Citation: R v DS [2017] NSWSC 1842
Court: Supreme Court of New South Wales
Date: 19 December 2017
Judge(s): Hamill J
Background
DS was a 16-year-old Aboriginal boy facing serious charges arising from two separate series of alleged offences in September and November 2017. The first series involved an aggravated break and enter, in which the applicant allegedly stole a mobile phone from a victim's bedroom. The second series involved two incidents of street violence in Gunnedah, including a punch that knocked a victim from his bicycle, followed by the brandishing of a knife and threats made to the victim's father.
The November offences were allegedly committed shortly after the applicant had been released on bail for the September offences. Although "show cause" provisions under the Bail Act 2013 would have applied had DS been an adult, those provisions did not apply because he was a child. DS had been in continuous custody since approximately 2 November 2017.
The application was made on DS's behalf by an Aboriginal Legal Service lawyer, who proposed a set of stringent bail conditions. Those conditions included placement in crisis accommodation outside Gunnedah, with 24-hour supervision through a programme called LEAP, specifically designed to assist young Aboriginal offenders.
Legal Issues
- Whether the bail concerns identified under s 17 of the Bail Act 2013 amounted to "unacceptable risks" as assessed against the matters listed in s 18.
- Whether the four specific risks identified by the prosecution (failure to appear, commission of further serious offences, risk to victim and community safety, and interference with witnesses or evidence) each constituted unacceptable risks requiring refusal under s 19.
- Whether the proposed bail conditions were sufficiently stringent to mitigate those risks to an acceptable level.
Decision
Hamill J acknowledged that the prosecution's concerns were well founded. The applicant had a lengthy criminal history for his age, with multiple offences of violence and dishonesty commencing at age 14, a number of which had been dealt with under s 32 of the Mental Health Act 2007. He had also repeatedly failed to comply with bail undertakings. The prosecution case on both series of charges appeared, on the material available, to be strong.
The court accepted that each of the four risks raised by the prosecution was a real and serious bail concern. However, his Honour noted that the risk of witness interference was mitigated by the proposed condition that DS reside away from Gunnedah. More broadly, the court observed that no bail grant is ever risk-free, and that DS remained entitled to the presumption of innocence despite the apparent strength of the Crown case.
Against the prosecution's concerns, the court weighed several factors favouring release. DS was only 16 and not subject to show cause requirements. If bail were refused, he would spend at least two, and possibly more than three, months on remand as a presumptively innocent person. Hamill J also noted, with evident concern, the gross overrepresentation of Aboriginal people in New South Wales and Australian custody, while making clear that this consideration was secondary to a proper application of the Bail Act.
The court was ultimately persuaded by evidence from a youth worker, Ms McDonald, who had formed what his Honour described as an "extremely positive influence" in the applicant's life. Ms McDonald gave evidence that crisis accommodation and 24-hour LEAP supervision would be provided if bail were granted. Hamill J found that the proposed conditions would sufficiently mitigate the identified risks, and that granting bail at this point would give DS an opportunity to demonstrate progress before the Children's Court.
Orders Made
• Grant stringent conditional bail (conditions to be found in file)
Note: The judgment records that stringent conditional bail was granted and that conditions were noted on the court file, but the specific conditions are not reproduced in the available text.
Key Takeaways
- Under the Bail Act 2013, where the accused is a child, the "show cause" provisions do not apply even where the alleged offences are serious and were committed while on bail for earlier charges.
- The unacceptable risk test under ss 17 to 19 of the Bail Act requires the court to weigh all matters listed in s 18, including offence seriousness, criminal history, compliance with bail, and the strength of the prosecution case, and to consider whether proposed conditions can reduce identified risks to an acceptable level.
- Refusing bail for extended periods against a presumptively innocent child was characterised by the Supreme Court as self-evidently undesirable, even where the charges are serious.
- The gross overrepresentation of Aboriginal people in custody was acknowledged as a relevant contextual matter, consistent with Bugmy v The Queen and Munda v Western Australia, though the court confirmed this consideration does not displace the statutory bail analysis and takes a secondary role.
- Positive external supports, including a youth worker's involvement and structured supervision programmes, can bear directly on whether bail conditions are sufficient to mitigate unacceptable risk, particularly for young offenders at what the court described as a potential "turning point."
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 17, 18, 19
- Mental Health Act 2007 (NSW), s 32
Cases
- Bugmy v The Queen [2013] HCA 37
- Munda v Western Australia [2013] HCA 38