R v Weatherall

1. [1]

   The applicant, Jermaine Weatherall, comes before the court having made an application for his release pursuant, in part, to the provisions of the Bail Act 2013 (NSW) (the Bail Act). An issue arises as to the applicability of s15AAA of the Crimes Act 1914 (Cth) (the Crimes Act), to which see below.

2. [2]

   It is well recognised in this Court that bail decisions involve discretionary and evaluative judgments on a variety of factors about which, and within limits, reasonable minds may differ. Every bail application presents its own unique factual matrix and the bail authority must have regard to such facts when making a determination under the Bail Act: see DPP v Zaiter [2016] NSWCCA 247 at [31]. The rules of evidence do not apply and I may take into account any evidence or information that I consider credible or trustworthy: see s 31 of the Bail Act.

3. [3]

   The alleged facts are as follows.

4. [4]

   On 8 July 2022, the complainant’s mother discovered the complainant engaging in a conversation of a sexual nature over the phone. When she reviewed the phone, she discovered sexually explicit messages and videos that allegedly had been exchanged between the applicant and the complainant, including messages where the applicant allegedly requested and received sexually explicit videos involving the complainant’s dog. The offending allegedly occurred on 7 June 2022.

5. [5]

   Police were notified the next day. On 13 October 2022, police attended the residence of the applicant and seized an iPhone. Subsequent forensic analysis revealed sexually explicit messages and videos, allegedly between the applicant and the complainant, as well as other images on the device, some of which was child abuse material unrelated to the complainant.

6. [6]

   The applicant was arrested and charged on 13 October 2022. He was granted conditional bail at Inverell Local Court that day. He has been bail refused since 23 November 2022, i.e. for approximately 6 months. The applicant was on bail for these and some other offences (which will shortly be withdrawn). He then failed to report to Woolgoola Police Station in accordance with his bail conditions, from 12 November 2022 to 22 November 2022. When he was found and arrested on 22 November 2022, further child abuse images were apparently found on his phone. The applicant was charged, but that charge is to be withdrawn.

7. [7]

   Mr Weatherall is charged with one count of use carriage service to engage in sexual activity with a child contrary to s 474.25A(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code) for which there is a maximum penalty of 20 years imprisonment and a minimum term of imprisonment of 5 years, and one count of possess/control child abuse material using carriage service contrary to s 474.22A(1) of the Criminal Code, for which the maximum penalty is 15 years imprisonment. The former falls within the definition provided by s 15AAA(1)(a) of the Crimes Act, being an offence described at item 13 of column 1 of s 16AAA of the Crimes Act, such that the applicant must not be granted bail unless the bail authority is satisfied that circumstances exist to grant bail. Section 15AAA applies only to the former of the offences to which the applicant has pleaded not guilty, and does not apply to the latter.

Application of the Bail Act to certain Commonwealth offences

1. [8]

   In Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312 at [40], Beech-Jones J, as his Honour then was, said:-

2. [9]

   In this particular case, Mr Healy, who appears for the Commonwealth, relies upon s 15AAA of the Crimes Act, which relevantly provides:-

3. [10]

   The Crown submits that this section contains a rebuttable presumption against bail, as it is for the applicant to satisfy the bail authority that circumstances exist to grant the applicant bail. Mr Healy, and Mr Atkinson who appeared on behalf of the applicant both submit, and I accept, that in circumstances where s 15AAA of the Crimes Act applies, there is “no room” left for the application of Divisions 1 and 1A of Part 3 of the Bail Act: see R v Gee (2003) 212 CLR 230; [2003] HCA 12 per Gleeson CJ at [62]. Neither charged offence is a show cause offence pursuant to the Bail Act and the s 474.25A offence is subject strictly to the requirements of s 15AAA. The “circumstances which exist” in my view must be established by the applicant on the balance of probabilities: see s 32 of the Bail Act (contained in Division 4 of Part 3). Furthermore, in my opinion, any suggestion that there is a “heavy onus” upon the applicant puts an impermissible gloss on s 15AAA.

