Citation: R v JB [2023] NSWSC 94
Court: Supreme Court of New South Wales
Date: 15 February 2023
Judge(s): Yehia J
Background
The applicant, JB, was a 14-year-old Aboriginal child who had been held on remand since 25 November 2022. He faced charges of assault and intimidation from September 2022, and subsequent allegations of aggravated break, enter and steal, and being carried in a stolen vehicle from November 2022. The later allegations prompted the revocation of bail that had been granted by Dhanji J in November 2022.
A central procedural issue was that Youth Justice declined to supervise JB in the community on bail because he had pleaded not guilty. This position reflected a 2005 Bail Protocol between the Children's Court and Youth Justice, which tied community supervision to a guilty plea or finding of guilt.
The Crown opposed bail on the grounds that JB posed an unacceptable risk of committing a further serious offence and endangering the community. The application was adjourned so that alternative community support arrangements could be investigated by the applicant's solicitor.
Legal Issues
- Whether the applicant posed an unacceptable risk under s 19(1) of the Bail Act 2013 (NSW), having regard to the bail concerns identified in s 17(2)
- Whether proposed bail conditions, including support from community organisations, were sufficient to mitigate that risk to an acceptable level
- Whether the Youth Justice Protocol, which restricted supervision of bail to cases involving a guilty plea or finding, was consistent with the proper administration of bail for children
Decision
Issue 1: Unacceptable risk
Yehia J accepted that a legitimate bail concern existed: if released, JB posed a real risk of committing a further serious offence and endangering community safety (at [21]). The allegations, particularly the November 2022 home invasion while occupants slept, were serious, and JB's bail history included prior charges dismissed on doli incapax grounds (at [6]-[7]).
Issue 2: Mitigation of risk through conditions
The court applied the principle that an assessment of unacceptable risk must include consideration of whether conditions can adequately mitigate the risk (at [19]). Following an adjournment, additional community support was arranged: mentoring and school liaison through PCYC, a referral to Headspace for counselling, and a carer's advocate through One Door Mental Health to assist JB's mother (at [18]). The court was satisfied that this more structured plan, combined with stringent bail conditions including home detention, constituted sufficient mitigation (at [21]-[23]).
Issue 3: The Youth Justice Protocol
Yehia J expressed clear concern about the 2005 Bail Protocol that prevents Youth Justice from supervising a child on bail where that child has pleaded not guilty (at [11]-[12]). The court accepted that discussing offending behaviour directly may be problematic where a not-guilty plea has been entered, but rejected the proposition that this made all forms of supervision impossible (at [13]). The court observed that JB was already engaging in psychological therapy while in detention despite his not-guilty plea, and noted that supervision could include school attendance, employment programs, and substance abuse counselling without requiring discussion of the alleged offending (at [14]-[15]).
Orders Made
- Bail granted subject to conditions, including:
- Home detention, with permitted absences only in the company of specified persons or for court, school, legal conferences, police reporting, PCYC programs, or emergency medical treatment
- Residence at a nominated address
- Reporting to police each Monday and Friday
- Non-contact conditions with named individuals and prosecution witnesses
- Prohibition on entering a specified area (with limited exceptions)
- Obligation to comply with directions from Youth Justice caseworkers
- Enrolment at a nominated high school and acceptance of referrals for paediatric, psychiatric, or psychological assessment and counselling
Key Takeaways
- Refusing bail is required under s 19(1) of the Bail Act 2013 only where an unacceptable risk is established after considering both the bail concerns in s 17(2) and whether conditions can reduce the risk to an acceptable level (at [5], [19]).
- The Supreme Court expressed sustained concern about the 2005 Bail Protocol between the Children's Court and Youth Justice, which limits community supervision on bail to children who have pleaded or been found guilty. The court found the Protocol's premise did not justify a blanket prohibition on all forms of supervision (at [13]-[15]).
- Community supervision arrangements need not require engagement with an accused child's offending conduct. Attendance at school, counselling referrals, and mentoring were identified as forms of supervision that could operate independently of any admission or finding of guilt (at [15]).
- Where Youth Justice declines to supervise a child on bail, alternative community services, such as PCYC, Headspace, and mental health organisations, may form part of a structured bail support plan capable of mitigating unacceptable risk (at [18], [21]).
- The complexity of a child's individual needs, including the needs of their primary carer, is a relevant consideration in the overall bail assessment for young accused persons (at [16]).
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