R v KO [2024] NSWSC 679

Supreme Court New South Wales

Medium Neutral Citation: R v KO [2024] NSWSC 679 Hearing dates: 7 May 2024 Date of orders: 7 May 2024 Decision date: 07 May 2024 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Bail is granted with conditions. Catchwords: BAIL – release application – young person – 14 years old – concerning charges – further offence committed whilst on bail – Bail Act 2013 (NSW), s 22C test – relevant offences – attempt to commit substantive offence is not a relevant offence – unacceptable risk test – bail granted with conditions Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Cases Cited: R v RB [2024] NSWSC 471 Category: Principal judgment Parties: KO (Applicant) Rex (Crown) Representation: Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2024/158142 Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED) 1. HIS HONOUR: KO, to whom I shall refer as the applicant, has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) (the Act). The applicant is just 14 years of age, having been born in March 2010. His custody relates to two groups offences. He was first arrested on 11 March 2024, and charged with attempted break and enter with intent to steal, in circumstances of aggravation, that being knowing that there were persons present. It seems that he was bailed in relation to that matter, when he was subsequently arrested on 23 April 2024, and charged with an offence of stealing a motor vehicle, dangerous driving and driving whilst unlicensed, alleged to have been committed on 14 April 2024. He has remained in custody since his arrest on 23 April, a period of some two weeks. 2. The charges are concerning. The first charge of attempted break, enter and steal relates to an allegation that the applicant was, before 4:10am on X March 2024, that being the date of his fourteenth birthday with four other alleged offenders, captured on closed circuit television footage entering a property, whereupon he attempted to obtain access to a car parked in the driveway. On the Crown case he tried to push the garage door open, but was unsuccessful. The Crown alleges that he took an ashtray from the front door area. The occupant of the premises heard noises, woke up, and walked out the front door of the premises. She was confronted by three of the alleged offenders, who were armed with weapons, including a bat and knives. The applicant is not alleged to have been one of those persons. Rather, he is alleged to have run from the scene sometime earlier, prior to the complainant coming out. 3. As I said, the applicant was on bail in relation to that matter when he is alleged to have been driving a stolen vehicle. In relation to that matter, it seems that unknown persons obtained by force, entry to premises and stole the complainant's car key, together with some other items. It is subsequently alleged that the applicant was driving the vehicle. On the Crown case, he was seen by a witness, driving the vehicle towards her at fast speed. It is alleged that the vehicle changed direction such that it was driving directly towards the witness's vehicle, before turning away at the last second. The witness continued to observe the vehicle driving around town erratically, including speeding through give-way signs, throughout the Bourke township. At that stage the witness does not suggest that she was able to observe the driver. Approximately forty-five minutes after the first observation, police observed the vehicle travelling at speed. Police activated warning lights in pursuit of the vehicle, however the vehicle failed to pull over. Due to the speed of the vehicle and the danger created, the police pursuit was terminated, and again, it is not suggested there is evidence of who was driving at that time. A further forty-five minutes later the witness was apparently driving around town searching for the vehicle. The witness got out of their car, for the purposes of speaking to the owner of the vehicle, who I presume was also out looking. The witness is then said to have seen the vehicle travelling towards them, before again swerving away at the last second. On this occasion, the witness says that she observed the applicant in the driver's seat of the vehicle. The vehicle apparently continued to drive away. The witness has apparently lived in Bourke for approximately 40 years, and has known the young person for the entirety of the young person's life. It is alleged that some five minutes later the vehicle with the applicant driving returned to the area, and again began driving towards the witness, before turning away at the last second. On this occasion it is alleged that the applicant yelled out to the witness from the driver's seat. The witness does not recall what was said, but told police that the applicant has a distinct voice, which was immediately recognisable. Some ten minutes later tyre deflation devices were used by police, and the vehicle's tyres were spiked. The vehicle continued to drive to the far westerly part of Bourke before police lost sight of it. The following day the vehicle was located, by which time it had been burnt out. 4. Before determining whether the applicant should or should not be released on bail, it is necessary to identify the test to be imposed. I note that s 22C of the Act was recently enacted. That provision commenced on assent on 3 April 2024. The applicant is alleged to have committed the driving offence whilst on bail in relation to the earlier offence. He was 14 years of age at the time of both offences. 5. The attempted aggravated break enter and steal is alleged to have been committed prior to the enactment of s 22C. The offence of stealing a motor vehicle is alleged to have been committed after the enactment. The transitional provision, on my reading, is such that the provision would apply in the event that both offences are relevant offences for the purposes of s 22C. 6. I note that in R v RB [2024] NSWSC 471 Justice Lonergan gave a restrictive reading to the transitional provision, but even on her Honour's restrictive reading it would apply in the circumstances of this matter subject to, as I have said, the offences being relevant offences. 