Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v PH [2022] NSWSC 1245 Hearing dates: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Common Law Before: Button J Decision: Crown detention application refused One condition varied Catchwords: CRIME – bail – detention application – application made following pleas of guilty and before sentencing – consideration of application of s 22B of the Bail Act 2013 (NSW) to juvenile offender being dealt with at law – high threshold as to whether the offender will inevitably be sentenced to full-time imprisonment – where the objective seriousness of the offending is extremely grave – where there are strong subjective factors in mitigation – where youth and achievement of rehabilitation would be prominent features in sentencing – s 22B threshold not satisfied – where offender would also satisfy special circumstances threshold due to family circumstances – where no unacceptable risks if variation made – bail continued Legislation Cited: Bail Act 2013 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173 Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927 Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 Category: Principal judgment Parties: Rex (Applicant) PH (Respondent) Representation: Counsel: E Blizard (Applicant) K Prince (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant) Aboriginal Legal Service (Respondent) File Number(s): 2022/00272125 Publication restriction: Nil revised ex tempore JUDGMENT Introduction 1. This is a detention application brought pursuant to s 50 of the Bail Act 2013 (NSW), founded upon s 22B of the same Act. It is conceded that that new provision applies retrospectively, to use a generic term, to the respondent (to whom I will subsequently refer as the defendant), who in fact has been on bail for exactly two years: see Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927 at [25]-[35]. 2. There is no dispute about the nature of such a hearing, to the extent that it is a new one. Having said that, in a common sense way, one is permitted to look at what has occurred in the past: see Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173 ('DPP v Day') at [9]. Background 1. The background can be set out chronologically as follows. 2. The defendant was born in January 2006. He has pleaded guilty to some offences that occurred between February and August 2020. The offending, without recounting it in detail, is of the utmost gravity, in terms of the assessment of objective features of child sexual assaults. It featured repeated conduct. It featured penetrative conduct. It pertained to a victim who was, at the most, four years of age. It featured some particularly degrading conduct, above and beyond the penetration. And it is also accepted that the victim was palpably distressed by what was occurring. It is the kind of conduct, I think, that could well cause permanent psychological damage. As well as that, it featured the creation of images of what had been perpetrated. 3. The defendant was arrested and charged on 20 August 2020. Thereafter he was in custody in a children's detention centre for 26 days, from 20 August until 14 September 2020. 4. He was granted bail by Campbell J of this Court on 14 September 2020. Regrettably, that judgment has not been able to be made available to me. He has been on bail continuously since that time. 5. He pleaded guilty in the Children's Court on 29 April 2022. Because at least some of the offences are "serious children's indictable offences" as defined by the Children (Criminal Proceedings) Act 1987 (NSW) (the CCPA), it was necessary for the matter to be committed to the District Court. It is mandatory that the matter be dealt with according to law: see s 17 of the CCPA. 6. Almost exactly two months after that, on 27 June 2022, s 22B of the Bail Act commenced. The matter was listed, as I understand it, for proceedings on sentence on 5 August 2022, but did not proceed. 7. A few days later on 10 August 2022 a detention application – I infer relying almost completely on the commencement of the new provision – was placed before Judge Hanley SC. 8. It was adjourned more than once because of the death, sadly, of the grandfather of the defendant, and the question of whether or not the defendant might be able to attend the funeral. 9. Eventually, Judge Hanley refused the Crown's detention application on 2 September 2022. The matter came before me shortly after that. 10. To complete the chronological picture, the proceedings on sentence are currently listed in the District Court on 25 November 2022. Subjective aspects 1. I turn now to subjective matters that are established to my satisfaction on balance today, and that I believe will be established on balance before the learned District Court judge who ultimately sentences the defendant. 2. The defendant was aged approximately fourteen at the time of the offences, and is now approximately sixteen. 3. He has never been in trouble with the criminal justice system in the past. In particular, he is not a person of violence, sexual or otherwise, apart from the profound violence that has been done here. 4. He is not a person burdened with drug and alcohol dependencies, or any other kind of dependency. 5. He is a young man of Aboriginal background, and he has had his share of hardships. His parents split up when he was seven years of age. His father spent time in custody whilst the defendant was a child. That gentleman, sadly, died six years ago. I infer that he was not a particularly old man. There is evidence to suggest that it was the death of his father (according, I think, to at least one grandparent) that led to a degree of emotional decline on the part of the defendant. 6. Sadly, after the death of the defendant's father, his mother entered into some romantic relationships that featured domestic violence inflicted upon her. 7. To complete the picture, after having been charged in August 2020, the defendant went to live with his grandparents, and one of those grandparents is the gentleman who is recently deceased. 