RB v The King (No 2)

[2024] NSWSC 845

Supreme Court

New South Wales

Medium Neutral Citation:

RB v R (No 2) [2024] NSWSC 845

Hearing dates:

9 July 2024

Date of orders:

11 July 2024

Decision date:

11 July 2024

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The release application is refused.

Catchwords:

BAIL – juvenile applicant– whether bail concerns give rise to an unacceptable risk– risk of failing to appear – risk of serious offences – strong Crown case – protective factors – Bail Casework 22C plan – long criminal history for similar offences – history of non-compliance with bail – breaches of bail occurred at proposed bail address – observations on s 22C of the Bail Act – relevant offence – motor theft offence – relevant young person – meaning of a high degree of confidence – release application refused

Legislation Cited:

Bail Act 2013 (NSW)

Crimes Act 1900 (NSW)

Police Act 1990 (NSW)

Road Rules 2014 (NSW)

Road Transport Act2013 (NSW)

Cases Cited:

DPP v Mawad [2015] NSWCCA 227

Mulahalilovic v R (Supreme Court (NSW), Rothman J, 1 August 2006, unrep)

R v Ftelianos [2017] NSWCCA 211

R v KB (Supreme Court (NSW), McNaughton J, 11 June 2024, unrep)

R v RB [2024] NSWSC 471

Texts Cited:

Shorter Oxford English Dictionary, 6th ed (2007)

Category:

Principal judgment

Parties:

RB (Applicant)
Rex (Respondent)

Representation:

Counsel:

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

File Number(s):

2024/235342

JUDGMENT

1. The applicant for release, under s 49 of the Bail Act 2013 (NSW), RB, is a 17-year-old Aboriginal man who is currently under the parental responsibility of the Minister. KARI Aboriginal support service (“KARI”) undertakes his case management and will do so until he is 25 years of age. He turns 18 years of age in 2 months.

2. RB was granted bail on 16 April 2024 by her Honour, Lonergan J: [2024] NSWSC 471 ("the April judgment"). Bail had been refused some years earlier by Beech-Jones CJ at CL (as his Honour then was).

3. In the April Judgment, Lonergan J described a course of alleged offending by the applicant in late 2023 as follows:

“23. This series of alleged offences (for which RB was on bail in February 2024), commenced on 16 September 2023 with a break and enter with others, stealing car keys and driving away with a BMW and then stealing petrol at a service station. On 17 September 2023 the same type of offending by RB is said to have occurred, this time at North Turramurra, stealing car keys and driving away. It is alleged that RB then two hours later was in West Hoxton with a disguised face committing the same type of offences again.

24. It is alleged that on 20 September 2023 at 1:30am at Malabar, RB stole car keys to a black Audi, stole the Audi and then stole petrol at a service station. It is alleged that on 22 September 2023 RB was engaged in offending comprising enter inclosed lands and face blackened/disguised with intent to commit aggravated break and enter at Sans Souci, and that he discussed the location and events in his messages (the subject of a Cellebrite download).

25. RB is also charged that on 25 September 2023 he was conveyed in a stolen conveyance and stole petrol. Based on phone data records it is alleged that on 3 and 4 October 2023, RB was in Newtown in a stolen vehicle and that he was being driven recklessly, furiously and in a manner dangerous, around Erskineville.

26. It is alleged that on 1 October 2023 RB was involved in a break and enter with others at Blakehurst with car keys and a car taken and was then conveyed in that stolen car. It is alleged that on 2 October 2023 he drove in Annandale without a licence, based on his movements as demonstrated by telephone intercepts and phone data analysis.

27. Police allege that on 3 October 2023 RB was “identified”, (although how he was “identified” is not specified), at a location in Glebe entering a vehicle and swapping places with the driver, then driving erratically through the inner west, leading to charge of take and drive conveyance, never licenced and drive in a manner dangerous.

28. It is alleged that on 10 October 2023, RB was involved in an aggravated break and enter at Beaumont Hills where a stolen car was used and was then involved in a police pursuit and that MDR data on RB’s phone has him in that location. There is also a video on RB’s phone dated 9 October that shows two images of a car stolen on 7 October 2023 and an assertion that the key to that car was found at RB’s family home on 11 October on search by police, although a submission was made by Mr Ormaechea that the key found was not the key to that car. There is a reference in the police facts to “items consistent with break and enters and stealing motor vehicles” but what those items seized actually were is (sic) not mentioned in the facts and so that evaluative and conclusionary assertion cannot be assessed.

