Citation: RB v R (No 2) [2024] NSWSC 845
Court: Supreme Court of NSW
Date: 11 July 2024
Judge: Walton J
Background
The applicant, RB, is a 17-year-old Aboriginal man under the parental responsibility of the Minister, with case management provided by KARI Aboriginal Support Service until he turns 25. He had previously been granted bail by Lonergan J in April 2024 (the April judgment), but was arrested on 14 June 2024 for breach of bail and has remained bail-refused since that time.
The present application concerned a new charge group alleging offences committed between 7 and 14 June 2024, while the applicant was on the bail granted in the April judgment. The charges include aggravated break and enter and commit a serious indictable offence (maximum penalty 20 years imprisonment), as well as motor vehicle theft and related offending.
The applicant had also been sentenced, after the April judgment, to a 16-month aggregate control order in relation to earlier charge groups, with a non-parole period expiring 20 June 2024.
Legal Issues
- Whether the bail concerns identified under section 17(2) of the Bail Act 2013 (NSW) gave rise to an unacceptable risk under section 19, justifying refusal of the release application.
- Whether section 22C of the Bail Act applied to the application, and if so, what obligations it imposed on the court.
- How a Bail Casework 22C plan, if available, would bear on the assessment of bail concerns and conditions.
- Whether the Crown case on the present charges was strong enough to be a significant factor in the bail assessment.
Decision
Issue 1: Risk of Failure to Appear
The court accepted the applicant's submissions that he did not present an unacceptable risk of failing to appear. Support from KARI's Youth Engagement team, including assistance with independent living skills and ongoing case management, was a relevant consideration (at [53]-[55]).
Issue 2: Risk of Committing a Serious Offence and Endangering Community Safety
The court found that the Crown case on the present charges is strong, based on telephone intercepts, CCTV footage proximate in time to the alleged offending, and police statements regarding mobile phone video evidence (at [42]-[44]). The applicant's pattern of offending was found to be escalating and to display demonstrative acts of defiance of authority rather than the increased maturity argued on his behalf (at [61]).
The court acknowledged protective factors, including KARI support, proposed stringent bail conditions, and some prospect of employment. However, those factors, many of which had existed at the time of the April judgment, remained insufficient to address the bail concerns (at [59], [65]). The applicant's extensive bail breach history (seven breaches in 2021, eight in 2022, four in 2023, and three in 2024) weighed heavily against release (at [36]). Placement with the applicant's mother was not treated as a meaningful protective factor, given the apparent absence of supervision and the finding that the allegedly stolen motorbike had been located at the mother's premises during the period of bail (at [63]).
The court concluded that the proposed conditions, even if stringent, were not sufficient to mitigate the risks and found an unacceptable risk that the applicant would commit a serious offence and endanger community safety (at [65]-[66]).
Issue 3: Section 22C of the Bail Act
Because the court found an unacceptable risk at the section 19 stage, it was unnecessary to proceed to make a determination under section 22C(1). Walton J observed that section 22C(2) requires an assessment of bail concerns under Division 2 before the heightened section 22C(1) threshold is engaged, meaning the provision is only operative if the court has first found no unacceptable risk (at [18]-[20]). The court made brief obiter observations on the construction of section 22C, noting that, had the provision been engaged, the conclusions on unacceptable risk would in any event have prevented the court from forming the requisite degree of confidence required to grant bail under section 22C(1) (at [70]).
Orders Made
- The release application is refused.
Key Takeaways
- Refusing bail under section 19(1) of the Bail Act 2013, the Supreme Court confirmed that an extensive history of bail breaches across multiple years is a substantial factor weighing against release, even where protective services and stringent conditions are proposed (at [36], [61]).
- Under section 22C of the Bail Act, the heightened "high degree of confidence" threshold is only reached if the court has first assessed bail concerns under Division 2 of Part 3 and determined there is no unacceptable risk. If an unacceptable risk is found at that earlier stage, the section 22C(1) evaluation is not required (at [18]-[20]).
- A proposed bail address with a parent does not automatically constitute a protective factor. Where the evidence indicates little or no supervision at that address, and prior alleged offending is connected to those premises, the court may decline to treat it as meaningfully reducing risk (at [63]).
- The strength of the Crown case, while not determinative on a bail application, remains a significant consideration. The court is not conducting a mini-trial but must assess the materials before it, and an overwhelming or very strong case on those materials weighs against release (at [37]-[46]).
- Protective factors and additional support arrangements that existed, or are enhanced, since a prior grant of bail do not automatically justify re-granting bail where a pattern of escalating offending and repeated non-compliance with court orders has continued in the intervening period (at [59], [65]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW)
- Police Act 1990 (NSW)
- Road Rules 2014 (NSW)
- Road Transport Act 2013 (NSW)
Cases
- DPP v Mawad [2015] NSWCCA 227
- Mulahalilovic v R (Supreme Court (NSW), Rothman J, 1 August 2006, unrep)
- R v Ftelianos [2017] NSWCCA 211
- R v KB (Supreme Court (NSW), McNaughton J, 11 June 2024, unrep)
- R v RB [2024] NSWSC 471