Supreme Court New South Wales Medium Neutral Citation: R v JB [2023] NSWSC 94 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 [23] 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: JB (Applicant) Rex (Respondent) Representation: Solicitors: Aboriginal Legal Services (NSW/ACT) Office of the Director of Public Prosecutions File Number(s): 2023/00010679 Judgment 1. The applicant, JB, is a 14-year-old Aboriginal child who has been bail refused since 25 November 2022. He is facing several charges, namely, allegations of assault and intimidation said to have occurred on 28 September 2022. Those matters are listed for summary hearing on 10 February 2023. 2. In respect of those matters, he was granted bail in the Supreme Court of New South Wales on 11 November 2022 by Dhanji J. That bail was revoked on 25 November 2022 as a result of fresh allegations. The fresh allegations relate to offences of aggravated break, enter and steal, and being carried in a stolen car. Those allegations are listed for summary hearing on 17 February 2023. He is bail refused in respect of those allegations. 3. As I understand it, the issue in respect of each of the matters that are before the Court is doli incapax. The applicant was previously living with his mother and it is clear that he was somewhat of a handful. The allegations relate to a time when he was living with his mother. 4. The Crown opposes bail, raising legitimate bail concerns that the applicant poses a risk of committing a further serious offence, and a risk of endangering the community. 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 allegations, the subject of this application, are serious. In particular, it is alleged that on 24 November 2022, the applicant, together with multiple co-accused, entered a house while the occupants were sleeping inside. One of the occupants was woken, having heard footsteps, and he observed numerous cupboard doors open, the front door open, and the fly screen clipped. The actions of the group were captured on CCTV. 3. The applicant's bail report discloses a number of charges previously dismissed on the basis that the prosecution could not rebut doli incapax. The applicant has not been found guilty or sentenced previously. 4. This matter first came before me on Tuesday, 17 January 2023. At that time, a Youth Justice Report, dated 13 January 2023, was tendered. In part, it read: "Initially, JB struggled adapting to his custodial environment and struggled to maintain pro social behaviours. Since arriving at Reiby on 03 December 2023, JB has received 6x Misbehaviour Reports for: Fighting, Disobedience, Bad Language, Damage to property and Subversive behaviour. … JB has steadily improved his custodial behaviour over the past 4 - 5 weeks which is evident due to JB appearing a lot more settled in the unit dynamics. Over the past few weeks JB has worked closely with the centre psychology team which appears to be a positive factor in his improvement in most aspects of custody." 1. The Report goes on to state: "JB has demonstrated over the last 4 weeks very settled and compliant behaviours; this includes excellent program participation and the ability to reflect on his behaviour when staff have had to address JB. All reports indicate that JB has developed skills to manage his emotions when dealing with peer conflict and often asks to move away from others when he feels he is getting angry or could make a poor decision which will impact on his progress and this has been recognised by the management team and JB has now progress to stage 3 on the incentive scheme." 1. The Report also states that Ms Stevenson, Clinical Psychologist, Reiby Youth Justice Centre, confirms that JB is currently engaged in various interventions in detention, including WAVE, which is a modified dialectical behavioural therapy for adolescents. Additionally, JB has commenced individual psychology sessions whilst in detention. 2. The Report states that if released to bail, Youth Justice cannot supervise the applicant unless a plea of guilty is entered or in the event he is found guilty. The policy is based on a 2005 Bail Protocol between the Children's Court of New South Wales and Youth Justice. 3. I have expressed on several occasions some disquiet about the Protocol. I make the following remarks, acknowledging that I have not been privy to the discussions and agreements that led to the Protocol. However, I am compelled to make these remarks because I have raised these concerns in several bail applications that came before me. In making these remarks, I do not intend to be critical of any individual Youth Justice Officer or Caseworker. I fully appreciate their hard work, commitment, and dedication. 