The King v Abuelheish

Bail Act 1982, s 7A, s 7A(2), 7A (2AA), 7A(2AB) , s 24, s 24(1), s 24(1)(a),

s 24(1)(a)(i), s 24(1)(aa), s 24(1)(d) s 36(1), s 36(3)

Misuse of Drugs Act 1990, s 3, s 5(1), s 7(1), sch 1

Bail Act 2013 (NSW) s 22C(1)

DZY v Trustees of Christian Bros [2025] HCA 16, JM v R [2015] NSWSC 978, Chau v Director of Public Prosecutions (1995) 37 NSWLR 639, R v EM [2025] NTSC 31, RB v R (No 2) [2024] NSWSC 845, R v TB [2025] NSWSC 38, Workpac Pty Ltd v Skene [2018] FCAFC 131

Crown: Office of the Director of Public Prosecutions

The King v Abuelheish (aka Jorban) [2025] NTSC 47

• [1] This is an application made at the request of the Director of Public Prosecutions under s 36(1) of the Bail Act 1982 ("the Act") for review of a Local Court decision made 30 June 2025 granting bail to the defendant, Ahmad Abuelheish, also known as Ahmad Jorban.
• [2] Section 36(3) of the Act provides that this review is by way of rehearing and may take account of the evidence or information before the Local Court and any additional evidence or information. It therefore proceeds as a rehearing de novo.

• [3] The defendant has been charged with two offences under subsection 5(1) and 7(1) of the Misuse of Drugs Act 1990. First, that on 2 May 2025 at Katherine South in the Northern Territory "he intentionally supplied a substance to another person, and being reckless as to the substance being a dangerous drug, and the quantity of the dangerous drug supplied (methamphetamine) was a commercial quality". Secondly, that on the same date and at the same place he intentionally possessed the same substance and quantity in the same circumstances.
• [4] The maximum penalty for both alleged offences is 25 years imprisonment. Because that term of imprisonment exceeds 7 years, the presumption against bail prescribed by subsection 7A(1)(c) of the Act applies.

• [5] The circumstances of the defendant's alleged offending, as outlined in the Crown facts, are as follows. At some time prior to 30 April 2025 the defendant and his alleged co-offender sourced a commercial quantity of methamphetamine with the intention of travelling to Darwin and supplying that drug to an unidentified person or persons. At about the same time they concealed the methamphetamine within the lining of a spare motor vehicle tyre.
• [6] On the afternoon of 30 April 2025, in the course of their journey to Darwin, the defendant and his co-offender hired a Toyota utility from Avis Car Rentals in Roma, southwest Queensland.
• [7] I interpolate to note that, in support of this review application, the Crown relied on a statement made by Mr William Edward Putt, the Avis employee in Roma who processed the hire car agreement concerned. In his statement Mr Putt records that he watched the defendant and his alleged co-offender load their belongings into the Toyota utility which belongings included a spare tyre. In respect of that item, Mr Putt said:

"I recall thinking how strange it was that they had their own spare tyre with them, particularly a tyre for a different vehicle. I say this as the tyre appeared to be wider, slightly smaller circumference and also that it didn't seem fully inflated. From memory I think it may also have had a different stud pattern, in that it was six-stud compared to the Land Cruiser which I think is five stud."

• [8] Having hired the vehicle concerned they drove it to Mount Isa where, on 1 May 2025, they exchanged it for another Toyota utility. At some time during this period, they secured the spare tyre underneath the exchange vehicle. Thereafter they drove that vehicle to Katherine in the Northern Territory. When they arrived in Katherine early in the morning of 2 May 2025 they were stopped by police and the vehicle was searched. As a result of that search several plastic sealed bags were located within the spare tyre which were found to contain various quantities of methamphetamine totalling 1160 grams. That total quantity is 29 times greater than the prescribed commercial quantity for that drug under the Misuse of Drugs Act 1990[1] and has a current street value of approximately $700,000.
• [9] The defendant was arrested on 2 May 2025 and has remained in custody since that time.

