R v NK [2016] NSWSC 498

Supreme Court New South Wales

Medium Neutral Citation: R v NK [2016] NSWSC 498 Hearing dates: 18 April 2016 Date of orders: 22 April 2016 Decision date: 22 April 2016 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Bail granted Catchwords: CRIMINAL LAW – application for bail – rebuttable presumption against bail being granted to a person charged with a terrorism offence – exceptional circumstances to justify the granting of bail – youth of the applicant – vulnerability of youth to adult persuasion or influence – bail conditions appropriately addressing bail concerns Legislation Cited: Bail Act 1978 Bail Act 2013 Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Cases Cited: Haddara v Commonwealth DPP [2006] VSC 8 Hammoud v DPP [2006] VSC 516 KT v R (2008) 182 A Crim R 571 R v Hoang [2003] NSWCCA 380 R v Maywand Osman 2015/12786, 12 February 2015 R v Mulvihill [2013] NSWSC 1190 R v Qutami [2001] NSWCCA 353 R v Young [2006] NSWSC 1499 Category: Principal judgment Parties: NK (Applicant) Regina (Crown) Representation: Counsel: Z Khatiz (Applicant) C Shaw (Crown)

Solicitors: Oxford Lawyers Pty Ltd (Applicant) Office of the Director of Public Prosecutions (Cth) (Crown) File Number(s): 2016/96738

Judgment – ON APPLICATION FOR GRANT OF BAIL 1. The applicant, NK, is presently aged 16 years. On 30 March 2016 she made application for a grant of bail pursuant to the Bail Act 2013. 2. On 24 March 2016, the applicant was arrested and subsequently charged with an offence pursuant s 102.6(1) of the Criminal Code 1995 (Cth), being an offence of collecting funds for, or on behalf of, a terrorist organisation. It is alleged that the offence was committed between 21‑22 March 2016. 3. The applicant was charged in the following terms: "That between 21 March 2016 and 22 March 2016 at XXX in the State of New South Wales, she did intentionally collect funds for a terrorist organisation, namely Islamic State, knowing that organisation was a terrorist organisation, contrary to s 102.6(1) of the Criminal Code." 1. The maximum penalty for an offence under that provision is a term of imprisonment of 25 years. 2. On 24 March 2016, bail was refused at Parramatta Children's Court. The present application for bail is opposed by the Crown. 3. Section 15AA(1) of the Crimes Act 1914 (Cth) provides: "Despite any other law of the Commonwealth, a bail authority must not grant bail to a person … charged with … an offence covered by subsection (2) unless the bail authority is satisfied that exceptional circumstances exist to justify bail." 1. By s 3 of the Crimes Act 1914 a terrorism offence includes an offence against Parts 5.3 or 5.5 of the Criminal Code. The applicant is charged under s 102.6, which is found in Part 5.3 of the Criminal Code. Accordingly s 15AA(1) applies. 2. The Crown has submitted that exceptional circumstances do not exist to justify bail. 3. In the event that the applicant is able to show exceptional circumstances, s 19 of the Bail Act 2013 provides that a bail authority must refuse bail if it is satisfied, on the basis of an assessment of bail concerns pursuant to s 17, that there is an acceptable risk as follows: 17 Assessment of bail concerns (1) A bail authority must, before making a bail decision, assess any bail concerns. (2) For the purposes of this Act, a bail concern is a concern that an accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) If the accused person is not in custody, the assessment is to be made as if the person were in custody and could be released as a result of the bail decision. (4) This section does not apply if the bail authority refuses bail under Division 1A (Show cause requirement). … 19 Refusal of bail—unacceptable risk (1) A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk. (2) For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. (3) If the offence is a show cause offence, the fact that the accused person has shown cause that his or her detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk. (4) Bail cannot be refused for an offence for which there is a right to release under Division 2A.