AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 6 February 2025

R v TB

[2025] NSWSC 38

Theft & propertyPublic order & justice offences
BAIL 14 YEAR OLD ABORIGINAL CHILD THESE CHARGES TO BE DROPPED CONSIDERATION OF UNACCEPTABLE RISK CONDITIONAL BAIL GRANTED

Citation: R v TB [2025] NSWSC 38
Court: Supreme Court of New South Wales
Date: 6 February 2025
Judge(s): Lonergan J

Background

The applicant, TB, is a 14-year-old Aboriginal child who had been in custody for three months at the time of the hearing. He was bail refused in connection with charges arising from events on 24 November 2024, including police pursuit, knowingly carried in a stolen conveyance, and resist arrest. Critically, the prosecution advised the Court that these charges were soon to be withdrawn.

TB had originally been granted bail on 14 November 2024 in relation to separate charges of knowingly carried in a stolen conveyance, aggravated break and enter with intent, and possession of cannabis. He was arrested and returned to custody on 25 November 2024, one day after the conduct giving rise to the charges that were to be dropped.

Because TB was alleged to have committed the 24 November offences while on bail for the aggravated break and enter charge, section 22C of the Bail Act 2013 (NSW) was engaged. This provision imposes a heightened threshold before a bail authority can release a young person in those circumstances, and its application here meant that Lonergan J was required to conduct additional analysis even in respect of charges the prosecution itself intended to withdraw.

  • Whether TB presented an unacceptable risk for the purposes of the ordinary bail assessment under section 19(1) of the Bail Act 2013 (NSW).
  • Whether the prosecution had established, to the standard required by section 22C of the Bail Act, that bail should be refused, given that TB was alleged to have committed a relevant offence while on bail for another relevant offence.
  • How section 22C interacts with, and creates tension against, the overarching principles governing proceedings involving children under section 6 of the Children (Criminal Proceedings) Act 1987 (NSW).

Decision

Lonergan J granted conditional bail. Her Honour first conducted the standard bail assessment under section 19(1) of the Bail Act, examining the mandatory and exhaustive list of factors in section 18(1). The Crown's primary concern was that TB had been associating with a group of peers and engaging in dangerous conduct involving stolen vehicles and break and enters, and might do so again. However, her Honour had the benefit of a detailed Youth Justice report, which recorded that TB had been respectful in custody, engaged well in school and programs, and that his three months in custody appeared to have been a genuine wake-up call. TB also had plans to enrol at TAFE to study electrical engineering and to pursue employment.

Her Honour then turned to section 22C, which requires a bail authority to have "a high degree of confidence" that a young person will not commit a serious indictable offence while on bail before that young person can be released, where the alleged offending occurred while on bail for another relevant offence. Lonergan J confirmed the approach taken in R v BH [2024] NSWSC 1577 and her own earlier decision in R v RB [2024] NSWSC 471: the test involves a probabilistic and evaluative judgment, represents a high bar, but does not require certainty. It is more demanding than the "show cause" requirement applicable to adults under section 16A, and considerations such as delay do not appear to bear on this assessment.

Lonergan J was pointed in her observations about the unfairness arising in the circumstances. The application of section 22C was rendered particularly stark because the charges that triggered its operation were ones the prosecution itself was about to withdraw. Her Honour found that the prosecution had not established, on the section 22C standard, that bail should be refused. With appropriate conditions in place to address risk, TB was released.

Her Honour also reiterated the concern, previously expressed in R v RB, R v TW, and R v BH, that section 22C appears to conflict with the principles in section 6 of the Children (Criminal Proceedings) Act 1987 (NSW), which require that children be treated equally before the law and that their ability to reside at home and continue education be preserved wherever possible. Section 22C requires children to be treated less favourably than adults facing equivalent circumstances, which sits in direct tension with those statutory principles.

Orders Made

  • Conditional bail granted to TB.
  • Curfew condition: the applicant must remain at his residential address between 8:00pm and 6:00am, with limited exceptions (when in the company of a specified person, or to obtain emergency medical treatment).
  • The applicant is to attend school or TAFE in accordance with any enrolment organised by Youth Justice.
  • The applicant is not to occupy the driver's seat of any motor vehicle, motorcycle, or motorised transport, whether switched on or not.
  • The applicant is not to drink alcohol or enter premises where alcohol is sold, other than a licensed restaurant.
  • The applicant is not to take any illegal or non-prescribed drugs.
  • The applicant is not to approach, communicate with, or attempt to contact specified persons (redacted) or any prosecution witness, by any means, except through a legal representative.
  • The applicant is to obey reasonable directions given by his parents or a Youth Justice officer.
  • The applicant is to comply with any medical treatment regime recommended by a nominated medical practitioner, including taking medication as prescribed.
  • The applicant is to attend a specified Drug and Alcohol Service on 13 February 2025 and thereafter as recommended.
  • The applicant is to participate in Youth Justice's Changing Habits and Reaching Targets (CHART) program if and when offered.
  • The applicant is to present at the front door of his residential address upon direction of a police officer reasonably seeking to confirm curfew compliance.

Key Takeaways

  • Section 22C of the Bail Act 2013 (NSW) requires a bail authority to have "a high degree of confidence" that a young person will not commit a serious indictable offence while on bail, before release can be granted where the current offending allegedly occurred while the young person was already on bail for a relevant offence. The standard is more demanding than the adult "show cause" threshold but does not require certainty.

  • Lonergan J confirmed the analytical framework articulated in R v BH [2024] NSWSC 1577: the section 22C test involves an evaluative and probabilistic judgment and remains the prosecution's burden to discharge, even under this heightened standard.

  • The tension between section 22C of the Bail Act and section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) was again identified as a significant concern. Section 22C requires children to be treated less favourably than adults in equivalent circumstances, which conflicts with the statutory principle that children have rights and freedoms before the law equal to those enjoyed by adults.

  • Considerations of delay do not appear to carry weight in the section 22C analysis, even where a child has been held in custody for an extended period as a result of charges that are ultimately to be withdrawn.

  • Refusing bail on charges that are about to be withdrawn nonetheless requires full compliance with the section 22C framework; the withdrawal of charges does not by itself dissolve the obligation on the bail authority to step through the statutory requirements while those charges remain on foot.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), sections 16A, 18(1), 19(1), 22C
- Children (Criminal Proceedings) Act 1987 (NSW), section 6

Cases
- R v RB [2024] NSWSC 471 (Lonergan J)
- R v TW [2024] NSWSC 1504 (Rothman J)
- R v BH [2024] NSWSC 1577 (Yehia J)