Supreme Court New South Wales Medium Neutral Citation: R v YA [2024] NSWSC 1445 Hearing dates: 4 November 2024 Date of orders: 4 November 2024 Decision date: 04 November 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) The detention application is refused. (2) Bail to continue in its current form. Catchwords: CRIMINAL LAW – bail – detention application – where court satisfied respondent will be sentenced to full-time imprisonment – section 22B Bail Act – "special or exceptional circumstances" – where offender under 18 at the time of the offences – where kept in juvenile detention centre before bail granted – where offender now an adult – where legislation provides no power or discretion in bail court for offender to be detained in detention centre on remand – possible lacuna in legislation – where sentencing court has power to order offender to be detained in juvenile institution upon sentence – threats from other accused – where sentencing proceedings to occur in the next 6 weeks – prosecution of detention application fairly and properly muted – special or exceptional circumstances established – application refused Legislation Cited: Bail Act 2013 (NSW), ss 17, 18, 19, 22B Children (Detention Centres) Act 1987 (NSW), ss 3, 5, 9, 9A, 28A, 28B, 28BA Children's (Criminal Proceedings) Act 1987 (NSW), s 19 Crimes (Administration of Sentences) Act 1999 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 El-Hilli and Melville v R [2015] NSWCCA 146 R v Diallo & Ors (No 5) [2024] NSWSC 914 R v Diallo & Ors (No 6) [2024] NSWSC 917 Category: Procedural rulings Parties: Rex (Applicant) YA (Respondent) Representation: Counsel: E Balodis (Rex) P Kondich (YA) Solicitors: Office of the Director of Public Prosecutions (Rex) King & York Lawyers (YA) File Number(s): 2022/00052010 Publication restriction: Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW). Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 October 2023 Before: Judge Newlinds SC DCJ File Number(s): 2021/00039479 EX TEMPORE JUDGMENT (REVISED) 1. On Friday last week YA entered pleas of guilty to three offences which he committed, along with four others, on 1 September 2021. The offences were (1) the manslaughter of Oliver Coleman, (2) the wounding of EO with intent to cause grievous bodily harm, and (3) the wounding of EC with intent to cause grievous bodily harm. 2. The factual circumstances as well as the background of these offences are quite well-known to me because I presided over a pre-trial hearing and a trial of the other four young offenders, which ended in verdicts on 23 September 2024. In general terms, the offences involved a dispute between two rival – what I will call – "street gangs", which resulted in an extraordinary incident of violence in the suburban streets of Blacktown on 1 September 2021 with, as can be seen by reference to the first count on the indictment, tragic consequences. 3. The factual material before me today includes not only the information that I acquired while presiding over those proceedings, but also evidence which was subject to objection in the course of the pre-trial hearing, which involves a Snapchat video of YA boasting about having stabbed somebody on the night before the charges currently before the Court. It also included some CCTV footage, which was tendered as part of a proposed tendency and/or coincidence case for YA's trial, which involved an incident at a bus stop in which YA can be seen being detained following an affray-type incident and having in his possession a knife at that stage. As I understand it that matter, while it is quite old, is still before the Local Court. 4. Upon entering his pleas of guilty YA is exposed to substantial maximum penalties of imprisonment. The maximum penalty for each of the offences is 25 years imprisonment and, in respect of counts 2 and 3, there is an applicable standard non-parole period of 7 years. However, because he was under 18 at the time of the offences, the standard non-parole period does not apply. [1] 5. Upon the entry of the pleas of guilty last Friday the Prosecutor immediately foreshadowed an application that YA's bail be revoked. He was granted bail by Justice Weinstein on 21 April 2023. The Prosecutor relies on s 22B of the Bail Act 2013 (NSW) which provides: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court— (a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5) In this section— conviction also includes a plea of guilty. Note— Conviction is defined in section 4(1) to include a finding of guilt. 1. The section has been subject to authoritative comment by Justice Gleeson of the Court of Appeal in Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171. 2. There can be little doubt, in fact there is no doubt, that YA will be sentenced to imprisonment by way of full-time detention as a result of the commission of these very serious offences. No submission to the contrary was made by his barrister, Mr Kondich, today. Accordingly, the "special or exceptional circumstances" test applies and unless such circumstances are established, bail must be revoked and refused. 