R v NK

[2016] NSWSC 498

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v NK [2016] NSWSC 498
Hearing dates:	18 April 2016
Date of orders:	22 April 2016
Decision date:	22 April 2016
Jurisdiction:	Common Law - Criminal
Before:	Hall J
Decision:	Bail granted
Catchwords:	CRIMINAL LAW – application for bail – rebuttable presumption against bail being granted to a person charged with a terrorism offence – exceptional circumstances to justify the granting of bail – youth of the applicant – vulnerability of youth to adult persuasion or influence – bail conditions appropriately addressing bail concerns
Legislation Cited:	Bail Act 1978 Bail Act 2013 Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	Haddara v Commonwealth DPP [2006] VSC 8 Hammoud v DPP [2006] VSC 516 KT v R (2008) 182 A Crim R 571 R v Hoang [2003] NSWCCA 380 R v Maywand Osman 2015/12786, 12 February 2015 R v Mulvihill [2013] NSWSC 1190 R v Qutami [2001] NSWCCA 353 R v Young [2006] NSWSC 1499
Category:	Principal judgment
Parties:	NK (Applicant) Regina (Crown)
Representation:	Counsel: Z Khatiz (Applicant) C Shaw (Crown)   Solicitors: Oxford Lawyers Pty Ltd (Applicant) Office of the Director of Public Prosecutions (Cth) (Crown)
File Number(s):	2016/96738

Judgment – ON APPLICATION FOR GRANT OF BAIL

1. The applicant, NK, is presently aged 16 years. On 30 March 2016 she made application for a grant of bail pursuant to the Bail Act 2013.

2. On 24 March 2016, the applicant was arrested and subsequently charged with an offence pursuant s 102.6(1) of the Criminal Code 1995 (Cth), being an offence of collecting funds for, or on behalf of, a terrorist organisation. It is alleged that the offence was committed between 21‑22 March 2016.

3. The applicant was charged in the following terms:

“That between 21 March 2016 and 22 March 2016 at XXX in the State of New South Wales, she did intentionally collect funds for a terrorist organisation, namely Islamic State, knowing that organisation was a terrorist organisation, contrary to s 102.6(1) of the Criminal Code.”

4. The maximum penalty for an offence under that provision is a term of imprisonment of 25 years.

5. On 24 March 2016, bail was refused at Parramatta Children’s Court. The present application for bail is opposed by the Crown.

6. Section 15AA(1) of the Crimes Act 1914 (Cth) provides:

“Despite any other law of the Commonwealth, a bail authority must not grant bail to a person … charged with … an offence covered by subsection (2) unless the bail authority is satisfied that exceptional circumstances exist to justify bail.”

7. By s 3 of the Crimes Act 1914 a terrorism offence includes an offence against Parts 5.3 or 5.5 of the Criminal Code. The applicant is charged under s 102.6, which is found in Part 5.3 of the Criminal Code. Accordingly s 15AA(1) applies.

8. The Crown has submitted that exceptional circumstances do not exist to justify bail.

9. In the event that the applicant is able to show exceptional circumstances, s 19 of the Bail Act 2013 provides that a bail authority must refuse bail if it is satisfied, on the basis of an assessment of bail concerns pursuant to s 17, that there is an acceptable risk as follows:

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.

(3)   If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision.

(4)   This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement).

…

19 Refusal of bail—unacceptable risk

(1)   A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.

(2)   For the purposes of this Act, an unacceptable risk is an unacceptable risk that the 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.

(3)   If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.

(4)   Bail cannot be refused for an offence for which there is a right to release under Division 2A.

Evidence on the Application

10. In support of the application was the report from Mr Sam Borenstein, Clinical Psychologist, dated 11 April 2016 addressed to the applicant’s solicitors, a copy of which was tendered as part of Exhibit 1.

11. The applicant also relied upon the following:

• An affidavit sworn 11 April 2016 by the applicant’s maternal aunt. In the affidavit her aunt states that if bail was granted the plaintiff could live at her home and she would undertake supervision of the applicant.

• An affidavit sworn 11 April 2016 by another aunt of the applicant. In the affidavit her aunt has stated that she is willing to act as surety for the applicant. She is the registered proprietor of certain real estate which she states is valued at $900,000 and which is subject to a mortgage of $353,000. She stated in her affidavit that she would use the equity of $500,000 in a form of security over her property for the purpose of being a surety for the applicant.

