DC v R

1. [1]

   The applicant, DC, is a 17-year-old young person who has made a release application under s 49 of the Bail Act 2013 (NSW). He has been in custody for nearly a year, since 5 March 2025.

2. [2]

   The applicant's case is relevantly listed for sentence at the Children's Court at Coffs Harbour on 9 March 2026. He is also currently charged, or is soon to be charged, with two other sets of offences. A future court attendance notice is to issue in relation to one set, and no bail is applicable to the other set.

The charges and the applicant’s history

1. [3]

   Relevantly to the present application, the applicant has been charged with ten offences: nine counts of either aggravated breaking, entering and stealing in company or of aggravated breaking and entering in company with intent to steal, and one count of reckless wounding in company.

2. [4]

   In brief, the Crown alleges that the applicant, along with two or three co-accused persons, broke into a series of dwellings and retail premises during the two-day period of 11 to 12 February 2025. In a number of instances it is said that the accused persons were able to locate and steal personal property such as expensive jewellery, handbags and cash, as well as keys to vehicles. Two vehicles are also said to have been stolen.

3. [5]

   At one of the premises the complainant was asleep inside. It is said that one of the offenders punched the complainant in the face three times when she tried to resist the theft of her handbag. That attack is the subject of the reckless wounding charge. The complainant required two surgeries to repair damage to her eye and face. Prior to those surgeries she was blind in one eye, with a detached retina.

4. [6]

   The applicant has a depressingly lengthy criminal history, given his age. His first recorded appearance before a court was when he was 12 years old. He has been subject to numerous penalties under s 33 of the Children (Criminal Proceedings) Act 1987 (NSW) for offences such as stalk/intimidate, assault, breaking and entering, motor vehicle theft and being carried in a stolen conveyance. He was sentenced to a 12-month control order in October 2024, with a six-month non-parole period. He was out on parole when he committed these offences.

5. [7]

   In May 2025 he was sentenced to a further control order of 13 months, backdated to 3 March 2025. The non-parole period for that sentence expired on 17 September 2025. Thus, although he has been bail refused for nearly a year, for at least six-and-a-half months of that time he was subject to a control order in any event.

6. [8]

   He has been cautioned by police, attended youth conferences with police, and received warnings from judicial officers on numerous occasions. There are some 15 recorded breaches of bail.

The bail application

1. [9]

   This bail application was filed on 17 December 2025. The application enlivens s 22C of the Bail Act, because the applicant was on bail for a serious breaking and entering offence when he is alleged to have committed another serious breaking and entering offence. That section requires the bail authority not to grant bail to a young person unless the authority has a high degree of confidence that the young person will not commit a serious indictable offence while on bail. Pursuant to subs (2) of that section, it is necessary first to address the unacceptable risk test.

2. [10]

   The Crown has raised the following bail concerns under s 17 of the Act: failure to appear; commit a serious offence; and endanger the safety of victims, individuals or the community.

3. [11]

   Pursuant to s 19 of the Act, bail must be refused if I am satisfied, with respect to one or more of the bail concerns, that release on bail presents an unacceptable risk. Otherwise, taking account of s 20, an order must be made which would allow the applicant to be released. Whether there is an unacceptable risk with respect to the bail concerns is to be assessed having regard only to the matters set out in s 18. Whether or not there is an unacceptable risk can take account of any bail conditions that can reasonably be imposed to address any bail concerns.

4. [12]

   Releasing any alleged offender into the community involves some risk, but the Act requires that that be done unless the risk relating to the bail concern is assessed to be unacceptable. The Act takes that approach in light of the presumption of innocence and the general right to be at liberty where not subject to a sentence of imprisonment, as referred to in the preamble to the Act.

5. [13]

   In this case there can be no doubt that the bail concerns raised by the Crown exist. So much is amply supported by the record of the applicant, to which I have referred. There have been regular breaches of bail, and ongoing committing of offences, including whilst on parole.

The availability of residential rehabilitation

1. [14]

   The bail proposal before me, however, has the very great benefit of proposing residential drug rehabilitation. In particular, there is a letter from the Ted Noffs Foundation indicating that a place is available at their facility in Newcastle. The letter indicates that that facility operates 24 hours a day seven days a week, with clients being fully supervised at all times. The letter says that the applicant may reside there "for up to three months". It says that the facility adopts a holistic approach to treatment, and helps young people reclaim their lives and relationships after problematic drug and alcohol use. I accept that the record of the applicant and the evidence before me is strongly suggestive of the applicant having significant issues with drugs and alcohol.

