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Supreme Court 9 December 2024

R v BH

[2024] NSWSC 1577

Theft & propertyPublic order & justice offences
BAIL APPLICANT 14 YEAR OLD ABORIGINAL CHILD CONSIDERATION OF UNACCEPTABLE RISK CONDITIONAL BAIL GRANTED

Citation: R v BH [2024] NSWSC 1577
Court: Supreme Court of New South Wales
Date: 9 December 2024
Judge(s): Yehia J

Background

The applicant, BH, is a 14-year-old Aboriginal child who had been held in custody for 39 days after being bail refused on 1 November 2024. He faced charges of break, enter and steal; steal motor vehicle; knowingly being carried in a stolen conveyance; and destroying property by fire. The alleged offences arose from an incident in the early hours of 31 October 2024 in Moree, where four young people were said to have entered an elderly woman's home, demanded her car keys, and driven off in her vehicle. The stolen vehicle was later destroyed by fire.

The prosecution's identification case rested primarily on a Snapchat post by a co-accused, in which police alleged the applicant could be seen in the passenger seat, identified by clothing including a black hooded jumper and a distinctive red watch. The court noted the prosecution case was not strong. The applicant had no prior convictions; previous charges against him had been withdrawn, and although his record disclosed three bail breaches, he had never been found guilty of a substantive offence.

Because the applicant was allegedly on bail for another relevant offence at the time of the current alleged offending, he was subject to s 22C of the Bail Act 2013 (NSW), a provision introduced in April 2024 targeting repeated serious offending by young people aged 14 to 18.

  • Whether s 22C of the Bail Act 2013 (NSW) applied to the applicant's bail application, and what the phrase "high degree of confidence" requires of the bail authority.
  • Whether "high degree of confidence" demands certainty that the applicant will not reoffend, or something less than certainty.
  • How s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), which enshrines principles of equal rights and special considerations for children, interacts with the stricter bail threshold imposed by s 22C.
  • Whether the prosecution had established that bail should be refused, taking into account the unacceptable risk assessment and whether conditions could adequately address any risk.

Decision

Yehia J held that s 22C imposes an evaluative judgment requiring the court to reach a high level of satisfaction, but not certainty, that a young person will not commit a serious indictable offence while on bail. The threshold is more demanding than the "show cause" requirement that applies to adults under s 16A of the Bail Act, but it does not require the bail authority to be certain of future compliance. The court noted that the phrase "high degree of confidence" is not a term known to the criminal law and distinguished it from the "high degree of probability" standard in the Crimes (High Risk Offenders) Act 2006 (NSW), while accepting that the two concepts are not entirely synonymous.

The court also noted that s 22C requires a sequential process: first, an assessment of bail concerns under Division 2 of the Bail Act (including consideration of conditions that could address those concerns under s 20A); second, a consideration of whether conditions could reasonably mitigate the risk of further serious offending; and only then, a consideration of whether the high degree of confidence threshold is met.

Yehia J expressed concern about the provision's internal tension with s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), which requires children to be treated equally before the law and recognises their reduced culpability and greater capacity for rehabilitation. Her Honour agreed with observations made by Rothman J in R v TW [2024] NSWSC 1504 that applying a stricter bail test to children than to adults sits uneasily with those principles.

On the facts, the court found that the prosecution had not established that bail should be refused. The prosecution case was not strong, the applicant had no convictions, and a suite of conditions, including strict home detention, supervision by Youth Justice, no-contact orders, and compliance with medical treatment, was sufficient to address any bail concerns and to reach the requisite level of confidence that the applicant would not commit a further serious indictable offence while on bail.

Orders Made

  • Bail granted on release application (BAFG).
  • Applicant to be of good behaviour.
  • Applicant to appear at the Children's Court at Moree on 19 December 2024 and thereafter as directed.
  • Applicant to reside at a specified (redacted) address and nowhere else.
  • Home detention condition: applicant not to leave the specified residence except in the company of a nominated person or Youth Justice staff member, or for emergency medical treatment.
  • Pre-release condition: applicant may only travel from the juvenile detention centre in the company of a person nominated by Youth Justice.
  • No-contact conditions: applicant not to approach or communicate with specified persons (redacted) or any complainant or prosecution witness, by any means including social media, except through a legal representative.
  • Applicant to obey reasonable directions from parents, his sister, and officers of the Juvenile Justice Office.
  • Applicant to comply with any recommended medical treatment regime and to show confirmation of a paediatrician appointment within 48 hours of returning to the community.
  • Applicant to present at the front door of his residence at the direction of police confirming compliance with the home detention condition, no more than twice a week and only between 6:00am and midnight.

Key Takeaways

  • Section 22C of the Bail Act 2013 (NSW) sets a higher threshold than the adult "show cause" provision under s 16A, but the Supreme Court confirmed it does not require certainty that a young person will not reoffend. It is an evaluative judgment directed at a high, but not absolute, level of satisfaction.
  • A structured three-step process precedes the s 22C determination: assessment of bail concerns, consideration of whether conditions could mitigate those concerns, and only then application of the "high degree of confidence" threshold.
  • The tension between s 22C and the principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) was expressly noted by Yehia J, who described it as "both curious and troubling" that children face a stricter bail test than adults, citing with approval Rothman J's observations in R v TW about potential inconsistency with equal justice principles.
  • Where the prosecution case is not strong and the applicant has no prior convictions, a comprehensive package of bail conditions, including home detention and Youth Justice supervision, may be sufficient to meet the s 22C threshold.
  • The phrase "high degree of confidence" remains a novel and judicially unsettled standard, with both Yehia J and Lonergan J (in R v RB) noting there is no established criminal law analogue to guide its interpretation.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 5(1)(b), 16A, 17, 18(1), 19(1), 20A, 22C
- Bail and Crimes Amendment Act 2024 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 4, 6
- Crimes (High Risk Offenders) Act 2006 (NSW), s 5B

Cases:
- R v Hamilton [2022] NSWSC 127
- R v Lago (2014) 241 A Crim R 266; [2014] NSWSC 660
- R v RB [2024] NSWSC 471
- R v TW [2024] NSWSC 1504
- Raad v R [2015] NSWSC 532
- R v Tsintzas [2017] NSWCCA 172