29. As I understand the position, these September/October 2023 charges are part heard before the Surry Hills Children’s Court and, according to a police letter of Snr Constable Lally, dated 10 April 2024, were adjourned to 23 April 2024 for written submissions. The Crown submissions described these charges as “part heard”. The bail report suggested that they are listed for hearing on 23 April and have not been the subject of guilty pleas.”

4. Her Honour then referred to the applicant being taken into custody on 11 October 2023 when charged with that group of offences. The applicant was on remand in custody for these offences until bail was granted on 4 February 2024. Some of these charges were dismissed, after a hearing that proceeded upon a not guilty plea, after the April judgment, namely, on 21 June 2024. In the same proceedings on 21 June 2024, the applicant was convicted of and sentenced for offences in other charge groups which I will return to below.

5. The April judgment also discussed the charge group ending H8853 which included offences said to have been committed while the applicant was on bail on 26 February 2024 for three sequences (steal motor vehicle, enter vehicle or boat, without consent of owner/occupier and police pursuit – not stop – drive recklessly). Those charges were subsequently withdrawn on 23 April 2024 together with sequences 1 and 5 (aggravated break and enter and commit serious indictable offence – people there (attempt) and aggravated break and enter and commit serious indictable offence – people there).

6. The applicant was then sentenced on 21 June 2024 to a control order for the following charge groups – numbers ending: H7937, H3177, H3117 and H9598 (“the 2024 control order”). An aggregate sentence of 16 months was imposed, commencing 21 November 2023 and concluding 20 March 2025, with a non-parole period of 7 months expiring 20 June 2024 (“the non-parole period”).

7. That aggregate sentence related to the following offences in those charge groups:

1. H7937: Aggravated break and enter and commit serious indictable offence. The offence of steal motor vehicle was taken into account on a Form 1. These offences occurred on 17 and 18 May 2023.

2. H3177: Knowingly be carried in/on stolen conveyance and aggravated break and enter dwelling etc in company steal value not exceed $60000. These offences occurred on 15 and 16 May 2023.

3. H3117: Aggravated break and enter and commit serious indictable offence and knowingly be carried in/on stolen conveyance. These offences occurred on 25 December 2022.

4. H9598: Aggravated break and enter with intent – armed. This offence occurred on 31 December 2022.

8. On the release application presently before the Court, the applicant faces charges in the charge group ending H2777 (“the present charges”) as follows:

1. Aggravated break and enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW):

2. Knowingly be carried in/on stolen conveyance, contrary to s 154A(1)(b) of the Crimes Act.

3. Possess means of disguising face with intent to commit indictable offence, contrary to s 114(1)(c) of the Crimes Act.

4. Negligent driving (no death or grievous bodily harm), contrary to s 117(1)(c) of the Road Transport Act2013 (NSW).

5. Never licensed person drive vehicle on road - first offence, contrary to s 53(3) of the Road Transport Act.

6. Ride motor bike with one unhelmeted passenger (rider not helmeted), contrary to s 270(1)(b) of the Road Rules 2014 (NSW).

7. Steal motor vehicle, contrary to s 154F of the Crimes Act.

8. Proceed through red traffic light, contrary to s 59(1) of the Road Rules.

9. Those offences were alleged to have been committed between 7 and 14 June 2024. The applicant was on the bail granted by Lonergan J at the time of the alleged offending. The offence of aggravated break and enter and commit serious indictable offence carries a maximum penalty of imprisonment for 20 years.

10. The applicant was arrested on 14 June 2024 for breach of bail. The applicant has been bail refused since that time. A detention application was lodged, and bail was revoked.

11. Assuming the non-parole period has expired, then the applicant has only been in custody (after his sentence is taken into account) from 20 June 2024 for the bail refused matter for a small number of weeks.

12. The factual background to the present offences may be briefly stated as follows:

1. The applicant’s mobile phone was the subject of telephone interception. On 12 June 2024, he stated to a co-accused “Youse wanna do something?”. The co-accused responded “Yeah fucking oath nigga”. The applicant then stated “go and suss this addy out for me” and when asked what he was referring to the applicant replied “the moto thing”. Slightly later the applicant referred to sending the address of the “Dural…Dural Moto bike shop”.

2. On 13 June, the Police Facts indicate that the applicant and co-accused entered a premises at Baulkham Hills through an open garage door. The victims were asleep at the premises. It was stated that, while the applicant and co-accused were in the premises, multiple car keys and personal belongings of the victims including a bank card were allegedly stolen together with two motor vehicles and a “Blue Yamaha Dirt Bike”.

