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.
[2]
The Crown's submissions
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.
[3]
R v Weatherall [2023] NSWSC 710 | Case summary | Zoe
Has the Applicant Satisfied the Court that Circumstances Exist to Justify Bail?
I turn to the matters in s 15AAA.
[4]
Likelihood that the applicant will fail to appear
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.
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.
Taking into account the bail proposal, in my opinion, the applicant has established that he is likely to appear if granted bail.
[5]
Likelihood the applicant will commit a further offence
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.
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.
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.
[6]
The risk to safety of the community
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.
[7]
Conceal, fabricate, destroy evidence or intimidate a witness
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.
[8]
Applicant over 18 years of age
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.
[9]
Applicant pleaded guilty and whether applicant likely to undertake treatment
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.
[10]
Other matters
I take the following additional matters into account.
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.
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.
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.
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.
[11]
Conclusion
I am satisfied that the applicant has established that circumstances exist justifying the grant of bail, subject to conditions.
[12]
ANNEXURE A
Conditions of bail
The applicant is to be of good behaviour.
The applicant is to appear at the Local Court at Moree on 27 June 2023 unless excused and thereafter as directed.
The applicant is to live at XXXX and nowhere else.
The applicant is to report to the Officer in Charge at The Entrance Police Station each day, Monday - Sunday, between the hours of 6am and 8pm.
The applicant is to comply with a curfew: not to leave the premises at which the applicant is required to live between the hours of 9pm and 6am except to obtain emergency medical treatment.
The applicant must attend the XXXX no later than on 26 June 2023 for the purposes of undertaking a mental health assessment and care plan. Thereafter, the applicant is to accept all reasonable directions from his treating practitioner, namely XXXX including taking medication as prescribed and accepting referrals for counselling for mental health treatment.
The applicant is not to drink alcohol or enter any premises in which alcohol is sold.
The applicant is not to take any illegal or prescription drugs other than a drug prescribed for the applicant by a medical practitioner.
The applicant is not to be in the company of any person aged under 18 years unless in the company of AB or CD.
The applicant may only travel away from the Clarence Correctional Centre from which the applicant is to be released on bail in the company of AB or CD.
The Applicant is not to approach or communicate with or attempt to make contact with any person who the applicant has been notified as a prosecution witness other than a serving police officer, by any means, including telephone and internet social media platforms, or through a third party, other than a legal representative.
The applicant is not to approach or communicate with, or attempt to make contact with, the complainant and her mother by any means, including telephone and internet social media platforms, or through another person, other than a legal representative.
The applicant is not to enter the State of Queensland.
The applicant is not to own or use or be in possession of any mobile telephone which is a smart telephone or is otherwise an internet capable mobile device without the direct supervision of AB or CD.
The applicant is not to use or possess any encrypted device or any means of communicating via encrypted applications, including but not limited to WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Zoom, Discord, WeChat or Telegram.
The applicant is to provide access to any internet capable device in the applicant's possession to the officer-in-charge on demand and provide any password or PIN code for the device to that person to facilitate access to it.
The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the:
a) curfew condition
b) alcohol abstention condition
c) drug abstention condition
The applicant is to undertake any non-invasive testing required of the applicant at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the:
a) drug abstention condition
b) alcohol abstention condition
[13]
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: 29 June 2023
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Weatherall
Legislation Cited (6)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020(Cth)
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.
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.
The alleged facts are as follows.
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.
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.
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.
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
In Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312 at [40], Beech-Jones J, as his Honour then was, said:-
"Subsection 68(1) of the Judiciary Act 1903 (Cth) provides, inter alia, that the "laws" of New South Wales "respecting ... the procedure for ... holding accused persons to bail" are applicable to persons charged with federal offences in this State. That provision also confers jurisdiction on the courts of this State to hear and determine bail applications for persons charged with federal offences. In enacting that provision, the Commonwealth Parliament made a deliberate choice to invoke the statutory regime for bail in New South Wales that is in force from time to time when prosecutions are pending in New South Wales courts for a Federal offence. Save where express provision is made by Commonwealth legislation (see for example, Crimes Act 1914 (Cth), s 15AA(1)), it follows that the CDPP and the AFP stand in no different position to any State prosecuting or investigatory body invoking those provisions."
In this particular case, Mr Healy, who appears for the Commonwealth, relies upon s 15AAA of the Crimes Act, which relevantly provides:-
(1) Despite any other law of the Commonwealth, a bail authority must not grant bail to a person who:
(a) is charged with, or convicted of, an offence described in column 1 of an item in the table in section 16AAA; or
(b) is charged with, or convicted of, an offence described in column 1 of an item in the table in subsection 16AAB(2) and who has previously been convicted of a child sexual abuse offence;
unless the bail authority is satisfied by the person that circumstances exist to grant bail.
