AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 24 August 2016

AB v R (Cth)

[2016] NSWCCA 191

Public order & justice offences
BAIL APPLICATION 17 YEAR OLD THREATENING POSTS ON FACEBOOK PSYCHIATRIC ISSUES HISTORY OF THREATS AND SELF HARM

Citation: AB v R (Cth) [2016] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 24 August 2016
Judge(s): Hoeben CJ at CL (primary reasons), Campbell J and Button J (agreeing)

Background

The applicant, identified only as AB, was a 17-year-old who had been in custody at the Cobham Juvenile Justice Centre since 15 June 2016. He faced charges of intentionally doing an act in preparation for or planning a terrorist act, using a telecommunications network with the intention to commit a serious offence, and using a carriage service to threaten to kill. The maximum penalties for the first two charges were imprisonment for life.

The charges arose from a series of Facebook posts made between 23 May and 13 June 2016 in which the author described planning a mass stabbing attack in Sydney's CBD. The posts included references to specific potential target locations, anticipated victim numbers, and timing. Following a post on 13 June 2016, police deployed to the identified locations and attended AB's home the following morning. AB was arrested and subsequently participated in a recorded police interview.

Bail had already been refused in the Parramatta Children's Court and then again by Beech-Jones J in the Supreme Court on 29 July 2016. This application was brought under s 49 of the Bail Act 2013 (NSW) for a further hearing before the Court of Criminal Appeal.

  • Whether AB had established "exceptional circumstances" justifying bail, as required under s 15AA(1) of the Crimes Act 1914 (Cth) for offences carrying a maximum sentence of life imprisonment
  • Whether, if exceptional circumstances were established, AB posed an unacceptable risk of committing a serious offence or endangering the safety of the community if released
  • What weight should be given to AB's psychiatric history, his significant improvement while in custody, and the proposed bail conditions, including a substantial family surety

Decision

Hoeben CJ at CL accepted that AB's psychiatric history, his young age, and his marked improvement during custody could together amount to exceptional circumstances under s 15AA(1) of the Crimes Act 1914 (Cth). The Chief Judge at Common Law was prepared to assume, without finally deciding, that this threshold was met, and moved to the central question of unacceptable risk.

On the risk assessment, the court focused heavily on the nature and duration of the Facebook posts. They were not impulsive or isolated outbursts but had occurred over a three-week period, suggesting deep-seated hostility rather than a momentary lapse. The court acknowledged that AB had denied genuine intent during his police interview, attributed some posts to attention-seeking and alcohol, and had not been found in possession of any weapon. However, the court was not satisfied these explanations adequately addressed the overall risk.

The court gave weight to the psychiatric evidence, which recorded significant stabilisation during AB's eight weeks in custody and the resumption of his education. Nonetheless, the risk that the underlying feelings driving the posts could recur was not considered sufficiently diminished. The court also noted that the offer of a substantial family surety carried limited weight in circumstances where a person contemplating a violent act likely to result in their own death may not respond rationally to financial consequences for family members.

Bail was refused. The court also observed, without directing any particular course, that a variation of the charges or further improvement in AB's condition over time could constitute a change of circumstances justifying a fresh application.

Orders Made

  • Bail refused.

Key Takeaways

  • Under s 15AA(1) of the Crimes Act 1914 (Cth), an accused charged with a life imprisonment offence must establish exceptional circumstances before bail can be granted; the Court of Criminal Appeal was prepared to assume that a combination of psychiatric history, youth, and marked improvement in custody could meet that threshold.
  • Even where exceptional circumstances are assumed, bail will be refused if the court finds an unacceptable risk that the accused would commit a serious offence or endanger community safety.
  • Refusing bail, the court placed particular weight on the duration and detail of the Facebook posts, treating the sustained three-week pattern as evidence of deep-seated hostility rather than impulsive conduct, notwithstanding the applicant's denials of genuine intent.
  • A financial surety, however substantial, carries reduced weight in assessing risk where the accused's contemplated conduct included self-destruction, making rational consideration of financial consequences unlikely.
  • The Court of Criminal Appeal indicated that changed circumstances, including a variation in charges or continued psychiatric improvement over time, could potentially support a further bail application, though the court made no direction to that effect.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 49
- Crimes Act 1914 (Cth), ss 3, 15AA(1), 16A(3)
- Criminal Code Act 1995 (Cth), ss 101.6(1), 474.14(2), 474.15(1)
- Young Offenders Act 1997 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 13

Cases:
- AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042 (Beech-Jones J, prior bail refusal)
- R v Hantis [2004] NSWSC 153
- R v NK [2016] NSWSC 498