R v RB

1. [1]

   On 16 April 2024, I released this young person on conditional bail and reserved my reasons. He will turn 18 in four months. He is currently under the parental responsibility of the Minister. KARI, an Aboriginal support service, has his case management. In February 2024, RB commenced work with [REDACTED] having got to know the company through a session at Cobham Youth Justice Centre, and requesting a job for when he was released on bail for offending to which I will return.

2. [2]

   This employment, which he had just commenced and at which he was reportedly doing well, was cut short on 26 February 2024 when RB was again arrested for offences it is alleged he was involved in during the early hours of that morning.

3. [3]

   As stated in various NSW Police facts sheets, RB has been identified by police as a “primary offender” in relation to offences of break and enter, and steal vehicles, followed, on occasion, by posting of such activities to social media. A strike force was set up to deal with this type of offending and RB has received a high level of focus from NSW Police in this regard, including telephone intercepts and search warrants executed at his home.

4. [4]

   Due to community concern about what is perceived to be a spate of this kind of offending involving young persons, particularly in country towns, s 22C was inserted into the Bail Act 2013 (NSW) via the Bail and Crimes Amendment Act 2024 (NSW). It commenced on 3 April 2024.

5. [5]

   Section 22C provides:

6. [6]

   The test - “a high degree of confidence” - is a test unknown to the criminal law. The test has significant potential to be unevenly applied, given the absence of any assistance as to what it means in the amending legislation, or elsewhere.

7. [7]

   In cogent written submissions dated 12 and 15 April 2024, the solicitor for RB, Mr Ormaechea, argued that this provision does not apply to RB. I agree. The Crown accepted the correctness of the position taken. I will return to that analysis later in this judgment, but in short, it is because both the alleged offending for which the applicant was granted bail, and the alleged offending in February 2024 whilst on bail, all occurred prior to the commencement of the provision.

8. [8]

   RB has a large number of charges of a similar nature currently before the courts.

9. [9]

   I was informed that as recently as Friday 12 April 2024, a number of his charges were disposed of with not guilty findings across all counts contained in one sequence. Other charges are part heard in a mix of hearings, sentencing hearings, and contested fact hearings where negotiations are incomplete or have been stood over, due to what seems to have been a late application by the prosecution to have RB dealt with under s 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW).

10. [10]

    Section 31 provides for the hearing of charges in the Children’s Court and that offences other than a serious children’s indictable offence should be dealt with summarily however:

11. [11]

    To date RB has been dealt with under the Children (Criminal Proceedings) Act by s 33(1)(e) probation and s 33(1)(b) bonds. He has not to date been sentenced to a control order or custodial sentence.

12. [12]

    His custodial record shows that since December 2021 he has had periods on remand in Cobham and Orana. On one occasion this remand period was 4 months, and on two other occasions the remand period was more than 3 months. Most recently he has been in custody since 26 February 2024, almost 2 months, arrested for offending it is alleged he was involved in that morning comprising an aggravated break, enter and steal motor vehicle from a house in Clontarf, followed by police pursuit, followed then by allegedly another break and enter and steal motor vehicle in Sans Souci two hours later.

13. [13]

    These charges are contested. Mr Ormaechea submitted that the Crown case in respect of this offending is weak and relies partly (in respect of the Sans Souci offence) on CCTV footage supposedly showing RB wearing a certain outfit and face mask, but the person shown, that police assert to be RB, is notably fair skinned. The CCTV footage was played in Court. To me the CCTV footage shows a fair skinned person, and I observed RB has a dark complexion.

14. [14]

    I should note that there are other aspects to the Crown case for those charges, including RB being found leaving an address near where one of the stolen cars was found, according to the police facts, so the CCTV is not the only part of the circumstantial case sought to be made, but it does seem to me the case in respect of the February 2024 offending has complexity and requires a number of inferences to be drawn.

15. [15]

    The other charged sequences making their way through the courts commence with 25 December 2022, sequence ending in 113, which I was informed has been the subject of pleas of guilty and is awaiting fact negotiation, and relates to charges of aggravated break and enter and knowingly carried in stolen conveyance.

16. [16]

    An aggravated break and enter on 31 December 2022 at Northbridge, I was informed, is still the subject of facts negotiation relating to a guilty plea. (There is an assertion in the preamble to the facts of the offender that he was “armed with a machete” but it is unclear on what basis that assertion is made - i.e., whether it was seen on CCTV footage, or found in his possession or some other basis).

