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Supreme Court 4 November 2024

R v YA

[2024] NSWSC 1445

Assault & violenceHomicide
CRIMINAL LAW BAIL DETENTION APPLICATION TIME IMPRISONMENT SECTION 22 B BAIL ACT “SPECIAL OR EXCEPTIONAL CIRCUMSTANCES”

Citation: [2024] NSWSC 1445
Court: Supreme Court of New South Wales
Date: 4 November 2024
Judge(s): Hamill J

Background

The respondent (referred to as "YA") pleaded guilty to manslaughter and two counts of wounding with intent to cause grievous bodily harm. The offences arose from a violent confrontation between rival street gangs in Blacktown on 1 September 2021, which resulted in one death and two serious injuries. Four co-offenders had already been tried before the same judge.

YA was 17 years old at the time of the offences and is now 20. He was arrested in February 2022, held on remand in a juvenile detention centre, and then granted conditional bail by Weinstein J in April 2023. He had complied with strict bail conditions without incident for approximately 18 months.

Upon entering his guilty pleas, the prosecution immediately foreshadowed a detention application under s 22B of the Bail Act 2013, which imposes a "special or exceptional circumstances" test for bail in the period between conviction (or guilty plea) and sentencing where the offender will receive full-time imprisonment.

  • Whether the "special or exceptional circumstances" test under s 22B of the Bail Act 2013 was satisfied, such that bail should continue rather than be revoked.
  • Whether a possible legislative gap (lacuna) existed: if bail were revoked, YA (now an adult) would likely be sent to an adult correctional centre on remand, yet the sentencing court retains a discretionary power under s 19 of the Children (Criminal Proceedings) Act 1987 to order that he serve his sentence in a juvenile detention centre.
  • Whether the bail concerns under ss 17 and 19 of the Bail Act (risk of committing a serious offence and endangering community safety) could be adequately addressed by bail conditions.

Decision

Hamill J accepted that YA would inevitably be sentenced to full-time imprisonment for these very serious offences, triggering the s 22B threshold. The "special or exceptional circumstances" test therefore applied, which the court noted is a "very high bar." However, the court observed that existing case law on this test largely concerns appeal bail, where different considerations (such as prospects of success and time served) predominate, and is not directly transferable.

The court identified a combination of unusual circumstances that, taken together, cleared that high bar. Critically, there was an apparent lacuna in the legislation: no provision empowered a bail court to direct that YA be held in a juvenile detention centre on remand, meaning revocation of bail would likely result in his transfer to an adult prison. Yet on sentencing, the court would have discretion under s 19 of the Children (Criminal Proceedings) Act to order detention in a juvenile institution. YA's counsel took the court through the relevant provisions of the Children (Detention Centres) Act 1987, demonstrating that the mechanisms for housing certain offenders in adult correctional centres did not apply to YA, because he was no longer a "child" as defined in the Act and no sentence had been imposed.

Additional factors supported the finding of special or exceptional circumstances: credible evidence of threats from co-offenders (including a recorded threat in a police van and a reported attack while previously on remand); YA's compliance with bail conditions for 18 months; and the fact that sentencing was expected within approximately six weeks. The prosecution, to its credit, did not press the detention application further in these circumstances.

Turning to the residual bail risk assessment under ss 17, 18, and 19 of the Bail Act, Hamill J acknowledged genuine bail concerns arising from the seriousness of the offences, a Snapchat video of YA boasting about a stabbing the night before the offences, and CCTV footage of a separate knife-related incident. Nevertheless, these concerns were mitigated by YA's 18 months of unblemished compliance with bail, evidence suggesting changed associations, and the imminent sentencing date. The court continued bail on existing conditions, with the addition of a curfew.

Orders Made

  • The prosecution's detention application was refused.
  • Bail was continued on existing conditions, with the addition of a curfew condition (details specified in the orders).

Key Takeaways

  • A potential legislative gap was identified whereby a bail court has no power to direct that a remandee be held in a juvenile detention centre, even though the sentencing court retains discretion under s 19 of the Children (Criminal Proceedings) Act 1987 to order detention in a juvenile institution upon sentence. The Supreme Court found that this mismatch could itself constitute a "special or exceptional circumstance" under s 22B of the Bail Act 2013.

  • Under the Children (Detention Centres) Act, the definitions of "child" and the powers conferred by ss 28A and 28B do not extend to persons over 18 who have not yet been sentenced, creating a significant interaction between juvenile justice and bail legislation for offenders who have "aged out" of the juvenile system before sentencing.

  • Hamill J commended the prosecution for its "admirably fair approach" in not pressing the detention application under s 22B, recognising that where sentencing was imminent and there were genuine concerns about a young offender being placed in adult custody on remand, pressing such an application may not have been proportionate.

  • A combination of circumstances can satisfy the "special or exceptional circumstances" test under s 22B, with no single factor being decisive. The Court drew on a cumulative assessment of the offender's age, custodial placement risks, compliance history, threats from co-accused, and proximity to sentencing in reaching its conclusion.

  • Recorded threats from co-accused in custody were treated as a relevant factor in the bail determination, contributing to the finding of special or exceptional circumstances and informing the bail risk assessment under s 18.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 22B
- Children (Detention Centres) Act 1987 (NSW), ss 3, 5, 9, 9A, 28A, 28B, 28BA
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171
- El-Hilli and Melville v R [2015] NSWCCA 146
- R v Diallo & Ors (No 5) [2024] NSWSC 914
- R v Diallo & Ors (No 6) [2024] NSWSC 917