LF v Director of Public Prosecutions (NSW)

1. [1]

   LF is a 14-year-old boy who makes a release application pursuant to the Bail Act 2013 (NSW). I have to say, I sit in this Bail Court a lot and I would describe this as one of the more confronting and difficult applications that I have dealt with over the last decade and a bit.

2. [2]

   LF is charged with a vast number of offences set out in 10 separate Court Attendance Notices (“CANs”) commencing with offending in August of last year and concluding with the most recent offending in January of this year. Many of the offences as alleged, the majority of which are in fact admitted, were committed when LF was subject to bail conditions and Apprehended Domestic Violence Orders (“ADVOs”) simultaneously and those offences, whether admitted or if just alleged and (later) proved, would constitute a breach of the bail that was previously granted to him.

The offences

1. [3]

   The offences vary dramatically, but the most troubling aspect of them is the alacrity with which LF resorts to violence when he is frustrated or angry, or perhaps goaded or provoked, and that is true of the majority of the offences before the Court.

2. [4]

   In summary form, the 10 sets of offences started with apparently unprovoked aggression towards his sister’s boyfriend, who is a taxi driver. He was just doing his job when LF started to make a kind of threatening gesture towards him and then picked up a rock and threw it at the taxi causing damage to the window. Later that night he sent a series of messages which could only be described as a somewhat chilling threat.

3. [5]

   The next offence involved threatening police. The following set of offences were stealing offences.

4. [6]

   The next set of offences were the first of a series that involved his mother. It seems that LF took his mum’s telephone and used it to place various orders for items he wanted on the internet. The ensuing series (or set) of offences arose when his mother confronted him on the arrival of a scooter that LF apparently purchased by using the telephone credit card. LF ended up having a fight with his mother over the scooter and he kicked his mother in the stomach and then in the leg. He was arrested for that offence and taken into custody and was released by order of the Children’s Court, a point specifically made in the police facts sheet for the sixth set of offences.

5. [7]

   Those offences (that is, the sixth set) involved a series of intimidation and assault offences against his mother. When he got back to their home after his release to bail, he was calling her a “bitch” and a “cunt”, and then threw a packet of cat food at her. He broke a door in a temper tantrum as he left.

6. [8]

   The next offence, charged in the seventh CAN, involved the assault of some children; that is to say young people of the same age as LF himself, 14 years old. He was essentially attempting to steal their bikes and ultimately stabbed one of them with a pen.

7. [9]

   He was then taken into custody once again, was released on bail and, for reasons which are not entirely clear (and certainly not rational), he engaged in intimidating behaviour towards two people where he said to them “I don’t like snitches, I stab snitches”. This conduct, charged in the eighth CAN, seemed to relate back to the incident with the bike and the stabbing with the pen (ie the offences referred to in the preceding paragraph of this revised bail judgment). The implication seems to be that LF believed the victims nominated in the eighth CAN had spoken to police about the earlier incident.

8. [10]

   The ninth offence (or set of offences) involved a person with whom LF had a relationship or friendship, but then had a falling-out. He was in company with (I infer) another one of that group of friends and got into a fight in which the victim was thrown to the ground and ultimately LF kicked him while he was on the ground.

9. [11]

   Finally, the tenth CAN alleges offending said to have been committed on 23 January 2025. It involved (allegedly) another assault on his mother, damage property offences and during that, just to give a flavour of the extent to which LF was unable to control his behaviour, he threw the family cat. I am not sure that is charged, but it is a telling part of the facts when it comes to LF’s inability to control his behaviour and to regulate his emotions.

A terrible childhood and a glimmer of hope

1. [12]

   Set against that is a child who had a difficult, not to say terrible, experience in his infancy. There are reports within the material that demonstrate that LF was subject to childhood trauma of a significant kind. He also has a number of identified, or preliminarily diagnosed, neurological conditions which no doubt add to his, at times, inability – and, seemingly most of the time, difficulty – controlling his emotions and his reaction to things that upset him.

2. [13]

   LF has had engagement with Youth Justice over a number of years and there are three reports before the Court. The most recent one, Exhibit B, has some very positive aspects to it. I don’t propose to go into the detail, but it shows that LF has now expressed shame for his behaviour, particularly directed towards his long-suffering mother, and also some sort of acknowledgement demonstrating insight into the impact of his behaviour. According to this report, he has been an exemplary detainee whilst in Youth Justice detention during the last period, which is to say since 23 January 2026.