4. [11]

   Section 15AB of the Crimes Act also applies, and provides as follows:-

5. [12]

   The Crown and the applicant both submit that Division 2 of Part 3 of the Bail Act also has no application in the present proceedings. Division 2 of Part 3 of the Bail Act deals with the assessment of bail concerns (s 17), matters to be considered as part of the assessment of bail concerns (s 18), the refusal of bail if there is an unacceptable risk (s 19), the release of a person if there are no unacceptable risks (s 20) and the imposition of bail conditions in the event bail concerns are identified (s 20A).

6. [13]

   I am satisfied that there is no room left for Division 2 of Part 3 of the Bail Act, which has been effectively displaced by s 15AAA and s 15AB of the Crimes Act which wholly covers the sections in that Division. Indeed I note that s 15AAA requires the court to look at the types of matters that it would otherwise have considered pursuant to the “unacceptable risk test”. I accept that s 17 of the Bail Act has been displaced by s 15AAA(2) of the Crimes Act which largely replicates the four bail concerns and adds two more which the bail authority must take into account in determining whether it is satisfied that circumstances exist to grant bail to a person. In the language of the Crimes Act, it is for the applicant to satisfy the bail authority of those matters set out in ss 15AAA(2)(a) – (f).

7. [14]

   With respect to s 18 of the Bail Act, I note that s 15AAA(2) of the Crimes Act speaks of “matters additional” to those set out in (a) – (f). In my view, the matters to be considered as part of the assessment of bail concerns in s 18 of the Bail Act may be pertinent to the assessment in s 15AAA, to the extent that they are “relevant and known to the bail authority”: see s 15AAA(2) and the commentary at [20-840] in the Local Court Bench Book at [20-820] published online by the Judicial Commission of New South Wales at https://jirs.judcom.nsw.gov.au/benchbks/local/bail.html.

8. [15]

   I accept, as submitted by the Crown and the applicant, that there is no room left for ss 19, 20 and 20A of the Bail Act, as they are concerned with the presence or absence of “unacceptable risk.”

9. [16]

   I observe, however, that the presumption of innocence and an applicant’s general right to be at liberty (noted in the Preamble to the Bail Act) are considerations that are to be taken into account in applications for a grant of bail: see for example M v R [2015] NSWSC 138 at [4] per McCallum J, as her Honour then was.

10. [17]

    Further, in my opinion and it is agreed, Division 3 of Part 3 of the Bail Act, which deals with bail conditions, continues to apply. Section 15AAA does not provide for the imposition of bail conditions. Indeed, the text of s 15AB (and in particular s 15AB(1) and (4)) makes clear that the section does not affect the bail authority’s power to impose appropriate conditions in the event that an applicant has established that circumstances exist to make a grant of bail pursuant to s 15AAA, subject to the matters set out in ss 15AB(1)(a)(i) and (ii) (i.e, the potential impact of granting bail on the person upon whom the offence was alleged to have been committed and any potential witness in the proceedings relating to the alleged offence).

11. [18]

    I observe that the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) relevantly says:-

12. [19]

    I accept for the purposes of this release application that the Explanatory Memorandum sets out the proper procedure which I propose to follow.

Evidence

1. [20]

   Before me, I have two exhibits.

2. [21]

   The first exhibit was tendered by the Crown. Relevantly it discloses the applicant’s criminal history. It is not a very significant history and consists of low-level property and violence offending. The majority of the offending took place when the applicant was a child over the years 2018 (when the offender was 14 years of age) to 2019 (when the applicant was 16). The latter offending resulted in a 12-month control order with a non-parole period of 3 months which expired in February 2020. Thereafter, no offending occurred until 2021, when the applicant received a bond for destroy or damage property. As an adult (and just prior to the instant alleged offending) there was one offence of custody of a knife in a public place, for which the applicant received a fine. The criminal history also discloses that the applicant was in breach of bail in the circumstances to which I will refer below.

