R v TB

[2025] NSWSC 38

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v TB [2025] NSWSC 38

Hearing dates:

06 February 2025

Date of orders:

06 February 2025

Decision date:

06 February 2025

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

Young person released on conditions.

Catchwords:

BAIL – 14 year old Aboriginal child – charged with police pursuit and knowingly carried in conveyance while on bail – these charges to be dropped – Court is still required to apply s 22C of the Bail Act 2013 (NSW) because charges not yet dropped – tension between s 22C Bail Act and s 6 Children (Criminal Proceedings) Act 1987 (NSW) – s 22C requires a child not to be treated equally before the law when accused of certain crimes – child in custody for 3 months as a result of charges that are to be withdrawn – consideration of unacceptable risk – prosecution not established bail should be refused – conditional bail granted

Legislation Cited:

Bail Act 2013 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:

R v BH [2024] NSWSC 1577

R v RB [2024] NSWSC 471

R v TW [2024] NSWSC 1504

Category:

Principal judgment

Parties:

TB (Applicant)
Rex (Respondent)

Representation:

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecution NSW (Respondent)

File Number(s):

2025/00029598

Publication restriction:

Nil

REVISED EX TEMPORE JUDGMENT

1. The applicant, TB, is a 14 year old Aboriginal child who is bail refused for charges that are stated to be soon withdrawn of police pursuit, knowingly carried in a stolen conveyance and resist arrest on 24 November 2024. He had previously been granted bail in relation to offences on 14 November 2024 of knowingly carried in stolen conveyance, aggravated break and enter with intent and possess cannabis.

2. His charges are listed for hearing or mention in different places. The charges that arise from conduct said to have taken place on 24 November 2024 are listed for hearing at Parramatta Children’s Court on 26 February 2025, just a few weeks away.

3. The 14 November 2024 charges are next before the Campbelltown Children’s Court for mention on 5 March 2025. It appears they were adjourned from 3 February 2025 without entry of a plea.

4. TB was initially released on bail on 14 November 2024, but was returned to custody on 25 November 2024, having been arrested after allegedly committing the offences late on 24 November 2024. That means that this 14 year old child has been in custody for three months, as a result of charges that are soon to be withdrawn.

5. If I do not release him today he will be waiting in custody for an additional three weeks at least. Quite apart from that, I am obliged to consider and apply the requirements of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to these proceedings and in any proceedings involving children, which provides as follows:

6   Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

(a)  that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b)  that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c)  that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d)  that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e)  that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f)  that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g)  that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h)  that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

6. As I already observed in April 2024 in R v RB [2024] NSWSC 471, and as observed by Rothman J in R v TW [2024] NSWSC 1504 and more recently by Yehia J in R v BH [2024] NSWSC 1577 (“BH”), the overarching obligations under s 6 of the Children (Criminal Proceedings) Act appear to have had violence done to them by the enactment of s 22C of the Bail Act 2013 (NSW) last year.

7. Section 22C arises here because this child is alleged to have engaged in a police pursuit whilst on bail for a charge of aggravated break and enter with intent 10 days before.

8. Section 22C creates a tension for bail authorities, magistrates, and judges hearing release applications for children when they have been charged with certain identified types of offending whilst on bail. As each of Yehia J, Rothman J and I have observed as mentioned above, s 22C requires children to be treated less favourably, and their liberty treated less favourably, than if the same circumstances applied to a person aged 18 or older.

9. The additional obstruction to the release of children added by s 22C is as follows:

22C   Temporary limitation on bail for certain young persons in relation to certain serious offences

(1)  A bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence unless the bail authority has a high degree of confidence the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions.

(2)  A decision under subsection (1) may be made only after—

(a)  an assessment of bail concerns is made under Division 2, and

(b)  consideration of 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.

(3)  To avoid doubt, the requirement under this section to establish that bail should be refused for the relevant young person remains with the prosecution.

….

10. I must, as a judge of this Court, apply the law. In this particular case this requires me to carry out an additional assessment of risk before I can release this child from custody.

11. The unfairness caused by s 22C is thrown into sharp relief here where I have been advised, with the kind of probity I expect from the Crown, that the charges of police pursuit and knowingly carried in a stolen conveyance that have been levelled against this child are likely to be withdrawn. That means that I am required to go through a process under the Bail Act that if more care was applied to the proper assessment of charges levelled against children in the first place, I would not have to do. This extra analysis and its potential draconian effects would be irrelevant.

12. However, as I have said, I must apply the law and that means I have to step through the requirements of s 22C of the Bail Act in addition to carrying out the usual assessment of risk.

13. I adopt the approach outlined by Yehia J in BH at [13]. As her Honour observed, the test requires some probabilistic assessment. It may also import some value assessment based on the evidence. “Probability” and “confidence” are not completely synonymous. Section 22C involves an evaluative judgment to reach a state of satisfaction regarded as a “high bar”, but not a state of certainty. I do not need to be certain that the young person will not commit a further relevant offence. The test is more onerous than the show cause requirement that applies to adults under s 16A of the Bail Act. Considerations such as delay appear to have no bearing on the assessment required under s 22C. As I observed in RB, the test of “a high degree of confidence”, is not known in criminal law.