• [10] As already mentioned, the defendant was granted bail in the Darwin Local Court on 30 June 2025. That grant of bail was made subject to the following conditions:

(b) The defendant must reside at 14A Wales Street, Greenacre NSW 2190;

(c) The defendant is to report daily to the Sergeant at Bankstown Police Station between the hours of 6am and 8pm;

(d) The defendant must be present in the company of his mother Missadi ABUELHEISH, born 12 October 1972, or brother Mohammad at all times;

(e) The defendant is not to be absent from his place of residence between the house of 8pm to 5am;

(f) The defendant is not to apply for any travel documents and his current passport must be surrendered to the Northern Territory Police before his release on bail;

(g) The defendant is not to leave the state of NSW unless for attendance at court at which time, 48 hours' notice must be provided to the officer in charge with details of the defendant's itinerary including flights and accommodation;

(h) The defendant is to appear before the court when called upon;

(i) The defendant is not to consume any illicit drug or alcohol and shall submit to testing when requested by a Police Officer;

(j) The defendant is not to associate or communicate (except through his lawyer) with any prosecution witness including Adam YAGHI;

(k) Mohammad ABUELHEISH lodges the sum of $50,000 cash with the clerks of courts, Local Court, Nichols Place, to ensure the accused attendance at court and compliance with conditions of Darwin bail;

(l) The defendant is not to leave Berrimah Correctional Centre unless in the company of his mother Missadi ABUELHEISH or brother Mohammad ABUELHEISH;

(l) The defendant must not possess or use more than one mobile phone, the IMEI number and phone number and network provider for which he must cause to provide to the Police Officer in charge within 24 hours of his release or within 24 hours of obtaining same, whichever the earlier;

(m) The defendant is not to access any computer or electronic communication devices:

(i) The defendant is not to access the internet;

(ii) The defendant is not to engage in any encrypted communications;

(ii) The defendant is not to have any applications on his mobile phone that will allow for encrypted communication; and

(n) The defendant must provide his phone to a police officer upon request with the PIN code to it and unlock the phone immediately or facilitate biometric testing.

• [11] The defendant relied on an affidavit of Mr Bazzi, his lawyer sworn 2 July 2025 and the submissions of his counsel directed, in particular, to the criteria in s 24 of the Act. In his affidavit, Mr Bazzi said, among other things, that the defendant's mother and brother are fully aware of the strict conditions of the defendant's bail and have given assurances that if he breaches any of those conditions they will immediately contact police and report him. Mr Bazzi also said the defendant is of the Islamic faith and that he has experienced difficulties while he has been in custody because no halal food has been offered to him. As well, he said that his custody in Darwin is particularly difficult for him because it means that he has limited contact with his family in New South Wales. In addition, Mr Bazzi said that the defendant needs to return to Sydney so that he can work there and thereby fund his legal representation.
• [12] In his submissions, the defendant's counsel, Mr Moore, placed particular emphasis on the rigorous nature of the defendant's proposed bail conditions. He contended that those conditions meant that the defendant would essentially be confined to the nominated address in Sydney, that he would be required to report to police in New South Wales on a daily basis and that he would only be able to use one mobile phone. The frequency of his daily reporting requirements meant, so he contended, that any failure to comply would likely be detected quickly. In addition, he emphasised that one of the conditions required the defendant's brother to lodge a $50,000 cash security with the Local Court in Darwin.
• [13] With particular regard to the criteria in s 24 of the Act, Mr Moore contended, among other things, that: the defendant has not been on bail before so he has no history of breaching bail conditions; that at 26 years of age he is a relatively young person; that he has a limited criminal history and has never been in custody before; and that he poses no threat to the safety of the community were he to be released on bail.
• [14] Mr Moore also contended that, at least with respect to the first count, the Crown's case was not strong because there is no evidence of the defendant's direct involvement in supplying the methamphetamine. In this respect Mr Moore contended that there was likely to be a delay of between 12 to 18 months before the matter comes to trial and that if the defendant is not convicted on that count, that period of imprisonment may exceed any likely penalty to be applied for the second count of possessing the methamphetamine.
• [15] The Crown relied upon two affidavits, one made on 30 June 2025 by Constable Verity, one of the officers in charge of the investigation, and the other made on the same date by Ms S Bicknell, a lawyer employed in the office of the Director of Public Prosecutions.
• [16] In his affidavit Constable Verity deposed that:
  1. There is no Memorandum of Understanding, Standard Operating Procedure, or Cooperation Agreement in existence between the Northern Territory Police Force and the New South Wales Police Force pertaining to the management and enforcement of a bail undertaking and the conditions thereof for a person who is granted bail in the Northern Territory to reside in New South Wales.
  2. The New South Wales Police Force is therefore under no obligation to ensure compliance with the proposed conditions of the defendant's bail and, absent that obligation, the Northern Territory Police Force lacks the ability to do so.
  3. The defendant's brother, Mohammed Abuelheish was, on 9 December 2024, found guilty in New South Wales of assault occasioning actual bodily harm.
  4. If the defendant fails to comply with the conditions of his bail that will "likely result in a very time-consuming and expensive extradition, severely delaying any potential justice in relation to this matter".
• [17] In her affidavit, Ms Bicknell deposed that: at the time of his alleged offending the defendant was the subject of an 18 month Community Corrections Order imposed on 7 March 2024 for the offence of bringing a prohibited drug/plant into a detention facility.
• [18] Separately, Ms Bicknell submitted that: the defendant's brother's criminal history provides no confidence that he will assist in the enforcement of the defendant's bail conditions; that the defendant has no known links in the Northern Territory and there is therefore a significant risk that he will fail to answer his bail, particularly having regard to the quantity and value of the methamphetamine the subject of his alleged offending; and that having regard to, among other things, the evidence of Mr Putt, the Crown had a strong case.