3. [22]

   The second exhibit, tendered by the applicant, contains a letter dated 1 March 2023 from AB who is the applicant’s grandfather. He says that he is happy for the applicant to stay with him and that he will take him to report to police at the nearest station which is at The Entrance on the Central Coast. AB’s last conviction was in 2005 for high range PCA. The exhibit also contains a letter from the applicant’s mother CD dated 22 March 2023. She indicates that the applicant was diagnosed with several mental health and behavioural disorders at a young age. He moved from home to home as a child due to family breakdowns. He witnessed extensive domestic violence from the age of 4. As a young teenager he lived in several different family placements. He eventually returned to live with his mother and engaged with Youth Links Service and Coast Shelter. He was medicated for anxiety, depression and insomnia caused by post-traumatic stress disorder (diagnosed at Wyong in 2021). CD says that her son left school in year 8 or 9 and has never been employed. He has a very good relationship with his grandfather, with whom it is proposed that he live. CD says that she and her father will ensure that the applicant is engaged with services and that they will assist with transport to doctors’ appointments, and any visits to a psychologist and/or a psychiatrist. She will ensure that the applicant takes his medication and will be available to take him to the police station and court as required.

4. [23]

   Also contained in the exhibit is a report from Dr Melissa Hughes, clinical neuropsychologist and forensic psychologist, dated 24 February 2023. Part of the purpose of the report was to assess Mr Weatherall’s fitness to plead. Dr Hughes assessed the applicant for three and a half hours over audio visual link. This document is of some significance on the release application.

5. [24]

   Dr Hughes noted that on his arrest, the applicant could not understand his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and required a support person. He is an Aboriginal man born in Coffs Harbour and raised outside Moree on a mission. He had a hospital admission for a seizure at two years of age. School records suggest poor academic performance and concerns about his behaviour and verbal communication from a young age. An assessment of his non verbal ability in 2011 returned a score in the borderline range. Paediatric diagnoses in 2011 and 2012 were attention deficit hyperactive disorder, conduct disorder, borderline intellectual disability, and autism spectrum disorder.

6. [25]

   The applicant’s parents separated when he was about 8 years of age. He was the eldest of six children. There was a lot of alcohol and drugs on the mission. He witnessed a great deal of domestic violence directed at his mother from his father which made him fearful. His father once drunkenly attempted to molest Mr Weatherall on a camping trip. After this experience the applicant and his siblings moved to his grandmother’s tent. In 2018, Mr Weatherall spent time living with his father, but he left because of his father’s use of alcohol and domestic violence directed at his new partner. He has maintained good relationships with his mother and his siblings.

7. [26]

   The applicant left school in year 6, after repeating year 5. He has literacy issues and has always struggled to read and write. He has no history of gainful employment. Prior to his incarceration, he had commenced a TAFE course in painting. He continues to try to learn to read. His mother has assisted him in managing his finances.

8. [27]

   The applicant was medicated for his ADHD (or depression and anxiety) at about age 12, but he did not like the medication and so he ceased taking it. At the date of the report, he had attended one session with a psychologist whilst incarcerated. Mr Weatherall believed that he had lost consciousness on about three occasions but was unsure about the length of time he was unconscious.

9. [28]

   The applicant began using cannabis at age 12. He eventually used about an ounce a day but gave it up a few years ago at his grandmother’s request. He had used “ice” – a “50-bag”- daily from age 16 until his arrest in November 2022. He started drinking alcohol at age 17, generally a 10 pack of pre-mixed spirits on the weekends, which increased to a carton per day prior to his arrest. He was smoking a pack of cigarettes daily. He has not used substances during his incarceration and intends to remain substance free when he is released because he likes how he now feels.

10. [29]

    Dr Hughes found that the applicant was fit to plead and stand trial, but she is of the view that he will have some difficulties understanding some matters. He will require appropriate support and assistance during the course of any trial.

11. [30]

    Dr Hughes believed that the applicant’s speech was considerably limited and that he had a tendency to provide one word replies after a delay. His mood was forlorn. Premorbid functioning for verbal based abilities was estimated as borderline, and average for visual based skills. Verbal ability, including reasoning and knowledge was overall in the extremely average range. Visual abilities, including visual reasoning and problem solving was in the average range. Other scores ranged from borderline to extremely low, save for recall following short and long delays for which he scored high average. In Dr Hughes’s opinion, there were no overt indications of executive dysfunction and responses on a self-report of his mood state indicated moderate levels of depressive symptomatology and mild anxiety and stress.