3. This has been held to be a very high bar. It is the same test, in the sense of its statutory terms, as applies to bail on appeal and that has been the subject of many cases: see, for example, El-Hilli and Melville v R [2015] NSWCCA 146. However, the cases on the special or exceptional circumstances test are not generally of great assistance because most of them apply to cases involving appeal bail where rather different considerations apply. In those cases, speaking generally, a bail authority or a court is required to consider the prospects of success of the appeal and whether any sentence will have been served or largely served by the time the appeal is heard. However, other circumstances may influence the decision, but those two matters have consistently been found to be the most relevant considerations when that test applies in the context of appeals bail. Plainly that is not applicable here. 4. It is well established in the context of matters requiring an applicant to "show cause" or matters requiring an applicant to establish "exceptional circumstances" that either a combination of circumstances considered together or a very powerful particular circumstance may satisfy the bail court or authority that bail should be granted notwithstanding the very high bar that is set in the offender's way. 5. Mr Kondich has put before me the quite unusual circumstances upon which YA relies in submitting that the very high hurdle has been overcome. Those unusual circumstances arise from a number of provisions in the Children (Criminal Proceedings) Act 1987 (NSW) and the Children (Detention Centres) Act 1987 (NSW), which apply by reason of YA's age. He was a juvenile (a child as defined in the legislation) at the time of the offences and is presently under 21 years old. Section 19 of the Children (Criminal Proceedings) Act provides a sentencing Judge with a discretionary power to order that a person of YA's age serve any sentence, in whole or in part, in a juvenile institution. However, if the Prosecutor's detention application is successful, there is a prospect that YA may be taken to an adult gaol. In fact, that would seem to be most likely because his is now over 18 years. There is no power, in either statute, for a court exercising jurisdiction under the Bail Act, to make the kind of order that might be made at the time of sentencing. 6. Mr Kondich took the Court carefully through the provisions in ss 9, 9A, 28A, 28B and 28BA of the Children (Detention Centres) Act and noted the distinction (drawn in the definitions in s 3) between a "correctional centre" (that is, an adult gaol under the Crimes (Administration of Sentences) Act 1999 (NSW)) and a "detention centre" (that is, a juvenile custodial environment per s 5). Sections 28A and 28B provide explicit powers to detain certain children in correctional centres but those provisions do not apply to YA because he is no longer a child and no formal sentence has been pronounced. Had YA not been granted bail, he would no doubt have remained in a detention centre until the time of sentence (as I understand to be the case in relation to two of co-offenders, AD and AG). 7. Mr Kondich submitted that there is a lacuna in the legislation. 8. The result is that if bail is revoked today YA may be – it seems that he would be – taken into adult custody. Conversely, once he is subject to sentencing, I would have the power – subject to relevant statutory considerations and findings – to make an order under s 19 of the Children (Criminal Proceedings) Act that he be detained in a detention centre. At that time, I will have before me a background report which will no doubt assist in determining whether such an order can, or should, be made. 9. In addition to those matters, there is evidence of threats being made to YA by one or more of his co-offenders. Two of those co-offenders are currently, as I understand it, in juvenile detention and two of them are in adult prisons. 10. Mr Kondich identified briefly the evidence of the possible risks that YA may face in custody which "raise additional concern whether he goes into juvenile or adult gaol". Mr Kondich referred to surveillance device recordings of YA and his co-accused AG in a police van following their arrest on 22 February 2022 when AG threatened YA by saying: "say one word, I'll smoke you man". That evidence was ruled to be admissible in the separated trial of the four co-offenders: see R v Diallo & Ors (No 5) [2024] NSWSC 914 at [29]-[31]. Mr Kondich also told me (from the bar table) of an incident that took place while YA was on remand following his arrest on 22 February 2022 and prior to his release on conditional bail on 21 April 2023. YA was allegedly attacked while in custody during that period and the incident was apparently reported to authorities. 