Citation: R v KC [2025] NSWSC 258
Court: Supreme Court of New South Wales
Date: 24 February 2025
Judge(s): Dhanji J
Background
The applicant, KC, is a 14-year-old who at the time of the hearing had been in custody for 12 days following his most recent arrest on 13 February 2025. He faced four separate groups of charges arising from four separate arrests between November 2024 and February 2025. The charges included robbery in company, assault occasioning actual bodily harm, stealing whilst armed with a knife, and two separate incidents of taking and driving a motor vehicle, together with break, enter and steal and driving unlicensed.
The critical feature of the most recent arrest was that it occurred only ten days after the applicant had been granted bail for an earlier taking and driving offence. This pattern of offending whilst on bail engaged the heightened statutory test under s 22C of the Bail Act 2013 (NSW), which applies to "relevant young persons" charged with "relevant offences."
A Youth Justice report had been prepared for the hearing and informed the court's assessment of the applicant's behaviour in custody, his motivation to change, and the supports available if bail were granted.
Legal Issues
- Whether the court could achieve the "high degree of confidence" required by s 22C(1) of the Bail Act 2013 that the applicant would not commit a serious indictable offence if released on bail
- Whether any bail conditions could reasonably be imposed to address bail concerns and the risk of further serious offending, as required by s 22C(2)
- Whether the applicant presented an unacceptable risk under the standard bail concerns assessment in s 19 of the Act
Decision
Issue 1: The section 22C(1) high-confidence test
Because the most recent charges were "relevant offences" committed whilst the applicant was on bail for another "relevant offence," and because he was 14 years old and therefore a "relevant young person," s 22C applied. Under s 22C(1), the court was prohibited from granting bail unless it had a high degree of confidence the applicant would not commit a serious indictable offence whilst on bail (at [8]).
The court acknowledged the obvious obstacle: the applicant had reoffended within ten days of his most recent bail grant (at [9]). However, the court weighed this against several countervailing factors. The Youth Justice report recorded a high standard of behaviour in custody and indicated the applicant was motivated to address the issues underlying his offending (at [13]). The court noted some prior inconsistency in engagement with supports when previously on bail, but identified two features that arguably distinguished this occasion: the school year had commenced, providing daily structure, and more intensive support through s 22C bail case work was now available (at [14]-[15]).
The court was ultimately persuaded by the applicant's stated motivation, his positive conduct in custody, and the strength of the bail proposal, which would place him on what the court described as effective house arrest with defined exceptions for school and programs (at [16]). A further significant factor was the Youth Justice framework's non-compliance mechanism: if the applicant failed to engage with bail case work, the case worker was required to follow breach and non-compliance procedures, including notifying the court, which would likely lead to a detention application and revocation of bail (at [17]). The court noted plainly that it would be for the applicant to comply with all conditions (at [18]).
Issue 2: The unacceptable risk test under section 19
Having resolved the s 22C(1) question in the applicant's favour, the court turned to the standard unacceptable risk assessment under Division 2 of the Act. Given the proposed conditions and the findings already made, the court was not satisfied that the applicant presented an unacceptable risk with respect to any of the bail concerns listed in s 17 (at [19]-[20]).
Orders Made
- Bail granted subject to conditions.
Key Takeaways
- Under s 22C(1) of the Bail Act 2013, a court must not grant bail to a "relevant young person" charged with a "relevant offence" committed whilst on bail unless it has a high degree of confidence the young person will not commit a serious indictable offence if released (at [8]).
- Positive behaviour in custody and credible evidence of motivation to change can contribute to the high-confidence finding required by s 22C(1), even where the applicant has a recent history of offending on bail (at [13], [16]).
- The availability of structured, enforceable support mechanisms, including case worker obligations to notify the court of non-compliance, formed a substantial part of the court's reasoning in reaching the required degree of confidence (at [17]).
- The s 22C(2) assessment requires the court to consider not only bail concerns under s 17 but also whether conditions could reasonably address both those concerns and the specific risk of further serious indictable offending (at [10]).
- Satisfying the s 22C(1) test is a precondition to granting bail, but the court must still apply the separate unacceptable risk test under s 19 before bail can be granted (at [19]-[20]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
Cases
- Not stated