3. In a subsequent discussion between the applicant and the co-accused, the co-accused proposed “lets cut out more” and another co-accused indicated that “I wanna have a lap before I jet”. Police reasonably stated that this indicates that the applicant was in possession of the stolen dirt bike and that the co-accused was going to ride it before returning home.

4. On the morning of the same day, the applicant and co-accused are observed on CCTV at a 7/11 Service Station in Blacktown. That observation was slightly less than 1 hour after the alleged theft and 1 hour after the telephone intercept of the conversation said to involve the riding of the bike. At the 7/11, a purchase is made by a co-accused using a victim’s bank card that had been stolen at Baulkham Hills. The applicant’s face was uncovered as he stood looking through the service station front windows.

5. There were further telephone intercepts later that morning. The applicant referred to fixing “this bike and going for a ride”. There is also a conversation between the applicant and a co-accused referring to “The Toyota Camry had a tracker Nigga”. A Toyota Camry was stolen from the Baulkham Hills premises. The fact that it had a tracker was apparently detected because it had been towed away.

6. In additional Police Facts, reference is made to the forensic analysis of the co-accuseds’ mobile phones. There was there found a video depicting the applicant riding the stolen Yamaha motorbike at Kellyville doing a “wheelie” and driving through a red light. Seven days later, the stolen Yamaha motorbike was found parked in the kitchen of his mother’s premises at Blacktown. There were no persons present during the execution of a warrant by police. This is the premises at which it is proposed the applicant would reside in bail conditions in support of the bail application.

13. If the facts in the Police Statement of Facts were established, then agreement may be readily reached with the submission of the Crown that the applicant was, with respect to the present charges, 'free' on bail and out all night allegedly committing crimes with friends.

14. The present charges are listed before Surry Hills Children Court on 12 July 2024 for mention.

15. Unlike the bail proceedings before Lonergan J, the present proceedings attract the operation of s 22C of the Bail Act.

16. That provision is in the following terms:

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.

(4)  This section applies despite anything to the contrary in this Act.

(5)  This section expires 12 months after this section commences.

(6)  In this section—

motor theft offence means an offence under the following sections of the Crimes Act 1900—

(a) section 154A,

(b)  section 154C,

(c) section 154F.

relevant offence means—

(a)  a motor theft offence, or

(b)  a serious breaking and entering offence, or

(c)  an offence under the Crimes Act 1900, section 154K, if the underlying offence is a motor theft offence or serious breaking and entering offence.

relevant young person, for a relevant offence, means an individual who is, at the time the relevant offence is alleged to have been committed—

(a)  14 years of age or more, and

(b)  less than 18 years of age.

serious breaking and entering offence means an offence under the Crimes Act 1900, Part 4, Division 4 that is punishable by imprisonment for a term of 14 years or more.

serious indictable offence has the same meaning as in the Crimes Act 1900, section 4(1).

17. The present release application attracts the provisions of s 22C(1) because:

1. The applicant was charged with a “relevant offence” having regard to the definition of that expression in s 22C(6). Sequence 1 charges an indictable offence, which is an offence under Div 4 of Pt 4 of the Crimes Act punishable by imprisonment for 20 years or more. Sequences 2 and 7 bring charges under ss 154A and 154F respectively of the Crimes Act and thereby fall within the definition of a “motor theft offence” in s 22C(6).

2. The offences were alleged to have been committed between 7 and 14 June 2024 when the applicant was 17 years of age. He is, therefore, caught by the definition of "relevant young person" as defined in s 22C(6).

3. The applicant was on bail at the time of the offending alleged in the present charges.

18. However, s 22C(2) provides that a decision under subs (1) may only be made after the Court has assessed bail concerns under Div 2 of the Bail Act and consideration is given to whether any bail conditions could reasonably be imposed to address any bail concerns or risks (R v KB (Supreme Court (NSW), McNaughton J, 11 June 2024, unrep)).

19. It follows that the Court will be only required to undertake the evaluation required under s 22C(1) if it has determined, by virtue of its assessment of bail concerns and the relevant considerations of bail conditions under Div 2 of the Bail Act, that there is not an unacceptable risk pursuant to s 20 of the Bail Act. That conclusion is available as s 22C(2)(a) refers to a decision under subs (1) being made only after “an assessment of bail concerns” is made under Div 2 of Pt 3 of the Bail Act. Section 19(1) of the Bail Act refers to an assessment of bail concerns in order to determine if there is an unacceptable risk. Further, s 22C(2)(b) refers to “bail concerns or risk”.