7. Section 22C of the Act provides: 22C Temporary limitation on bail for certain young persons in relation to certain serious offences (1) A bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence unless the bail authority has a high degree of confidence the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions. (2) A decision under subsection (1) may be made only after— (a) an assessment of bail concerns is made under Division 2, and (b) consideration of whether any bail conditions could reasonably be imposed to address any bail concerns or risk the relevant young person will commit a further serious indictable offence. (3) To avoid doubt, the requirement under this section to establish that bail should be refused for the relevant young person remains with the prosecution. (4) This section applies despite anything to the contrary in this Act. (5) This section expires 12 months after this section commences. (6) In this section - motor theft offence means an offence under the following sections of the Crimes Act 1900 - (a) section 154A, (b) section 154C, (c) section 154F. relevant offence means - (a) a motor theft offence, or (b) a serious breaking and entering offence, or (c) an offence under the Crimes Act 1900, section 154K, if the underlying offence is a motor theft offence or serious breaking and entering offence. relevant young person, for a relevant offence, means an individual who is, at the time the relevant offence is alleged to have been committed - (a) 14 years of age or more, and (b) less than 18 years of age. serious breaking and entering offence means an offence under the Crimes Act 1900, Part 4, Division 4 that is punishable by imprisonment for a term of 14 years or more. serious indictable offence has the same meaning as in the Crimes Act 1900, section 4(1). 1. As can be seen, the test applies to restrict a grant of bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence. The definition of a relevant young person is such that the applicant being between the ages of 14 and less than 18 at the time the offences were committed would be a relevant young person subject to the offences being relevant offences. 2. Relevant offences can be seen to include within the definition a motor theft offence, which would include the offence allegedly committed on 14 April 2024. Thus the more recent offence is a relevant offence. 3. The definition of relevant offence also includes a serious breaking and entering offence, which is defined to mean an offence under Part 4 Division 4 of the Crimes Act 1900 (NSW) that is punishable by imprisonment for a term of 14 years or more. It is common ground that the offence charged against the Applicant is an offence of attempt to commit an offence that is otherwise within Part 4 of Division 4. 4. It is agreed that the break and enter offence alleged against the applicant on 7 March 2024 being an attempt and not a substantive offence is not a relevant offence, and s 22C of the Act, therefore, does not apply. 5. It is necessary then to apply the unacceptable risk test. That is to say pursuant to s 19 of the Act if I am satisfied on the basis of an assessment of bail concerns the applicant presents an unacceptable risk, then bail must be refused. The bail concerns which inform the unacceptable risk test are those matters set out in s 17 of the Act. 6. Having regard to the nature of the allegation, and particularly the driving matter, there is necessarily a very real concern with respect to the applicant committing a serious offence or otherwise endangering the safety of the community more generally. There is necessarily great concern in circumstances where it is alleged that a person who is untrained and immature was behind the wheel of a vehicle driving at speed, and it is alleged, deliberately driving in a manner so as to put people in fear, and leaving little margin for error. Before being bailed in such circumstances it is necessary to have regard to what can be put in place to ameliorate the necessary concerns. 7. Before turning to those matters I firstly make one observation. It was submitted on behalf of the young person that the case is not overwhelming. It is difficult to make any real assessment at this point in time. Clearly, the case relies on the identification of the applicant, both by sight and voice. In terms of visual observation it is true that it was night-time. There were headlights, windscreens and the like, which may or may not have made it more or less difficult to see. The applicant, on my viewing of him, would not sit significantly above the steering wheel or dashboard of the vehicle. On the other hand, the witness claims to have known the applicant all his life, although the circumstances in which the applicant is known to the witness are not made clear. The visual identification is, however, supplemented to some extent by the voice identification. 8. Again, it is difficult to make on the material before me, any clear assessment, but it seems to me whilst perhaps the case cannot be described as overwhelming, that the case is at least reasonably strong. 9. Against that reasonably strong case there are a number of circumstances which militate in favour of a grant of bail. Firstly, the applicant has not previously been convicted of any offence. It follows from that that this is his first experience of custody. Secondly, the evidence is that the applicant's time in custody has been difficult for him. The Youth Justice Report indicates that whilst he presented on arrival at the Youth Justice Centre as respectful, he has had great difficulty in adjusting to custody. That would appear to be a corollary of the evidence which establishes that he comes from a very close family and that he is having difficulty being away from them. He has reported difficulty in sleeping in custody. The result of those matters is that it can be expected that having spent this past two weeks in custody, and aware that he will return to custody if he breaches his bail in any way, he will be strongly motivated to avoid coming to adverse notice of the police. 10. Thirdly, related to the strong family ties, I am told and I accept that the applicant's detention in custody has been very difficult for the family. One result of that is that his mother has indicated that she will take a greater role in supervising him to ensure that he does not breach his bail conditions. 11. Fourthly, at the time the applicant was arrested it seems that he was not attending school, or engaged in any constructive organised community activity. Since his arrest, and in the context of this bail application, he has agreed to return to school, and will attend the local PCYC and additionally accept the support which is offered to him by Youth Justice. 12. Fifthly, there is the reality, based on his young age and lack of prior convictions, that even if convicted of this matter, a custodial sentence is unlikely. That matter was candidly and helpfully accepted by the Crown Prosecutor. In those circumstances there is significant injustice in detaining somebody in custody in circumstances where the penalty that would ultimately be imposed on a finding of guilt would not result in such a such an outcome. 13. Combining those matters, I am satisfied that despite the concerns to which the alleged conduct gives rise, the bail concerns do not rise to the point where the risk posed is unacceptable. Bail is granted subject to conditions.