8. I also accept on balance, and I think a sentencing judge - whether it be by way of documents or sworn evidence - would also accept on balance, that from a very early age the defendant was exposed to pornography by another child. There was also sexual contact between them. I think that that was the beginning of normalisation in the mind of the defendant of extreme and very violent sexual acts. And I think that, on balance, a complete distortion of his otherwise immature view of human sexuality underpins what he has accepted occurred here. 9. It is noteworthy that, although he was subject to bullying at school and was not blessed with many friends, even so it seems that he was a good student. There is no suggestion of lack of intelligence or any other cognitive or psychiatric problem. 10. It is also noteworthy that the defendant has told a psychologist that, at the time that he committed these offences he really had no appreciation (to use the word he used, according to the psychologist) of how "terrible" it was what he was doing. 11. The defendant has also spoken to the psychologist of some other sexual contact that was imposed upon him as a child. 12. But I think the important issue here is the distortion in appreciation of wrongfulness, and the fact that that was a feature, as I say, at the age of about fourteen. 13. It is well-known that the doctrine of doli incapax (whereby the Crown must prove beyond reasonable doubt an appreciation of serious wrongfulness) only pertains to a defendant aged between ten and fourteen. In other words, on the one hand, that necessity of proof on the part of the Crown is not available to the defendant. But on the other hand, I think that that distortion; that lack of appreciation of wrongfulness; and, even now, the openness of the defendant, in terms of admitting that even now he finds sexual gratification from remembering what he did to the victim; would constitute a powerful mitigating feature on sentence. 14. To summarise my approach to that: I believe that a sentencing judge would regard the defendant as someone who committed these offences in a state of general immaturity, and particular distortion as to acceptable and unacceptable sexual behaviour; and would regard him as a person who had, at the least, a reduced appreciation of the profound wrongfulness of what he was doing. 15. To be weighed against that, of course, in terms of subjective matters, is that that distortion constitutes an extant, significant risk factor. It could lead a sentencing judge to form the view that his prospects of rehabilitation are poor, or at least poor without very significant therapeutic intervention. 16. To conclude my brief conspectus of subjective matters that I regard as established on balance: to repeat, he is now sixteen years of age. He has spent approaching a month in custody. He has been on bail for two years exactly. That bail has been very onerous indeed. There has been no question of any breach. 17. The final matter that I will raise at this stage is simply to note that the parties accept that, although the defendant must be dealt with according to law, even so the well-known principles in s 6 of the CCPA pertaining to the way in which the criminal justice system deals with children, including on sentence, will be applicable. Central questions 1. Structurally, there are three questions that I need to consider today. The first is, for the purposes of s 22B of the Bail Act, whether it is "practically inevitable" [scil. "realistically inevitable"] that the defendant will be the subject of full-time imprisonment when he is sentenced? see Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171; DPP v Day. That is a question of a state of satisfaction. It is an evaluative judgment. 2. Secondly, if I am satisfied of that, do I accept nevertheless that there are special or exceptional circumstances that should not lead to immediate detention today? 3. And entirely separately from s 22B of the Bail Act, what is my assessment of risk? Are there any risks that are unacceptable and that cannot be ameliorated by conditions, either those that exist now, or possible further conditions? Practically inevitable full-time imprisonment? 1. I proceed to set out a couple of preliminary matters that are agreed between the parties, and that I accept. 2. I think that this is the kind of case where it could be quite likely that, if the defendant were sentenced to full-time imprisonment according to law, even so an order would be made transferring him to a juvenile detention centre, pursuant to s 19 of the CCPA. My Associate, at my request, raised a query with counsel prior to the hearing as to whether such a process would constitute full-time imprisonment, for the purposes of s 22B of the Bail Act. The parties are in agreement that it would. I accept that joint position. That acceptance on my part, of course, says nothing as to whether detention in a juvenile detention centre directly, with regard to a child dealt with by the Children's Court, would comply with the reference to "imprisonment to be served by full-time detention" in s 22B of the Bail Act. I will not take that further now. 3. Turning then to the question of whether I am satisfied that it is realis inevitable that the defendant will be sentenced to full-time custody by a District Court judge: I must say, respectfully, that when one first reads the Agreed Facts, one, at first blush, recoils from them. One's immediate response is that full-time imprisonment is absolutely inevitable. 4. After that, however, I think one enters into a process of reflection. I, at least, have come to the assessment that very many, perhaps most, District Court judges would feel that the objective features simply "swamp" the subjective features, and would feel that the law insists that the defendant be subject to full-time detention. 5. Having reflected on that, and appreciating the significant test of practical inevitability, my ultimate position is that I think it is highly likely that full-time custody will be imposed. But I do not believe that one can say that it is practically inevitable. 