R v WB [2023] NSWSC 591

Supreme Court New South Wales

Medium Neutral Citation: R v WB [2023] NSWSC 591 Hearing dates: 29 May 2023 Date of orders: 29 May 2023 Decision date: 29 May 2023 Jurisdiction: Common Law Before: Lonergan J Decision: Bail is granted subject to the conditions stated in [17]. Catchwords: BAIL – Aboriginal child – whether proposed conditions mitigate risk – whether Youth Justice can (should) supervise child where the child has pleaded not guilty – the valuable resource of Youth Justice staff – conditional bail granted Cases Cited: R v JB [2023] NSWSC 94 R v JH [2023] NSWSC 93 Category: Principal judgment Parties: WB (Applicant) Rex (Respondent) Representation: Solicitors: Aboriginal Legal Services (NSW/ACT) Ltd Office of the Director of Public Prosecutions File Number(s): 2023/00160761 Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT 1. This applicant for release is almost 17 years old. He has been in custody since 30 April 2023, a period of 1 month. His charges are progressing through early phases in the Children's Court with a robbery in company charge listed at Dubbo Children's Court for reply to brief on 29 May 2023 (today), and a series of other charges said to have arisen from the behaviour of the applicant on 29 April 2023. Those charges are listed for mention before Walgett Children's Court on 13 June 2023. 2. This suggests it will be some months before WS is in a position to have his charges dealt with by the justice system. In my view, that is a very significant matter for a young person to be waiting in custody for his charges to be heard for such a lengthy period. 3. The 29 April alleged offending comprises a series of significant charges. As pointed out by WB's solicitor, there are some question marks over identification and significant admissibility issues about the basis (contained in the police facts) of the alleged identification. The offences comprise break and enter and steal to the value greater than $60,000 (I am assuming is a reference to a car), two counts of police pursuit, not stop/drive dangerously, what is termed "predatory driving", one count of steal vessel, one count of take and drive conveyance, one count of damage property by fire, and finally driving unlicensed. Identification evidence comprised an assertion by a police officer that he recognised the applicant from seeing him driving the car in question at 2:45am, and that "members of the public" told police it was WB who was responsible. 4. I accept that there is a large question mark over that identification evidence. 5. I accept also the submission that there is a question mark over identification in respect of the 24 March 2023 charge as well. 6. Of course these issues are for another court at another time but those matters add to my disquiet about this young person waiting in custody for a long time for his charges to be heard. As a young person, focus needs to be on rehabilitation not incarceration. 7. WS has been living with his grandparents. He has had three admissions to custody previously for remand periods. Each time there were positive things said about him by the people who supervised him. 8. I have a very helpful, intelligent Youth Justice report dated 26 May 2023. However, somewhat to my dismay, the authors have taken the view that they "cannot" supervise WB because he has not entered pleas of guilty or been found guilty, citing the 2005 bail protocol between the Children's Court of New South Wales and Youth Justice. 9. I share the views of Yehia J set out in the decision of R v JH [2023] NSWSC 93 at [24] to [26]. There her Honour, having expressed her own disquiet about this protocol, said: "[24] 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. [25] 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. [26] 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." 1. Her Honour made similar comments in R v JB [2023] NSWSC 94 at [11] to [15]. 2. I agree with her Honour's remarks. This particular case throws into sharp relief the problems with the inflexible approach prescribed in the 2005 protocol. This young person is entitled to act upon advice from his legal advisers to plead not guilty and/or to raise appropriate matters in defence of the charges levelled against him. 3. He is a person who faces the criminal justice system as a young man of only 16 to 17 years old. It is a challenging and complex position to be in. 4. He is supported by his grandparents in the community who obviously love him and want him home with them, but he also needs support and assistance with his mental health difficulties and with useful employment agencies to help him transition from school to being a worker, which is what he has indicated he wants to do. 5. It is a tragedy that well-trained, conscientious and experienced people such as those who have written this Youth Justice report are, it seems, told that they are unable to assist in supervision, but instead are limited to providing what is termed, somewhat coyly and vaguely, "bail support" referred to in the Operational Memorandum of 25 January 2023 from the Assistant Director of Policy and Practice at Communities and Justice directed to all Youth Justice New South Wales employees. In my opinion young people need more than discretionary "support". 6. I have been provided for my assistance today by the legal representative appearing for the Aboriginal Legal Service a document titled "Youth Justice Remand Intervention and Bail Services Facts Sheet", a five page document which, in my view, introduces a level of uncertainty about the scope of "bail supervision" as opposed to "bail support". This is problematic in circumstances where there needs to be clarity as to responsibility and parameters of assistance and support that can be provided to young vulnerable people in our community accused of criminal offences. 7. Every participant in our criminal justice system is entitled to plead not guilty and to have his or her charges proven beyond reasonable doubt. Young vulnerable people like this young man need, and should be entitled to, the same level of supervision as those who plead guilty while they are waiting for the criminal justice system to mete out justice. 8. Having said all of that, the considerations set out in the helpful Youth Justice report convince me that it is appropriate that this young man be released on the proposed conditions that in my view will maintain any risk he presents to below the level of unacceptable.