Citation: Director of Public Prosecutions (NSW) v PH [2022] NSWSC 1245
Court: Supreme Court of New South Wales
Date: 14 September 2022
Judge: Button J
Background
The respondent, a juvenile offender of Aboriginal background, pleaded guilty in the Children's Court in April 2022 to a series of child sexual assault offences committed between February and August 2020. The offending was of the utmost gravity: it involved repeated penetrative acts against a victim no older than four years, conduct of a particularly degrading nature, and the creation of images. The respondent was approximately fourteen years old at the time of the offending and sixteen at the time of the hearing.
The respondent had been in custody for 26 days following his arrest in August 2020 before being granted bail by Campbell J. He had remained on bail continuously and without breach for exactly two years at the time of this hearing. Because at least some offences constituted "serious children's indictable offences" under the Children (Criminal Proceedings) Act 1987 (NSW), the matter was committed to the District Court to be dealt with according to law. Sentencing was listed for 25 November 2022.
Following the commencement of s 22B of the Bail Act 2013 (NSW) in June 2022, the Crown brought a detention application. A District Court judge refused that application on 2 September 2022, and the matter then came before Button J in the Supreme Court.
Legal Issues
- Whether it was "realistically inevitable" that the respondent would receive a sentence of full-time imprisonment, as required to trigger s 22B of the Bail Act 2013 (NSW)
- If that threshold was met, whether special or exceptional circumstances nevertheless justified continued bail
- Whether, entirely separately from s 22B, any unacceptable risks existed that could not be adequately addressed by bail conditions
Decision
On the s 22B threshold (realistically inevitable full-time imprisonment)
Button J accepted that the objective gravity of the offending was extreme and that, standing alone, it might point strongly toward full-time imprisonment. However, His Honour identified powerful subjective mitigating factors that a sentencing judge would be required to weigh. These included the respondent's very young age at the time of offending, his lack of any prior criminal history, his immature and distorted understanding of sexual behaviour arising from early exposure to pornography and childhood sexual contact, his reduced appreciation of the profound wrongfulness of his conduct, and the applicable sentencing principles for children under s 6 of the Children (Criminal Proceedings) Act 1987 (NSW).
Button J also noted the real possibility of a significant non-custodial or non-full-time sentence in circumstances where youth and rehabilitation prospects remained live issues for the sentencing court. He found that, given this combination of factors, it could not be said to be realistically inevitable that the respondent would receive full-time imprisonment. The s 22B threshold was not satisfied.
On special circumstances
Even if the s 22B threshold had been satisfied, Button J found that special circumstances existed independently. The recent death of the respondent's grandfather, with whom he had been living, and the consequent family circumstances constituted sufficiently exceptional personal circumstances to displace the s 22B presumption in favour of detention.
On unacceptable risk
Assessing risk independently, Button J found no unacceptable risk that could not be addressed through conditions. The respondent had complied with stringent bail conditions for two years without incident. The Court declined to impose electronic curfew enforcement as too intrusive in the circumstances, but did vary one condition: the restriction on being alone with a child was extended from children under ten years to children under thirteen years, reflecting the identified risk arising from the respondent's distorted sexual attitudes.
Orders Made
- Detention application refused
- Bail condition varied: the respondent is not to be alone with any child under the age of 13 years
Key Takeaways
- Under s 22B of the Bail Act 2013 (NSW), the Crown must demonstrate it is "realistically inevitable" that the accused will receive full-time imprisonment. A high objective gravity of offending does not automatically satisfy this threshold where strong subjective factors, particularly youth and rehabilitation considerations, remain genuinely live issues for the sentencing court.
- Where a juvenile offender is to be sentenced under the Children (Criminal Proceedings) Act 1987 (NSW), the sentencing principles in s 6 of that Act apply even where the matter must be dealt with according to law, and those principles carry real weight in a s 22B analysis.
- The assessment of unacceptable risk under the Bail Act is conducted separately from and independently of the s 22B analysis, even within the same detention application.
- A distorted appreciation of sexual wrongfulness arising from early childhood exposure was treated as both a mitigating factor on sentence and an ongoing risk factor relevant to bail conditions, illustrating the dual weight such evidence may carry.
- Refusing the Crown's detention application, the Supreme Court demonstrated that two years of strict, unblemished compliance with bail conditions is a relevant consideration when assessing whether risks remain unacceptable at the time of a fresh detention application.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 17, 18, 22B, 50
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 17
Cases
- Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173
- Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927
- Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171