17. [17]

    Next in time are charges in mid-May 2023 of steal motor vehicle, two counts, and aggravated break and enter in company and steal - sequences ending in 177 - said to have been committed at Longueville where a prestige car - an Audi Q5 - was stolen then driven to a market in Westmead. It is alleged that car was driven through the window of the market to gain access and a small sum of money was stolen.

18. [18]

    On the morning of 16 May 2023 at 2:11am, it is alleged that the same vehicle was driven through a window at a Concord market and vapes and cigarettes worth $20,000.00 and some cash was stolen, and that RB was involved.

19. [19]

    There are additional charges of dishonestly obtain financial advantage by deception and goods in custody suspected stolen relating to $2,767.00 in cash found at RB’s home when he was arrested on 24 May 2023. He was also charged with carried in conveyance taken without consent of owner. There have been some guilty pleas, but I was informed that facts negotiation for sentence is still proceeding, and so the current form of police facts may not be the basis for sentence.

20. [20]

    The offending set out in [17] to [19] has been the subject of guilty pleas entered in January 2024 and those matters are listed for sentence on 6 May 2024 at Surry Hills Children’s Court.

21. [21]

    As I understand it, RB has also pleaded guilty to two counts of steal motor vehicle and aggravated break and enter at Cecil Hills on 17 to 18 May 2023 for which he was charged on 16 June 2023 (sequence ending in 937). I understand from the police letter of Detective Sergeant Howes that those matters were listed on 12 April 2024 for sentence and so I assume are part heard with the other matters that were listed on that date that will be the subject of sentence, that were stood over to 23 April 2024.

22. [22]

    RB was previously taken into custody on 11 October 2023 (and remained in custody on remand until release on bail on 4 February 2024). He was charged with a series of offences that ranged between mid-September and mid-October 2023 that appear on the police facts to have connected RB to the offences by virtue of MDR data from a cell phone that police believe was in his possession indicating his location, and in some cases, the path of travel in stolen vehicles consistent with the progress of a police pursuit. It is alleged that in further support of those assumptions there are some exchanges recorded in conversations between RB and his friends. The only document provided in the Crown material that referenced the calls assumed that a particular phone was used by RB and that each time it was referenced, RB was the person speaking or using it. Mr Ormaechea submitted this assumption was not valid given how young people share phones, and that this information alone does not form a basis for a strong Crown case.

23. [23]

    This series of alleged offences (for which RB was on bail in February 2024), commenced on 16 September 2023 with a break and enter with others, stealing car keys and driving away with a BMW and then stealing petrol at a service station. On 17 September 2023 the same type of offending by RB is said to have occurred, this time at North Turramurra, stealing car keys and driving away. It is alleged that RB then two hours later was in West Hoxton with a disguised face committing the same type of offences again.

24. [24]

    It is alleged that on 20 September 2023 at 1:30am at Malabar, RB stole car keys to a black Audi, stole the Audi and then stole petrol at a service station. It is alleged that on 22 September 2023 RB was engaged in offending comprising enter inclosed lands and face blackened/disguised with intent to commit aggravated break and enter at Sans Souci, and that he discussed the location and events in his messages (the subject of a Cellebrite download).

25. [25]

    RB is also charged that on 25 September 2023 he was conveyed in a stolen conveyance and stole petrol. Based on phone data records it is alleged that on 3 and 4 October 2023, RB was in Newtown in a stolen vehicle and that he was being driven recklessly, furiously and in a manner dangerous, around Erskineville.

26. [26]

    It is alleged that on 1 October 2023 RB was involved in a break and enter with others at Blakehurst with car keys and a car taken and was then conveyed in that stolen car. It is alleged that on 2 October 2023 he drove in Annandale without a licence, based on his movements as demonstrated by telephone intercepts and phone data analysis.

27. [27]

    Police allege that on 3 October 2023 RB was “identified”, (although how he was “identified” is not specified), at a location in Glebe entering a vehicle and swapping places with the driver, then driving erratically through the inner west, leading to charge of take and drive conveyance, never licenced and drive in a manner dangerous.

