Citation: R v Kyari Ellis [2014] NSWSC 1972
Court: Supreme Court of New South Wales
Date: 4 June 2014
Judge(s): Campbell J
Background
The applicant was charged with armed robbery involving a long-bladed knife used to threaten a shop worker during a till robbery. The offence was alleged to have occurred while the applicant was already on bail for a separate prior offence.
The applicant's case for bail rested on a psychologist's report, a letter from rehabilitation organisation The Glen confirming his acceptance into their program, and a character reference from a senior pastor who knew the family and endorsed the program's suitability for the applicant. His mother also offered residential support.
The matter came before the Supreme Court in the context of proceedings in the District Court, where a judge had previously considered imposing a Griffiths remand (a sentencing mechanism under s 11 of the Crimes (Sentencing Procedure) Act 1999 that defers sentence to allow an offender to undertake rehabilitation). That evidence was retendered before Campbell J on the bail application.
Legal Issues
- Whether there was an unacceptable risk that the applicant would commit a serious offence if released from custody
- Whether any such risk could be sufficiently mitigated by bail conditions
- Whether it was appropriate to grant conditional bail for a specified period under s 12(3) of the Bail Act 2013 to allow the applicant to complete a rehabilitation program
Decision
Campbell J found that, absent the rehabilitation evidence, he would have refused bail. The nature of the offending, particularly its seriousness and the fact it occurred while the applicant was on bail, led the court to conclude that there was an unacceptable risk of the applicant committing a serious offence if released.
The decisive factor was the rehabilitation evidence. The court noted that a District Court judge had already considered that evidence sufficient to contemplate a Griffiths remand, a power exercised rarely. Campbell J treated the same evidence, comprising the psychologist's report, The Glen's acceptance letter, and the pastor's reference, as weighing materially in the applicant's favour.
Taking those matters together, the court was ultimately not satisfied that the unacceptable risk could not be sufficiently mitigated by appropriate conditions. Conditional bail was granted under s 12(3) of the Bail Act 2013 for a fixed period tied to the rehabilitation program and the next District Court mention date.
Orders Made
- Conditional bail granted under s 12(3) of the Bail Act 2013 for the specified period from 11 June 2014 to 17 October 2014
- Applicant required to reside with his mother
- Applicant required to report to police
- Full bail conditions recorded on the court file
Key Takeaways
- Refusing bail was the court's default position where offending occurred while the applicant was already on bail for a prior matter, reflecting the weight given to that circumstance in assessing unacceptable risk.
- Under s 12(3) of the Bail Act 2013, a court may grant bail for a specified period, a provision Campbell J applied here to align bail with the duration of the rehabilitation program.
- Strong character and rehabilitation evidence, particularly acceptance into a structured residential program and endorsement by both a psychologist and a credible community figure, can shift a court's assessment of whether risk can be sufficiently mitigated by conditions.
- A prior judicial decision to consider a Griffiths remand under s 11 of the Crimes (Sentencing Procedure) Act 1999 carried persuasive weight in the bail analysis, even though the two proceedings are distinct.
- The Griffiths remand mechanism is described in the judgment as one exercised "but rarely," underscoring that rehabilitation-based bail outcomes of this kind are not routine.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), s 12(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Cases:
- No cases were cited in the judgment text.