R v Nathan (a pseudonym)
[2023] QChC 4
•17 March 2023 (delivered ex tempore)
CHILDRENS COURT OF QUEENSLAND
CITATION:
R v Nathan (a pseudonym) [2023] QChC 4
IN THE MATTER OF AN APPLICATION FOR BAIL BY NATHAN (A PSEUDONYM)
PARTIES:
NATHAN (A PSEUDONYM)
(Applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
(Respondent)
FILE NO/S:
CCJ 187 of 2023
DIVISION:
Criminal
PROCEEDING:
Bail Application
ORIGINATING COURT:
Childrens Court of Queensland
DELIVERED ON:
17 March 2023 (delivered ex tempore)
DELIVERED AT:
Ipswich
HEARING DATE:
17 March 2023
JUDGE:
Horneman-Wren SC, DCJ
ORDERS:
1. Application for bail allowed.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – APPLICATION FOR BAIL – where applicant indicates intention to plead guilty to 6 offences – where applicant applies for bail pending sentence – where applicant is 13 years old and has been remanded in custody – where detention as a sentence of last resort is most unlikely – where the respondent submits that there is an unacceptable risk of the applicant reoffending in the community – whether there is an unacceptable risk of reoffending – whether bail should be granted in the circumstances
LEGISLATION:
Bail Act 1980 (Qld) s 16
Youth Justice Act 1992 (Qld) s 48AAA
COUNSEL:
Hans Legal for the applicant
Director of Public Prosecutions (Queensland) for the respondentSOLICITORS:
These are my reasons for a grant of bail, which will occur, in respect of a bail application I heard yesterday.
Nathan is a 13-year-old boy charged with six offences. Those six offences, which I shall call the subject offences, are: unlawful use of a motor vehicle on 12 February 2023; enter a dwelling and committing an indictable offence on 12 February 2023; dangerous operation of a motor vehicle on 12 February 2023; an evasion offence on 12 February 2023; driving a motor vehicle without a driver’s licence on 12 February 2023; and enter premises and commit indictable offence by break on 12 February 2023. The offences are alleged to have been committed when he was on bail for other offences.
Nathan applies for bail for the subject offences. Because he was on bail for the other offences at the time of the alleged commission of the subject offences, and because of the nature of one of the subject offences, he is, by operation of section 16(3)(a) and (g), and (6)(c) of the Bail Act 1980, required to show cause why his detention in custody is not justified.
Pursuant to section 48AAA(2)(a), of the Youth Justice Act, the Court must decide to keep Nathan in custody if satisfied that, if he is released, there is an unacceptable risk that he will commit an offence that endangers the safety of the community or the safety or welfare of a person, and it is not practical to adequately mitigate that risk by imposing particular conditions of release on bail.
His bail is opposed by the Crown. It says his bail ought be refused because there is an unacceptable risk that he will commit an offence that endangers the safety of the community or the safety or welfare of a person.
Some history needs to be recorded.
On 14 February 2023, Nathan appeared before the Childrens Court having been charged with the subject offences alleged to have been committed two days previously. To this point, I have referred to the subject offences as having been alleged to have been committed by Nathan. However, on the first Court appearance, but two days after the alleged commission of the offences, he, through his lawyer, indicated his desire to plead guilty to the offences and to be sentenced for them. His request for a sentencing hearing was, for reasons I do not at all pretend to understand, and which are not apparent from the material, refused in the Brisbane Childrens Court and again in the Ipswich Childrens Court. It seems, although I am not entirely sure, that this may have been because the other offences were still pending in the Childrens Court, and it was thought that the subject offences ought not be given priority, as it were, over those other offences. Whatever the reasoning, two things can be said. First, Nathan has remained detained in custody from the day of his first appearance in Court on these charges, having expressly informed the Court of his desire to plead guilty to the charges and to be sentenced for them. Secondly, no one is able to inform this Court of when it might be that this young person’s express desire to admit his guilt for his offending and to face the sentence of a Court may be realised.