11. A further point to be taken into account in this complex combination of circumstances is that YA has been on strict bail conditions without incident since he was granted bail by Justice Weinstein. 12. YA was born in May 2004. He was a child by definition of the Children (Criminal Proceedings) Act at the time of the offences. He is now 20. For those reasons, particular parts of the Children (Criminal Proceedings) Act apply to him. 13. Having heard Mr Kondich's submissions, the Prosecutor did not seek to be heard further on the detention application, particularly given that the sentencing proceedings are likely to be completed this year. This was an admirably fair approach in the circumstances. 14. I am satisfied, in short, that the unusual circumstance that I have outlined, as well as the other matters to which I have made fleeting reference, establish that there are special or exceptional circumstances pursuant to s 22B of the Bail Act. That section, therefore, does not provide an impediment to the grant of bail. 15. However, there remains to be considered the question of risk for the purpose of ss 17 and 19 of the Bail Act, that consideration being guided by the exhaustive list of factors in s 18 of the Bail Act. 16. In addition to the two documents that I referred to earlier, which were notionally tendered on the detention application as exhibits B and C, I have also received YA's criminal history by way of a bail report (Ex A). As the Prosecutor very properly and fairly submitted, that does not really tell me very much. I do, of course – in addition to what I know or understand the facts to be of the present offences, which give rise to bail concerns all by themselves – have before me evidence of YA making the boast on 31 August 2021 (that is the night before the offence) that he had stabbed one of the members of the other street gang. I also have the video, which was played during the pre-trial hearing about tendency and coincidence evidence to be relied upon by the prosecution, of him wielding a knife in an affray at a bus stop and being detained in possession of that knife. Having reviewed the video, albeit some weeks ago, YA was clearly in possession of a knife at the time. 17. That combination of matters unquestionably gives rise to a bail concern under s 17 that he may commit a serious offence if bail is continued, and a consequence of that bail concern is that he may put at risk the safety of members of the community. 18. Having said that and considered it, it is also the case that YA has not committed offences or breached bail since he was granted bail about 18 months ago by another Judge of this Court. It also would seem, based on other material, including those threats and his statement, [2] that his associations may have changed, and that he appears to have changed his ways, if I can put it that way. 19. The fact that YA knows that the imposition of a full-time custodial sentence is an inevitable consequence of him pleading guilty to such serious offences increases his risk of flight, or to put it in the terms of ss 17 and 19 of the Bail Act, the concern that he will not appear at Court when required. But against that, as I understand it, his father has put up his house by way of a $500,000 security requirement. His father has, as I understand it, been in court every time that YA has appeared in front of me. There might have been one day when he was unable to attend, but otherwise he has been in court throughout and I am satisfied that YA is not going to do anything so stupid as to put his parents' house at risk. 20. I am satisfied that the security requirement mitigates the risk of non-attendance. I am satisfied that the evidence generally of his, if I can put it this way, rehabilitation since the commission of the offences mitigates the risk that he will commit further offences. 21. Without going through the tedious process of considering aloud every single matter referred to in s 18 in terms, I have considered those matters and I am satisfied that there are no unacceptable risks associated with bail continuing in all of the circumstances. 22. As I have said above (in [18] which was added in revising the judgment) the prosecution's approach to the detention application was somewhat muted – very properly and fairly so – after Mr Kondich identified the particular concerns raised by YA as to being taken into an adult gaol today if the application was granted. 23. The result of all of that verbiage and "reasoning" is that the detention application is refused and bail will continue on its current terms. ********** Endnotes 1. This sentence was inserted in revising the judgment, when I remembered the provision in s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. See Ex VD 4 on the pre-trial hearing and R v Diallo & Ors (No 6) [2024] NSWSC 917, although the relevant parts of the statement - those that suggest YA regrets his earlier involvement and may have taken steps towards reform - are not recorded in that judgment. 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: 13 November 2024