12. [31]

    Dr Hughes observes that the applicant has a history of offending and challenging behaviours since childhood, although the instant charges were the first of its kind. He has a history of economic, social and educational disadvantage and was exposed to substances, violence and traumatic events since childhood. He is noted to have been previously diagnosed by a paediatrician with ADHD, conduct disorder, borderline intellectual functioning and autism spectrum disorder. In Dr Hughes’s view, her review raises the possibility of a specific learning disorder. The applicant’s profile is not inconsistent with ADHD, but contribution from a limited education and possibly substance abuse and head trauma cannot be excluded. In Dr Hughes’s opinion, the applicant requires treatment for substance abuse and general coping skills. Behavioural activation therapy (commonly used with individuals with an intellectual disability) may be more appropriate than cognitive behavioural therapy. Concepts and language need to be simplified. Literacy skill assistance, further education and employment support would be beneficial.

13. [32]

    The following was agreed by the Crown and Mr Atkinson with respect to circumstances surrounding the applicant’s breach of bail in November 2022. On 17 November 2022, the solicitor for the applicant contacted the offender in charge to obtain his views regarding a bail variation seeking to vary the address and reduce reporting requirements. On 21 November 2022 the officer in charge advised that the variation was opposed. Given the delay in the response, the application to vary bail had already been lodged with Moree Local Court. The applicant was arrested the next day when he was found hiding under a house. The address that was provided in the first application was at a caravan park. At the time of the first release application, this was the only option available to the applicant.

14. [33]

    Mr Weatherall gave brief evidence. He was candid and made appropriate concessions. It appears that he had been bailed to his paternal grandfather’s caravan. His grandfather was himself on bail at that time. The owner of the caravan park apparently did not like police coming to check on the whereabouts of Mr Weatherall (and his grandfather) and gave one week’s notice to vacate the caravan, probably on about 10 or 11 November 2022.

15. [34]

    On the first day that Mr Weatherall failed to report, he was at the caravan because he could not leave without his grandfather who had been arrested. Thereafter, Mr Weatherall absconded, and on one day walked from Woolgoolga to Coffs Harbour – about 25 kilometres. He evaded police as he knew he had breached bail and would be taken into custody. He had no plan to flee.

16. [35]

    The applicant’s evidence gave context to the circumstances of his previous bail. On one view, that bail was destined to fail.

The Applicant’s submissions

1. [36]

   Mr Atkinson, on behalf of the applicant, provided helpful written submissions. In that document, he sets out a range of proposed conditions, some of which are different and more strict than the conditions previously proposed. He submits that in considering all factors relevant to the application, the court would find that circumstances exist to grant bail.

The Crown’s submissions

1. [37]

   The Crown opposed bail. Mr Healy submitted that the applicant has shown a willingness to ignore bail conditions and to flee from police when detected. He says that nothing in the proposed bail conditions would prevent the applicant from doing so again. He observes that the applicant had a substance abuse problem in the past which increases the risk that he will fail to appear as a result of relapse into drug use and disengagement from supports. He says that when all the matters relevant and known to the court are taken into account, the applicant has not established that circumstances exist to rebut the presumption that he ought not to be granted bail.

Has the Applicant Satisfied the Court that Circumstances Exist to Justify Bail?

1. [38]

   I turn to the matters in s 15AAA.

2. [39]

   The Crown observes that the applicant failed to comply with his previous bail conditions, and notes that he attempted to flee and hide from police prior to his arrest for the breach of bail. The Crown also points to the likelihood of a full-time custodial sentence being imposed and the maximum penalty for the s474.25A(1) offence and the mandatory minimum sentence of 5 years. I note that it is agreed between Mr Atkinson and Mr Healy that it is unlikely that a trial will take place for at least a year, meaning that the applicant will have spent 1.5 years on remand at the date of the trial, assuming that a trial can take place by the end of June of next year.