6. To emphasise things that I have already mentioned: I think that the principles to be found in s 6 of the CCPA are quite profound. They will have a direct role to play here. I think that a District Court judge could take the view that rehabilitation is to be given a great deal of weight. I think a sentencing judge could feel that, bearing in mind the youth of the defendant, and his otherwise good character, it is imperative that removal of the distortion to which I have referred is the most important outcome to be achieved by the imposition of sentence. 7. I also think a sentencing judge may find that the pleas of guilty entered in the Local Court are not just a public and solemn acceptance of responsibility, but that they go a little further than that, even accepting the current lack of insight. 8. I also think that a District Court judge could give significant weight to the time spent in custody, admittedly short, and the time spent on rigorous bail, undoubtedly long. 9. To repeat myself: although I think that full-time detention is highly likely in this case, I think it is, as it were, just barely possible that a District Court judge would take a different path. That means, self-evidently, that I am not satisfied that full-time incarceration is practically inevitable. 10. In a sense, that is very largely the end of the matter, because the essential precondition for engagement of s 22B of the Bail Act has not been established to my satisfaction. But I think I should go on briefly to make an ancillary finding with regard to s 22B of the Bail Act. Special or exceptional circumstances? 1. If it were the case that the defendant would need to show exceptional or special circumstances, what is relied upon there is the pending funeral of his grandfather, who sadly died a little over a month ago. That is to be seen in the context of the relationship between the defendant and that gentleman, and also, of course, the very vulnerable and formative age at which the defendant is currently. 2. The evidence is that, doubly sadly, the funeral has been postponed more than once, because of a difficulty of raising funds. 3. I certainly do not need persuasion that the marking of a death of a beloved person is an important aspect of all human cultures, and it really has been since the dawn of time. And I also take judicial notice - quite apart from the material that has been placed before me - that with regard to the cultures of First Nations people of this country, funerals and "sorry business" are exceptionally important. 4. I must say, my expectation was that this question would have been able to be resolved by day leave from custody, so that, in a sense, the concern raised by the defendant and his counsel, and this asserted ground of special circumstances, would be obviated. But the evidence suggests that, if the applicant were detained, he would not be able to receive day leave, at least for the time being. 5. Respectfully, I find that a little odd: that a sixteen year old with no other criminal record, who has been on bail for two years, who was close to his grandfather, a young Aboriginal lad, would not be able to attend the funeral in person, even if patently under guard or even if, indeed, as needs be, physically restrained. To repeat: I find that very odd. 6. I think the point is soundly made (and accepted by the Crown) that the proposed alternative of attending by way of an audio visual link is a very poor substitute. 7. All of that is to be seen in the context of a young man who has complied with extremely rigorous bail, and, despite all the stresses and sadness of these proceedings making their way towards sentence later this year, seems to be proceeding quite well. 8. To summarise my thoughts about this aspect: if I needed to, as an ancillary finding, I would find that the position of the grandfather's funeral would constitute special circumstances, in this particular context. And I say that not forgetting the submission of the Crown that there is an undoubted lack of clarity as to when, in truth, that funeral is going to occur. Unacceptable risk? 1. That disposes of s 22B of the Bail Act on two bases. 2. The final question even so is assessment of risks and, in particular, whether any risks are unacceptable. That is a separate question, of course, from s 22B of the Bail Act. I think that it is incumbent upon me to reflect upon that de novo, because on a detention application everything is "new". [Further submissions about possible variations] 1. This young man has been on bail for two years, very restrictive bail, that was imposed by Campbell J. There has been no hint of things going wrong. Indeed, in a sense, the reason the Court has been convened is because of the undisputed, powerfully retrospective effect of s 22B of the Bail Act. 2. I must say that I think in the circumstances - and this is not the slightest criticism of Campbell J, but in making my own assessment - that the age restriction in terms of contact that currently pertains should be increased from ten years to thirteen years. So, to be clear: my thought is that the current condition that reads "not to be alone with any child under the age of 10 years" will have the age 13 years substituted for the age 10 years. I say that because, to repeat myself, I think that there is a significant distortion that has developed here. And I think that there is a question of endangerment. 3. Having said that, the other conditions are extremely rigorous. There has been no sign of anything going wrong. I understand the force of the application by the Crown made now for enforcement of the curfew, including enforcement that could be extremely disruptive to the household. I see the force of that, and I see the concern that underpins that. But I believe that that would be too intrusive. To repeat myself: for two years this sixteen year old has been on bail, and everything has proceeded without difficulty. 4. For that reason, the only variation that will be made as part of my assessment of amelioration of risks, for the purposes of ss 17 and 18 of the Bail Act, will be the one of which I have spoken. Orders 1. The detention application is refused. 2. Condition of bail varied: 1. The applicant is not to be alone with any child under the age of 13 years. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2022