R v LM [2022] NSWSC 987

Supreme Court New South Wales

Medium Neutral Citation: R v LM [2022] NSWSC 987 Hearing dates: 28 June 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Application for bail is refused. Catchwords: BAIL – release application – armed robbery – knife – s 22B – unacceptable risk – commission of further serious offence – bail refused Legislation Cited: Bail Act 2013 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Category: Principal judgment Parties: LM (Applicant) Regina (Respondent) Representation: Solicitors: Aboriginal Legal Service NSW/ACT (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2022/165929 Publication restriction: Nil

EX TEMPORE Judgment (REVISED) 1. HIS HONOUR: The applicant in this matter, a young person, LM, to whom I shall refer as the applicant, has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (the Act). 2. The applicant is presently 16 years of age, having been born on XX XXXXXX 2005. She has been in custody since 28 March 2022 as a result of her arrest in relation to an offence of armed robbery. 3. The applicant was arrested on 26 March this year. The allegation against her is that she attended a service station around 3am on that day. The attendant at the service station left the shop area for a short period, apparently to go to the toilet. The applicant is alleged to have entered the area behind the counter. The attendant returned and found the young person there. He challenged her, whereupon it is alleged that the applicant approached and attempted to stab the attendant, using an overhand downwards swing. The attendant was able to block the applicant's arm. There was a wrestle and he was able to break free. Upon realising it was a robbery, he told the applicant that he would give her the money. The attendant walked behind the counter and while he was standing in front of the applicant, she stabbed him in the right shoulder. There was something of a struggle. He opened the register and the applicant is alleged to have taken some money. The incident is apparently recorded on CCTV footage. 4. The police executed a search warrant later that day. The applicant was arrested. She was found to be wearing a gold necklace which matches an item worn by the offender, captured by the CCTV footage. Other clothing was found in the course of a search for matching clothing worn by the offender, captured by the footage. 5. It follows from the above, that the case, on its face, appears to be reasonably strong. 6. The applicant also faces a large number of other charges. Most concerningly, the applicant faces charges of assault occasioning actual bodily harm, of which there are two counts; two counts of using an offensive weapon with attempt to commit an indictable offence, that offence being intimidation; four counts of damaging property; and one count of reckless wounding in company, all of which are part of one set of offences. 7. Those matters relate to events on 25 October 2020 when the applicant was in the company of others and alleged to have become involved in a confrontation in the course of which she has used a knife to threaten a young person by holding it to that person's neck. She is alleged to have used a knife to stab tyres and to again use a knife to threaten a person by holding it to their neck. Ultimately, it is alleged she became involved in a physical altercation which involved her swinging the knife at other persons. She is alleged to have cut one complainant on the hand. More seriously, she is alleged to have attacked another complainant, swinging the knife from above her head down towards that complainant, stabbing him in the shoulder, and having again stabbed that person in the course of the melee, in the left side rib cage, having attempted to stab the person on other occasions. 8. I am informed that the applicant has pleaded guilty to reckless wounding in company arising out of that incident. That matter is listed at Taree Children's Court on 7 July. 9. Following on from that incident, the applicant was charged with an offence of intimidation on 1 December relating to an incident the day before. The allegation in relation to that matter is she threatened one of the people involved in the earlier incident involving the stabbing. 10. She is also alleged to have committed an offence of aggravated break, enter with intent to steal on 12 January, and a further similar offence on 13 January. In relation to the second of those, she was also charged with assaulting police and having custody of a knife. 11. Subsequent to that, the applicant has been charged with three counts of stealing from a bottle shop, the events alleged to have occurred on 28 June, 30 June and 7 July. 12. The applicant was subsequently arrested and charged with further offences of intimidation and damaging property. That event involves an allegation of the applicant walking with a group of friends, one of whom was in possession of a child's scooter. The child's mother ran after the group and took hold of the scooter and began to walk back to her home when she observed the applicant running towards her with a knife in her hand. She was able to enter her home and close the doors. The applicant is alleged to have yelled, "Get out on the road", while kicking the front doors with force and while the knife was visible in her hand. The applicant is alleged to have thrown a large rock through the bedroom window, causing it to smash. 13. A further charge alleges stealing a handbag on 12 January and, as I have already indicated, those arrests and charges were then followed on 26 March with the allegation of the armed robbery. 14. I have been informed this morning, as I have indicated, that the applicant has pleaded guilty to the reckless wounding charge allegedly committed on 25 October 2020. As a result, an issue arises as to the application of s 22B of the Act which came into force yesterday. Section 22B(1) provides: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court— (a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision. 1. There is a real question as to whether that provision applies in the circumstances of this case, having regard to the fact that the applicant is currently in the Children's Court. In the event that the offences are dealt with to finality in the Children's Court, there can be no question of the application of the provision. That is because any sentence imposed by the Children's Court would not include imprisonment. The most serious punishment available in that Court is a Control Order. Section 33(4) of the Children (Criminal Proceedings) Act 1987 (NSW) provides: 33 Penalties … (4) Notwithstanding any other Act or law to the contrary, the Children's Court shall not sentence a person to imprisonment. 