R v GW

Legislative Framework

1. 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.
2. 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]-[9]: "The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states…see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1… The cases on bail recognise that 'no grant of bail is risk free': see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said: 'Bail when granted is not risk free. Williamson v DPP (QLD). As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld).'"
3. 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.

The Juvenile Justice Report

1. The applicant has been known to Youth Justice since 8 September 2022, when he was placed in remand at Orana Youth Justice Centre. He has been remanded into custody on 11 occasions. Due to the fact that the applicant has not been placed on a court order following sentence, and no pleas of guilty have been entered, Youth Justice has not been able to provide any formal supervision.
2. The applicant has been provided with "bail support" which has consisted of referrals to programs such as Youth on Track and Boys to the Bush. Several case meetings with various services such as the Police, Family and Community Services, Education, Justice Health, and the family, have been conducted with the aim of coordinating services to provide wraparound support.
3. In the past, the applicant has refused to engage in a number of programs. On 12 April 2023, the applicant was taken into custody. Whilst detained at Orana Youth Justice Centre, he displayed defiant behaviours, such as arguing with staff and not following directions.
4. On 26 April, he was transferred to Reiby Youth Justice Centre. He continued to misbehave, receiving a total of seven misbehaviour reports for disobedience and bad language. The material discloses that the applicant appears to have struggled with settling into custody. It is opined that this struggle may be due to the applicant's young age, immaturity, and mental health diagnoses.
5. The applicant was allocated to a psychologist who worked with him to develop his motivation for change and develop tools to effect change. The applicant has completed a speech and language assessment which indicates that he is at the lower end of the scale, requiring further ongoing support upon his release. The formal psychometric assessment has not yet been completed.
6. Currently, there is no open case plan with Family and Community Services. The family has been referred to the Family Preservation Program through Uniting. The caseworker from that organisation has advised that she can provide the applicant, and his family, casework support which includes coordinating referrals to appropriate services and supports, as well as assisting the applicant to attend appointments with various service providers.
7. The young person is enrolled at XXX School XXX. In the past he has had a poor attendance rate, however, has engaged well in cultural and outdoor programs. If released, the aim is to gradually increase school hours to full-time enrolment. XXX School will assist with transporting the applicant to and from school.
8. In the community, the applicant receives regular paediatric reviews with Dr XXX. Justice Health advised that the applicant presented to Dubbo emergency department on 24 March 2023, due to threatening self-harm. He was referred to Dubbo Child and Adolescent Mental Health Service for follow-up, however, his mother declined this service. It is unclear from the material as to why his mother, who, on all accounts is supportive of her son, refused to engage with this service.
9. One of the psychologists to whom the applicant was referred whilst in custody, has confirmed that, if granted bail, she will continue weekly appointments with the applicant with the aim of providing a detailed assessment, as well as ongoing psychological interventions as required.
10. If granted bail, Youth Justice has secured funding for the applicant to participate in the Boys to the Bush mentoring program. As part of this program, he will receive one-on-one weekly mentoring from a caseworker over a nine-week period. The program aims to assist the applicant in increasing educational engagement, improving behaviours, learning social skills and developing individual goals to work on. There is also an option for the applicant to attend a Boys to the Bush camp during school holidays. The applicant has previously refused to attend the camp, but it is hoped that with individual mentoring, as well as assistance from the psychologist, a plan can be put in place to better engage with him.
11. Youth on Track are also willing to work with the applicant. They provide ongoing case management support for a period of up to 12 months as required. The applicant has previously engaged with the Police Citizens Youth Club (PCYC) Fit for Change and had sporadic attendance. When he did attend, he engaged well and had positive participation.
12. The applicant is also currently engaged with the Children's Civil Law Service with Legal Aid New South Wales. Ms Shanks is the applicant's case worker. She provided a letter to the court, in addition to dialling into the proceedings. Her role will be predominantly focused on a broad range of social issues that the applicant may face on a daily basis. This would include, but is not limited to, arranging school attendance, attending specialist medical appointments, assisting with engagement in prosocial activities, and providing positive prosocial modelling. During the course of the proceedings, Ms Shanks advised the court that in the event the young person failed to attend school, she would be notified and could follow-up immediately.
