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

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.
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).
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…

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 RB v The King (No 2)

Details

AGLC: RB v The King (No 2) [2024] NSWSC 845
Case: [2024] NSWSC 845
Decision Date: 11 July 2024

CaseChat Overview and Summary

The case of RB v The King (No 2) involved a juvenile applicant, referred to as RB, who was seeking bail from the Supreme Court of Victoria. The applicant was facing a charge of motor theft, a serious offence. The court was tasked with determining whether the concerns associated with granting bail posed an unacceptable risk to the community or the applicant. The Crown argued that there were significant risks, including the possibility of the applicant failing to appear in court and the potential for the applicant to commit further serious offences. The applicant, on the other hand, argued that the proposed bail conditions would mitigate these risks.

The legal issues before the court included the assessment of the risk of the applicant failing to appear in court, the risk of reoffending, and the consideration of the strong evidence against the applicant. The court also needed to weigh these risks against the applicant's right to liberty and the potential protective factors that could be implemented to ensure compliance with bail conditions. Additionally, the court had to consider the relevance of the applicant's previous criminal history, which included a pattern of similar offences and a history of non-compliance with bail conditions.

The court found that the risks associated with bail outweighed the protective factors. The applicant had a long criminal history for similar offences and had breached bail conditions at the proposed bail address. The court noted that the seriousness of the current offence, combined with the applicant's history, indicated a high degree of confidence in the likelihood of reoffending. The court further observed that the applicant did not meet the threshold for a high degree of confidence in relation to the likelihood of appearing in court. Consequently, the court concluded that the concerns associated with granting bail were such that they gave rise to an unacceptable risk, and the application for bail was refused.

The final orders of the court included the refusal of the bail application for the applicant, RB. The court emphasised the need to protect the community from the risks posed by the applicant and the strong evidence against the applicant that suggested a high likelihood of reoffending. The observations on section 22C of the Bail Act highlighted the importance of considering the specific circumstances of each case and the need for appropriate bail conditions to mitigate the identified risks.

Orders