• An affidavit affirmed 13 April 2016 as to electronic monitoring technology.

12. The Crown tendered the following documents;

• Crown bail chronology with attached written submissions (Exhibit A).

• A Statement of Facts dated 13 April 2016 (Exhibit B).

• An annexure: Glossary of Common Arabic Terms / Words (Exhibit C).

Applicant’s Submissions

13. In submissions for the applicant it was noted that she is a 16 year old girl who is in custody for the first time in her life. She does not have any prior convictions.

14. The proceedings in respect of the charge brought against her are next listed for Reply on 19 May 2016 at Parramatta Children’s Court. No brief material has been served to date.

15. It was noted that a co-accused, an adult male, is the subject of proceedings brought against him and they are before the Central Local Court. It is anticipated that in the future there may be a joint trial. This, it was submitted, would result in delay before a trial date can be allocated.

16. On behalf of the applicant it was additionally submitted:

1. The age of the applicant is a significant consideration and may be taken into account in combination with other factors.

2. The applicant has not been charged with any previous offences.

3. The applicant has been assessed by Mr Borenstein as suffering from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.

4. An extended period of incarceration of between 18 months to 2 years whilst the applicant awaits the finalisation of the proceedings would, in Mr Borenstein’s opinion, impact significantly on her psychological health, possibly leading to a major depressive episode impacting on her ability to instruct legal counsel.

5. The applicant was born in New South Wales and has lived in this State all her life. She is an Australian citizen. She has always resided with her family which includes her mother and her sister.

6. The applicant has a significant number of family members in the community.

7. One of the applicant’s aunts is willing to provide surety in the amount of $500,000. This, it was submitted, would provide the Court with confidence that the applicant would comply with any bail conditions.

8. The applicant is willing to be subjected to strict conditions including the imposition of electronic monitoring bracelet in the form of an ankle bracelet.

9. It was submitted that there are no unacceptable risks and that bail conditions can mitigate any risks as raised by the Crown.

10. The imposition of substantial surety would address any concern as to the risk of the applicant absconding.

11. The applicant does not possess a passport and she would comply with any condition that she is not to apply for any travel documents.

12. The applicant is prepared to be the subject of a condition that confines her to what was referred to as ‘house arrest’. The applicant would be residing with her aunt who would provide full-time supervision.

13. The fact that the applicant has strong family ties in the community is a disincentive for any motivation of absconding.

14. The fact that the applicant has an unblemished history with no convictions is a matter that would mitigate any bail concerns.

17. In all the circumstances of the case, it was submitted that the relevant factors, when combined, establish exceptional circumstances permitting the court to grant bail on strict conditions.

Crown Submissions

18. It was submitted for the Crown that it is well accepted that there is a heavy onus on the applicant to show that exceptional circumstances exist. In that respect it was incumbent upon the applicant to demonstrate something unusual or out of the ordinary, or ‘special’ when compared to circumstances that affect all accused in a similar position to the applicant.

19. It was submitted that the evidence in the Crown case would establish proof of the allegations made in respect of an offence as charged under s 102.6 of the Criminal Code. Reference was made, in summary form, to evidence that the Crown will rely upon at trial.

20. It was submitted that on a bail application it is not incumbent upon the Crown to adduce evidence that would be admissible at trial: s 31(1) Bail Act.

21. Further, for the test under s 15AA to be satisfied, the prosecution case, taken at its highest, must be shown to be exceptionally weak. It was submitted that the prosecution in this case could not be described as weak.

22. The conditions of custody, including in particular restrictions on visitation, communication and other aspects, do not amount to or constitute exceptional circumstances.

23. Taking all matters into account, the Crown submitted that there are no exceptional circumstances in the present case to satisfy the threshold requirement for a consideration of her release.

24. In the event that the court was satisfied that exceptional circumstances existed, then the Crown relied on submissions in relation to bail concerns under s 18 of the Bail Act. These were addressed at [37]-[51] of the Crown’s Written Submissions.

25. It was submitted that the risk of reoffending cannot be mitigated in the event of bail being granted.

Principles

26. The following principles may be derived from the relevant caselaw:

1. Section 15AA of the Crimes Act 1914 has been said to enact a rebuttable presumption against bail being granted to a person charged with a terrorism offence: Hammoud v DPP [2006] VSC 516 per Bongiorno J at [1].