28. [28]

    It is alleged that on 10 October 2023, RB was involved in an aggravated break and enter at Beaumont Hills where a stolen car was used and was then involved in a police pursuit and that MDR data on RB’s phone has him in that location. There is also a video on RB’s phone dated 9 October that shows two images of a car stolen on 7 October 2023 and an assertion that the key to that car was found at RB’s family home on 11 October on search by police, although a submission was made by Mr Ormaechea that the key found was not the key to that car. There is a reference in the police facts to “items consistent with break and enters and stealing motor vehicles” but what those items seized actually were is not mentioned in the facts and so that evaluative and conclusionary assertion cannot be assessed.

29. [29]

    As I understand the position, these September/October 2023 charges are part heard before the Surry Hills Children’s Court and, according to a police letter of Snr Constable Lally, dated 10 April 2024, were adjourned to 23 April 2024 for written submissions. The Crown submissions described these charges as “part heard”. The bail report suggested that they are listed for hearing on 23 April and have not been the subject of guilty pleas.

Police letters

1. [30]

   Letters from police officers involved in the investigation of criminal offences that provide updated factual material, or recent court outcomes not otherwise known, or relevant attitudes of victims of offending, are useful and helpful. What is not useful nor helpful are letters full of accusations or generalities and conclusions rather than facts. Nor are letters, or parts of letters, that consist of the police officers’ views and opinions about what the court should do regarding bail, or that officer’s interpretations of the provisions of the Bail Act and their application to the person in question.

2. [31]

   As Beech-Jones J so clearly articulated in Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [36] to [39], whilst the rules of evidence do not apply to bail applications, and the Court should avoid making rulings on receipt of evidence, the absence of any detail setting out the basis for what are otherwise potentially damaging assertions, warrants a court not attributing any weight to those assertions.

3. [32]

   There needs to be care taken in the form and structure of material placed before the Court. Conclusions that a person is “lying”, or that the effect of unstated, unspecified telephone conversations means certain criminal activity was planned, without outlining the factual material or the contents of the conversations that bases those assertions, will be ignored and have in this case been ignored, and should not be put before the Court in that form.

Applicability of s 22C

1. [33]

   As at 10:00am on 16 April 2024 there was no published decision about the application or operation of s 22C.

2. [34]

   As submitted by Mr Ormaechea, on the face of s 22C and the transitional provision at Clause 14 of Schedule 3, Part 4, of the Bail Act, it appears that s 22C would apply to RB’s application for release. However, militating against that construction is the clear Parliamentary intent as to the operation of the provision.

3. [35]

   In the Second Reading Speech on 12 March 2024, the Honourable Michael Daley (Attorney-General) said:

4. [36]

   As stated by Campbell J (with whom Beech-Jones CJ at CL and Adamson J agreed) in Gurin v R [2022] NSWCCA 193 at [20], the judgment of Kiefel CJ and Keane J in R v A2; Magennis: R v Vaziri (2019) 269 CLR 507; [2019] HCA 35 summarised the modern approach to statutory interpretation, including the interpretation and construction of criminal statutes:

5. [37]

   I accept Mr Ormaechea’s submission that unlike other extrinsic materials, Second Reading speeches are “important and weighty sources of information that invite the available implication that these materials are more reflective of government intent”: Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168; [2024] HCA 1 at [116]. As Mr Ormaechea further submits, the Second Reading Speech makes plain that the “mischief” to which the Bill was directed, was to enhance community safety and address concerns about repeated break and enters and motor vehicle theft while those identified people were out in the community on bail for another offence of that type.

6. [38]

   Legislation that affects personal liberty will be given a strict construction: State of NSW v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86. The fact that the liberty in question is liberty to be free on bail subject to conditions of bail, does not undermine or discount the principles of statutory construction in that respect: Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70 at [75] per Leeming JA, Mitchelmore JA and Basten AJA agreeing.

7. [39]

   I am satisfied that the construction which conforms with the purpose of Parliament is that the word “offences” in the transitional provision only refers to the initial relevant offence, and that this initial offence would, after a young person is granted bail, trigger the effect of s 22C, should a further relevant offence be committed whilst on bail after s 22C commenced. Accordingly, if RB had committed relevant offending after the commencement of s 22C - that is, on or after 3 April 2024 - there is no doubt that s 22C would apply, but here, the relevant offending whilst on bail was allegedly carried out on 26 February 2024.

Considering conditions proposed does RB present as an unacceptable risk?

