicant on the following conditions:

1. The applicant is to be of good behaviour.

2. The applicant is to appear at the Local Court at Tamworth today and thereafter as directed.

3. The applicant is to live at [REDACTED] and nowhere else.

4. The applicant is to comply with a home detention condition and is not to leave the premises at which the applicant is required to live except in the following circumstances:

1. when in the company of [REDACTED] or NDIS worker or mother [REDACTED] or an individual nominated by Youth Justice; or

1. to attend their place of education if they are enrolled between 8:30am and 4:00pm.

5. The applicant is not to occupy the driver’s seat of any motor vehicle/motorcycle whether it is switched on or not.

6. The applicant may only travel away from the Juvenile Detention Centre from which the applicant is to be released on bail when in the company of an individual nominated by Youth Justice. This is a pre-release condition and must be complied with before the applicant is released on bail.

7. The applicant is not to drink alcohol or enter any premises in which alcohol is sold, other than a licensed restaurant.

8. The applicant is not to take any illegal or prescription drugs other than a drug prescribed for the applicant by a medical practitioner.

9. The applicant is not to approach or communicate with, or attempt to make contact with, [REDACTED] by any means, including telephone and internet social media platforms, or through another person, other than a legal representative.

10. The applicant is not to approach or communicate with, or attempt to make contact with, any prosecution witness other than a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.

11. The applicant is to obey any reasonable direction given to him by:

1. the applicant’s parent or aunty;

2. case worker;

3. an officer of the Juvenile Justice Office.

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Amendments

06 March 2025 - Coversheet: formatting corrected.

10 March 2025 - Cover sheet: typographical error corrected in case cited.

Decision last updated: 10 March 2025