1. I have been informed by the applicant's legal representative this morning that there is a question as to whether the matter will be resolved in the Children's Court. There is, on 7 July, when the matter is next listed, I am told, an application by the prosecution pursuant to s 31(5) of the Children (Criminal Proceedings) Act. That sub-section applies in the context of what is provided by s 31(1) which is in the following terms: 31 Hearing of charges in the Children's Court (1) If a person is charged before the Children's Court with an offence (whether indictable or otherwise) other than a serious children's indictable offence, the proceedings for the offence shall be dealt with summarily. … 1. In turn, s 31(5) provides as follows: 31 Hearing of charges in the Children's Court … (5) Notwithstanding subsection (1)— (a) if a person is charged before the Children's Court with an indictable offence, and (b) if, at any stage of the proceedings, the person pleads guilty to the charge, and (c) if the Children's Court states that it is of the opinion that, having regard to all the evidence before it (including any background report of a kind referred to in section 25), the charge may not properly be disposed of in a summary manner, the proceedings for the offence must not be dealt with summarily but are to be dealt with as committal proceedings in accordance with section 31H. 1. Even if the prosecution satisfies the Children's Court magistrate that the matters should not be dealt with summarily, there is a further question as to what would occur when they are ultimately dealt with, in this case, in the District Court. That is, in any sentencing proceedings in the District Court there would, in turn, need to be a determination as to whether the matters would be dealt with according to law or under the Children (Criminal Proceedings) Act: see s 18. If the latter, it again follows that there would be no question as to the imposition of a sentence of imprisonment. 2. In all the circumstances, it seems to me that there are, at this point, a significant number of variables that would need to be considered before one could reach the point that the applicant "will be sentenced to imprisonment", and that is even if one assumes, for the purposes of argument, that if sentenced according to law in the District Court, the sentence will be one that might be served in a detention centre and that in turn would be a sentence of imprisonment: see Children (Criminal Proceedings) Act, s 19. 3. In those circumstances, I cannot be satisfied, on the balance of probabilities, that the applicant, to use the words of s 22B(1), "will be sentenced to imprisonment to be served by full-time detention". Consequently, I am not satisfied that the test in s 22B applies. 4. The applicant must still, however, satisfy the unacceptable risk test in the Act. (I note, as an aside, the show cause test does not apply to her as a result of her status as a young person.) 5. The unacceptable risk test requires that, if pursuant to s 19, I am satisfied on the basis of an assessment of bail concerns that the applicant presents an unacceptable risk, then bail must be refused. If I am, conversely, satisfied that the applicant does not present an unacceptable risk, bail must be granted. 6. The bail concerns are those matters listed in s 17 of the Act. They are to be assessed having regard only to the matters set out in s 18, which includes the conditions available to mitigate any concerns. 7. In the present matter, the primary concern is the risk of the commission of a serious offence and also the risk that the applicant, if released to bail, will endanger the safety of victims, individuals or the community. 8. I am mindful of the fact that the applicant is only 16 years of age. I am also mindful of the fact that she has findings of guilt in relation to only one set of matters on her record. They are offences of 29 November 2020 in relation to damaging property, acting with intent to influence a witness, and entering enclosed lands. In relation to those matters, she received an order under s 33(1)(b) of the Children (Criminal Proceedings) Act, requiring that she be supervised by Juvenile Justice for a period of nine months. 9. Be that as it may, the present charges currently outstanding reflect a large number of very serious allegations. What is particularly concerning is the repeated theme involving the use of a knife. 10. As I have said, she has now pleaded guilty to the reckless wounding in company offence. Further, the armed robbery offence involved the stabbing with a knife and indeed, in circumstances where the complainant, on the police version, on realising it was a robbery, was content to hand over the property but was, in any event, stabbed. 11. The intimidation charge of 6 February involves a knife. As I have said, when arrested in relation to one of the aggravated break, enter and steal matters, she was found to have a knife. 12. The matters of 30 November, 12 January, 13 January, and the stealing offences of 28 June, 30 June and 7 July are all for mention at the Surry Hills Children's Court tomorrow. The reckless wounding and associated charges and the armed robbery charges are at Taree on the 7th. In other words, various of the matters are all back before Court relatively soon. It is not clear precisely what is going to happen with them but certainly, in the light of the plea of guilty to at least one of those matters, it is anticipated it will progress reasonably quickly. 13. Clearly, there is going to be a need for an understanding of what has happened and is happening in this young person's life leading to her current troubles. I appreciate that there is a plan for her to go and live with her auntie and her mother. I accept that those people offer her love and support. The recent history, however, suggests that that may not be enough. 14. I also accept that she has in place referrals to various services and indeed has in the past, for periods of time, responded positively to intervention. But in the light of the most recent allegation, there is a real concern as to whether the applicant will succeed in relation to those interventions. 15. It is regrettable, but at this point in time it seems to me that there are insufficient mechanisms in place to ensure the safety of the community, having regard to the history I have outlined. 16. I am ultimately of the view that there is an unacceptable risk of the commission of a further serious offence and a consequent unacceptable risk of danger to the community more generally and, in those circumstances, I am required to refuse bail. 17. Bail will be refused.