20. In the circumstances, I will turn next to the consideration of the release application under Div 2 and 3 of Pt 3 of the Bail Act before turning, if necessary, to the considerations arising under Div 2A and, in particular, s 22C as it may arise in this case.

21. As to the operation of Div 2 of Pt 3 of the Bail Act, I adopt, with respect, the observations of Lonergan J in the April judgment at [40]-[42] as follows:

“40. Section 19(1) of the Bail Act provides that 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. Accordingly, in determining if there is an unacceptable risk, I must have regard to the bail concerns as set out in s 17(2) of the Bail Act. They are whether a person, if released, will commit a serious offence, fail to appear, interfere with witnesses or evidence or endanger the safety of victims, individuals or the community. If there is no unacceptable risk, I must grant bail: s 20(1). I should impose conditions if I am satisfied that there are identified bail concerns, and those conditions must be reasonably necessary to address the relevant bail concern(s), be reasonable and proportionate, appropriate, and no more onerous than necessary. I also need to be satisfied that the condition(s) are reasonably practicable for the accused person to comply with, and that there are reasonable grounds to believe that the condition(s) is/are likely to be complied with by the accused person: s 20(2).

41. In R v Lago [2014] NSWSC 660, Hamill J indicated that the provisions of the Bail Act cast an onus on the party who is opposed to the grant of bail. In relation to the assessment of unacceptable risk, his Honour stated at [8] to [9]:

“[8] The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states…see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1…

[9] The cases on bail recognise that ‘no grant of bail is risk free’: see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said:

‘Bail when granted is not risk free. Williamson v DPP (QLD). As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld).’”

42. Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) of the Bail Act sets out a list, which is both mandatory and exhaustive, of the factors to be considered by the bail authority in assessing bail concerns under s 17 of the Bail Act: see Raad v R [2015] NSWSC 532.”

22. Those considerations should be undertaken after first considering factors required to be considered under s 18 of the Bail Act. That assessment should commence, in my view, with a consideration of the Juvenile Justice Report of 4 July 2024.

23. Before coming to the relevant aspects of that report, I should also note that reliance was placed upon the prospect of a bail plan being formulated in consequence of any determination being made under s 22C of the Bail Act. The Court was taken, in that respect, to a document of a general character described as “Youth Justice Remand Intervention and Bail Services Fact Sheet: Bail Casework (Section 22C)” (“Bail Casework Factsheet”). Whilst no particular “Bail Casework 22C plan”, in that respect, was provided to the Court, the Bail Casework Factsheet specifies that Youth Justice will supply a “mandated bail casework” for “young people” if they “fall under the provisions of [s] 22C of the Bail Act…”. I will later find that it is unnecessary to make a determination under s 22C, however, I will approach the consideration of bail in the present matter upon the basis that a Bail Casework 22C plan may be available. That is because I have earlier found that the release application is caught by the provisions of s 22C. Beyond that, I do not wish to be taken as finding just how the Bail Casework 22C plan would operate in circumstances such as found in the present application.

22. In that light, I have taken into account that the Bail Casework 22C plan would provide for a bail condition that the applicant would be required to follow the reasonable directions of Youth Justice for Bail Casework.

23. The factsheet stated where Bail Casework is added as a condition of bail, through coordination with other relevant services, Youth Justice will identify the young person’s needs and “create a holistic support plan” which includes many elements such as education, case management and health.

24. The Bail Casework Factsheet also states:

“The Court can request details of the proposed Bail Casework (s22C) and, depending on the magistrate’s preferences, Youth Justice can submit:

• a brief outline of how bail casework may benefit the young person, using the Court Intake First Appearance Form, on the same day as requested.

• a Bail Casework (s22C) plan prior to granting bail with five business days' notice through an Information to the Court Regarding Bail report.

The court can also grant the young person bail and request a detailed Bail Casework 22C plan for their next court appearance.

Youth Justice will inform the Court of the level of service, frequency of contact with the young person and their carers, and interventions that the local office is able to provide to the young person, based on the young person’s level of need and the office’s operational capacity. The frequency of contact will be reviewed regularly and may be reduced once all services are in place.”

27. As mentioned, in the present matter, the Court has not received a Bail Casework 22C plan. Nor was it sought that one would necessarily be attained absent the Court basing its decision upon findings under s 22C(1). As I do not propose to proceed under s 22C, the Court will do no more than recognise the existence of the Bail Casework scheme and, in accordance with the submissions received, treat the Juvenile Justice Report as an exemplar of matters that may be attended to under the plan.