The relevant provisions of the Bail Act 1982

• [19] In addition to creating the presumption against bail, mentioned earlier, s 7A of the Act includes several other provisions that are particularly pertinent to the present application. They include ss 7A(2), (2AA) and (2AB) of the Act as follows:

7A No bail for certain offences without high degree of confidence in accused person

(2) An authorised member or court must not grant bail to a person accused of an offence to which this section applies unless the person satisfies the member or court that bail should be granted.

See sections 24 and 24A in relation to the matters to be considered by an authorised member or court in determining whether bail should be granted.

(2AA) The matter mentioned in section 24(1)(aa) is the paramount consideration when the authorised member or court is determining whether bail should be granted to the person.

Section 24(1)(aa) provides for consideration of the risk to the safety of the community if a person accused of an offence is released on bail.

(2AB) Even if an authorised member or court is satisfied, as mentioned in subsection (2), that bail should be granted, the member or court must not grant bail to the person unless the member or court has a high degree of confidence, when considered in isolation from matters mentioned in sections 24 and 24A, that the person will not, if released on bail:

(a) commit a prescribed offence or a serious violence offence; or

(b) otherwise endanger the safety of the community.

• [20] As is apparent above, these provisions refer to, and impact on, certain of the matters set out in s 24 of the Act. Relevantly for the purposes of this application they are:
  1. Criteria to be considered in bail applications

(1) Subject to section 24A, in making a determination as to the grant of bail to an accused person, an authorised member or a court must take into consideration so far as they can reasonably be ascertained the following matters only:

(aa) the risk (if any) to the safety of the community that would result from the accused person's release on bail;

(a) the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to:

(i) the person's background and community ties, as indicated by the history and details of the person's residence, employment and family situations and, if known, the person's prior criminal record; and

(ii) any previous failure to appear in court pursuant to a recognizance of bail entered into before the commencement of this section or pursuant to a bail undertaking; and

(iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty; and

(iv) any specific evidence indicating whether or not it is probable that the person will appear in court;

(b) the interests of the person, having regard only to:

(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody; and

(ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both; and

(iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii); and

(A) any cognitive impairment, as defined in section 6A(2) of the Mental Health and Related Services Act 1998 of the person; or

(B) any mental impairment, as defined in section 43A of the Criminal Code of the person; and

(iiic) any needs relating to the person's cultural background, including any ties to extended family or place, or any other cultural obligation; and

(iv) whether or not the person is, in the opinion of the authorised member or court, incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection;

(c) the risk (if any) that the accused person would (if released on bail) interfere with evidence, witnesses or jurors;

(d) the risk (if any) that the accused person would (if released on bail) commit an offence, a breach of the peace, or a breach of the conditions of bail.[2]

• [21] It is well established that text, context and purpose are the critical factors affecting the construction of statutory provisions like those set out above. As the High Court explained recently in DZY (a pseudonym) v Trustees of The Christian Brothers "the language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Or, as was explained in Project Blue Sky Inc v Australian Broadcasting Authority, statutory construction requires deciding what the legal meaning of the relevant provision is "by reference to the language of the instrument viewed as a whole."" [3]
• [22] Dealing with statutory purpose first, the evident purpose of the presumption against bail expressed in the provisions set out above is to elevate the community's interests, particularly its protection[4], over the interests of an alleged offender to be at large whilst subject to a criminal charge in relation to which they are assumed to be innocent.[5] In respect of the latter interest, it has been said that "... The essential and important principle which is not to be ignored, is that an accused person, who is presumed to be innocent, is not to be punished before a conviction... [p]ut differently, bail is not denied to a person as a punishment...".[6]
• [23] On the other hand, as Gleeson CJ said in Chau v Director of Public Prosecutions[7], involving a challenge to the provision creating a presumption against bail in the equivalent New South Wales legislation: "There is no common law right in a person who has been arrested and charged with a serious crime to be at liberty or on bail pending the resolution of the charge.... In any event if there were such a right, it could be modified by statute."[8]
• [24] Dealing next with context, it is convenient to mention the observations I made in R v EM[9] about the two-step process required by the provisions set out above. In summary, the first step is to consider the matters in s 24 of the Act and, in particular, the paramount consideration in s 24(1)(aa) of the Act: "the risk (if any) to the safety of the community that would result from the accused person's release on bail". If the applicant overcomes the presumption at the conclusion of that step, the second step requires the decision maker to consider separately from those matters whether there is a "high degree of confidence" that the person "will not" if released on bail, either commit a prescribed offence, or a serious violence offence, or otherwise endanger the safety of the community.
• [25] That brings me to the textual matters that affect the determination of this application. The first concerns the change in terminology between whether an event or outcome "would" occur or result, under the first step, as prescribed in subsection 24(1)(aa) of the Act, and various other parts of subsection 24(1) of the Act,[10] and whether it "will not" come about as required by s 7A(2AB) of the Act, under the second step. In my view, this textual change is significant because it affects the nature of the assessment required under each step. That is so because an event that "will not" happen incorporates a definitive future intent or expectation about that occurrence whereas an event that "would" happen or result permits of an assessment of the possibility of, and conditions under which, it would take place. The former is therefore inherently more certain in nature than the latter.
• [26] In this respect several decisions in the New South Wales Supreme Court are worth mentioning because they have considered the assessment required by the phrase "high degree of confidence" as it is used in subsection 22(C)(1) of the Bail Act (NSW) 2013. Relevantly that section provides:

