R v CM [2014] NSWSC 815

Supreme Court New South Wales

Medium Neutral Citation: R v CM [2014] NSWSC 815 Hearing dates: 20 May 2014 Decision date: 20 May 2014 Before: McCallum J Decision: Conditional bail granted Catchwords: CRIMINAL LAW - bail - release application by juvenile - risk of serious offending - risk to safety of community - mitigation of unacceptable risks - onus of proof Category: Procedural and other rulings Parties: CM (applicant) Crown Representation: Counsel: B Rigg (applicant) T Sphor (Crown) Solicitors: Aboriginal Legal Service (applicant) Director of Public Prosecutions (Crown) File Number(s): 2014/131269 Publication restriction: The applicant's name is anonymised

Judgment 1HER HONOUR: Before the Court is a release application by CM, a juvenile aged 14. The offences with which CM stands charged fall into two categories. There are six what I might call historical allegations preceding a period spent in custody by CM. He was released to parole on 11 February 2014 and since then has been charged with seven further offences relating to three separate incidents. He has been in custody since the date of the last of those allegations, 26 April 2014. His matters are currently listed before Dubbo Children's Court on 16 June 2014 for mention only. 2The Court in determining the application must have regard to the matters identified in s 3 of the Bail Act 2013, namely, the presumption of innocence and a person's general right to be at liberty. I consider that right to be of higher significance in the case of a child of the age of the present applicant. 3The Court must consider whether there are any unacceptable risks of the kind identified in s 17 Bail Act. The Crown identifies two risks, the risk of commission of a serious offence and risk to the safety of the victim or individuals or the community. The primary material on which those risks can be assessed is the statement of facts in respect of the current charges. 4The offences alleged are of themselves relatively serious, involving in the first instance an allegation of entering inclosed lands. That allegation involved a confrontation with a member of the public but there is no allegation of violence or indeed any apparent threat of violence. The second series of allegations relating to 5 April 2014 resulted in charges of breaking and entering with intent to steal and destroying or damaging property. The facts in respect of those charges reveal no confrontation with any member of the public, no violence and are indeed what might be described as property offences not of great seriousness but ones which nonetheless must be regarded as serious having regard to the maximum penalties for those kinds of offences. 5The third series of charges again would be described primarily as property offences, again involving no suggestion of violence or the use of any weapon, although in that case there was an elderly victim whose handbag was stolen and the incident, if the allegations are proved, would have been quite frightening for her. The cases in respect of the first two series of charges are strong, there being DNA evidence against the applicant. 6I accept, as submitted by Ms Rigg on behalf of the applicant, that in considering the seriousness of the kinds of offences which it might be thought the applicant is at risk of committing it is appropriate to have regard to the statistics maintained by the Judicial Commission, which reveal that it is only in a small percentage of like offences that a child like the applicant would receive a control order. 7On the strength of the allegations against the applicant and his prior criminal history I am satisfied that there is an unacceptable risk within the meaning of s 17 of the Bail Act of the commission of a serious offence and, allied with that, having regard to the charges involving entering premises where people are present, some risk, albeit a small one, to the safety of individuals and the community generally. In reaching that conclusion I note that the Act contemplates that bail is not expected to be entirely risk-free. The task for the Court is to undertake an evaluative assessment of the risks referred to in s 17. 8Having reached that conclusion, however, I am satisfied that the risks to which I have referred can be sufficiently mitigated by the imposition of the conditions proposed. It follows that I must grant bail conditionally. 9The Crown sought a security requirement but it is not appropriate to impose such a requirement unless it is considered necessary to mitigate a risk of failure to appear. I am not satisfied that there is any such risk in the present case.