R v Barry [2014] NSWSC 1970

Supreme Court New South Wales

Medium Neutral Citation: R v Barry [2014] NSWSC 1970 Hearing dates: 28 May 2014 Date of orders: 28 May 2014 Decision date: 28 May 2014 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Bail is granted Catchwords: CRIMINAL LAW – bail – application for bail – bail granted with conditions Category: Principal judgment Parties: Regina (Crown) Michael John Barry (Applicant) Representation: Solicitors: Mr D Curran (Crown) Ms BJ Rigg (Applicant) File Number(s): 2013/372398 Publication restriction: None

EX TEMPORE Judgment 1. HER HONOUR: This is an application for bail brought under the newly operating provisions of the Bail Act 2013 (NSW), in circumstances where the applicant has been charged with very serious offences under the Crimes Act 1900 (NSW) of robbery armed with an offensive weapon, namely, a blood-filled syringe, as well as an offence of resisting officer in execution of duty and an escape police custody offence. 2. The applicant is due for mention on 11 June at the Wyong Local Court. He has been in custody since arrest in October 2013. The application was adjourned while entry into a residential rehabilitation program was pursued. There is now evidence that the applicant has a bed available on 2 June in the Salvation Army Bridge program at Dooralong Transformation Centre. 3. The Crown opposes bail in circumstances where it is submitted that the applicant poses an unacceptable risk, having regard to relevant matters specified in s 17(3) as to appearance, commission of a serious offence and safety of the victim, individuals and community. That is not an issue, but on the applicant's case those risks can be sufficiently mitigated by conditions of bail proposed in relation to participation in the Salvation Army Bridge program earlier mentioned. 4. The circumstances are such that there can be no question, in my view, that the applicant poses unacceptable risks contended for by the Crown, given the material before the Court. The risk assessment process which the legislation requires the Court to undertake is a predictive one, having regard to evidence or information considered to be credible or trustworthy in the circumstances, and made on the balance of probabilities. 5. It seems to me, having regard to the relevant matters which I have already mentioned, as well as the other relevant matters specified in s 17(3), including the applicant's age and background, obvious drug and alcohol problems, and need for the rehabilitation, which this program offers, that the risks which he poses can be sufficiently mitigated by the imposition of bail conditions on strict terms. 6. The parties have addressed me on the operation of the Bail Act, because there is no bed available to the applicant today in the rehabilitation program. That is available on 2 June. It is common ground between the parties that, in the circumstances, pursuant to s 12(3) the Court can grant the applicant bail for a specified period, namely, from 2 June until the applicant ceases participating in the program, at which point his bail would come to an end. That, it is common ground between the parties, does not amount to the imposition either of an accommodation requirement, which is dealt with in s 28 of the Act, and under s 28(3) is one available only to a child, at present there being no relevant regulations which could apply to these circumstances. 7. It is also common ground that the proposed bail condition does not impose pre-release requirements, which are dealt with in s 29 of the Act. I agree with the parties' submissions as to the operation of those aspects of the legislation, and I am satisfied that, in accordance with s 12(3), bail for a specified period of the kind proposed can be ordered by the Court in accordance with that provision. 8. For all of those reasons, I am going to grant the application on strict conditions as to bail.