14. It seems to me that the proper way to approach the application for release in the circumstances is to first carry out an assessment of bail concerns presented by TB, and then return to the question as to whether the Crown has persuaded me that bail should be refused because of the requirements of s 22C.

15. Under s 19(1) of the Bail Act, I must refuse bail if I am satisfied on the basis of an assessment of bail concerns, that there is unacceptable risk.

16. The Crown points out a concern that because TB has been hanging out with a group of young friends and engaging in dangerous activity in the nature of break and enters and stealing cars and driving at speed, he is a risk to the community (including himself), and there is a risk that he will engage in that behaviour again and go out and commit a serious offence with these friends.

17. Section 18(1) of the Bail Act provides a list, which is mandatory and exhaustive, setting out the factors I need to consider in deciding whether I should conclude that there are unacceptable risks associated with the release of TB.

18. I am assisted by a detailed Youth Justice report that sets out TB’s background and family, his previous dealings with Youth Justice, his mental health, education and employment, proposed bail support, and a favourable report as to his response to custody which noted that he has been respectful to staff and that he engaged well in school and programs.

19. There is reference to a previous diagnosis of ADHD and some ups and downs as to engagement with treatment, but it does appear there may be a compatibility issue between TB and his current paediatrician, and his mother is pursuing a possible fresh paediatrician to improve that important relationship.

20. [REDACTED]. He has expressed a goal to enrol at TAFE and study electrical engineering. He can enrol at TAFE when he turns 15 in a few weeks’ time. His mother has looked at possible work for him, including a joinery business near to where she lives.

21. Mr Skyring, appearing for TB today, has pointed out that three months in juvenile custody has been a wake-up call for TB. Previously the most time he had spent in custody was eight days. I accept that three months is a long time for a 14 year old and would provide a lot of time for thinking about decision-making and the positives of being free in the community.

22. The Children (Criminal Proceedings) Act s 6 provides that a court must exercise its functions having regard to the principles that children have rights and freedoms before the law equal to those enjoyed by adults, and that while children who commit offences bear responsibility for their actions, because of their state of dependency and immaturity they require guidance and assistance, and so it is desirable wherever possible to allow the education or employment of the child to proceed without interruption and to allow a child to reside in his or her own home. Section 6 also emphasises the desirability that children who commit offences be assisted with their re-integration into the community to sustain family and community ties. (Emphasis added).

23. Those factors bear strongly on this application where the applicant is only 14 years old and has willing family support and a well-structured program of accommodation, substance use support, potential education programs and follow-up organised mental health support by those at Youth Justice who have been managing his case. So long as risk can be contained to below the level of unacceptable, he should be released.

24. In all the circumstances I am of the view that there is no unacceptable risk presented by this child being released, given those supports in place.

25. Moving then to the assessment under s 22C of the Bail Act, given those supports I do have a high degree of confidence that the young person will not commit a serious indictable offence while on bail, and the Crown has not persuaded me otherwise, and so I release TB on the following conditions:

1. The applicant is to be of good behaviour.

2. The applicant is to appear at the Children’s Court at Parramatta on 26 February 2025 and the Children’s Court at Campbelltown on 5 March 2025, and thereafter as directed.

3. The applicant is to live at [REDACTED] and nowhere else.

4. The applicant is to comply with a curfew and is not to leave the premises at which the applicant is required to live between the hours of 8:00pm and 6:00am except in the following circumstances:

1. when in the company of [REDACTED]; or

2. to obtain emergency medical treatment.

5. The applicant is to attend school or TAFE in accordance with any enrolment organised by Youth Justice.

6. The applicant is not to occupy the driver’s seat of any motor vehicle/motorcycle or any motorised form of transport whether switched on or not.

7. The applicant is not to drink alcohol or enter any premises in which alcohol is sold, other than a licensed restaurant.

8. The applicant is not to take any illegal or prescription drugs other than a drug prescribed for the applicant by a medical practitioner.

9. The applicant is not to approach or communicate with, or attempt to make contact with, [REDACTED] by any means, including telephone and internet social media platforms, or through another person, other than a legal representative.

10. The applicant is not to approach or communicate with, or attempt to make contact with, any prosecution witness [any person who the applicant has been notified as a prosecution witness] other than a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.

11. The applicant is to obey any reasonable direction given to him by:

1. the applicant’s parents;

2. an officer of the Juvenile Justice Office.

12. The applicant is to comply with any regime of medical treatment recommended by a medical practitioner, namely Dr [REDACTED] (or other medical practitioner reasonably nominated by Youth Justice), including taking medication as prescribed.

13. The applicant is to attend an appointment with [REDACTED] Drug and Alcohol Service on 13 February 2025 and thereafter as recommended by that service.

14. The applicant is to participate in Youth Justice’s Changing Habits and Reaching Targets (CHART) program if and when that program is offered to him.

15. The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the curfew condition.

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Amendments

12 February 2025 - Par 13: correction to the word "know" to "known" in the last sentence.

10 March 2025 - Par 20: Redacted per s 15A Children (Criminal Proceedings) Act 1987.

Decision last updated: 10 March 2025