AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 15 July 2025

R (Cth) v IA

[2025] NSWSC 761

Sexual offencesFirearms & weaponsPublic order & justice offences
CRIME BAIL VARIATION APPLICATION DETENTION APPLICATION TERRORIST OFFENCES “EXCEPTIONAL CIRCUMSTANCES”

Citation: R (Cth) v IA [2025] NSWSC 761
Court: Supreme Court of NSW
Date: 15 July 2025
Judge(s): Rothman J

Background

The applicant, IA, is a 17-year-old held in a maximum-security prison. He faces two sets of Commonwealth charges: first, conspiracy to engage in an act in preparation for or planning a terrorist act and supply of a firearm to an unlicensed person; second, six counts of using a carriage service to access child abuse material and six counts of possessing or controlling child abuse material. The second set of charges emerged from a search of the applicant's mobile phone conducted during the investigation of the terrorism offences.

The Children's Court had previously granted bail on the terrorism charges, subject to conditions that included private electronic monitoring conducted by a non-government provider. NSW legislation subsequently enacted section 30A of the Bail Act 2013 (NSW), which prohibits bail authorities from imposing private electronic monitoring as a bail condition. The Children's Court refused bail on the child abuse material charges, partly because the applicant's proposed residence was shared with younger siblings.

Three applications came before the Supreme Court: the applicant sought a variation of his terrorism bail to remove the now-prohibited electronic monitoring condition; the applicant sought bail on the child abuse material charges; and the Commonwealth Director of Public Prosecutions (CDPP) applied to have the previously granted bail revoked.

Legal Issues

  • Whether the removal of private electronic monitoring, previously a fundamental condition of the terrorism bail, required the court to reassess afresh whether exceptional circumstances justified bail on those charges
  • Whether exceptional circumstances existed to justify bail on the terrorism charges in the absence of electronic monitoring
  • Whether exceptional circumstances existed to justify bail on the child abuse material charges, noting that a person charged with a terrorism offence must meet the exceptional circumstances test for any charge
  • Whether the proposed bail conditions adequately addressed the bail concerns, including the risk related to the child abuse material charges arising from the applicant's proximity to young children
  • Whether the CDPP's detention application should be granted

Decision

Issue 1: Need to reassess the terrorism bail afresh

Because private electronic monitoring had been a fundamental basis on which the Children's Court granted terrorism bail, Rothman J approached the variation application as a fresh assessment of whether the conditions for bail were met. The court was required to be satisfied anew that exceptional circumstances existed under section 15AA of the Crimes Act 1914 (Cth), not merely to make a mechanical amendment to the existing conditions (at [23], [63]).

Issue 2: Exceptional circumstances for the terrorism and child abuse material charges

The court accepted that the Crown case on the terrorism charges is strong, being based substantially on communications evidence including an encrypted group chat called "Plans" in which the applicant participated (at [64]). The court also found that any indication the applicant withdrew from the conspiracy related only to one aspect of the alleged planning, and that his prior conduct remained sufficient to support a strong Crown case (at [41]-[42]).

Despite the strength of the Crown case, the court found exceptional circumstances established by the combination of the following factors: the applicant's seven and a half months of full compliance with strict bail conditions without any breach (at [69]); his family's active opposition to his radical views and willingness to supervise him (at [67]); his almost complete absence of serious criminal history (at [73], [82]); his youth and particular vulnerability arising from automatic placement in a maximum-security adult facility (at [68], [83]); the anticipated lengthy delay before trial; and the very stringent proposed conditions, including effective house arrest (at [74]).

For the child abuse material charges, the court noted that the s 15AA exceptional circumstances test applied because the applicant is charged with a terrorism offence, regardless of the nature of the additional charges (at [25], [52]). The court found that a custodial sentence on those charges was not inevitable given the applicant's youth and limited prior offending, and that this factor combined with the other considerations satisfied the exceptional circumstances threshold (at [73]-[74]).

Issue 3: Unacceptable risk and the CDPP detention application

The proposed conditions include house arrest, prior written notification for any departure from the residence, accompaniment by one of four approved responsible adults for permitted absences, prohibition on contact with co-accused or victims, and prohibition on possession of any internet-capable device (at [70], [72]). The court found these conditions adequately replace electronic monitoring and, in some respects, are more stringent (at [71]). The risk of the commission of a further serious offence, including possession of child abuse material, was assessed as minimal under these conditions (at [72]). The concern about the applicant residing with young siblings was ameliorated by the change of proposed address to his grandparents' home (at [80]). The court was satisfied that the risk of flight, commission of a serious offence, endangerment of safety, and interference with witnesses were all at an acceptable level given the agreed conditions (at [76]-[77], [85]). The detention application was therefore dismissed (at [86]).

Orders Made

  • The bail condition requiring private electronic monitoring is deleted and consequential alterations are made to the terrorism bail conditions.
  • Bail is granted on the child abuse material charges (matter number 2025/72410, comprising six counts of using a carriage service to access child abuse material and six counts of possession or control of child abuse material) on the same conditions as the amended terrorism bail.
  • The CDPP's detention application is dismissed.
  • Conditions of bail are as per Exhibit 3 in the proceedings.

Key Takeaways

  • Under section 15AA of the Crimes Act 1914 (Cth), a person charged with a terrorism offence must demonstrate exceptional circumstances to obtain bail not only on the terrorism charges but on every charge they face, regardless of the nature of the additional offences (at [25], [52]).

  • Where private electronic monitoring was a fundamental basis for a prior bail grant, the subsequent legislative prohibition on that condition (under s 30A of the Bail Act 2013 (NSW)) requires the court to reassess the bail application afresh rather than simply deleting the condition mechanically (at [23], [63]).

  • Exceptional circumstances sufficient to justify bail on serious terrorism and child abuse material charges can arise from a combination of factors, including prolonged compliance with strict bail conditions, strong family supervision and opposition to the offending conduct, limited criminal history, youth, vulnerability in an adult custodial setting, and the availability of stringent alternative conditions (at [74]).

  • A change of proposed residential address to remove proximity to potential victims (in this case, younger siblings) can address a ground upon which bail was previously refused at a lower court, and a higher court conducting a fresh assessment is not bound by the earlier refusal (at [80]-[81]).

  • Rothman J reiterated observations made in Xerri v R [2025] NSWSC 560 that the legislative prohibition on private electronic monitoring creates a practical tension: the unavailability of that tool either results in continued and costly incarceration or, if bail is granted without it, a reduced level of oversight compared to what the court might otherwise have imposed (at [16]-[17]).

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), s 9D
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 22A, 30A, Sch 3, Pt 6
- Crimes Act 1914 (Cth), s 15AA
- Criminal Code Act 1995 (Cth), ss 11.5, 101.6, 474.22, 474.22A
- Firearms Act 1996 (NSW), s 51

Cases
- Director of Public Prosecutions (Cth) v Dirani [2022] NSWCCA 89
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v Daron John Wright (unreported 7 June 2005)
- R v Hilton (1987) 7 NSWLR 745
- R v Mahoney-Smith [1967] 2 NSWR 154
- R v Michael John Brown [2013] NSWCCA 178
- R v NK [2016] NSWSC 498
- SZTAL v Minister for Immigration (2017) 262 CLR 362; [2017] HCA 34
- Xerri v R [2025] NSWSC 560