28. The relevant aspects of the Juvenile Justice Report are as follows:

1. The applicant will return to the family home where his mother, father and two younger siblings reside. Once the applicant is 18 years of age in August 2024, KARI will assist him in finding semi-independent accommodation. The applicant will receive ongoing support from KARI until the age of 25 years.

2. The applicant was previously employed at Five Star Roofing but “due to not attending work”, he is no longer employed. The applicant is still seeking to attain employment and his caseworker has been in contact with Aboriginal Employment Strategy (“AES”) who have a number of employment opportunities available.

3. The applicant’s caseworker, Ms Mia Bates, stated that the applicant had been engaging well in weekly family counselling sessions with Ozchild aimed at strengthening and repairing relationships. The applicant has expressed that these sessions have been valuable and he wishes to continue engaging in them.

4. Ms Bates advised that the focus of KARI’s support is to help RB prepare for his leaving care plan which includes assisting him to obtain a form of identification, gain employment, engage in family therapy, find independent accommodation, meet cultural needs and support and follow up with health check-ups.

5. The applicant disclosed daily cannabis use in the community to ‘stay still’ and ‘calm’. Ms Bates is arranging for him to meet with the KARI medical practitioner to discuss the possibility of being prescribed medical marijuana.

29. The balance of my consideration of s 18 factors will correspond to various subss of that provision, avoiding repetition with the above summary of the Juvenile Justice Report and earlier parts of this judgment.

30. The applicant has community ties and as earlier mentioned, if released it is proposed RB would live with his mother, father and two younger siblings. I note, in this respect, his mother writes a letter of support.

31. Turning to the applicant’s criminal history, at [11] and [12] of the April judgment, Lonergan J observed:

“11. To date RB has been dealt under the Children (Criminal Proceedings) Act by s 33(1)I probation and s 33(1)(b) bonds. He has not to date been sentenced to a control order or custodial sentence.

12. His custodial record shows that since December 2021 he has had periods on remand in Cobham and Orana. On one occasion this remand period was 4 months, and on two other occasions the remand period was more than 3 months. Most recently he has been in custody since 26 February 2024, almost 2 months, arrested for offending it is alleged he was involved in that morning comprising an aggravated break, enter and steal motor vehicle from a house in Clontarf, followed by police pursuit, followed then by allegedly another break and enter and steal motor vehicle in Sans Souci two hours later.”

32. However, the criminal record now incorporates the 2024 control order imposed after the April judgment. Even putting aside the present charges, I agree with the Crown that these further offences represent some escalation in the applicant’s criminality.

33. Overall, I accept the submission of the Crown that the applicant is a young man with a record for armed with intent to commit an indictable offence, motor vehicle offending, break and enter and related property offending, larcenies, stalk and intimidation, destruction of property and dishonesty offending.

34. I have earlier described the nature of the offending involved in the present charges. The offending is, in relative terms, objectively serious.

35. In my view, should the applicant be convicted, a significant control order would be imposed. In that respect, I note the objective seriousness of the offending, the need for specific and general deterrence, the fact that the applicant was subject to conditional liberty at the time of the alleged offending and his criminal record, which disentitles him to leniency.

36. As mentioned, the applicant was subject to conditional liberty at the time of the offending and has an extensive history of non-compliance with Court orders. In 2021, the applicant breached bail 7 times. In 2022, the applicant breached bail 8 times. In 2023, the applicant breached bail 4 times and was called up 4 times. At this point in time, in 2024, the applicant has breached bail 3 times.

37. It is necessary to form a view about the strength of the Crown case. The fact that the Crown may have a strong case is not determinative but is plainly important. I reach my conclusions in this respect based on the materials presently before the Court. I accept that the material lead in evidence at the trial may be different and others might form a different view of the events at the time of the trial.

38. The Court is not charged on a bail hearing with the conduct of a mini trial (DPP v Mawad [2015] NSWCCA 227 at [19] (Beech-Jones J (as his Honour then was))). In Mulahalilovic v R (Supreme Court (NSW), Rothman J, 1 August 2006, unrep), Rothman J observed that "the nature of a bail application is not a proceeding that questions the veracity of the Crown case or determines whether a person charged is guilty”, and that the restrictions on the liberty of a citizen do not derive from an assumption of guilt, but on account of the risk of absconding or the need to obviate any real risk to the community.

39. In R v Ftelianos [2017] NSWCCA 211, the Court of Criminal Appeal observed that, after recognition of the fact that the evidence of the Crown in that matter may be affected by issues of reliability of the Crown's evidence and a warning may need to be given to a jury as to the same, in bail hearings "It is not the role of the Court to predict, much less definitively determine, how the various issues arising from the evidence of those witnesses will be resolved. It would be impossible for a court to do so".