2. Section 15AA of the Crimes Act 1914 prevents the court from granting bail unless it is satisfied that exceptional circumstances exist to justify bail. While such a provision requires the applicant to satisfy the court, it does not prohibit bail in all cases. I has been observed that each application for bail, even under these provisions:

“…must be so dealt with in a way that does more than pay mere lip service to the anxious concern of the law that circumstances do alter cases and that it is rarely, if ever, that a simple, not to say a simplistic one size fits all approach, will be the best way of achieving a just individual result”: Regina v Mirsad Mulahalilovic 2006/763, 1 August 2006, per Rothman J quoting dicta in R v Newbury, Sully J, NSWSC, 27 January 2006, unreported)

3. In Hammoud v DPP, supra, it was observed that as the “presumption” referred to in (1) above is rebutted only if exceptional circumstances exist to justify bail, the onus is upon an applicant to satisfy the Court affirmatively that such circumstances exist: at [2].

4. Section 15AA sets an extremely high hurdle. The requirement for exceptional circumstances imposes a high test.

5. The word “exceptional” has received judicial attention in many cases. What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective “exceptional”: Hammoud v DPP at [3].

6. The concept of exceptional circumstances is necessarily a flexible one. Such circumstances may be constituted by a combination of matters which taken together may render the case exceptional: Haddara v Commonwealth DPP [2006] VSC 8 at [5] per Osborn J and R v Young [2006] NSWSC 1499 at [19] and [20] per Johnson J (as to s 9C of the Bail Act 1978).

7. Exceptional circumstances is a threshold issue that requires a case-by-case examination and that there is no definitive definition that would apply to all cases: R v Maywand Osman 2015/12786, 12 February 2015 at p 6 per Hall J.

8. In considering the issue of exceptional circumstances, not only can a combination of matters constitute such features but they can include features that are subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise, absent the particular test, that the applicant is otherwise a person who will answer bail: R v Mulvihill [2013] NSWSC 1190 at [10] and [11] per Price J.

The Provisions of Section 15AA

27. The offence charged under s 102.6.(1) of the Criminal Code is an indictable offence and is not an offence for which there is a right to release under s 21 of the Bail Act.

28. In relation to the provisions of s 15AA, the following matters may be noted:

1. Section 15AA(1) imposes a statutory prohibition on a bail authority granting bail to a person charged with an offence covered by s 15AA(2).

2. However, the section also provides for a statutory exception to that prohibition where the bail authority:

1. “is satisfied”

2. that “exceptional circumstances” exist;

3. being circumstances that “justify” a grant of bail.

3. The phrase “is satisfied” denotes a decision of an evaluative kind.

4. The phrase “exceptional circumstances” may be taken as referring to circumstances that are, unusual, out of the ordinary, or special: Oxford English Dictionary.

29. The word “justify” in s 15AA(1) is to be given its ordinary meaning, but subject to the other provisions of s 15AA(1). Whilst the Oxford English Dictionary meaning of “justify” includes “make right, proper or reasonable”, “give adequate grounds for”, “warrant”, in the context of s 15AA(1), I consider that to justify a grant of bail, the circumstances must be such as to warrant a grant of bail.

30. What circumstances may amount to “exceptional circumstances” cannot be determined by reference to any fixed category of class of case. The facts and circumstances of each case will guide the determination as to whether they evidence or are capable of constituting exceptional circumstances.

31. As noted above, the phrase “exceptional circumstances” admits to a degree of flexibility. The circumstances may include the personal or subjective circumstances of an applicant for bail. They may also include circumstances relating to a strength or weakness of a Crown case.

Relevance of Youth

(a) The Applicant

32. As the applicant is underage (under the age of 18 years), the proceedings in respect of the charge pursuant to s 102.6(1) have been brought in the Children’s Court.

33. Prior to her arrest she was enrolled in a Sydney high school. According to the history recorded by Mr Borenstein she had taken days off school around April 2015 and thereafter began to lose interest in school and mixed with “older persons”.

(b) Section 15AA – the Relevance of Youth

34. On the hearing of the present application Mr I Abdul-Karim (Principal Federal Prosecutor, Commonwealth Office of Director of Public Prosecutions), who appeared on behalf of the respondent, the Crown, submitted that s 15AA “does not make a distinction between an adult and a child and what is important about the opening sentence in s 15AA [is that it] commences with the words ‘Despite any other law of the Commonwealth …’: 18 April 2016 at T 16:15-20. Reference was made to s 20C of the Crimes Act 1914 which picks up State provisions relating to children which it was submitted would include provisions in the Bail Act. Section 15AA it was noted, overrode those factors when a court is considering the test of exceptional circumstances: T 16:20-25. Mr Abdul-Karim when asked whether the age of the applicant was to be ignored responded that I would not ignore it but that “it is simply one factor within many”: T 16. I accept and act upon the basis that it is a relevant circumstance. It is one to which a court must give consideration.

