R v TW [2024] NSWSC 1504

Supreme Court New South Wales

Medium Neutral Citation: R v TW [2024] NSWSC 1504 Hearing dates: 17 June 2024 Date of orders: 17 June 2024 Decision date: 17 June 2024 Jurisdiction: Common Law Before: Rothman J Decision: Conditional Bail Granted Catchwords: BAIL – Aboriginal juvenile – observations on the application of s 22C of the Bail Act 2013 (NSW) – bail granted Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Cases Cited: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 Andrews v Law Society of British Columbia [1989] 1 SCR 143 Category: Principal judgment Parties: TW (Applicant) Rex (Respondent) Representation: Aboriginal Legal Services (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2024/210990 Publication restriction: Pursuant to the terms of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the applicant is prohibited.

EX TEMP JUDGMENT 1. HIS HONOUR: Before the Court is an application for bail by "TW", in recognition of the fact that the applicant is a juvenile and covered by the provisions of the legislation which prohibit the publication of anything that would identify him, including, obviously, his name. 2. The applicant was born on 17 February 2010. He is currently 14 years of age. He is charged with 23 criminal offences, so sequence 1 there are 5 counts, sequence 2 there are 8 counts, sequence 3 there are 5 counts, and sequence 4 there are 5 counts. Included in those 23 counts are 3 counts of break and enter, 3 counts of aggravated break and enter, including the s 112(2) disseminate issue, 1 count of enter land with intent, 4, what I will loosely call, stolen car offences, 1 count of criminal group, and 2 counts of dishonestly obtaining property by deception. As earlier stated, the applicant is 14 years of age. He is of Aboriginal descent and comes from the Moree area. 3. One of the complicating aspects of the application before the Court is the application of the provisions of s 22C of the Bail Act 2013 (NSW). I have discussed with the parties the difficulties that may exist in relation to that issue. On its face, the provision that is s 22C applies to a person defined as a relevant young person. A relevant young person is defined as a person between 14 and 18 years of age. 4. Subsection (1) of s 22C provides that 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 - the reference to the young person is plainly a reference to the relevant young person - is on bail for another relevant offence, unless the bail authority has a high degree of confidence that the young person will not commit a serious indictable offence while on bail, subject to any proposed bail conditions. 5. The requirement that the Court be satisfied to a high degree of confidence that the young person will not commit a serious indictable offence is a provision which is stricter and places a heavier onus on an applicant for bail than does the show cause provisions, where someone may have been, for example, charged with murder, and probably more serious and more onerous than the exceptional circumstances provision, which is required by Commonwealth legislation if someone has been charged with terrorism offences. 1. The effect of the legislation applies in circumstances where at the time of the commission of the offence the person was between 14 and 18 years of age. As a consequence, the person who commits an offence at 13 years and 11 months but comes before the court at 14½ years would not be subject to the provisions of s 22C on its plain reading. 2. The other aspect is that someone who commits an offence at 17 years and 11 months and comes before the court subsequent to the age of 18 would be covered by the provisions. It would mean that a person who comes before the court at eighteen, having committed an offence at seventeen years and eleven months would seemingly be governed by both the show cause provisions, if they were applicable, and the provisions of s 22C. 3. It would also mean that two co-offenders before the court who are otherwise in the situation where they are assessed identically in terms of the unacceptable risk posed by each of them to the community, in accordance with the bail concerns and the provisions of ss 17 and 19 of the Bail Act would need to be treated differently if one of the co-offenders was 18 years and 1 month and the other co-offender was 17 years and 11 months, with a more onerous situation applying to the person who is 17 years and 11 months. 4. While I am prepared without argument to concede that the legislature may exercise power in a manner that defies the principles of equal justice, I am minded that there are contrary arguments to that proposition. However, it is clear that the application of equal justice and the application of justice in a manner which is neither capricious nor arbitrary is a requirement on courts and some tribunals. 5. In the case of courts, it is a norm of the rule of law; it being part of the notion of natural justice, imported into the common law, according to the High Court in Green v R and Quinn v R, from Solon's Isonoma in the 13th Century. According to the Canadian Supreme Court, Andrews v Law Society of British Columbia, I think, in the judgment of McIntyre J, it was derived from Aristotle's natural law, which of course postdated the Isonoma by one or two centuries. According to others, it derives from passages in the Five Books of Moses. Be that as it may and whatever its source, it is a fundamental concept in the administration of justice. 