2. [15]

   The availability of a residential rehabilitation place to someone seeking bail is generally a factor militating firmly in favour of a grant of bail when the applicant is struggling with significant drug and alcohol issues: see eg Bunyan v R [2025] NSWSC 1216 at [23]-[25], [27] and [31]. That factor fits into the Bail Act not least because of s 18(1)(m), which refers to "the need for the accused person to be free for any other lawful reason". Seeking treatment for drug and alcohol problems is such a reason. The availability of a residential facility gives that factor, as I have indicated, significant weight in circumstances such as the present.

3. [16]

   There are other factors in favour of the bail application made by the applicant, in particular his youth and vulnerability. He is especially vulnerable taking account of his Indigenous background and intellectual challenges, which are referred to in a report from Youth Justice which I have before me. Ordinarily, thus, I would be inclined to find that there were no unacceptable risks and, subject to consideration of s 22C, would have been inclined to grant bail on the conditions proposed.

A concern about fettering the discretion of the sentencing court

1. [17]

   However, the significant and, in the end, determinative factor in this case is that the applicant is to be sentenced for the offences at issue in only 19 days' time. As I have indicated, the rehabilitation program to which it is proposed that the applicant be bailed involves a period of residence for up to three months. Although the letter does not state in terms any particular length of the program, it is implicit that it is a significant residential program which I infer would generally be of the order of many weeks and perhaps commonly three months.

2. [18]

   Given the record of the applicant and the nature of the offences for which he is to be sentenced, a control order seems a reasonably likely outcome. The offences with which he has been charged, and to which he has pleaded guilty, are serious.

3. [19]

   To commit him by bail conditions to the residential program could well be seen, in my view, to fetter the sentencing discretion of the magistrate who is to deal with this case in 19 days' time.

4. [20]

   In Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173, R A Hulme J said, with the agreement of the other members of the Court, that:

5. [21]

   The solicitor appearing for the applicant has referred to a decision of Garling J in JM v R [2015] NSWSC 978, where his Honour said the following:

6. [22]

   The context in which his Honour was making those remarks is different from the current context. The “second essential principle” to which he referred was that “an accused person, who is presumed to be innocent, is not to be punished before a conviction” (see at [34]).

7. [23]

   In any event, with respect, it seems to me his Honour's remarks are too broadly expressed. They are stated in very general and all-encompassing terms. As I have indicated, the significance of the availability of a residential rehabilitation facility in a case such as the present is significant not least because of s 18(1)(m) of the Bail Act, relating to "the need for the accused person to be free for any other lawful reason". It seems to me that the weight and significance of that factor may be diminished if, as in this case, to grant bail to the applicant is likely to cut across the sentencing exercise soon to be undertaken by a sentencing court. In that way, the issue raised by the Court of Criminal Appeal in Campbell is indeed consistent with s 18 and the related provisions of the Bail Act.

8. [24]

   Furthermore, it seems to me that Garling J's broad statement is inconsistent with what was said by the Court of Criminal Appeal in Campbell, being a decision which binds me.

9. [25]

   The solicitor appearing for the applicant has made the significant point that unacceptable risk must be assessed as at today. I accept the force of that submission. He has also referred to the very positive Youth Justice report that is before me. He has noted that the significant time that the applicant has spent in custody has been "put to good use". I accept that submission.

10. [26]

    Nevertheless, the fact remains that to grant bail to the applicant to live in a residential rehabilitation facility, in practice for something like at least two and potentially three months, might well be seen as fettering the exercise of the sentencing magistrate in 19 days' time.

11. [27]

    The solicitor appearing for the applicant makes the point that bail will end when the sentence is imposed and, further, that it will be possible for the magistrate himself or herself to, for example, make an order under s 33(1)(c)(ii) of the Children (Criminal Proceedings) Act to adjourn the sentencing exercise in order to enable the applicant to attend the same rehabilitation facility. That very point illustrates that by bailing the applicant to that place today, my decision would be impacting upon the exercise of the sentencing discretion of the magistrate. That is not something, in the current circumstances, I am prepared to do.

12. [28]

    Taking account of all the circumstances, I consider that the risks of releasing the applicant on bail are unacceptable, and bail is refused.