40. The applicant submitted that the sequences within the present charges concerning the theft of the dirt motorbike were “stronger” in that the motorbike was located at the premises of the applicant’s mother and the telephone intercepts allude to conversations about motorbikes. It was submitted that the fact that the motorbike was found some seven days after the alleged commission of the offence may weaken the Crown case to some extent.

41. I also note that the applicant contended that the reference in the Police Facts to a video found on the mobile phone of a co-accused showing the applicant riding the motorbike should be treated with caution because the Aboriginal Legal Service (“ALS”) had not received a copy of that material. However, whilst the complaint by the ALS is understandable, the Court must determine the application based on the material before it.

42. When consideration is given to the telephone intercepts, the video recording of the applicant riding the motorbike and the location of the motorbike at the premises of the applicant’s mother, in my view, the Crown has an overwhelming case on the materials presently before the Court.

43. As to sequence 1, the applicant submitted that the footage at the 7/11 was taken some time after the alleged commission of the offence (about 1 hour) and the telephone intercepts discuss a number of addresses. In this respect, it was also submitted that the ALS has not been served with the mobile footage.

44. In my view, the telephone intercepts, CCTV footage proximate in time to the alleged commission of the offence and the police statement as to the content of the mobile phone video indicates that the Crown has a very strong case.

45. Lastly, a reference was made to the charges associated with the driving of the Maserati. A submission was advanced by the applicant that a number of persons were seen alighting the vehicle and that there was an absence of evidence that police actually sighted the applicant alighting from the vehicle. There is no DNA evidence.

46. However, the Police Facts identify that the Tactical Operations Group conducted a tactical intercept of the vehicle and located the applicant and the co-accused inside. The applicant was pursed on foot, discarded a black balaclava, and was ultimately apprehended with the assistance of a police dog. It is difficult to see why, on the basis of the Police Facts, the Crown case would be described as otherwise than strong.

47. There were no submissions made about delay in the present matter which is understandable in the light of the date of expiry of the parole period and the mention of the matter in the Children’s Court in July 2024, noting that matters in the Children’s Court tend to be reached in a short time frame.

48. I must now assess whether or not the applicant's release raises any bail concerns (see s 17(1)) and, if so, determine whether there is an unacceptable risk of those concerns materialising (s 19).

49. The Crown submitted that there are bail concerns corresponding to the concerns identified in subss 17(2)(a), (b) and (c) of the Bail Act and, having regard to the factors considered under s 18(1), those concerns should result in a finding that there is an unacceptable risk.

50. I shall, therefore, address those bail concerns and the concomitant consideration of unacceptable risk having regard to my findings with respect to factors under s 18(1) of the Bail Act.

51. The applicant submitted that the risk of a failure to appear was not conceded for the following reasons:

1. the young person is under the parental responsibility of the Minister and does not have the means to flee the jurisdiction; and

2. the young person has strong community ties.

52. The Crown submitted that the fact the applicant is facing the prospect of a continuing custodial sentence if convicted gives rise to the risk of flight.

53. I accept the submissions on behalf of the applicant in this respect. Additionally, I have given consideration to, in this respect and for the remaining bail concerns, a letter from Amelia Lai, KARI Youth Engagement Coordinator, on behalf of the applicant.

54. The KARI Youth Engagement team works alongside the applicant’s caseworker (who was present during the hearing) to support the applicant transitioning from being in the care of the Minister, presumably because he is soon to turn 18. In particular, Ms Lai stated that the applicant would be supported in developing independent living skills such as seeking employment, his own accommodation, and engaging in therapeutic intervention for his illicit drug use. As earlier mentioned, that support would continue until 25 years of age.

55. I do not find an unacceptable risk of failure to appear.

56. I will consider jointly the bail concerns of commit a serious offence and endanger the safety of victims, individuals and the community.

57. In opposing the release application, the Crown made the following submissions in this respect as follows:

1. The applicant has a recent and demonstrated history of non-compliance with orders of courts and has repeatedly committed similar offences while subject to conditional liberty. The applicant’s offending appears to be escalating in seriousness and as such, the applicant poses an unacceptable risk of further offending and is a real risk to the community despite the imposition of bail conditions.

2. The Juvenile Justice Report and proposed bail conditions indicate that the applicant will live at an address he has resided at when committing previous offences where he appears to have had no supervision and is out all night. The police found the stolen Yamaha motorbike, which concerns the subject offending, in the kitchen of his home with “no persons present”.