13. Ms Welch, Mental Health Clinician, confirms that Dr XXX has diagnosed the applicant with attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder. He has specific learning difficulties. The applicant has been prescribed medications whilst in custody. Dr XXX, paediatrician, noted that the applicant "had severe ADHD symptoms and otherwise have normal intelligence and normal mental processing speed".
14. A review of the relevant records confirmed that the applicant had presented to Dubbo Base Hospital via police escort in March 2023 threatening self-harm. At the time of hearing the bail application, I was informed that a mental health assessment was being completed which include psychometric testing to determine if the applicant has an intellectual disability.
15. The applicant was reviewed in custody on 27 April 2023. His diagnoses included conduct disorder and substance use disorder. His medication was ceased due to constant refusal on the part of the applicant. On 11 May 2023, the applicant agreed to resume his medications so that it could make him "more settled".
16. Ms Welch concluded that the applicant is a young person with mental health impairments as defined in s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). This is evidenced by his ongoing disturbance in mood and volition. His symptoms impair his emotional well-being, judgment, and behaviour.
17. The Youth Justice report states that Youth Justice will not provide "bail supervision" of young people who have not yet entered a plea of guilty or who have not been found guilty of an offence. Youth Justice will continue "bail support" to address areas of concern and will endeavour to coordinate appropriate services deemed necessary in supporting the applicant. This is due to the "complexities of the [applicant's] matters and need to implement appropriate follow-up support".
18. The absence of "bail supervision" in cases where a plea of not guilty has been entered is based on a policy set out in the "Youth Justice Remand Intervention and Bail Services Factsheet" (the "Youth Justice Factsheet"), which has been tendered by the Crown in these proceedings. The policy document states that in January 2023, Youth Justice incorporated "bail support", as an additional service stream, into its remand intervention and bail services. Bail support cannot be a condition of bail as participation is voluntary. The policy is predicated on the basis that it allows Youth Justice staff to provide support to willing young people, without the support being mandated by the court. The Youth Justice Factsheet states: "Youth Justice takes the view that any condition to accept bail support of Youth Justice (or any condition in similar terms) does not place an obligation on Youth Justice to provide the support. Accordingly, no action will be taken by Youth Justice if the young person does not participate or engage in any bail support offered."
19. Three judgments of this Court have attempted to grapple with the policy that bail supervision will not be available in cases where a plea of guilty or a finding of guilt has not been made: see R v JH [2023] NSWSC 93; R v JB [2023] NSWSC 94; R v WB [2023] NSWSC 591.
20. In R v WB [2023] NSWSC 591 at [15]-[16], Lonergan J, referring to the Youth Justice Factsheet, observed that: "[it] introduces a level of uncertainty about the scope of 'bail supervision' as opposed to 'bail support'. This is problematic in circumstances where there needs to be clarity as to responsibility and parameters of assistance and support that can be provided to young vulnerable people in our community accused of criminal offences. Every participant in our criminal justice system is entitled to plead not guilty and to have his or her charges proven beyond reasonable doubt. Young vulnerable people like this man need, and should be entitled to, the same level of supervision as those who plead guilty while they are waiting for the criminal justice system to mete out justice."
21. I again questioned the distinction between "bail supervision" and "bail support" during these proceedings, particularly having regard to the fact that the former is only available in cases where a child has entered a plea of guilty or being found guilty, at least in respect of one offence. Taken at face value, the policy whereby children are not supervised on bail, in circumstances where they plead not guilty, appears unfairly arbitrary.
22. Given the concerns raised, Mr Eshow, in a busy bail list, was able to helpfully arrange for the attendance of Mr Mike Wheaton to give evidence about the Youth Justice Policy. Mr Wheaton is the Director of Policy and Practice for Youth Justice New South Wales. He has served in that role since 2017. The Court appreciates Mr Wheaton's attendance, at short notice, to give evidence about the policy.
23. Mr Wheaton gave evidence that the substantive difference between "bail supervision" and "bail support" is that "bail supervision" is mandatory and compliance-based, whereas "bail support" is intended to be a voluntary service offering to support the young person and their network. In the case of "bail supervision", where there is non-compliance, Youth Justice will take action, potentially leading to the young person being arrested and re-entering custody. On the other hand, where a young person fails to comply with "bail support", that is being offered outside of a legal mandate, Youth Justice will not take enforcement action. Instead, the supportive efforts will persist.
