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 His bail in respect of several offences has been revoked and he has been in custody since 20 December 2022. Bail was revoked in respect of earlier offences due to fresh allegations which are alleged to have been committed on 6 December 2022. 2.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. Unacceptable Risk Legislative Framework 1. Section 19(1) of the Bail Act 2013 (NSW) (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. 2. The release application was first listed before me on Tuesday, 17 January 2023. On that occasion, a Youth Justice Report, dated 13 January 2023, was tendered. The Report provided some brief background information, including that the applicant is currently in the care of the Minister until he attains the age of 18. He is case managed by Life Without Barriers. In the event that he is released, the proposal was that he would return to the care of Life Without Barriers and reside within one of their intensive therapeutic care homes. 3. Ms Corrie, Life Without Barriers Case Manager, reported that the applicant had not engaged with his education and schooling, although if released to the community, he will be re-enrolled at his local High School. 4. The Report states that the applicant has found it challenging to get along with his peers in detention and has struggled to follow staff directions. He has been the subject of 16 misbehaviour reports. However, the Report notes that the applicant self-referred to the Unit Psychologist on 6 January 2023 for intervention. 5. The Report concludes by stating that in accordance with the 2005 Bail Protocol between the Children's Court of New South Wales and Youth Justice, bail supervision of young people who have not yet entered a plea of guilty or been found guilty of an offence, cannot be provided by Youth Justice. Case management will continue to be provided by Life Without Barriers. 6. On the last occasion the matter was before me, there was no evidence from Life Without Barriers, or any other service. I expressed the view that the material was wholly insufficient to provide a case plan to support this young person who obviously has very complex needs. I also expressed some disquiet about the Bail Protocol which appears to prohibit supervision by Youth Justice of young people on bail unless there has been a plea of guilty or a finding of guilt. I will come back to this issue. 7. In light of the concerns raised, the proceedings were adjourned until 19 January 2023. Ms Walker, on behalf of the applicant, has worked tirelessly to obtain fresh material to assist the Court. 8. Included in that material is a letter prepared by Mr Spence, Director of Child Youth and Family New South Wales at Life Without Barriers. I have also received a further Youth Justice Report, dated 18 January 2023. 9. The letter prepared by Mr Spence provides some detail in relation to the applicant's background. He was taken from the care of his parents in 2011 based on ongoing concerns for his safety and well-being. The nature of the concerns centred on parental substance use, neglect, and unsafe living conditions. The applicant was exposed to what is described as "chronic violence" perpetrated by his father against his mother. He was placed in foster care but experienced multiple placement changes before being placed with his maternal grandmother. Despite best efforts, she was struggling to meet the applicant's needs. New South Wales Police and the applicant's school had raised concerns that he was not being adequately supervised. 10. When the placement with his grandmother ended in March 2022, the applicant was placed in an intensive therapeutic care home on 5 September 2022. This home is operated by Life Without Barriers. On the same date, responsibility for his case management services transferred to Life Without Barriers. 11. It is clear that the applicant requires an intensively supported residential placement with a stable environment, appropriately skilled staff, and access to specialist support which can assist him with building his living skills and support his recovery from trauma. 12. It is proposed that if the applicant returned to the intensive therapeutic care placement, a case plan will be implemented that will include placement and permanency; dealing with family and significant relationships; attending to education health and medical needs; and reconnecting the applicant to culturally appropriate therapeutic programs. 13. The applicant has been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, and conduct disorder. He has previously been seen by a paediatrician but had declined to attend further appointments since December 2021. Psychometric testing has not been possible to date. It is proposed that if released to bail, the applicant would be reviewed by a general practitioner at the Aboriginal Medical Services which provides culturally appropriate health services with an understanding of the unique needs of young people who have experienced trauma and out-of-home care. 14. It is also proposed the following general health review, paediatric review, and implementation of a full positive behaviour support plan, options for psychometric assessment will be determined in consultation with the applicant's medical practitioners and the school. 15. The Updated Youth Justice Report confirms that the applicant remains in the care of the Minister. Youth Justice have also liaised with Ms Corrie from Life Without Barriers to confirm that registration paperwork is being completed for the applicant to access medical services and culturally appropriate support. Further, the applicant will be connected with a support specialist as well as an opportunity to participate in the Police Citizens Youth Clubs (PCYC) program. A return to school plan will be completed to ensure appropriate support is in place for the applicant. 