3. The applicant failed to attend on employment which, in previous applications had been found to be a pro-social consideration. He failed to attend a further appointment for other work which the Crown submitted indicated that he had no intention of being pro-social whilst in the community.

4. The only appointments met were the counselling meetings. Those will necessarily end when he is 18 in August this year (although this submission would seem to be erroneous given the recent evidence of KARI’s intention to support the applicant until age 25).

5. The applicant is a user of medical marijuana which increases the risk of further serious offending.

6. There is no evidence that, if the applicant is prescribed medical marijuana through KARI’s medical practitioner, it will assist him to reduce future offending.

58. The applicant made the following submissions:

1. Whilst the proposed plan for bail is very similar to the plan approved by Lonergan J in granting bail in the April judgment, there are two differences.

2. The first difference is that the applicant is now subject to parole. In that respect, after his 18th birthday in August, he will be under the supervision of Community Corrections. It was accepted that the support from his caseworker and KARI are essentially the same as that proffered to Lonergan J in her consideration of bail.

3. The second changed circumstance is that the applicant commenced family counselling sessions for restoration and healing as a result of being in the care of the Minister for a significant period of time. It was said that this is a significant protective factor which is referred to in the Juvenile Justice Report. The applicant has been engaging in weekly counselling sessions with Ozchild. His caseworker indicated that he had engaged well in those sessions.

4. The Court was also asked to take into account employment opportunities via the AES. It was submitted that the applicant was not able to engage in this support service because he did not have a tax file number.

5. Overall, the applicant will have access to his “full leaving care plan” including the prospect of independent accommodation. There was full funding for the care plan and access to identification documents to secure his tax file number.

6. Reliance was placed upon bail conditions which were consistent with these plans.

59. I accept that there are protective factors operating with respect to the applicant. Many of those operated at the time the applicant received the benefit of conditional liberty by the April judgment. However, I also accept that there are some additional supporting arrangements now available for the applicant which are, in part, reflected in reasonably stringent bail conditions proposed on behalf of the applicant.

60. In reaching my conclusion as to bail, I have also accepted that there may be a prospect for the applicant obtaining employment and that the Crown’s criticism, in this respect, may have been too severe. However, I do note that the Juvenile Justice Report indicated that the applicant’s previous employment with Five Star Roofing had been terminated due to the applicant not attending work and that the proprietor was no longer prepared to offer the applicant ongoing employment.

61. These considerations, which are generally favourable to the applicant, must be balanced against the applicant’s course of criminal conduct and failure to adhere to conditions of bail over a substantial period of time. This history demonstrates that the applicant has little or no compunction in disobeying the law and continually breaching opportunities provided to him via conditional liberty. The pattern of offending appears to be escalating and displays demonstrative acts of defiance of authority rather than, as was advanced on his behalf, a demonstrated increased maturity. The Crown case on the present charges is strong.

62. Furthermore, the telephone intercepts, with respect to the present charges, demonstrate, if proven, that the applicant played a principal role in the offending and encouraged the behaviour of his co-accused.

63. I do not consider that the applicant, being placed with his mother, is a protective factor. There appears to be little or no supervision of the applicant. On the dates of the alleged offending in the present charges, as previously mentioned, the applicant was out all night committing crimes with his friends whilst free on bail. The allegedly stolen motorbike was found in his mother’s kitchen.

64. I agree with the submission of the Crown that there is no evidence that, if the applicant is prescribed medical marijuana through KARI’s medical practitioner, it would assist him to reduce future offending.

65. In my view, and notwithstanding the considerable efforts being made on the applicant’s behalf, and the existence of protective factors (which existed at the time of the April judgment or are now enhanced) there remains a very real risk of further serious offending and, given the pattern of the offending, of the endangerment of the safety of the community. I consider that the proposed bail conditions, even though stringent, are not sufficient to address or mitigate the bail concerns and attendant risks.

66. In all the circumstances, I find that there is an unacceptable risk that the applicant, if released from custody, will commit a serious offence and endanger the safety of the community.

67. In the circumstances, pursuant to s 19(1) of the Bail Act, the release application must be refused.

68. Notwithstanding that the provisions of s 22C(1) are not engaged in the present matter, I propose to make some observations about the construction of the provision, bearing in mind the parties developed some submissions in that respect. However, given the parties submissions were not comprehensive, my observations will be necessarily brief.

