R v JH [2023] NSWSC 93

Supreme Court New South Wales

Medium Neutral Citation: R v JH [2023] NSWSC 93 Hearing dates: 17 January 2023; 19 January 2023 Date of orders: 19 January 2023 Decision date: 15 February 2023 Jurisdiction: Common Law Before: Yehia J Decision: Bail is granted subject to the conditions stated in paragraph [32] Catchwords: BAIL — Aboriginal child — Unacceptable risk — Whether the proposed conditions mitigate risk — Whether Youth Justice can supervise a child on bail in the community where the child has pleaded not guilty to the offence — Conditional bail granted Legislation Cited: Bail Act 2013 (NSW) ss 17, 18, 19 Cases Cited: R v Hamilton [2022] NSWSC 127 R v Tsintzas [2017] NSWCCA 172 Category: Principal judgment Parties: JH (Applicant) Rex (Respondent) Representation: Solicitors: Aboriginal Legal Services (NSW/ACT) (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2023/00010645

Judgment 1. The applicant, JH, is 12 years old. His bail in respect of several offences has been revoked and he has been in custody since 20 December 2022. Bail was revoked in respect of earlier offences due to fresh allegations which are alleged to have been committed on 6 December 2022. 2. The applicant is to appear at Dubbo Children's Court on 13 February 2023 for summary hearing in respect of allegations of larceny; malicious damage; and aggravated break, enter and commit a serious indictable offence. He also has matters listed for mention today at Orange Children's Court. These proceedings relate to allegations of intimidation; assault; larceny; aggravated damage of property; and aggravated break, enter and commit a serious indictable offence. 3. The applicant makes an application for release to bail. That application is opposed by the Crown. The Crown submits that there are a number of unacceptable risks, namely: 1. A risk of nonappearance; 2. A risk of commission of a serious offence; and 3. A risk of danger to the victim, individuals, and/or the community. 1. The applicant has pleaded not guilty to the allegations. Given the age of the applicant, doli incapax will be a major issue. In written submissions, the Crown submits that in some matters, the applicant has made admissions, "although he does not seem overly bright". 2. The offending ranges from shoplifting, minor violence towards his carer, using lighters to damage property, and, more concerning, an allegation of breaking into a school and causing damage by fire. 3. The applicant has breached bail in the past and has a history of non-compliance.