R v RB

Case [2024] NSWSC 471 26 April 2024

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v RB [2024] NSWSC 471
Hearing dates: 16 April 2024
Date of orders: 16 April 2024
Decision date: 26 April 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Young person released on conditions.

Catchwords:
BAIL – Aboriginal youth – multiple offences – whether unacceptable risks can be ameliorated by proposed conditions – a number of services actively engaged with by RB – close to age 18 – application for some of his other offences (part heard) to be dealt with under s 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW) – s 22C commenced 3 April 2024 – applicability to the offending – Bail and Crimes Amendment Act 2024 (NSW) – tension with Children (Criminal Proceedings) Act – unfairly discriminatory against a class of children accused of crimes – police letters – expressed in generalities rather than facts – police letters expressing opinions as to whether a person should be released – Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [33]-[34] and [38]-[39] – s 22C does not apply as all alleged offending before s 22C commenced so no further relevant offence committed whilst on bail

Legislation Cited:
Age Discrimination Act 2004 (Cth)
Bail Act 2013 (NSW)
Bail and Crimes Amendment Act 2024 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:
Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70
Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
Gurin v R [2022] NSWCCA 193
Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168; [2024] HCA 1
R v A2; Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35
R v Lago [2014] NSWSC 660
Raad v R [2015] NSWSC 532
State of NSW v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86

Category: Principal judgment
Parties: RB (Applicant)
Rex (Respondent)
Representation:
Counsel:
Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (Applicant)
Office of the Director of Public Prosecution NSW (Respondent)

File Number(s): 2024/00122642
Publication restriction: Nil

JUDGMENT

On 16 April 2024, I released this young person on conditional bail and reserved my reasons. He will turn 18 in four months. He is currently under the parental responsibility of the Minister. KARI, an Aboriginal support service, has his case management. In February 2024, RB commenced work with [REDACTED] having got to know the company through a session at Cobham Youth Justice Centre, and requesting a job for when he was released on bail for offending to which I will return.
This employment, which he had just commenced and at which he was reportedly doing well, was cut short on 26 February 2024 when RB was again arrested for offences it is alleged he was involved in during the early hours of that morning.
As stated in various NSW Police facts sheets, RB has been identified by police as a “primary offender” in relation to offences of break and enter, and steal vehicles, followed, on…

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 RB

Details

AGLC: R v RB [2024] NSWSC 471
Case: [2024] NSWSC 471
Decision Date: 26 April 2024

CaseChat Overview and Summary

The matter before the court involved a defendant, RB, who was facing multiple charges and sought bail. RB, an Aboriginal youth, had been charged with several offences and was close to turning 18 years old. The court had to determine whether RB could be granted bail considering the risk factors associated with his case. Additionally, RB sought that some of his other offences be dealt with under section 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW). The Bail and Crimes Amendment Act 2024 (NSW) had come into effect on 3 April 2024, raising questions about its applicability to RB's alleged offences. The court had to assess whether the new legislation unfairly discriminated against a class of children accused of crimes.

The central legal issues before the court were whether RB could be granted bail despite the unacceptable risks posed by his multiple offences and whether the new Bail and Crimes Amendment Act 2024 (NSW) applied to his case. The court also had to determine if the police letters provided to the court, which were expressed in generalities rather than facts and contained opinions on whether RB should be released, were appropriate. Furthermore, the court had to consider the tension between the Bail and Crimes Amendment Act 2024 (NSW) and the Children (Criminal Proceedings) Act 1987 (NSW) and whether the new legislation unfairly discriminated against a class of children accused of crimes.

The court found that the unacceptable risks associated with RB's multiple offences could be ameliorated by imposing certain bail conditions. RB had been actively engaging with several services, which was a positive factor in his favour. Additionally, the court determined that the Bail and Crimes Amendment Act 2024 (NSW) did not apply to RB's case, as all his alleged offences occurred before the commencement of the new legislation. The court also noted that the police letters were inadequate as they did not provide factual information and merely expressed opinions. Based on these findings, the court granted RB bail with specific conditions and ordered that some of his other offences be dealt with under section 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW).

The court ordered that RB be granted bail subject to specific conditions. It also ordered that some of RB's other offences be dealt with under section 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW). The court further directed the police to provide factual information in their letters and refrain from expressing opinions on whether a person should be released.

Orders