4. As far as I understand it, 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. I accept that a capacity to engage effectively with underlying issues giving rise to offending conduct may require discussion about that conduct. This would be impossible to do in circumstances where a young person has pleaded not guilty. However, I do not accept that it is a necessary precondition to supervision on bail. 5. For instance, the applicant in this case is currently engaged in various interventions in detention. Ms Stevenson reports that he is, for example, engaged in psychological sessions. One asks rhetorically: how it is that he can engage in such treatment whilst in detention, but not be supervised on bail in the community by Youth Justice, when, in both instances, he is awaiting the proceedings being heard having pleaded not guilty? 6. One can imagine supervision by way of ensuring that the applicant attends school or other education programs, employment programs, and/or substance abuse counselling, without necessarily having to discuss the offending conduct. 7. What is clear on the material is that the applicant is a 14-year-old Aboriginal child with complex needs. His mother is doing her best but requires assistance from the services which exist to provide such support and expertise. 8. Having expressed some of these concerns on the last occasion, the release application was adjourned until 19 January 2023. Further enquiries have been made on behalf of the applicant by his solicitor, Ms Walker. Those inquiries were made to explore the capacity of local services to provide additional support for both the applicant and his mother. 9. Ms Bastick from Police Citizens Youth Clubs (PCYC) has provided further information, namely, that Ms Young, a School Liaison Officer, is organising an appointment with the applicant's local High School for the applicant and his mother to attend to arrange the applicant's re-enrolment in school. Ms Bastick will work with the applicant in a mentoring capacity, including supporting him through school. Furthermore, a referral has been made to Headspace to enable the applicant to continue with counselling. Lastly, arrangements have been made through One Door Mental Health Service for a carer's advocate, who has been appointed, to assist the applicant's mother. Section 18(1) Matters 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 the fresh material discloses a more structured plan to support the applicant and his mother if the applicant is released. Clearly, there exists a legitimate bail concern that if released on bail, the applicant would commit a serious offence, or endanger the safety of the community. 2. However, I have taken into account the following in determining that he should be released to bail: 1. The applicant is a 14-year-old Aboriginal child with complex needs and vulnerabilities that are better treated and protected in the community; 2. The applicant has strong family and community ties; and 3. The proposed bail conditions, as updated, go a long way to ameliorating the risks identified. 1. Accordingly, I grant the release application on the following conditions: 1. The applicant is to be of good behaviour. 2. The applicant is to appear at Tamworth Children's Court on 10 February 2023 and thereafter as directed (he is excused from appearing at Tamworth Children's Court on 25 January 2023 if legally represented). 3. The applicant is to live at XXX and nowhere else. 4. The applicant is to report to the Officer in Charge at XXX Police Station each Monday and Friday between the hours of 7:00am and 7:00pm. 5. The applicant is to comply with a home detention condition: not to leave the premises at which the applicant is required to live except in the following circumstance(s): 1. When in the company of his mother, XX, a staff member from PCYC, a staff member from One Door Mental Health, or a staff member from the Department of Education; or 2. For the purposes of reporting to the police; or 3. To attend [pre-arranged] conferences with his legal representatives; or 4. To attend court; or 5. To obtain [emergency] medical treatment; or 6. To attend school; or 7. To attend PCYC programs. 1. The applicant is not to be released from the Youth Detention Centre in which he is being detained except in the company of a person nominated by Youth Justice. 2. The applicant is not to approach or communicate with, or attempt to make contact with, XXX, XXX, XXX, and XXX by any means, including telephone and internet social media platforms, or through another person, other than a legal representative, unless at school or PCYC. 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 his mother, or a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative. 4. The applicant is not to enter XXX except for the purposes of attending court, or pre-arranged conferences with legal representatives, or scheduled medical appointments. 5. The applicant is to obey all 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 High School to commence schooling in Term One 2023 and is to accept referrals made for paediatric, psychiatric, or psychological assessments and counselling as directed by One Door Mental Health, Headspace or PCYC, and is to attend programs as directed by One Door Mental Health, Headspace, or PCYC. 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 February 2023