1. [40]

   Section 19(1) of the Bail Act provides that a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk. Accordingly, in determining if there is an unacceptable risk, I must have regard to the bail concerns as set out in s 17(2) of the Bail Act. They are whether a person, if released, will commit a serious offence, fail to appear, interfere with witnesses or evidence or endanger the safety of victims, individuals or the community. If there is no unacceptable risk, I must grant bail: s 20(1). I should impose conditions if I am satisfied that there are identified bail concerns, and those conditions must be reasonably necessary to address the relevant bail concern(s), be reasonable and proportionate, appropriate, and no more onerous than necessary. I also need to be satisfied that the condition(s) are reasonably practicable for the accused person to comply with, and that there are reasonable grounds to believe that the condition(s) is/are likely to be complied with by the accused person: s 20(2).

2. [41]

   In R v Lago [2014] NSWSC 660, Hamill J indicated that the provisions of the Bail Act cast an onus on the party who is opposed to the grant of bail. In relation to the assessment of unacceptable risk, his Honour stated at [8] to [9]:

3. [42]

   Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) of the Bail Act sets out a list, which is both mandatory and exhaustive, of the factors to be considered by the bail authority in assessing bail concerns under s 17 of the Bail Act: see Raad v R [2015] NSWSC 532.

4. [43]

   The Juvenile Justice report regarding RB dated 11 April 2024 provides useful information. RB was interviewed, as was his mother, and his caseworker Ms Bates at KARI. RB was living with his mother at the time of offending, and she is happy to have him return there. KARI will continue to work with the family to assist both the family and RB. A caseworker with Sydney Regional Aboriginal Corporation will reconnect with RB and assist him with necessary transitioning to adulthood and the responsibilities that entails. RB had begun work with [REDACTED] and was well-liked and supported by his employer, but the opportunity was cut short by his arrest.

5. [44]

   The plan for release is that KARI will continue to support RB including with cultural connections, community counselling and resuming employment. SARC will also support this approach. There will be mentoring, as well as family counselling with the Ozchild Functional Family Therapy Program.

6. [45]

   Letters from the Director and Managing Director of [REDACTED] provided very positive support for RB to return to work with them as an apprentice [REDACTED]. He would be engaged in TAFE one day per week and working the other days to a total 38 hours per week. The letter of [REDACTED] confirmed that while working there, RB was very personable, quiet, and able to navigate the role under supervision. This kind of work, offered and supported by this kind of employer, I consider to be a positive and potentially long-term protective factor once RB is able to engage with it uninterrupted and for a longer period. RB said in his letter to the Court that he would be proud to be the first “tradie” in his family.

7. [46]

   A letter from Ozchild confirmed that they were currently working with RB’s mother and family, and there was commitment to foster positive changes in the family unit. The letter from Ms Bates at KARI confirmed the support arrangements and that they will support RB to age 25, including transition to independent living and assistance with referrals and programs.

8. [47]

   There is an affidavit by RB which describes a terrible event two years ago when he and his best friends stole a motorbike and his friend died whilst riding the motorbike during what RB understood to be a police chase. There is a Communities and Justice press release dated February 2024 confirming that there has been a determination made by the DPP that proceedings will be taken against a known person in relation to the death of that boy.

9. [48]

   At some point RB will need counselling regarding that matter but recognising the complex path that can take, I did not think now was the time to require that as a condition of release.

10. [49]

    I have read a letter by RB. He describes things coming together for him with family and work. The letter shows a maturity and a realisation that he has good potential for a life out of custody that he wants to pursue. He feels he has goals and plans and genuinely wants to leave past traumas behind him - although I do think he needs, at an appropriate time, some focussed assistance with coming to terms with those past traumas.

11. [50]

    Considering the mandatory matters set out in s 18(1), first, clearly he has strong family ties. He was supported in Court by his mother and father who attended and were obviously engaged in the issues being discussed during the release application which was relatively involved, and took well over an hour and a half. The offences are repeated serious break and enters and property theft, but I do not accept that there is any clear evidence that RB was involved as a driver in the police pursuits. There have been no personal violence offences of any kind. The only reference to a weapon was an uncredited assertion about on one occasion RB allegedly having a “machete”. The basis for this assertion is unclear. Most of the offending with which he has been charged is to be inferred from phone and data records, hence the need for negotiation as to the facts that apply that will underpin any sentence. There have been a number of pleas entered and so to that extent those prosecution cases are “strong”. He has committed offences previously whilst on bail and has had a number of call-ups and bail breaches. “Criminal associations” is a loaded term, but to the extent RB in fact consorts with other youths accused of the same kind of offending, that is a factor that is present. He has had multiple periods on remand. There is at least some risk a custodial sentence may be imposed, but it depends on the factual bases upon which he is sentenced and for what offending. He has spent nearly six months on remand in the last 12 months referrable to the offending currently progressing through the courts. He is a young, vulnerable Indigenous man still mourning the loss of his best friend in February 2022. Despite his record, I have some confidence that he has recognised a fork in the road, that he has the benefit of a good and well-supported work opportunity, and the need to stay out of trouble.