35. The law, both statutory and caselaw, has long acknowledged and taken into account the youth of a person charged with, or convicted of, a criminal offence. The underlying rationale for doing so is well-accepted. In that respect, in sentencing law it has been observed that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law and that allowance will be made for an offender’s youth and not just their biological age: KT v R (2008) 182 A Crim R 571 at [22] per McClellan CJ at CL. The weight to be given to a person’s youth, it has been observed, diminishes the closer the offender approaches the age of maturity: R v Hoang [2003] NSWCCA 380 at [45].

(c) The Circumstances Bearing Upon the Alleged Involvement of the Applicant in the Offence Charged

36. On the hearing of the application, the Crown relied upon the Statement of Facts dated 13 April 2016 (Exhibit B). Reference was made to parts of the document insofar as they were said to relate to certain alleged facts pertaining to the applicant and to the claimed strength of the Crown case. Exhibit B, however, also contains material that, on a prima facie basis, reveals the influence of others (in particular, two adult males) upon the alleged involvement of the applicant. To the extent that such material does so, and consistent with principles established by the relevant caselaw, in particular, points (5) and (7) in para [26], it may be taken into account in the determination of whether exceptional circumstances within s 15AA(1) do exist.

37. In Hammoud v DPP, supra, Bongiorno J observed:

“… About the only circumstance which is not yet, but which may become exceptional, is that created by the relatively low level of the applicant’s involvement in these alleged crimes and the low level of the crimes themselves in the panoply of terrorist offences …”: at [8]

38. The material in Exhibit B refers to the alleged activities of two adult males to whom I shall refer to as MA and AM. MA was aged 20 years of age. AM was 24 years. Exhibit B indicates that there were a number of conversations amongst them between January and March 2016. In one conversation AM requests MA to go and see the applicant and puts to MA that he is going to “pick her up to go to dinner”: p 5. There are references in particular conversations between MA and AM to the applicant as “the girl” or “the younger girl”: p 9. There is material in the conversations between the two males that is capable of demonstrating on the particular occasion in question AM spoke to the applicant informing and instructing her as to “the best way” or the “method’ to be employed: p 15.

39. Whatever may have been the applicant’s understanding or willingness to engage in any activity (and I make no finding or suggestion that she did engage in any activity), there is material within Exhibit B which, in my assessment, prima facie, is capable of supporting an inference that the two adult males, MA and AM, were seeking to engage, utilise or influence an underage person (the applicant) in giving effect to whatever the enterprise or objective they had in mind.

38. The issue of a juvenile’s youth, as I have earlier stated, is a relevant factor in determining the issue of exceptional circumstances. It is also evidence, in my opinion, that is relevant to actions or dealings between adults intent on engaging a juvenile in the implementation of a plan that may be associated with any alleged involvement by the juvenile.

39. The observations to which I have referred in paragraph [39] are not, of course, in any way intended or are to be taken as expressing any view or conclusion upon any issue as to possible criminal liability or responsibility of the applicant. They are intended to provide no more than an illustration that, depending upon the evidence, in some cases the possible vulnerability of youth to adult persuasion or influence may be a relevant consideration in a determination as to whether exceptional circumstances under s 15AA exist.

40. Certain provisions of the Bail Act reflect a legislative concern that, in relation to matters concerning the grant of bail, the position of a juvenile attracts the need for specific provisions. Thus, for example, s 16A of the Bail Act, imposes an onus upon a person seeking bail in relation to a “show cause” offence as to why his or her detention is not justified. However, s 16A(3) provides:

“This section does not apply if the accused was under the age of 18 years at the time of the offence.”

43. Section 18 of the Bail Act requires a bail authority to consider particular matters in an assessment of bail concerns under Part 3, Division 2 of that Act. Subparagraph (k) of s 18(1) provides:

“Any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment.” (emphasis added)

44. I acknowledge, as earlier indicated, as the Crown submitted, that the provisions of s 15AA(1) operate notwithstanding particular provisions contained within State legislation, including the Bail Act. However, the point remains that in assessing “exceptional circumstances” under those provisions, the youth of an alleged offender is potentially an important consideration in the application of s 15AA.