So, his desire to enter his guilty plea having been left to the vagaries of Court processes – and, one asks, rhetorically, how does a 13-year-old understand that – and his bail having been refused, what happened to Nathan? Nathan, whose family resides in South East Queensland, is detained in the Cleveland Youth Detention Centre just outside Townsville. That is not a criticism, merely a statement of fact. One can take judicial notice of the fact that youth detention places are at a premium, which has led to the entirely undesirable circumstances of youths on remand being detained in watch-houses with adults. Detention in a youth detention facility, wherever located, is in all likelihood preferrable to ongoing detention in a watch-house. However, relevantly for determining this application for bail, is that Nathan, as a 13-year-old, has been housed in a detention centre at the other end of the state from that in which any of his family who might offer him support, through visits, reside.
So what are the circumstances in which Nathan is detained hundreds of kilometres from those who might provide him with love, support, guidance and hope? On the evidence before me, on 11 of the 32 days in which he has been in detention, he has been, in effect, in what is usually called solitary confinement. As I understand the evidence, the overnight lockdown of the detention centre in which Nathan is housed is for a 12-hour period, so he is isolated for that time. The evidence establishes that there is also a separation regime. From what I understand from the material, that regime is usually invoked for the protection of the detained young person. There is, in that context, not a shred of evidence as to why Nathan would be detained for his protection.
Notwithstanding the absence of evidence as to why any period of separation may have been imposed, it seems clear enough on the evidence that on 11 occasions, Nathan was separated for 11 hours and 59 minutes. From what I am told on this application by the applicant – and it is not contested by the respondent – if a young person in detention is separated for 12 hours, the Chief Executive must be informed and their approval for the further separation obtained. On its face, repeated separation for 11 hours and 59 minutes cannot be seen as anything other than the most calculated contrivance to avoid the oversight of the Chief Executive. It also, coupled with the 12-hour overnight lockdown, amounts to 24-hour solitary confinement, less one minute. If what I have been informed of the regulatory regime is correct, and for the purposes of delivering this decision in a timely manner, as it is imperative to do, I have not been able to fully research these issues, then these matters should be referred to the responsible Ministers.
So, what of Nathan’s risk of committing offences of the relevant kind if he were to be granted bail? At the outset, it should be acknowledged that he has committed offences on bail in the past. His preparedness to plead guilty to the subject offences removes any doubt about that. But several things need to be said. First is Nathan’s express desire to admit his guilt and face the consequences of his actions by sentence. This is not an application to be determined in a vacuum of knowledge of how a defendant might respond to the charges. Secondly, how and when is risk of offending to be judged? Self-evidently, it is to be judged at the time at which the decision to grant or refuse bail is to be made, yet the seduction is to judge it as though the relevant time is the time at which the offences for which bail is sought were committed.
Put simply, in the context of this application, the Crown opposes bail on the basis that the applicant has demonstrated a pattern of offending behaviour and, for that reason, he should be refused bail. The submission is understandable; but does it stand scrutiny? It is clear that the defendant has committed like offences on three occasions. That is troubling. It is true, as the Crown submits, that he has previously been detained. However, as a judge considering bail, I would think it is relevant, in the assessment of whether he presents as an unacceptable risk of reoffending and as to whether his continued detention is not justified, that he has been detained in, self-evidently, undesirable conditions. In my view, the fact that he has now been held in custody for over a month and, for much of it, in such harsh conditions, must, itself, militate against risk.
So, Nathan is in Townsville. He wants to be sentenced. Why does this not occur? In the course of hearing this bail application, I inquired of the parties as to whether the sentence could be facilitated in this Court at the earliest opportunity on the presentation of an ex officio indictment. After an adjournment to allow the parties to consider this, I was informed by Nathan’s solicitors that he would elect to have the subject offences dealt with in this Court.
I had made it plain that this Court would facilitate a hearing at the earliest time convenient to the parties. I had expressly raised for consideration whether a pre-sentence report would be necessary,[1] or whether the sentence could proceed upon the Chief Executive providing information to assist in sentencing. Upon resumption, I was informed by the Crown that the course that I had proposed could occur, but the preference was that the offences be dealt with in the lower Court, as would usually occur.
[1]Section 207 of the Youth Justice Act 1992 (Qld) provides that a Court may make a detention order against a child only if it has first ordered the chief executive to prepare a pre-sentence report and that report has been received and considered.
