R v KC

[2025] NSWSC 258

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v KC [2025] NSWSC 258
Hearing dates:	24 February 2025
Date of orders:	24 February 2025
Decision date:	24 February 2025
Jurisdiction:	Common Law - Criminal
Before:	Dhanji J
Decision:	Bail granted subject to conditions.
Catchwords:	BAIL – release application – break enter and steal – taking and driving a motor vehicle – driving unlicensed – offences committed whilst on bail – young person – 14 years old – s 22C test – unacceptable risk test – positive conduct in custody – motivation to address issues – strength of bail proposal – bail granted with conditions
Legislation Cited:	Bail Act 2013 (NSW)
Category:	Principal judgment
Parties:	KC (Applicant) Rex (Crown)
Representation:	Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (Applicant) Solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2025/67217
Publication restriction:	Nil

EX TEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: KC, to whom I shall refer to as the applicant, has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (“the Act”). The applicant is presently 14 years of age. He has been in custody since 13 February 2025, a period of 12 days. That custody relates to his most recent arrest on that date. The applicant, however, has four separate groups of matters arising out of four separate arrests.

2. The applicant was first arrested with respect to matters presently before the Court on 1 November 2024. He was charged at that time with offences of robbery in company, of which there are three counts, and an offence of assault occasioning actual bodily harm. It is alleged on that occasion that the applicant, then aged 13, was one of approximately five young men who ran after the complainant. It is alleged that the applicant led the group and demanded the complainant hand over his shoes, threatening to stab him if he refused. It is alleged that he then approached a second member of the complainant’s group and demanded he hand over whatever he had on him. After receiving $6 in coins, it is alleged the applicant punched the second complainant. It is then alleged that the applicant, with a co-accused, rounded upon a third member of the complainant’s group who was standing nearby and punched him; subsequently punching him a second time. It is alleged that the applicant returned to the first complainant and, as a result of threats, that complainant handed over his phone; after which it is alleged the applicant punched the complainant to the head and kicked him to the leg. The applicant was granted bail the next day.

3. He was then arrested on 27 December 2024 and charged with stealing and being armed with intent to commit an indictable offence. It is alleged that the applicant, with two companions, entered a bottle shop and took hold of a carton of premixed drinks before running from the store. That is alleged to have occurred on 3 December.

4. It is alleged that the applicant and two companions returned on 23 December to the same store at 9pm, where he was recorded trying to gain access. Because of the time of night, the doors did not automatically open, they being controlled from inside the store. It is alleged the applicant removed a knife from his clothing and put it between the two sliding doors trying to open the doors. Subsequently, other consumers were permitted access, with the applicant taking the opportunity to enter behind them. It is alleged that the applicant entered the cool room and when confronted produced a knife from his clothing. It is alleged that he took a case of Bundaberg Rum and cola, whilst his companions took other items. The applicant was initially refused bail on that matter before being released to conditional bail on 10 January 2025 this year, having spent some 15 days in custody.

5. Following that matter, the applicant was arrested on 15 January 2025 and charged with an offence of taking and driving a motor vehicle. That offence is alleged to have occurred between 5 and 9 October 2024, and thus predates the offences to which I have already referred. On this occasion, the applicant was identified on mobile phone footage which, on the Crown case, shows him driving a stolen motor vehicle, the vehicle having been stolen from the driveway of the victim’s premises. The applicant is also linked to the offence through fingerprints taken from the vehicle.

6. Importantly for the purposes of this application, that offence is a relevant offence within the meaning of that term in s 22C of the Act.

7. Whilst on bail for that offence, which was granted the day following his arrest, the applicant was again arrested on 13 February 2025. He was then charged with break, enter and steal; taking and driving a motor vehicle; and driving unlicensed. The complainant in the matter parked her vehicle in her driveway. The keys were left inside the house. There was a break-in and the keys were taken some time during the evening of 23 January, or morning of 24 January. At 4.25am on 24 January, the applicant was recorded on CCTV getting out of the driver’s seat of the vehicle. That occurred at some point within six hours of the vehicle having been taken. Additionally, the applicant was recorded in the area of the original theft, adding to a circumstantial case that he was responsible for the break-in as well as the driving of the vehicle.

