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Supreme Court 28 June 2022

R v LM

[2022] NSWSC 987

Assault & violenceTheft & propertyFirearms & weapons
BAIL RELEASE APPLICATION ARMED ROBBERY KNIFE S 22B UNACCEPTABLE RISK

Citation: R v LM [2022] NSWSC 987
Court: Supreme Court of New South Wales
Date: 28 June 2022
Judge(s): Dhanji J

Background

The applicant, LM, is a 16-year-old who had been in custody since 28 March 2022 following her arrest on a charge of armed robbery. The robbery allegation involved her attending a service station at approximately 3am, entering the area behind the counter, and stabbing the attendant in the shoulder with a knife. CCTV footage and matching clothing and jewellery recovered during a search provided a prima facie strong prosecution case.

LM made a release application under s 49 of the Bail Act 2013 (NSW). The application was heard on the same day that a new provision, s 22B, came into force. Earlier that morning, LM had pleaded guilty in the Children's Court to a charge of reckless wounding in company arising from a separate incident in October 2020.

LM faced a substantial number of additional charges beyond the armed robbery, including multiple counts involving knives: assault occasioning actual bodily harm, offensive weapon offences, intimidation, aggravated break and enter, reckless wounding, stealing, and damaging property. Several of those charges also involved the use of a knife.

  • Whether the newly commenced s 22B of the Bail Act 2013 applied to the applicant, given her guilty plea to reckless wounding in company and the prospect of a sentence of imprisonment
  • Whether the Children's Court's sentencing limitations (which preclude imprisonment) affected the operation of s 22B
  • Whether LM posed an unacceptable risk of committing a further serious offence if released on bail

Decision

Dhanji J first addressed the application of s 22B, which restricts bail following conviction and before sentencing where the accused person "will be sentenced to imprisonment to be served by full-time detention." His Honour found that there were too many variables at this stage to conclude that LM would receive such a sentence. The Children's Court cannot impose imprisonment; it can impose a Control Order at most. Even if the matter were committed to the District Court, a further determination would be required as to whether sentencing would proceed according to law or under the Children (Criminal Proceedings) Act 1987 (NSW). Section 22B therefore did not apply.

The bail application was then assessed under the ordinary provisions of the Bail Act 2013. The case against LM on the armed robbery charge appeared reasonably strong on its face, given the CCTV footage and the physical evidence recovered. His Honour also considered the full extent of her prior and pending charges.

What weighed most heavily on His Honour was the persistent and escalating pattern of knife use across multiple incidents over an extended period. LM had pleaded guilty to stabbing a person in the shoulder and ribs in 2020, had been found in possession of a knife at the time of one of her break and enter arrests, and the armed robbery itself involved stabbing the victim even after he indicated willingness to hand over money. The proposed living arrangements with family members, and existing referrals to support services, were acknowledged as genuine, but recent history cast doubt on whether those measures would be sufficient.

His Honour concluded that there was an unacceptable risk that LM would commit a further serious offence if released, and a consequent unacceptable risk of danger to the community. Bail was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • Section 22B of the Bail Act 2013, which restricts bail after conviction pending sentencing for offences attracting full-time imprisonment, does not apply where the sentencing court is the Children's Court, which is prohibited by s 33(4) of the Children (Criminal Proceedings) Act 1987 from imposing imprisonment.
  • Where a young person's matter might be resolved entirely within the Children's Court jurisdiction, the question of whether they "will be sentenced to imprisonment" under s 22B remains too uncertain to trigger that provision.
  • Refusing bail, the Supreme Court found that a documented and escalating pattern of knife-related offending across multiple incidents was a compelling indicator of unacceptable risk of further serious offending.
  • Supportive family arrangements and referrals to intervention services, while relevant, were found insufficient to manage the identified community safety risk in the face of persistent reoffending history.
  • Under the Children (Criminal Proceedings) Act 1987, even where a Children's Court matter is committed to the District Court following a guilty plea, a further determination under s 18 of that Act governs whether the person is sentenced according to law or under the children's legislation, which adds a further variable to any s 22B analysis.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 22B, 49
- Children (Criminal Proceedings) Act 1987 (NSW), ss 18, 25, 31(1), 31(5), 31H, 33(4)

Cases cited: None cited in the judgment.