R v KO - [2024] NSWSC 679

Supreme Court

New South Wales

Medium Neutral Citation: R v KO [2024] NSWSC 679
Hearing dates: 7 May 2024
Date of orders: 7 May 2024
Decision date: 07 May 2024
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
Bail is granted with conditions.

Catchwords:
BAIL – release application – young person – 14 years old – concerning charges – further offence committed whilst on bail – Bail Act 2013 (NSW), s 22C test – relevant offences – attempt to commit substantive offence is not a relevant offence – unacceptable risk test – bail granted with conditions

Legislation Cited:
Bail Act2013 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
R v RB [2024] NSWSC 471

Category: Principal judgment
Parties: KO (Applicant)
Rex (Crown)
Representation: Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2024/158142
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

HIS HONOUR: KO, to whom I shall refer as the applicant, has made a release application pursuant to s 49 of the Bail Act2013 (NSW) (the Act). The applicant is just 14 years of age, having been born in March 2010. His custody relates to two groups offences. He was first arrested on 11 March 2024, and charged with attempted break and enter with intent to steal, in circumstances of aggravation, that being knowing that there were persons present. It seems that he was bailed in relation to that matter, when he was subsequently arrested on 23 April 2024, and charged with an offence of stealing a motor vehicle, dangerous driving and driving whilst unlicensed, alleged to have been committed on 14 April 2024. He has remained in custody since his arrest on 23 April, a period of some two weeks.
The charges are concerning. The first charge of attempted break, enter and steal relates to an allegation that the applicant was, before 4:10am on X March 2024, that being the date of his fourteenth birthday with four other alleged offenders, captured on closed circuit television footage entering a property, whereupon he attempted to obtain access to a car parked in the driveway. On the Crown case he tried to push the garage door open, but was unsuccessful. The Crown alleges that he took an ashtray from the front door area. The occupant of the premises heard noises, woke up, and walked out the front door of the premises. She was confronted by three of the alleged offenders, who were armed with weapons, including a bat and knives. The applicant is not alleged to have been one of those persons. Rather, he is alleged to have run from the scene sometime earlier, prior to the complainant coming out.
As I said, the applicant was on bail in relation to that matter when he is alleged to have been driving a stolen vehicle. In relation to that matter, it seems that unknown persons obtained by force, entry to premises and stole the complainant's car key, together with some other items. It is…

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 KO

Details

AGLC: R v KO [2024] NSWSC 679
Case: [2024] NSWSC 679
Decision Date: 07 May 2024

CaseChat Overview and Summary

The appellant, a 14-year-old boy, was before the Supreme Court of New South Wales in relation to an application for bail following his arrest and charge for a further offence. The applicant had previously been granted bail in relation to other charges, which were still pending. The Crown sought to have the bail revoked on the basis that the applicant had committed an offence while on bail. The court was required to determine whether the applicant should be granted bail in relation to the latest charges, and if so, whether any conditions should be imposed.

The court considered whether the applicant had committed a relevant offence while on bail, as defined by section 22C of the Bail Act 2013 (NSW). The Crown argued that the applicant's new offence was a relevant offence and that the applicant posed an unacceptable risk to the community if released on bail. The applicant's legal representative argued that the new offence was not a relevant offence as it was not a substantive offence, but rather an attempt to commit a substantive offence. The court found that the new offence was not a relevant offence and therefore the applicant's bail should not be revoked on this basis.

The court then considered whether the applicant should be granted bail in relation to the new charges. The applicant's legal representative submitted that the applicant should be granted bail, subject to conditions. The Crown opposed the grant of bail, submitting that the applicant should be remanded in custody. The court found that the applicant had made out a prima facie case for bail, and that the conditions proposed by the applicant's legal representative were sufficient to mitigate any risk to the community. The court therefore granted the applicant's bail application, subject to conditions.

The court ordered that the applicant be released on bail, subject to a number of conditions including that the applicant reside at a specified address, report to a police station on a regular basis, and refrain from contacting certain individuals. The applicant was also ordered to surrender any travel documents and to obtain the consent of a justice before leaving the State. The court further ordered that the applicant's bail application in relation to the previous charges remain on foot, and that the applicant appear in court on a specified date for a hearing in relation to those charges.

Orders