24. In explaining the rationale behind the distinction, Mr Wheaton said that deployment of the Youth Justice services to work with young people is a "double- edged sword". On the one hand, it is helpful to the young person, but there is also a very real risk of bringing young people unnecessarily into the criminal justice system, where, for instance, they failed to comply.
25. The key difference, therefore, appears to be that if there is non-compliance or failure to accept the bail supports, Youth Justice will not take breach action as would happen if there were a supervision order, which is focused on monitoring and compliance. Accepting the rationale underpinning the distinction, a question remains as to whether, notwithstanding the voluntary nature of "bail support", non-compliance would be documented and disclosed in any Juvenile Justice report prepared for an upcoming case.
26. The Youth Justice policy allows for "bail supervision" where a child has pleaded guilty to at least one offence. The rationale for this policy is that Youth Justice is focused on offending and addressing offence-focused behaviour. Until the young person has pleaded guilty or being found guilty, Youth Justice cannot deploy "focused interventions and start to actually address the specific offending behaviour".
27. The availability or non-availability of "bail supervision" is, therefore, dependent upon whether a young person enters a plea of guilty to at least one offence. In a case, for example, where a young person has 50 outstanding charges but pleads guilty to one charge, he/she would receive "bail supervision". However, if a plea of not guilty is entered to all 50 charges, the child receives "bail support".
28. Insofar as this policy is designed to reduce the criminalisation of non-compliance with supervision, it is sound and justified. It would be counter-productive to breach an 11-year-old child for failing to go to school, if that were part of the "bail supervision", having regard to the possible consequences of breach proceedings. I accept that it is far preferable to avoid criminalising conduct that would not otherwise be the subject of criminal charges.
29. However, it is essential that children who have a multiplicity of complex needs are provided with the support, supervision, and guidance they require in the community as opposed to having them detained in custody. It is not always sufficient to refer children to services in the absence of a coordinated plan, with nominated and accountable caseworkers, who are able to engage with the child in an intensive way so that they are able to discern the early signs of non-compliance and relapse. The "bail support" proposed in this particular case is comprehensive and coordinated. However, "bail support" is formulated on a case-by-case basis. Whether or not "bail support" is adequate in a given case, will depend upon the efforts made to provide the wraparound services that may be required.
30. Ensuring that the community is protected against antisocial and criminal behaviour requires more than simply locking up an 11-year-old. What is required is an intensive and coordinated approach. In the case of an Indigenous child, it requires referral to culturally appropriate programs, ideally managed and staffed by Indigenous caseworkers. The significance of culture to well-being, healing and rehabilitation, has been recognised and there is little doubt that "conceptualisations of wellbeing, and therefore efforts for healing and rehabilitation, are intrinsically tied to culture, with Indigenous perspectives of well-being and healing reflecting holistic worldviews that consider connections between physical, social and emotional well-being, individual and collective wellbeing, and the impact of social political and historical factors". [1]
31. The findings of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory [2] indicted that incarcerated children and young people are more likely to have experienced poor physical and mental health and disproportionately higher levels of disadvantage than the general population. Accordingly, their health needs may be greater than those of children and young people in noncustodial settings. The report also noted that children and young people in detention are a particularly vulnerable group. They have varying and complex needs and behaviours. Many have come from crisis situations or a background of disadvantage, have experienced trauma or have a range of health issues. Detention itself may give rise to trauma, which may compound already highly complex behaviours and needs. To address the needs of these children and young people effectively, underlying issues need to be recognised and properly addressed and treated. Research shows that threatening and punitive interactions, incarceration, and punishment escalate the aggressive behaviour of troubled youth. [3]
32. In the present case, the service providers appear to have rallied, particularly following the applicant being bail refused in April 2023. Ms Shanks has taken on the role of coordinating the referrals that have been made to a number of programs. She has demonstrated her commitment by dialling into the proceedings before Ierace J and before me.
33. While I still have some disquiet about the Youth Justice policy and the distinction between pleas of not guilty and pleas of guilty, I proceed in this case on the basis that a sufficiently comprehensive "bail support" plan has been formulated and that Ms Shanks will be amongst the caseworkers who will coordinate that plan and provide support to the applicant.

