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Supreme Court 28 February 2025

R v JS

[2025] NSWSC 116

Public order & justice offences
BAIL YEAR OLD ABORIGINAL CHILD BAIL ACT 2013 (NSW), S 22C TEST UNACCEPTABLE RISK TEST BAIL GRANTED WITH CONDITIONS

Citation: R v JS [2025] NSWSC 116
Court: Supreme Court of New South Wales
Date: 28 February 2025
Judge(s): Lonergan J

Background

The applicant, JS, is a 15-year-old Aboriginal child who had been bail refused in relation to a series of offences alleged to have been committed between April and December 2024. The April and May 2024 charges included aggravated break and enters, driving a stolen vehicle, and obtaining property by deception. While on bail for those matters, JS allegedly committed further serious offences on the night of 25 to 26 December 2024, including break and enters, detaining a person with a knife to demand car keys, and being in a stolen vehicle during a police pursuit.

The August 2024 charges had been reduced by the time of the hearing to two counts of attempted break and enter, listed for sentence. JS had previously been granted Supreme Court bail on three occasions in 2024 and had spent approximately five months in custody across two separate periods of remand. If bail were refused at this hearing, he would remain in custody for a further three months before his matters were listed for hearing at Tamworth Children's Court in May 2025.

Legal Issues

  • Whether the section 22C test under the Bail Act 2013 (NSW) applied to JS's December 2024 offending, and whether the Crown discharged its onus of preventing release under that test
  • Whether attempted offences constitute "relevant offences" for the purposes of section 22C
  • Whether there was an unacceptable risk of JS committing further offences, endangering the community, or failing to comply with bail, and whether conditions could reduce any such risk to an acceptable level
  • How the section 22C test interacts with the principles prescribed in section 6 of the Children (Criminal Proceedings) Act 1987 (NSW)

Decision

Issue 1: Application of section 22C and the attempted offences question

Section 22C applied to JS because the December 2024 offending was alleged to have occurred while he was on bail for relevant offences (the April and May 2024 break and enters and motor theft offences) and he was a relevant young person aged 15 (at [6]). However, the August 2024 charges of attempted break and enter did not qualify as "relevant offences" within the definition in section 22C(6) because they were attempts rather than substantive offences, meaning section 22C obligations did not apply to those charges (at [6]).

Issue 2: Tension between section 22C and the Children (Criminal Proceedings) Act

Lonergan J observed that section 22C, by its terms, requires a bail authority to act contrary to the principles in section 6 of the Children (Criminal Proceedings) Act, including the principle that children have rights and freedoms equal to those enjoyed by adults, and the desirability of children being assisted to reintegrate into the community. This tension exists despite section 4 of the Children's Act requiring section 6 to apply to criminal proceedings notwithstanding any law or practice to the contrary (at [11]). The section 22C test is more onerous than the show cause requirement applying to adults under section 16A of the Bail Act, and considerations such as delay appear to have no bearing on the section 22C assessment (at [12]).

Issue 3: Unacceptable risk under section 17

The court acknowledged JS's pattern of offending since March 2023, including multiple convictions for being carried in a conveyance, robbery in company, and entering buildings with intent, as well as a history of breaching bail conditions (at [16]-[18]). However, the court considered the multi-faceted Youth Justice supervision plan, the support of JS's Auntie who offered him a stable home and daily supervision, JS's expressed willingness to return to school and engage with cultural mentoring and psychological support, and his stated motivation to be present for his mother and younger brother (at [25]-[32]). The court was satisfied that any risks could be managed to below the level of unacceptable through strict bail conditions, including effective house arrest (at [34]).

Issue 4: Section 22C high-degree-of-confidence test

Turning to section 22C, the court found the Crown had not discharged its onus of establishing that bail should be refused. The Youth Justice report and supervision plan were described as multi-faceted with a real prospect of keeping JS engaged and out of trouble, and the family support arrangement was identified as an important protective factor (at [36]). The court reached a high degree of confidence that JS would not commit a serious indictable offence while subject to the bail conditions and associated Youth Justice supports, and released him accordingly (at [37]).

Orders Made

  • The young person was released on bail with the following conditions:
  • To be of good behaviour
  • To appear at Tamworth Local Court as directed
  • To reside with his Auntie and nowhere else
  • Home detention, with exceptions only when accompanied by his Auntie, an NDIS worker, a Youth Justice-nominated individual, or his mother, or to attend an enrolled place of education between 8:30am and 4:00pm
  • Not to occupy the driver's seat of any motor vehicle or motorcycle
  • Travel from the juvenile detention centre only when accompanied by a Youth Justice-nominated individual (pre-release condition)
  • Not to consume alcohol or enter licensed premises (except a licensed restaurant)
  • Not to take illegal or unprescribed drugs
  • No contact with specified persons or prosecution witnesses (other than via legal representative)
  • To obey reasonable directions from his parent, Auntie, caseworker, or Juvenile Justice officer

Key Takeaways

  • Under section 22C of the Bail Act 2013 (NSW), attempted offences do not constitute "relevant offences" as defined in section 22C(6), meaning the provision's more onerous bail test does not apply to charges framed as attempts rather than substantive offences (at [6]).

  • The section 22C test requires a bail authority to reach a high degree of confidence that a young person will not commit a further serious indictable offence; this is a more demanding standard than the show cause test applying to adults under section 16A, but it does not require certainty, and it involves an evaluative judgment rather than a purely probabilistic one (at [12]).

  • A significant tension exists between section 22C of the Bail Act and section 6 of the Children (Criminal Proceedings) Act 1987, because section 22C imposes an additional barrier to the release of children that is inconsistent with the principles of equal rights and reintegration that section 6 requires courts to apply, and this tension remains unresolved by section 50 of the Children's Act (at [11]).

  • In applying both the unacceptable risk test and the section 22C test, the availability of structured family support, a detailed Youth Justice supervision plan, and the child's own expressed motivation to change can collectively bring the assessed risk within acceptable bounds, even where there is a prior pattern of bail non-compliance and serious offending (at [34]-[37]).

  • The prospect of a child remaining on remand for a further three months pending hearing, against the backdrop of an already substantial period in custody, was identified by the Supreme Court as a significant matter warranting careful consideration in the bail analysis (at [22]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v BH [2024] NSWSC 1577
- R v Hamilton [2022] NSWSC 127
- R v RB [2024] NSWSC 471
- R v TB [2025] NSWSC 38