8. That these offences are also relevant offences for the purposes of s 22C. Further, they are alleged to have been committed whilst the applicant was on bail in relation to the earlier matter for which he was arrested on 15 January. The applicant at this point in time was 14 years of age and was therefore a relevant young person, with the result that s 22C of the Act applies. As a result, pursuant to s 22C(1), I must not grant bail to the applicant unless I have a high degree of confidence he will not commit a serious indictable offence whilst on bail.

9. The obstacle for the applicant in this case is that ten days after being arrested in relation to the offence of stealing a motor vehicle, he was again arrested and charged with the most recent matters.

10. Section 22C(2) of the Act states that a decision in relation to the test under subs (1) may only be made after an assessment of bail concerns is made under Division 2 and consideration is given to “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.” The bail concerns are those set out in s 17 of the Act. They are the concerns that the applicant will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence.

11. The risks of failing to appear or interfering with witnesses or evidence are not directly relevant to the confidence I am required to have that the applicant will not commit a serious indictable offence whilst on bail. They may, however, be indirectly relevant.

12. Clearly, the risks of commission of a serious offence or otherwise endangering the community go directly to such confidence as I may have with respect to the applicant not committing a serious indictable offence. Those matters are assessed based on the matters in s 18 exclusively. Section 18 of the Act includes available conditions, a consideration made explicit in s 22C(2)(b).

13. In terms of matters that might give me confidence, the Youth Justice report indicates that in custody the applicant’s behaviour has been of a high standard. Further, there are available to him, if released to bail, significant supports. If those supports are engaged with, there is reason for confidence. The report suggests that the applicant is motivated to address issues that are getting him into trouble.

14. Against that, when previously released, there has been some inconsistency in his willingness to engage.

15. The difference, arguably, on this occasion is that the school year has started, which would have him at school on a daily basis; and, further, the level of support available to him is greater as a result of the availability of the s 22C bail case work support. The question is whether, given what has happened before, I could have a high degree of confidence that those matters will make the difference.

16. Given what the applicant has said with respect to his motivation and, in particular, given his positive conduct in custody and the strength of the bail proposal, which would effectively have him under house arrest with exceptions allowing him to attend various programs and school, I do have a high degree of confidence that the applicant will not commit a serious indictable offence if granted bail.

17. In coming to that view, I am strongly influenced by the indication in the Youth Justice report that if the applicant does not engage in bail case work, the case worker will follow the non-compliance and breach policy and procedure for bail, which includes informing the Court. If the Court is informed that he is not engaging in the various supports that are likely to keep him out of trouble, this is likely to lead to a detention application and his bail is likely to be revoked. In other words, there is a strong program of supports available; I am in a position to grant bail on the basis that whilst he is engaging in those supports he will remain on bail; but if he fails to engage as required, the Court will be informed and bail will be revoked. It will therefore be up to him the applicant to ensure that he complies with all the conditions and takes advantage of everything that is available to him.

18. He should understand that if he gets into further trouble he will certainly be back in custody, but also, that it is not just a question of not getting into trouble. If he fails to obey any of the directions, or attend any of the programs, or attend school, all of which are conditions that are being made part of this bail, he will be liable to being returned to custody.

19. Having determined the test under s 22C(1), it remains to apply the unacceptable risk test for the purposes of Division 2; that is, pursuant to s 19 of the Act, if I am satisfied on the basis of an assessment of bail concerns the applicant presents an unacceptable risk then bail must be refused.

20. Given the proposed conditions and the findings I have made with respect to s 22C(1), I am not of the view that there is an unacceptable risk with respect to any of the bail concerns in this matter.

21. Bail is granted subject to conditions.

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Amendments

26 March 2025 - Typographical error - "Ex tempoe" amended to "Ex tempore"

Decision last updated: 26 March 2025