Section 18(1) Matters

1. I have considered the following matters pursuant to section 18(1) of the Bail Act: 1. the applicant's background, including his family and community ties; 2. some of the allegations allege serious criminal conduct; 3. there is a substantial and live issue as to whether the prosecution can rebut doli incapax; 4. the applicant has no history of violence; 5. the applicant has a history of non-compliance with bail; 6. there is no evidence that the applicant has criminal associations; 7. it is unclear, at this stage, as to precisely how long the applicant will remain in custody if bail is refused, however, it is likely to be a lengthy period; 8. in light of the applicant's very young age, mental health issues, and possible cognitive impairment, it is not inevitable that he will be dealt with by way of a control order; 9. the applicant is an 11-year-old Aboriginal child with mental health issues and possible cognitive impairment; 10. the applicant's grandmother is very unwell and is not expected to live for much longer. The applicant wishes to see her before she dies; and 11. the proposed bail conditions go a long way to addressing the bail concerns that have been identified.
2. In Tsintzas v Director of Public Prosecutions (NSW) [2017] NSWCCA 172 at [50], N Adams J said: "Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, 'The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk'. I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk."
3. An assessment of whether the risk is unacceptable also includes consideration of whether the risk can be mitigated by bail conditions: see R v Hamilton [2022] NSWSC 127 at [14].
4. The proposed conditions include a curfew, obeying all reasonable directions of employees from the following services: Boys to the Bush Mentoring Program; Youth on Track; PCYC Fit for Change/Walwaay Program; Children's Civil Law Service; and Justice Health Community Support Team, as well as attending school.
5. It is well recognised in this Court that bail decisions involve a discretionary, evaluative judgment 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 Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [31]; R v Peter Tsallas [2017] NSWSC 64 at [21].
6. There is one further important factor that I have taken into account in determining that the applicant should be released on bail. His grandmother, with whom he is close, has a terminal condition and is not expected to live for much longer. She is currently in hospital in Bourke. The applicant wants to see her before she dies. Upon his release, he will be driven to Dubbo, where his mother awaits him. His mother will then drive him to Bourke so he can spend a few days with his grandmother before returning to Dubbo to commence the various programs.
7. In light of the applicant's young age, his mental health issues and potential cognitive impairment, it is reasonable to infer that the prosecution will be unable to rebut doli incapax. The applicant is an 11-year-old Aboriginal child. He is vulnerable in detention. A number of services are in place to provide him with the support that he needs in the community.
8. I am satisfied that the "bail support" plan and the proposed conditions ameliorate the risks and accordingly I grant the release application and release the applicant on conditional bail.

Endnotes

1. Vanessa Edwidge and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (June 2021) at 5.
2. Final Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (17 November 2017).
3. A Safer Northern Territory through Correctional Interventions: Summary Report of the Review of the Northern Territory Department of Correctional Services (31 July 2016). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2023