R v JW

[2017] NSWSC 1843

Supreme Court

New South Wales

Medium Neutral Citation:	R v JW [2017] NSWSC 1843
Hearing dates:	21 December 2017
Date of orders:	21 December 2017
Decision date:	21 December 2017
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Release Application Granted
Catchwords:	BAIL – 15 year old applicant seeks release – offence of violence – bad criminal history – co-offenders sentenced to bonds – child not previously incarcerated – applicant pregnant – seeks opportunity to study hairdressing – stringent conditions proposed – bail granted – no point of principle
Legislation Cited:	Children’s Criminal Procedure Act (1987), s 6
Category:	Principal judgment
Parties:	JW (Applicant) Regina (Respondent)
Representation:	Solicitors: Ms I. Hogan (Aboriginal Legal Service) Mr D. Gunter (Director of Public Prosecutions)
File Number(s):	2017/00371909

Judgment

1. The applicant is a 15-year-old. She is charged with two offences of stalk and intimidate, which occurred on the early hours of 18 October 2017. She was refused bail by the Children’s Court and makes a release application on an urgent basis today.

2. I have received facts sheet and statements of a police officer and two of the alleged victims. The facts, as described, involved the applicant, who was, it seems, was very drunk and two others attending residential premises of the two alleged victims and, on more than one occasion, essentially, forcing their way in either by using threats or damaging the property or tricking the occupants. It also involved making threats and one or other of the three alleged offenders said:

“I’ll slit your throat, burn your house down. I’m going to slit your throat. I’ll fucking burn this place down. You’re all fucked now”, et cetera, et cetera, et cetera.

3. The police intervened and the applicant was charged with the two offences of stalk and intimidate. She was, in fact, I am told, granted bail in relation to the matter, which is not surprising given the nature of the offences which, whilst serious, are by no means the most serious known to the criminal law and also because she is a 15-year-old child. However, accordingly to the material before me - and it seems to be admitted by Ms Hogan, of the Aboriginal Legal Service, who appears on her behalf - that she absconded and breached bail and as a result of that when the matter came back before the local court bail was refused and she has been in custody since around 4 November or 6 November 2017.

4. In addition, the facts and that particular breach of bail, there is also both a criminal history and a custodial history, which bespeak of a young person with some real problems, both with some sort of psychological or family problems and a distinct disregard for the law. Her record, for a 15-year-old, is quite lengthy, although there is a lot of repetition in the bail report partly because, as often as not, it appears she tended not to attend court when required and matters have been dealt with in her absence. So a number of the offences are nominated in the bail report and history on more than one occasion. So it is a little tricky to work out exactly how many offences she has committed. But, on the material I have, it appears she has multiple offences of assault on her criminal history as well as a previous offence of stalk and intimidate from February this year, contravention of apprehended violence orders and multiple occasions where she either breached bail that she had been granted or failed to appear in accordance with her bail undertakings.

5. All of those things led me to commence the application with significant scepticism as to whether she could be trusted if granted bail. However, two factors are important. The first is that, as I have said, she is alleged to have committed these offences with two other young people. They have each been dealt with by the children’s court and each was released on a bond.

6. Ms Hogan very properly concedes that, on the facts as presented, the present applicant was probably more seriously involved and may have been the instigator of the offence. I think that is a concession properly made. It is also not known to the Court whether those young people have the same criminal history as this one. So I am not really able to make a comparison with the sentences imposed on the others and say, therefore, she will not receive a custodial sentence (that is, a control order). But, as Ms Hogan points out, sending a 15-year-old child - indeed, sending any offender - into custody is a sentencing option of last resort. Fortunately, for this applicant, to date the children’s court has not thought it necessary to send her to an institution by way of a control order.

7. The matter is currently listed for hearing on 22 January 2018, which means that she will have been in custody for two to three months before her matter is heard and that, given the seriousness of the offence, and her age, is a matter which would suggest she may well have served all or most of any control order that is imposed, if she is convicted and if Children’s Court Magistrate decides a custodial sentence is the only reasonable and available sentencing option.

8. The only significant matter that has changed since the Magistrate dealt with the bail application, or at least a recent matter of real significance, is the fact that the young person, the child, now knows that she is pregnant. I have spoken with her today and she tells me that she wants to have the baby and that she is aware of the harm that she could cause to her baby if she continues to drink alcohol to excess, which seems to be at the heart of the problems that lead her to have the record that she does and, certainly if the facts of the present case are accepted, seem to have been the reason that she behaved the way that she did on the night in question.

9. Further, a juvenile justice report, which became Exhibit 2 on the application, confirmed that she has changed her attitude to supervision and that there is a place available for her at a residence at [REDACTED], which is run by an organisation called Lifestyle Solutions. [The child applicant] has told me that she knows that accommodation. She says it is good, and she says that the counselling services there are good, and that she intends to engage with those services in a way that she has apparently not done in the past.

10. She has also written me a letter dated 20 December 2017 in which she sets out her ambitions hoping that, apart from just getting herself on the straight and narrow, she would also like to do a hairdressing or beautician’s course at TAFE and also do an apprenticeship until qualified as a hairdresser. She says she knows her only option is living in the refuge. She accepts that she should do this and she is:

“...asking for one more chance to show I have changed. I need to get out and prove to myself I can get my life on track for myself and my baby. I will make sure you don’t regret the decision.”

11. I hope she is right about that because I have decided, in all the circumstances, that she is entitled, as a child, to an opportunity to prove herself in the community and that decision accords with the principles set out in s 6 of the Children’s Criminal Procedure Act and any number of international instruments concerning the rights of children.

12. I am very grateful for the comprehensive set of conditions proposed by Ms Hogan of the Aboriginal Legal Service. The senior prosecutor, who appears in opposition to the release application on behalf of the Director, agrees they are entirely appropriate if I were minded to grant bail.

13. So I will grant bail on the following conditions:

FOR BAIL CONDITIONS, SEE COURT FILE.

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Decision last updated: 13 March 2018