Citation: R v JW [2017] NSWSC 1843
Court: Supreme Court of New South Wales
Date: 21 December 2017
Judge: Hamill J
Background
The applicant was a 15-year-old charged with two offences of stalking and intimidating, arising from an incident in the early hours of 18 October 2017. The alleged conduct involved the applicant and two co-offenders attending the victims' home while heavily intoxicated, forcing entry through threats and property damage, and making serious threats of violence including threats to kill.
The applicant had initially been granted bail after her arrest, but she absconded and breached those conditions. The Children's Court refused bail when the matter returned, and she had been in custody since approximately 4 to 6 November 2017. She brought an urgent release application before the Supreme Court.
Her criminal history was notable for her age. It included multiple assault offences, a prior stalking and intimidation matter, contraventions of apprehended violence orders, and repeated failures to appear or comply with bail. The Children's Court had not previously imposed a control order (a custodial sentence for young offenders).
Legal Issues
- Whether bail should be granted to a young person with a significant history of bail breaches, offences of violence, and non-compliance with court processes
- Whether changed personal circumstances, including pregnancy and access to supported accommodation, were sufficient to warrant release despite that history
- Whether the principles applicable to the sentencing and detention of children, as reflected in the relevant legislation and international instruments, supported granting bail
Decision
Hamill J began the application with considerable scepticism, given the applicant's history of bail breaches and a criminal record that was lengthy for a person of her age. He noted that the co-offenders had each been released on bonds, and while the applicant appeared more culpable than her co-offenders, no direct comparison could be drawn because their criminal histories were unknown.
A significant change in circumstances was the applicant's recently discovered pregnancy. She informed the Court she intended to continue the pregnancy and acknowledged the harm that excessive alcohol consumption could cause to her unborn child. Alcohol appeared to have been a central factor in both her offending history and the current charges.
The Court also had before it a juvenile justice report confirming a change in the applicant's attitude toward supervision, and the availability of a supported residential placement through an organisation called Lifestyle Solutions. The applicant had written personally to the Court expressing her intention to engage with counselling, pursue vocational training in hairdressing, and remain on track for the sake of herself and her baby.
Hamill J found that, in all the circumstances, the applicant was entitled as a child to an opportunity to prove herself in the community. That conclusion was consistent with the principles in s 6 of the Children (Criminal Proceedings) Act 1987 and applicable international instruments concerning children's rights. The proposed bail conditions, described as comprehensive, were accepted by both the applicant's representative and the Crown prosecutor as appropriate.
Orders Made
• Bail granted on conditions as set out in court file
Key Takeaways
- Granting bail to a young person with a history of serious breaches remains possible where changed personal circumstances, credible rehabilitation prospects, and stringent conditions together address the risk of further non-compliance.
- Under s 6 of the Children (Criminal Proceedings) Act 1987, and consistent with international instruments on children's rights, detention of a child is treated as a measure of last resort, and the court weighed this principle heavily in reaching its conclusion.
- Pregnancy and access to supported accommodation were treated as materially changed circumstances justifying a fresh assessment of bail, even where the Children's Court had already refused release.
- The fact that co-offenders received non-custodial outcomes was a relevant but not determinative factor; the Court noted it could not directly compare their situations without knowing their criminal histories.
- Refusing bail to a remanded child whose trial is listed several months away can, in practical terms, result in the child serving the equivalent of a custodial sentence before any finding of guilt, a consideration the Court found relevant to the exercise of its discretion.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
Cases:
No cases were cited in the judgment.