(d) The Psychological Assessment

45. As noted above, the applicant has been assessed by Mr Borenstein in his capacity as Clinical Psychologist, he having seen the applicant on 11 April 2016. In the history provided to him by the applicant, she had developed, during 2015, symptoms consistent with depressed mood and anxiety with significant weight gain: p 4. The history included an account of her separating from peers and loss of confidence.

46. There is, of course, a need for caution in cases where examining psychologists act upon self-reporting and there is no direct evidence in relation to the applicant’s condition prior to March 2016: R v Qutami [2001] NSWCCA 353.

47. That said, I note however that the test administered by Mr Borenstein, the Personality Assessment Screener, which measures for potential problem areas of mental health, produced an elevated result on the social withdrawal element which Mr Borenstein stated reflects a degree of social detachment and some discomfort in close relationships consistent with the applicant’s description of a fallout with peers over the previous 12 to 18 months and a sense of isolation.

48. On one view, the assessment of Mr Borenstein of the applicant’s condition in the year prior to March 2016, can be taken as evidence of a particular or additional vulnerability beyond the vulnerability which may be associated with a female person aged 16 years.

49. The observations made by Mr Borenstein, including the opinion he has expressed as to the deleterious effects of detention upon the applicant, in my assessment, provides an additional element or factor supportive of a finding, which I make, of exceptional circumstances under s 15AA(1). However, even in the absence of such evidence, for the reasons earlier discussed, I consider that the vulnerability arising from the youth of the applicant did exist in this case and independently provides the basis for the finding I have made as to the existence of exceptional circumstances. Such a finding, in my opinion, is not precluded, upon the facts of this case, by the matters raised in support of the submission as to the strength of the Crown case.

50. I have considered the other matters advanced in support of the application made (including the question of delay and time in custody). However, upon consideration, I do not consider that such matters are such as to (beyond what I have earlier stated as to Mr Borenstein’s evidence) assist in the determination of circumstances under s 15AA(1).

The Unacceptable Risk Test

51. On the basis of the finding I have made, the applicant’s application is to be assessed having regard to the relevant provisions of the Bail Act, in particular, the provisions of s 17 (extracted in para [9] above) concerning the assessment of “bail concerns” and the matters to be considered as part of that assessment under s 18 of the Act.

52. The Crown in relation to matters arising under s 18, observed:

Section 18(1)(a)

That the applicant is a school student aged 16 years (Year 12) and lives with her mother and siblings.

Section 18(1)(b) – Nature and seriousness of the offence

The offence charged is serious with a maximum penalty of imprisonment of 25 years. In relation to her “alleged involvement”, reliance was placed upon the Statement of Facts (Exhibit B).

Section 18(1)(c) – Strength of the prosecution case

The Crown submission was that the Crown case was a strong one.

Section 18(1)(g) – Whether the accused person has any criminal associations

There was no affirmative submission made as to any evidence of criminal associations following the applicant’s arrest.

Section 18(1)(h) – Length of time likely to spend in custody if bail is refused

The Crown stated it was conscious of the importance of progressing the proceedings as quickly as possible and that all reasonable steps would be taken to ensure that that occurs.

Section (1)(i) – Likelihood of a custodial sentence if convicted of the offence

The submission was that, if convicted, the applicant would face a lengthy custodial sentence.

Section 18(1)(j)

Was not applicable.

Section 18(1)(k) – Any special vulnerability or needs of the accused person has including because of youth

Again reference was properly made to the applicant’s age.

53. It was submitted by the Crown that the risk to the community could not be mitigated if bail was granted: at [50].

54. I have considered, in accordance with the provisions of s 18(1)(p) whether bail conditions can reasonably be imposed so as to address any bail concerns in accordance with s 20A. Having regard to the provisions of the lastmentioned section I consider that conditions can be imposed which satisfy the matters set out in s 20A(2) and meet any “unacceptable risk”.

55. I have considered proposed bail conditions as set out in paragraph 13.11 of the applicant’s written submissions. Subject to one matter, I consider that the conditions therein proposed to be appropriate conditions. As I have indicated to the parties, however, I propose to provide the opportunity for any further submissions to be made in relation to conditions to bail. Subject thereto I propose, when the matter is relisted today, to grant bail to the applicant on strict conditions.

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Decision last updated: 22 April 2016