AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 15 February 2023

R v JH

[2023] NSWSC 93

Assault & violenceTheft & propertyPublic order & justice offences
BAIL ABORIGINAL CHILD UNACCEPTABLE RISK CONDITIONAL BAIL GRANTED

Citation: R v JH [2023] NSWSC 93
Court: Supreme Court of New South Wales
Date: 15 February 2023
Judge(s): Yehia J

Background

The applicant, JH, is a 12-year-old Aboriginal child who has been in the care of the Minister since 2011 following removal from his parents due to neglect, parental substance use, and exposure to chronic family violence. His bail was revoked in December 2022 following fresh allegations of offending, and he had been in custody since 20 December 2022. He faced multiple matters across Dubbo and Orange Children's Courts, including allegations of larceny, malicious damage, intimidation, assault, and aggravated break, enter and commit a serious indictable offence.

The applicant had a history of bail breaches and non-compliance. He had been placed in an intensive therapeutic care home operated by Life Without Barriers from September 2022, and that organisation proposed to resume his placement if bail were granted. The Crown opposed release, citing risks of reoffending and danger to the community.

Legal Issues

  • Whether there were unacceptable risks within the meaning of the Bail Act 2013 (NSW), specifically a risk of commission of a serious offence and a risk of danger to the community
  • Whether proposed bail conditions and support arrangements were sufficient to mitigate those risks
  • Whether Youth Justice can lawfully supervise a child on bail where that child has not pleaded guilty or been found guilty of an offence

Decision

Issue 1: Unacceptable risk

The court identified bail concerns under section 17(2) of the Bail Act, finding a risk of commission of a serious offence and a risk of danger to the community, based on the nature and number of the allegations (at [31]). The applicant also had a history of bail breaches and non-compliance (at [6]). However, the court noted that an assessment of unacceptable risk must include consideration of whether proposed bail conditions can mitigate identified risks (at [29]).

Issue 2: Sufficiency of the support plan

When the matter first came before the court, the available material was considered wholly insufficient to demonstrate a coherent case plan for a child with complex needs (at [12]). Following adjournment and the filing of additional material from Life Without Barriers and an updated Youth Justice Report, the court was satisfied that the services identified were alive to the importance of providing intensive support and supervision, and that the proposed conditions could adequately mitigate the risks (at [27]). The court found that a 12-year-old Aboriginal child of his vulnerability should be supported and supervised intensively in the community rather than detained (at [31]).

Issue 3: Youth Justice supervision and the Bail Protocol

The court expressed reservations about the 2005 Bail Protocol between the Children's Court and Youth Justice, under which Youth Justice declines to supervise children on bail who have not pleaded guilty or been found guilty (at [23]). The Protocol appeared to rest on the premise that effective supervision requires engagement with a young person's offending behaviour, which would be inappropriate where a not-guilty plea has been entered (at [24]). The court rejected the proposition that this made all forms of bail supervision impossible in such circumstances, finding that supervision directed at school attendance, education programs, employment programs, or drug and alcohol counselling does not require engagement with offending conduct and is available regardless of plea (at [25]).

Orders Made

  • Bail granted subject to conditions including:
  • Good behaviour
  • Appearance at Dubbo Children's Court on 13 February 2023 and as directed
  • Residence at a specified Life Without Barriers address
  • Curfew from 6:00 pm to 6:00 am, with exception when in the company of a Life Without Barriers staff member
  • Release from detention in the company of a person nominated by Youth Justice
  • No contact with a specified person, except at PCYC or school
  • No contact with prosecution witnesses
  • Compliance with reasonable directions from caseworkers and Youth Justice officers
  • Enrolment at a specified school for Term One 2023 and acceptance of referrals for paediatric, psychiatric, or psychological assessments, counselling, and PCYC programs

Key Takeaways

  • Refusing bail is not automatic even where bail concerns are established under the Bail Act 2013 (NSW); a court must assess whether proposed conditions can sufficiently mitigate the identified risks before concluding the risk is unacceptable (at [29]).
  • The Supreme Court held that a 12-year-old Aboriginal child with complex needs and a background of profound disadvantage should, where conditions can address the risks, be supported and supervised intensively in the community rather than detained (at [31]).
  • Sufficient, detailed evidence of a concrete support and case plan is required before a court can be satisfied that bail conditions will adequately mitigate risk for a child with complex needs; initial material that left a gap in that respect prompted adjournment for further evidence (at [12], [27]).
  • The court found that Youth Justice supervision on bail, directed at school attendance, counselling, and program participation, is available to children who have not pleaded guilty or been found guilty; such supervision does not necessarily require engagement with the young person's offending behaviour (at [25]).
  • Under the Bail Act 2013 (NSW) ss 17, 18 and 19, a bail authority assessing unacceptable risk must have regard to all relevant matters, including the personal circumstances, vulnerabilities, and support arrangements of a very young accused (at [28], [31]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW) ss 17, 18, 19

Cases
- R v Hamilton [2022] NSWSC 127
- R v Tsintzas [2017] NSWCCA 172