“Fettering” and the Children’s Court’s sentencing discretion

1. [14]

   A complicating matter in this case is that a few of the charges levelled against LF have been subject to pleas of guilty entered in the Children’s Court. The case was actually before the Children’s Court yesterday and listed for sentence. Unfortunately, the Magistrate was inundated with work and indicated that the matter could not be reached yesterday, and it was adjourned until tomorrow for sentence.

2. [15]

   One of the issues is, even if bail was granted today, it may be that in the exercise of the Magistrate’s sentencing discretion, a control order would be imposed. Mr Velcic, who appears for the Director, says that might be considered to be the most likely result in view of the frequency and repetition of the offences along with their nature and seriousness, and ultimately LF’s repeated resort to violence.

3. [16]

   Mr Velcic may be right about that, but – as is often said – this Court is not here to determine the outcome of future sentencing proceedings, even if that future is as soon as tomorrow. [1] Nor is it for the Bail Court, as a matter of expedience, to set a commencement date of the sentence. [2] At the same time, the Court ought not to be seen by its decisions in bail to be “fettering” the exercise of the sentencing discretion. [3] The reality is that a court sitting as a bail court is applying the particular provisions of the Bail Act and making various assessments as to risk based on a number of identified and exhaustive factors referred to in s 18 of the Bail Act. It is not exercising the sentencing discretion.

4. [17]

   It might be thought that if I were to grant bail in this case, I would be “fettering” the Magistrate’s sentencing discretion by predetermining whether a control order should be imposed or not. I would not be. I would be exercising my jurisdiction on its terms and, despite a grant of bail, the Magistrate may come to the view that a custodial sentence – that is, a control order – is required. According to his very capable lawyer, LF understands that he may well get out today and be put back in tomorrow.

5. [18]

   But, conversely, if I were to refuse bail today, the Magistrate might take the view that I thought a control order was inevitable, whereas no such finding is being made. Might that not also be seen to, or have the capacity to, fetter the exercise of the sentencing discretion? I must consider the likelihood of a control order as a mandatory consideration under s 18(1)(i) of the Bail Act, but that likelihood is not determinative of the bail application and it is not the decision I am here to make.

6. [19]

   So I want to stress – and I am going to invite the Court Reporter if it is possible to take out these remarks so that they can be provided to the Magistrate tomorrow – that nothing I do today is to fetter the sentencing discretion to be exercised tomorrow in the Children’s Court at Young. My function is to make an assessment of risk by reference to the matters identified in s 18. The Children’s Court’s function will be to assess the appropriate penalty to be imposed by reference to very different criteria and evidence.

Delay in the defended hearing

1. [20]

   The other complicating factor is that the applicant is defending a number of the charges and the information that Mr McKibbin has (Mr McKibbin being LF’s lawyer today) is that the delays in the Children’s Court are such that those cases might not be heard until June or July this year. I have to say I find it very surprising, as I expressed in argument, for a Children’s Court defended hearing to take so long, but, equally, I am well aware of the pressures that the Local Court and Children’s Court are under and the workload that they are confronted with every day. I accept that is what Mr McKibbin is being told, it just seems an extraordinarily long time for a child of 14 years to enjoy the presumption of innocence while being locked up. There is nothing much I can do about that, but I am required to take the length of the delay into account pursuant to s 18(1)(h).

Bail granted to the 14-year-old offender

1. [21]

   Ultimately, I am persuaded that the most recent Youth Justice report and LF’s positive progress are such that any risk involved in, or bail concern arising from, the release of this young person can be mitigated by conditions. It is also comforting that LF’s mother remains supportive despite being the victim of some of her son’s offences.

2. [22]

   I am going to hear from the parties on the precise terms of the conditions. Before I do, I note that one of the difficulties with the particularly burdensome conditions to this point – being in the nature of home detention – whilst completely understandable from the point of view of the judicial officer making the decision, have – it seems – been counter-productive. That is because LF and his mother have spent so much time together that it has been frustrating, I expect for both of them, but in particular for LF. The result has been some of the anger, frustration and violence about which I provided a brief overview earlier.

3. [23]

   Accordingly, the appropriate order is to grant bail on conditions, but to do as Mr McKibbin urges me to, that is impose a curfew rather than a home detention condition and largely thereafter leave it to Youth Justice.

4. [24]

   I should also have said that LF has support through an NDIS grant which may help LF over the coming months before his cases are finalised.

5. [25]

   [SEE FILE FOR BAIL CONDITIONS.]