12. [51]

    Strict bail conditions are proposed. There are people around him who love him and wish to support him. The conditions include house arrest other than for work at [REDACTED], or to see lawyers, or to attend court, or for a medical emergency. There is a non-association condition, a limit to one phone liable to police checking without notice, and a curfew enforcement condition.

13. [52]

    I am satisfied that those conditions, and the support in place, ameliorate the risks to below the level of unacceptable and so I released RB on conditional bail.

Other observations regarding s 22C and its effect on a specified class of accused young persons.

1. [53]

   I appreciate in these circumstances the following remarks are obiter, but given the initial Crown position was to submit that s 22C applied, I considered its effect and operation and wish to make some observations about it, including a concern that it operates in an unfairly discriminatory way upon a section of the community, children aged 14 to under 18, who have been widely and specifically recognised as a group that need support and guidance, not incarceration and disconnection from their family and the community.

2. [54]

   Section 22C of the Bail Act creates significant tension with the purpose and operation of the Children (Criminal Proceedings) Act as it prescribes principles that must be applied when dealing with children in criminal proceedings. In the context of the Bail Act, the “criminal proceeding” is an application by a child for release on bail.

3. [55]

   Section 4 of the Children (Criminal Proceedings) Act appears in Part 2 titled “criminal proceedings generally and provides:

4. [56]

   Section 6 of the Children (Criminal Proceedings) Act provides:

5. [57]

   However, the Bail Act s 22C now provides for a higher bar, (referred to in the Second Reading Speech somewhat coyly as an “additional threshold”), obstructing release for children aged 14 to 17 years and 364 days charged with certain offences, than the regime which applies to adults in exactly the same circumstances.

6. [58]

   The Second Reading Speech makes the “mischief” to which the Bill is directed clear - i.e. - to enhance community safety and address concerns about incidences of young people under the age of 18 committing motor vehicle theft, and break and enter offences, particularly in regional areas. The purpose was stated as follows:

7. [59]

   The Honourable Michael Daley (Attorney-General) during his Second Reading Speech of the Bail and Crimes Amendment Bill 2024 (NSW) in the Legislative Assembly on 12 March 2024 made reference to the “show cause” test prescribed by ss 16A and 16B of the Bail Act as if it was a kind of parallel or comparable hurdle to release:

8. [60]

   Read in context, noting the clear purpose and intention of the provision articulated in the Second Reading Speech, s 22C has the effect of singling out a group of persons, children alleged to have committed certain (as yet unproved) offences, and requiring that they satisfy a higher test, of uncertain meaning and application, before they can be released on bail than any other applicants, including adults charged with offences of the same nature in the same situation.

9. [61]

   The show cause test only applies to adults. There is no statutory prescription for how that test is to be met. There is certainly no requirement that the Court reach a “high degree of confidence” that the adult concerned will not commit a serious indictable offence whilst on bail. The show cause requirement applies to adults accused of repeat offending in the form of serious indicatable offences whilst on bail, extremely serious personal violence offences, firearms offences, offences that can attract a penalty of life imprisonment, commercial level drug manufacture and importation and serious sexual offending against children yet they do not have to demonstrate anything that would inform the court to a “high degree of confidence” about any matter at all. Whether it is the accused applicant or the Crown that bears the onus is not really the issue. It is the requirement that a court refrain from releasing a child accused of certain offences unless it can conclude to a level approaching certainty (although not actually certainty) that the child will not commit a further serious indictable offence where there is no such requirement regarding an adult.

10. [62]

    These considerations highlight a lack of coherence between the bail court’s obligations to comply with ss 4 and 6 of the Children (Criminal Proceedings) Act and the requirements of s 22C, which treats a relevantly charged child’s freedom in a less favourable way than an adult’s freedom in exactly the same circumstances: See s 14 of the Age Discrimination Act 2004 (Cth) “Concept of age discrimination”.