Implicit in the Crown’s concession that the matters could proceed in the manner raised, is a concession that a pre-sentence report may not be sought. Implicit in that is a concession that in all probability detention as a sentence of last resort will not be sought. That is understandable, given the nature of the subject offences, and Nathan’s offending history. That history contains offences of a like nature, but is not a lengthy history.
The Crown’s position on the bail application can, therefore, be stated in this way – it is unlikely that a sentence of detention for Nathan will be advocated for on sentence, but he should be detained until such time as Court processes allow for him to enter his guilty plea and the Court can hear submissions that a sentence other than detention is appropriate. That, in my view, is a perversity. It is particularly so when it is known that the child has been detained – and one would inferentially extrapolate into the future, will be detained – in the harshest of conditions.
The assessment of the risk of a child granted bail of committing offences of the kind contemplated by section 48AAA(2)(a), is the risk that the child will commit those offences while on bail. Section 48AAA is not a law of general preventative detention – it is applicable only to a period during which the child is on bail. That period can be brought to an end by expeditiously bringing the child before a Court to be sentenced, as is this child’s express desire. If, after sentencing, the child commits further offences, that will be dealt with under other laws – but that will not be offending while the child is on bail.
In Nathan’s case, he wishes to be on bail for these offences for the shortest possible time – that is, he wants to be sentenced. When the day arrives that he is sentenced, as presently indicated, it is most unlikely that a sentence of detention will be sought. In my view, it becomes cruel and unusual punishment to detain a child for what is presently an unknown period, in knowledge of the fact that he should, ultimately, in all likelihood, not be sentenced to detention for the offences for which he is being held in custody.
In my view, it matters not at all that he is charged with the other offences for which he is on bail. There is no rational reason why he should not be sentenced for the subject offences, to which he wishes to plead guilty, before those other offences are dealt with. There is certainly no rational reason to hold him in detention for the subject offences while he waits for those other offences for which he is on bail to be dealt with. One may ask rhetorically, “What if he is not guilty of those other offences?”. On what basis could it possibly be considered appropriate to hold him on detention for these offences – for which he admits his guilt – awaiting the outcome of other offences of which he might be not guilty?
It has long been recognised that no grant of bail is without risk. The risk here, however, is not unacceptable. Nathan’s continued detention for these offences is, on no view of it, justified. To the extent that there is a risk of his offending while on bail, the conditions proposed serve to mitigate that risk. Nathan has performed reasonably well on a conditional bail program. I have been very helpfully informed by Ms Gormley, who appeared for the Chief Executive, that many interventions and processes of assistance have been identified. None of those interventions or processes of assistance can be facilitated while he is locked in a jail cell for up to 23 hours and 59 minutes per day.
He should be released on bail. He should be brought before a Court to admit his guilt and be sentenced, as he wishes to do, at the earliest opportunity. This Court will facilitate that on one days’ notice, should the prosecution and defence agree to that course. I should just say – does anyone – because I am happy to be corrected – suggest that I have factually misapprehended the circumstances I have just recorded in my reasons?
MR HANS: Only one, your Honour. With respect to the expressions by the applicant to plead guilty to the charges – the first of that was noted to my knowledge, was at the mention – I think it was the – I cannot remember the particular day – it was not his first appearance in Brisbane, though; once, it was in Ipswich.
HIS HONOUR: I thought it was – oh, it was not the 14th?
MR HANS: No, so that was derived from the history that I had set out in my outline, that the first day in Brisbane was simply an application for bail, which the Magistrate there did not hear. So the first request was, then, quite soon thereafter – but it was only one time in Ipswich that he had sought to seek a sentence listing.
HIS HONOUR: All right. Well, it probably does not materially alter anything that
MR HANS: No.
HIS HONOUR: I have said, I would not have thought.
MS GU: No issues, your Honour.
HIS HONOUR: Thank you. And Ms Gu, you had nothing to say about the draft order, did you?
MS GU: No, your Honour.
HIS HONOUR: I will make an order as per the draft, initialled by me in place of the papers. All right. Well, hopefully arrangements can be put in place for his return. Thank you. Yes, could you close the court.
Order
I make the following order:
1.The application for bail be granted.
0
0
0