(2) In addition to any other matters, in determining whether the bail authority is satisfied that circumstances exist to grant bail to a person, the bail authority must take into account such of the following matters as are relevant and known to the bail authority:
(a) whether the bail authority considers that the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail;
(b) whether the bail authority considers that the person would be likely to commit a further offence if the person were granted bail;
(c) whether the bail authority considers that the person would be likely to put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail;
(d) whether the bail authority considers that the person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail;
(e) whether the person was aged 18 years or over when the offence was committed;
(f) if the person has pleaded guilty to the charge in respect of the offence or been convicted of the offence - whether the bail authority considers that the person would not be likely to undertake a rehabilitation program, or not be likely to comply with any bail conditions relating to rehabilitation or treatment, while released on bail.
(3) If the bail authority is a court and it grants bail, the court must:
(a) state its reasons; and
(b) cause those reasons to be entered in the court's records.
(4) Despite any law of the Commonwealth, the Director of Public Prosecutions or the person may appeal against a decision of a bail authority:
(a) to grant bail to the person despite subsection (1) on the basis that the bail authority is satisfied that circumstances exist to grant bail; or
(b) to refuse to grant bail to the person on the basis that the bail authority is not satisfied that circumstances exist to grant bail.
(5) An appeal under subsection (4):
(a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (4), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and
(b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.
(6) If:
(a) a bail authority decides to grant bail to the person; and
(b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision mentioned in subsection (4);
the decision to grant bail is stayed with effect from the time of the notification.
(7) A stay under subsection (6) ends:
(a) when a decision on the appeal is made; or
(b) when the Director of Public Prosecutions notifies:
(i) the bail authority; or
(ii) if an appeal has already been instituted in a court - the court;
that he or she does not intend to proceed with the appeal; or
(c) 72 hours after the stay comes into effect;
whichever occurs first.
(8) To avoid doubt, except as provided by subsections (1), (4), (5), (6) and (7), this section does not affect the operation of a law of a State or a Territory.
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.
Section 15AB of the Crimes Act also applies, and provides as follows:-
(1) In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Commonwealth or the Northern Territory, or in determining conditions to which bail granted to such a person should be subject, a bail authority:
(a) must take into consideration the potential impact of granting bail on:
(i) any person against whom the offence is, or was, alleged to have been committed; and
(ii) any witness, or potential witness, in proceedings relating to the alleged offence, or offence; and
(b) must not take into consideration any form of customary law or cultural practice as a reason for:
(i) excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or
(ii) aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.
(2) If a person referred to in subparagraph (1)(a)(i) or (ii) is living in, or otherwise located in, a remote community, the bail authority must also take into consideration that fact in considering the potential impact of granting bail on that person.
(3) In paragraph (1)(b):
criminal behaviour includes:
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
(3A) Paragraph (1)(b) does not apply in relation to an offence against the following:
(a) section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;
(b) sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999;
(c) section 48 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986;
(d) sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976;
(e) section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987;
(f) sections 33, 34 and 35 of the Northern Territory Aboriginal Sacred Sites Act of the Northern Territory;
(g) paragraph 33(a) of the Heritage Conservation Act of the Northern Territory;
(h) section 4 of the Aboriginal Land Act of the Northern Territory;
(i) sections 111, 112 and 113 of the Heritage Act of the Northern Territory;
(j) any other law prescribed by the regulations that relates to:
(i) entering, remaining on or damaging cultural heritage; or
(ii) damaging or removing a cultural heritage object.
(4) To avoid doubt, except as provided by subsections (1), (2) and (3A), this section does not affect:
(a) any other matters that a bail authority must, must not or may take into consideration in determining whether to grant bail or in determining conditions to which bail should be subject; or
(b) the operation of a law of a State or a Territory.
Note: Subsections (1) and (2) indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.
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).
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).
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.
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."
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.
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).
I observe that the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) relevantly says:-
"[231] The intention of the Part is to provide that for the protection for the community, the starting point is that bail be refused for persons alleged to have committed a Commonwealth child sex offence to which the minimum penalty scheme in Schedule 6 would apply, unless circumstances exist justifying the grant of bail. The presumption against bail is rebuttable and provides judicial discretion in determining whether a person's risk on bail can be mitigated through appropriate conditions which make the granting of bail appropriate in the circumstances. Flexibility is provided by the open nature of the presumption which is not limited to specific criteria.
…
[236] Proposed subsection 15AAA(2) will require that, in addition to any other matters, a bail authority must be satisfied that circumstances exist to grant bail to a person taking into account such of the matters outlined in paragraphs(2)(a)-(f) as are relevant and known to the bail authority.
[237] In considering these matters, the bail authority will be required, as part of its assessment, to consider the bail conditions which could be reasonably be imposed on the person to address those matters."
[emphasis added]
I accept for the purposes of this release application that the Explanatory Memorandum sets out the proper procedure which I propose to follow.