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Supreme Court 18 February 2026

DC v R

[2026] NSWSC 81

Assault & violenceTheft & property
CRIME BAIL RELEASE APPLICATION UNACCEPTABLE RISK TEST SENTENCING LISTED IN 19 DAYS’ TIME SENTENCE LIKELY TO BE A CONTROL ORDER

Citation: DC v R [2026] NSWSC 81
Court: Supreme Court of New South Wales — Common Law Division
Date: 18 February 2026
Judge(s): Kirk J

Background

The applicant, DC, is a 17-year-old young person who applied for release on bail under the Bail Act 2013 (NSW). He had been in custody for nearly a year, since 5 March 2025. He faced ten charges, including nine counts of aggravated breaking, entering and stealing (or with intent to steal) in company, and one count of reckless wounding in company. The Crown alleged he and co-accused broke into a series of dwellings and retail premises over two days in February 2025, stealing jewellery, handbags, cash, vehicle keys and two vehicles. During one break-in, a sleeping complainant was allegedly punched three times in the face when she tried to resist; she required two surgeries to repair damage to her eye and face and had been temporarily blinded in one eye.

DC had a lengthy criminal history stretching back to age 12, including multiple offences of assault, breaking and entering, motor vehicle theft, and stalking/intimidation. He had previously been subject to control orders, had approximately 15 recorded breaches of bail, and was on parole when the alleged offences were committed. He had pleaded guilty and was listed for sentence at the Children's Court at Coffs Harbour on 9 March 2026 — just 19 days after this bail hearing.

The bail proposal was to release DC to a residential drug and alcohol rehabilitation program operated by the Ted Noffs Foundation in Newcastle, which could accommodate him for up to three months. The applicant's solicitor argued the program would address underlying substance abuse issues, and that the combination of residential supervision and the applicant's youth, Indigenous background and intellectual vulnerabilities warranted release.

  • Whether the bail concerns raised by the Crown — failure to appear, commission of a serious offence, and endangering the safety of victims, individuals or the community — presented an unacceptable risk under s 19 of the Bail Act 2013 (NSW).
  • Whether the heightened threshold under s 22C of the Bail Act (requiring a "high degree of confidence" that the applicant would not commit a serious indictable offence while on bail) could be met.
  • Whether granting bail to a residential rehabilitation program, in circumstances where the applicant was to be sentenced in 19 days and a control order was a likely outcome, would impermissibly fetter the sentencing discretion of the Children's Court magistrate.
  • What weight should be given under s 18(1)(m) to the applicant's need to be free for the "lawful reason" of attending residential rehabilitation, when that rehabilitation would overlap with and potentially cut across imminent sentencing proceedings.

Decision

Kirk J accepted that the bail concerns raised by the Crown plainly existed, given the applicant's extensive criminal history, numerous bail breaches, and offending while on parole. His Honour also accepted that the applicant had significant drug and alcohol issues and that the availability of residential rehabilitation was "generally a factor militating firmly in favour of a grant of bail" in such circumstances, citing Bunyan v R [2025] NSWSC 1216. The applicant's youth, Indigenous background and intellectual vulnerabilities were also noted as factors in his favour.

However, Kirk J identified the proximity of the sentencing date — only 19 days away — as the "significant and, in the end, determinative factor." The residential rehabilitation program was a substantial commitment of many weeks or potentially three months. Given the seriousness of the offences and the applicant's record, a control order was a "reasonably likely outcome" at sentence. Committing the applicant to a residential rehabilitation program through bail conditions could, in his Honour's view, "well be seen as fettering the sentencing discretion of the magistrate."

His Honour preferred the approach of the Court of Criminal Appeal in DPP (NSW) v Campbell [2015] NSWCCA 173, where RA Hulme J had observed that allowing bail for residential rehabilitation shortly before sentencing "could be perceived as this court fettering the sentencing judge's discretion." Kirk J respectfully disagreed with the broader remarks of Garling J in JM v R [2015] NSWSC 978 to the effect that bail decisions could not properly be regarded as intruding upon sentencing discretion. His Honour considered those remarks were "too broadly expressed" and, to the extent they were inconsistent with Campbell, he was bound to follow the Court of Criminal Appeal's decision.

Kirk J acknowledged the applicant's solicitor's submission that bail would end when sentence was imposed, and that the sentencing magistrate could adjourn proceedings to facilitate rehabilitation under s 33(1)(c)(ii) of the Children (Criminal Proceedings) Act 1987. However, his Honour observed that this very point illustrated how a bail decision in these circumstances would impact the sentencing exercise. The weight of s 18(1)(m) — the need for the applicant to be free for a lawful reason — was diminished where releasing him was "likely to cut across the sentencing exercise soon to be undertaken." Considering all the circumstances, Kirk J found the risks of release to be unacceptable and refused bail.

Orders Made

  • Bail was refused.

Key Takeaways

  • Residential rehabilitation, while generally a powerful factor favouring bail, is not decisive in every case; where a sentencing hearing is imminent and a custodial sentence is likely, the Supreme Court held that the weight of this factor is materially diminished because release on bail would cut across the sentencing court's discretion.

  • The proximity of sentencing proved to be the determinative consideration. Kirk J found that the 19-day gap between the proposed bail release and the sentencing date, combined with the nature and duration of the proposed rehabilitation program, created a risk that the bail decision would pre-empt or constrain the sentencing court.

  • In treating the Court of Criminal Appeal's decision in Campbell as binding authority, the Supreme Court concluded that bail to residential rehabilitation can impermissibly fetter sentencing discretion. Kirk J considered that the broader remarks of Garling J in JM v R to the contrary were inconsistent with Campbell and too broadly stated.

  • Under s 22C of the Bail Act, a high bar applies to juveniles charged with committing serious indictable offences while on bail for other serious offences. Although Kirk J did not ultimately need to resolve the application under this provision (having refused bail on the unacceptable risk test), it represented an additional layer of difficulty in the applicant's case.

  • Where sentencing is imminent, the decision implicitly indicated that the appropriate mechanism for securing residential rehabilitation may lie at the sentencing hearing itself (for example, through the sentencing court exercising its discretion under s 33 of the Children (Criminal Proceedings) Act to adjourn for rehabilitation) rather than through a pre-sentence bail application.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 18, 19, 20, 22C, 49
- Children (Criminal Proceedings) Act 1987 (NSW), s 33

Cases:
- Bunyan v R [2025] NSWSC 1216
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- JM v R [2015] NSWSC 978