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Supreme Court 16 June 2023

R v GW

[2023] NSWSC 664

Assault & violenceTheft & propertyPublic order & justice offences
BAIL ABORIGINAL CHILD MULTIPLE OFFENCES BAIL GRANTED

Citation: R v GW [2023] NSWSC 664
Court: Supreme Court of New South Wales
Date: 16 June 2023
Judge(s): Yehia J

Background

The applicant is an 11-year-old Aboriginal child who was residing in Dubbo with his mother before being bail refused and detained on 12 April 2023. He faced 59 outstanding charges across 20 alleged occasions, including aggravated break, enter and steal, armed robbery, larceny, riot, and destroying property, alleged to have occurred between February 2022 and April 2023. All allegations were defended.

A prior bail application heard by Ierace J in April 2023 had been refused. That application was supported by a less comprehensive support plan than the one before Yehia J. The current application was supported by an updated Juvenile Justice report dated 7 June 2023 and a mental health clinician's report dated 16 May 2023.

The applicant had been remanded into custody on 11 occasions and had no prior findings of guilt or sentences. Multiple diagnoses, including attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder, conduct disorder, substance use disorder, and specific learning difficulties, were documented. He had also presented to hospital threatening self-harm in March 2023.

Legal Issues

  • Whether the applicant had established grounds for a fresh bail release application under s 74 of the Bail Act 2013 (NSW).
  • Whether the applicant posed an unacceptable risk of committing further offences, committing a serious offence, or endangering individuals or the community under ss 17 and 19(1) of the Bail Act.
  • Whether the proposed bail conditions and "bail support" plan were sufficient to ameliorate those risks.
  • Whether the Youth Justice policy of providing "bail supervision" only to children who have pleaded or been found guilty (rather than "bail support") was rational and lawful in practice.
  • Whether doli incapax was likely to be rebutted by the prosecution given the applicant's age, mental health, and potential cognitive impairment.

Decision

Issue 1: Grounds for a fresh release application

The court was satisfied that grounds for a fresh release application existed under s 74 of the Bail Act, based on the materially updated Juvenile Justice report and the mental health clinician's report, both of which post-dated Ierace J's refusal (at [9]-[10]).

Issue 2: Unacceptable risk

The court acknowledged the Crown's concerns about the volume, nature, and escalating pattern of the alleged offending, including two particularly serious incidents: one involving alleged threats with knives against an 80-year-old woman, and another involving the alleged theft and high-speed driving of a car while pursued by police (at [5]). The court proceeded to assess whether those risks could be ameliorated by conditions, as required under the Bail Act framework (at [49]).

Issue 3: Adequacy of the "bail support" plan and proposed conditions

The court found the proposed bail support plan sufficiently comprehensive and coordinated. Multiple service providers had committed to engagement, including Boys to the Bush, Youth on Track, the PCYC Fit for Change program, and the Children's Civil Law Service. Ms Shanks, the applicant's caseworker from Legal Aid's Children's Civil Law Service, took on a coordinating role and demonstrated active commitment (at [45]-[46]). Proposed conditions included a curfew, attendance at school, and compliance with the directions of nominated service providers (at [50]). The court found these conditions ameliorated the identified risks (at [54]).

Issue 4: The "bail supervision" versus "bail support" distinction

The court examined the Youth Justice policy at length, hearing evidence from the Director of Policy and Practice for Youth Justice NSW. The substantive difference is that "bail supervision" is mandatory and compliance-based, with enforcement action for non-compliance, whereas "bail support" is voluntary with no enforcement action (at [36]). Bail supervision is only available once a child has pleaded guilty to at least one offence, on the basis that Youth Justice focuses on offence-specific behaviour it cannot address until guilt is established (at [39]). The court accepted that the policy is sound insofar as it reduces the criminalisation of non-compliance by children who may breach supervision conditions for conduct that would not otherwise attract criminal consequences (at [41]). Nevertheless, the court expressed ongoing disquiet about the distinction's apparent arbitrariness, noting that a child with 50 charges who pleads guilty to one receives supervision, while a child who pleads not guilty to all 50 receives only support (at [40]). The court emphasised that children with complex, multiple needs require intensive and coordinated community support, and that for Indigenous children, culturally appropriate programs staffed by Indigenous caseworkers are particularly significant (at [42]-[43]).

Issue 5: Doli incapax and vulnerability

Given the applicant's age of 11, his mental health diagnoses, and potential cognitive impairment still being assessed, the court found it reasonable to infer that the prosecution would be unable to rebut the presumption of doli incapax (the legal presumption that a child under 14 lacks the capacity to form criminal intent) (at [53]). The court also noted the applicant's personal circumstances, including the terminal illness of his grandmother, as a further factor favouring release (at [52]).

Orders Made

  • Bail granted on conditional bail.

Key Takeaways

  • In granting bail to an 11-year-old Aboriginal child facing 59 charges, the Supreme Court found that a materially updated support plan and mental health evidence provided sufficient grounds for a fresh release application under s 74 of the Bail Act 2013, even where a prior application had been refused (at [9]-[10]).

  • Under the Youth Justice policy, "bail supervision" (mandatory and compliance-based) is reserved for children who have pleaded or been found guilty of at least one offence, while "bail support" (voluntary, with no enforcement action for non-compliance) applies in all other cases. The court accepted this distinction as rationally justified to avoid criminalising non-compliance, while expressing concern that its operation could be unfairly arbitrary in practice (at [36]-[41]).

  • Where a sufficiently comprehensive and coordinated "bail support" plan is in place, with identified and accountable caseworkers, a court may find the unacceptable risks posed by a child with serious and prolific alleged offending ameliorated by bail conditions, even in the absence of formal Youth Justice supervision (at [46], [54]).

  • For Indigenous children with multiple complex needs, the court emphasised that detention alone does not protect the community and that intensive, coordinated, and culturally appropriate community support is required (at [42]-[43]).

  • At age 11, with documented mental health conditions and pending psychometric testing for cognitive impairment, the court found it reasonable to infer the prosecution would be unable to rebut doli incapax, reinforcing that this presumption remains a significant live issue in proceedings against very young children (at [53]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 17(2), 18(1), 19(1), 74
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 4

Cases
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- R v Hamilton [2022] NSWSC 127
- R v JB [2023] NSWSC 94
- R v JH [2023] NSWSC 93
- R v Lago [2014] NSWSC 660
- R v Peter Tsallas [2017] NSWSC 64
- R v WB [2023] NSWSC 591
- Raad v R [2015] NSWSC 532
- Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172