6. Obviously, there are circumstances that require an arbitrary delineation. Thus, juveniles, those under 18, are for most criminal offences treated under a different regime than adults. But the arbitrary differentiation now applicable under this bail provision treats those, on average, less mature and less capable of executive functioning (through no conduct on their account except their date of birth) as requiring stricter measures than adults. 7. A nice question arises that if this legislation requires the Court to treat persons, who are relevantly equal differently and worse, whether the Court is acting in a manner which prevents it from acting on its fundamental tenets and offends its position as a Supreme Court, guaranteed by the provisions of s 73 of the Constitution. 8. Given the position of the Crown on the application that is before the Court it is, notwithstanding my view that the matter needs to be determined, unnecessary to determine the matter, at least at this point in time, and I will proceed as if s 22C of the Bail Act applied and was valid. Nothing in the foregoing is intended to suggest that it is either constitutionally valid or not constitutionally valid. That is a matter that is required to be dealt with at some other point. 9. The situation is that the Court is required to be satisfied to a high degree of confidence that no serious indictable offence will be committed. The applicant has no prior criminal offences, however these criminal offences, that is, those with which he is now charged and for which he is now seeking bail are a rather serious set of toes in the water when it comes to criminal conduct. 10. It is difficult in the absence of expert evidence on risk to understand how anyone could ever come to a view to a high degree of confidence, bearing in mind that a high degree of confidence does not mean certainty that a person would not commit serious criminal offences. There are judicial officers who have been convicted of serious indictable offences, and there are a range of circumstances that do not amount to a defence that might cause a person to act in a way that would result in a serious indictable offence, even if the maximum sentence would never be reached or the offence would be given a s 10. 11. It is a ham-fisted attempt to deal with a political difficulty in a manner which, in my view, creates significant problems for the administration of justice and does not deal with the problem that was sought to be overcome. Notwithstanding the foregoing, and without determining if s 22C of the Bail Act applies, I have before me a report from Youth Justice which sets out a programme of engagement with the applicant, which programme would require the applicant to undergo a rehabilitation programme that is culturally sensitive to his needs, and which, on its face, would impede the desire to engage in criminal activity and/or the capacity to engage in criminal activity. 12. On the basis of that bail support proposed by Youth Justice and the consent of the Crown to the level of confidence, I am prepared to state that I consider with a high degree of confidence that if this programme is implemented the applicant will not engage in a serious indictable offence. 13. In those circumstances, the difficulties that I have raised as to the constitutional validity and ham-fistedness of the provisions in s 22C of the Bail Act need not be dealt with now. 14. For all the reasons that have been discussed, and in particular because of the programme which is sought to be implemented under the supervision of Youth Justice, it seems to me that there is not an unacceptable risk in relation to the four concerns of flight, commission of a serious offence, protection of the safety of an individual, a victim or the community, or interference with evidence or a witness, and in those circumstances, bail will be granted. 15. In relation to R v TW, for the offences of aggravated break enter and serious indictable offence, enter building, land with intent to commit indictable offence, knowingly be carried in a stolen conveyance, second count of aggravated break and enter commit serious indictable offence, participate in criminal group, said to have been committed on 7 February 2024, and the further offences of break and enter dwelling in company, steal, knowingly be carried in a stolen conveyance, dishonestly obtain property by deception, break and enter dwelling in company and steal, second count of knowing be carried in stolen conveyance, count of dishonestly obtain property by deception, passenger fail or refuse to disclose identity, two counts, each of which is said to have occurred between 30 and 31 March 2024. 1. For the offences of break and enter dwelling in company, steal, take and drive conveyance, recklessly deal with the proceeds of crime, goods in custody, and contravention of s 154K, being the dissemination of the commission of an offence under s 112(2) of the Crimes Act 1900 (NSW), said to have been committed on 7 April 2024, and the further offences of take and drive conveyance, damage to property by fire, hinder discovery of evidence relating to serious indictable offence, police pursuit, first offence, to drive recklessly in a manner dangerous said to have been committed on 25 May 2024, bail is granted subject to the bail conditions.