3. [40]

   Mr Atkinson concedes that the applicant breached his previous bail but notes the circumstances, which are unusual, in which the breach occurred. He submits that the applicant has now had sufficient time to establish an appropriate and supported bail address with family on the Central Coast where he has strong community ties. His mother lives close by and wishes to assist him to comply with his bail conditions. His mother’s letter says that the applicant has engaged previously with Youth Links Service and Coast Shelter, which I assume is the same or a similar service to that which is referred to in Mr Atkinson’s submissions, that is, Regional Youth Support Services. Mr Atkinson says that the applicant proposes to re-engage with that service upon his release. It is also the case that the applicant has no known links to any other jurisdiction other than a short period when he lived in Queensland with his mother at age 12, when she was fleeing domestic violence. It is also true that there have been no other previous breaches of bail or warrants for non-attendance despite being subject to bail and other orders on several occasions. He has remained in contact with his lawyer and family throughout the life of these proceedings and has not missed any court appearances. The proposed conditions, it is submitted, will allow police to monitor the applicant via reporting, and I note that I would increase the proposed reporting conditions to daily reporting and make enforcement conditions.

4. [41]

   Taking into account the bail proposal, in my opinion, the applicant has established that he is likely to appear if granted bail.

5. [42]

   The Crown submitted, fairly, that this criterion dovetails with the failure to appear. Mr Healy submitted that the extent of the child abuse material found in the applicant's device and the extent of his criminal history, which includes offences of violence and damage to property, increase the likelihood that he will commit further offences.

6. [43]

   Mr Atkinson submits that there is no like offending on the applicant’s record which consists largely of juvenile property offences. He says that the bail proposal will ensure that he remains in the company of family without unsupervised access to the internet.

7. [44]

   In my opinion, the bail proposal goes some significant way to mitigating the risk of the applicant having access to the internet which is the biggest risk of committing further like offending. The proposed conditions generally, in my view, will also mitigate the risk of him committing other kinds of offending.

8. [45]

   There is no suggestion that the applicant poses a greater risk to the community than someone of his age and criminal history. Denying the applicant access to a smart phone, encrypted devices and to the internet without supervision, will mitigate risk. I observe that the proposed conditions will ensure that the applicant will engage in psychological and medical treatment which further mitigates any risk to the community, and he will be residing with family and have his mother nearby.

9. [46]

   There has been no suggestion that the applicant will conceal, fabricate or destroy evidence. The proposed bail conditions will prevent him from entering Queensland and from approaching the two identified witnesses, the complainant and her mother.

10. [47]

    The applicant is over 18 years of age and has recently turned 20. He was 19 years of age at the time of offending. He is still youthful, and it is well-recognised that younger persons have a greater capacity for rehabilitation. The proposed bail conditions provide for engaging in rehabilitation.

11. [48]

    As the applicant has not pleaded guilty, this provision is not strictly applicable. However, the proposed conditions of bail include a condition that the applicant immediately see his general practitioner and enter into a Mental Health Plan which is a considerable step towards his rehabilitation and is protective of the community.

12. [49]

    I take the following additional matters into account.

13. [50]

    The applicant has been in custody since 23 November 2022, or about 6 months, and it is likely he will spend at least one and a half years at least on remand prior to a hearing. Although the Crown case appears to be strong, I have not conducted a mini-trial and I note that the applicant has pleaded not guilty. Even accepting the minimum term, noting the applicant’s apparent subjective circumstances and his proposal with respect to rehabilitation, it cannot be said with any certainty what a final sentence might be in the event that the applicant is found guilty. I note that this is the applicant’s first time in adult custody.

14. [51]

    Further, the applicant has special vulnerabilities and needs because of his Aboriginality, his apparent cognitive impairment and his complex mental health profile. These factors are likely to make his time spent on remand more onerous.

15. [52]

    I also take into account the matters set out in ss 15AB(1)(a)(i) and (ii) of the Crimes Act (being the potential impact of granting bail on the person upon whom the offence was alleged to have been committed and any potential witness in the proceedings relating to the alleged offence). They do not figure prominently or at all in this application.

16. [53]

    In my opinion the proposed conditions of bail, on the balance of probabilities, go a long way to addressing the factors set out in s 15AAA(2) of the Crimes Act. Risk can never be eliminated. However in my view, the strong bail proposal appropriately mitigates risk.

Conclusion

1. [54]

   I am satisfied that the applicant has established that circumstances exist justifying the grant of bail, subject to conditions.