69. Those observations are as follows:

1. Subject to subs (2), s 22C(1) mandates that the Court must not grant bail to a “relevant young person”, who is caught by the terms of the provision, unless the Court “has a high degree of confidence” that the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions.

2. As Lonergan J stated in the April judgment: “Due to community concern about what is perceived to be a spate of this kind of offending involving young persons, particularly in country towns, s 22C was inserted into the Bail Act 2013 (NSW) via the Bail and Crimes Amendment Act 2024 (NSW). It commenced on 3 April 2024” (at [4]).

1. In the Second Reading Speech on 12 March 2024, the Honourable Michael Daley (Attorney-General of NSW) said:

“Schedule 1 will insert into schedule 3 of the Bail Act 2013 a transitional provision that clarifies that the application of the amendments made by the bill extend to offences committed, or alleged to have been committed, or charged before the commencement of the amendment. This is necessary to capture young people who are alleged to have already committed relevant offences prior to the commencement of the new provision and are subsequently alleged to have committed a further relevant offence whilst on bail after its commencement.”

4. The expression, a “high degree of confidence” is not defined in the Bail Act. I agree with the observation of Lonergan J in the April Judgment that “[t]he test – “a high degree of confidence” – is a test unknown to the criminal law…” (at [6]).

5. However, the concept of ‘confidence’ has been used by the legislature in a different context in s 181D of the Police Act 1990 (NSW), albeit that the confidence referred to therein was not one requiring consideration by a Court. That provision provides that the Commissioner of Police may remove a police officer from the NSW Police Force if the Commissioner “does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct”.

6. The context which the word ‘confidence’ is used in the Police Act suggests the meaning ascribed to the expression ‘confidence’ in s 181D is “firm trust, reliance, faith (in)” ^[1] (although the expression is constrained by particular considerations such as competence). Thus, the provision refers to the Commissioner not having confidence in the police officer’s suitability. The reference is to a level of confidence as to a police officer at a particular point in time, that is when the assessment is made.

   1. Shorter Oxford English Dictionary, 6th ed (2007)

7. The use of the word ‘confidence’ in the expression “high degree of confidence” in s 22C(1) connotes a different meaning of the word although one consistent with a range of ordinary meanings attributed to that word. When considered in the light of the immediate context in which the words “high degree of confidence” are found in s 22C(1), it is plain, in my view, that the legislature intended a different and separate meaning for the word ‘confidence’ than the same word used in the Police Act. In that context, the meaning of ‘confidence’ in s 22C(1) is the alternative dictionary meaning – “an assured expectation, the state of feeling certain (of)” ^[2] . Hence, the evaluation involved under subs (1) involves a consideration of the future conduct of the young person, namely, whether there may be confidence to the requisite degree that the young person will not commit a serious indictable offence whilst on bail subject to proposed bail conditions. That is an evaluation of a future occurrence.

8. The legislation does not employ the test that a particular criteria established (ss 22, 22A and 22B) or that the Court must be satisfied of a particular condition or state of things (s 19(1)). This is not to suggest that the onus falls other than on the Crown.

9. I agree with the submission advanced by the solicitor for the applicant, Ms Al Majed, that the evaluation involved in reaching a “high degree of confidence” will, therefore, involve something in the nature of a probabilistic assessment. The consideration of whether probability and confidence are synonymous is a question best reserved for determination when more comprehensive submissions are available on the question. So too is the question of whether a finding of confidence imports some value assessment based on the evidence as well as the experience of the decision-maker.

10. A “high degree of confidence” is not a state of certainty. The Court does not need to be certain that the young person will not commit a further relevant offence.

11. Due to s 22C(2)(a), the factors under s 18 remain relevant to the questions raised by s 22C(1) because they are required to be considered prior to a determination under that provision being made. This means that relevant subjective features and changes relevant to a risk assessment should inform the ultimate determination under s 22C(1).

    2. Shorter Oxford English Dictionary, 6th ed (2007)

70. Whilst these observations are constrained in the manner I have identified, they are sufficient to permit the conclusion that, if the provisions of s 22C(1) did operate in the circumstances of this matter then, in my view, the Court would be required to refuse the grant of bail. The conclusions earlier reached by the Court as to unacceptable risk would not permit the Court to form the requisite degree of confidence required by s 22C(1).

Conclusion

71. The Court, being satisfied, on the basis on an assessment of bail concerns, that there is an unacceptable risk of the applicant committing a serious offence and endangering the safety of the community, must refuse the bail application. In the result, the release application is refused.

**********

Endnotes

Decision last updated: 11 July 2024