R v KO

Citation: R v KO [2024] NSWSC 679
Court: Supreme Court of NSW
Date: 7 May 2024
Judge: Dhanji J

Background

The applicant, a 14-year-old male, faced two groups of charges. The first arose on his fourteenth birthday, when he was allegedly captured on CCTV with four others attempting to break into a property and access a car in the driveway. Three co-accused were alleged to have confronted the occupant while armed with a bat and knives; the applicant was alleged to have fled the scene before that occurred. He was bailed on that matter.

While on bail, the applicant was charged with stealing a motor vehicle, dangerous driving, and driving whilst unlicensed, relating to conduct allegedly occurring on 14 April 2024. A witness who had known the applicant his whole life identified him by sight and voice as the driver of a stolen vehicle, which was allegedly driven at speed directly toward people on multiple occasions before swerving away at the last moment. Police eventually deployed tyre deflation devices, but the vehicle escaped and was found burnt out the following day.

The applicant had remained in custody for approximately two weeks by the time of the bail application. The central question was whether the more restrictive test under the recently enacted section 22C of the Bail Act 2013 (NSW) applied, or whether the general unacceptable risk test under section 19 governed.

Legal Issues

• Whether section 22C of the Bail Act 2013 (NSW) applied, given that one of the charges was an attempted offence rather than a substantive offence
• Whether the attempted break and enter charge constituted a "relevant offence" within the meaning of section 22C
• Whether, applying the unacceptable risk test under section 19, the applicant presented an unacceptable risk warranting refusal of bail

Decision

Issue 1: Application of section 22C

Section 22C imposes a more restrictive bail test where a "relevant young person" is charged with a "relevant offence" alleged to have been committed while already on bail for another "relevant offence." The definition of relevant offences includes motor theft offences and serious breaking and entering offences under Part 4 Division 4 of the Crimes Act 1900 (NSW) punishable by 14 years or more imprisonment (at [9]-[10]). The parties agreed that the break and enter charge against the applicant was framed as an attempt, not a substantive offence, and an attempt is not itself a relevant offence under the definition (at [10]-[11]). Because one of the two charges was therefore not a relevant offence, the section 22C test did not apply (at [11]).

Issue 2: Unacceptable risk under section 19

Dhanji J identified a very real concern that the applicant might commit a serious offence or endanger community safety, given that an untrained and immature person was alleged to have driven at speed and deliberately directed a vehicle toward people with little margin for error (at [13]). The court assessed the identification evidence, noting it was night-time and there were potential obstacles to a clear visual sighting, but that the witness had known the applicant his entire life and supplemented her visual identification with voice recognition; the case was described as at least reasonably strong (at [14]-[15]).

Weighing against those concerns were five factors: the applicant had no prior convictions and was experiencing his first period in custody (at [16]); he had found custody very difficult and was strongly motivated to comply with conditions (at [16]); his mother committed to greater supervisory involvement (at [17]); he agreed to return to school, attend the local PCYC, and engage with Youth Justice support (at [18]); and, even if convicted, a custodial sentence was unlikely given his age and clean record, making continued detention disproportionate (at [19]).

Balancing these factors, Dhanji J was satisfied that the bail concerns did not reach the threshold of unacceptable risk, and bail was granted subject to conditions (at [20]).

Orders Made

• Bail granted with conditions.

Key Takeaways

• Under section 22C of the Bail Act 2013 (NSW), the more restrictive bail test applies only where both the current and the prior charge are "relevant offences"; a charge framed as an attempt to commit a breaking and entering offence is not a relevant offence under that definition, so section 22C does not engage (at [10]-[11]).

• In refusing to apply section 22C, the Supreme Court confirmed that the characterisation of an offence as an attempt, rather than a substantive offence, has material procedural consequences in bail proceedings for young people, at least until the legislation is amended or authoritatively interpreted otherwise.

• Where the general unacceptable risk test applies to a young person, courts may weigh the gravity of alleged conduct against factors including a clean record, the hardship of a first period in custody, family support, and the improbability of a custodial sentence on conviction (at [16]-[20]).

• Identification evidence based on a lifetime acquaintance, combining both visual and voice recognition, can support a finding that the prosecution case is "at least reasonably strong," even where night conditions and physical circumstances create some uncertainty (at [14]-[15]).

• Granting bail in cases involving serious alleged conduct does not require the court to be satisfied the risk is nil; it requires only that the risk not be unacceptable, assessed against the full range of mitigating and ameliorating circumstances available (at [20]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW)

Cases
- R v RB [2024] NSWSC 471