16. I take the opportunity to express the Court's appreciation to Ms Lajtar, Youth Justice Caseworker, who has provided the Youth Justice Reports and has attended Court to assist in the proceedings. 17. I referred earlier to the Bail Protocol that prohibits supervision by Youth Justice of children on bail unless they have pleaded guilty or have been found guilty by a court. I expressed some disquiet about this policy when the matter first came before me. 18. As far as I understand, the policy is premised on the basis that to supervise a young person on bail, and to effectively provide services, Youth Justice Caseworkers would need to engage with the young person about their offending behaviour. It would be entirely inappropriate to do so in circumstances where a young person has pleaded not guilty. I accept that a capacity to engage effectively with underlying issues giving rise to the offending conduct may require discussion about that conduct. I do not, however, accept that it is a necessary precondition to supervision on bail. 19. I see no reason why supervision on bail, by way of ensuring that the applicant attend school or other education programs, employment programs, or drug and alcohol counselling, would not be possible unless the applicant has pleaded guilty or been found guilty. 20. In making these remarks, I want to be clear that I am not critical of any individual Youth Justice Officer or Caseworker. I fully appreciate their hard work, commitment, and dedication. 21. What is clear on the material before me is that the applicant is a 12-year-old Aboriginal child with complex needs. He is in the care of the Minister until he attains the age of 18. Having received the additional material, which has been tendered in support of the release application, I am more confident that the services identified are alive to the importance of providing intensive support and supervision to address the applicant's complex needs, to increase the likelihood of compliance with court orders, and to reduce the risk of reoffending. Section 18(1) Matters 1. I have considered the following matters pursuant to s 18(1) of the Bail Act: 1. The applicant is 12 years old. He has a criminal record which reveals multiple breaches of bail. On one occasion, warrants issued for his arrest. It does not appear, however, that he has ever been sentenced for any of the allegations brought against him; and 2. Although the applicant is in the care of the Minister, he has been placed in an intensive therapeutic care program with Life Without Barriers and has supports in the community. 1. An assessment of whether the risk is unacceptable also includes consideration of whether the risk can be mitigated by bail conditions: see R v Hamilton [2022] NSWSC 127 at [14]. 2. In R v Tsintzas [2017] NSWCCA 172, N Adams J said: "Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, 'The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk'. I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk." 1. I am satisfied that there are the following bail concerns – namely, a risk of commission of a serious offence, and a risk of danger to the community. I come to that conclusion given the nature and number of allegations. However, I have also had regard to the fact that the applicant is a 12-year-old Aboriginal child with a background of profound disadvantage and deprivation. It is entirely fitting that someone of his young age and vulnerability should be supported and supervised intensively in the community rather than detained. 2. Accordingly, I grant the application on the following conditions: 1. The applicant is to be of good behaviour. 2. The applicant is to appear at Dubbo Children's Court on 13 February 2023 and thereafter as directed. 3. The applicant is to live at XXX and nowhere else. 4. The applicant is to comply with a curfew: not to leave the premises at which the applicant is required to live between the hours of 6:00pm and 6:00am except in the following circumstance(s): 1. When in the company of a staff member from Life Without Barriers. 1. The applicant is to be released from the Youth Detention Centre where he is being detained in the company of a person nominated by Youth Justice who must be in attendance at the Centre before the applicant is released. 2. The applicant is not to have any contact with XXX, either directly or indirectly, except in circumstances where they are both in attendance at PCYC or school. 3. The applicant is not to approach or communicate with, or attempt to make contact with, any prosecution witness [any person who the applicant has been notified as a prosecution witness] other than a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative. Day to day contact with staff members or other residents at Life Without Barriers in XXX does not constitute a breach of this condition. 4. The applicant is to obey any reasonable direction given to him by: 1. Case Workers; 2. An Officer of the Youth Justice Office. 1. The applicant is to accept an enrolment to XXX to commence schooling in Term One 2023 and is to accept referrals made for paediatric, psychiatric, or psychological assessments and counselling, as well as accept any referrals to PCYC as directed by Youth Justice or Life Without Barriers and attend all appointments or programs as arranged for him. Amendments 16 February 2023 - Amendment to paragraph [32] 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: 16 February 2023