"A bail authority must not grant bail to a relevant young person for a relevant offence alleged to have been committed while the young person is on bail for another relevant offence unless the bail authority has a high degree of confidence the young person will not commit a serious indictable offence while on bail subject to any proposed bail conditions."

It should be noted that this provision deals exclusively with an application for bail by a young person and that the Crown, not the applicant, bears the onus.[11]

• [27] In R v RB (No 2)[12], Walton J observed in obiter[13] that the word "confidence" meant: "an assured expectation, the state of feeling certain (of)" (Shorter Oxford English Dictionary, 6th ed (2007)". Adopting that meaning, her Honour considered that: "..... the evaluation involved under subsection (1) involves a consideration of the future conduct of the young person, namely, whether there may be confidence to the requisite degree that the young person will not commit a serious indictable offence whilst on bail subject to proposed bail conditions. That is an evaluation of a future occurrence."[14]

1. Her Honour went on to observe that the expression created a "high bar" but not one amounting to a state of certainty. She said that it: "will, therefore, involve something in the nature of a probabilistic assessment. The consideration of whether probability and confidence are synonymous is a question best reserved for determination when more comprehensive submissions are available on that question. So too is the question whether a finding of confidence import some value assessment based on the evidence as well as the experience of the decision-maker."[15]

• [29] With the qualification mentioned above about the Crown's onus[16], I respectfully agree with these observations in so far as they bear on the nature of the assessment required by subsection 7A(2AB) of the Act under the second step identified earlier. That being so, and having regard to the textual change identified above, it would follow, in my view, that the assessment required under the first step involves a lesser degree of certainty and a lower bar. There is, however, one exception to this conclusion. It is the matter in subsection 24(1)(a) which refers to: "the probability of whether or not the person will appear in court." I will return to this below.
• [30] There is another textual matter that affects the determination of this application. It concerns the word "community" which appears in subsection 7A(2AB) of the Act and several times in s 24 of the Act. Unless context requires otherwise, the same word appearing in different parts of a statute is ordinarily to be given the same meaning.[17] In my view, there is no contextual indication to the contrary in the provisions set out above because the "community" whose safety is potentially affected by a defendant's conduct, if released on bail, under both the paramount consideration in subsection 24(1)(aa) of the Act and under the "high degree of confidence" requirement in s 7A(2AB) of the Act, is self-evidently, one and the same as the "community" to which the same defendant is expected to have ties for the purposes of determining whether he or she "probably ....will" answer bail under s 24(1)(a)(i) of the Act.[18]
• [31] According to the Macquarie Australian Dictionary, 8th ed, 2020, the ordinary English meaning of the word "community" is, relevantly: "all the people of a specific locality or country... a particular locality, considered together with inhabitants". Locality is therefore pivotal to the concept of community as that word is used in these provisions.

• [32] For the following reasons, when the competing matters prescribed under s 24 of the Act are weighed, I do not consider the defendant has, on balance, overcome the presumption against bail contained in s 7A of the Act. This means that the defendant's application fails at the first step identified above and it is therefore unnecessary to consider the second step.
• [33] Turning first to the paramount consideration in subsection 24(1)(aa) of the Act, as observed earlier, this consideration requires a probabilistic assessment of the risk the defendant would pose to the safety of "the community" were he to be released on bail, noting that that assessment involves less certainty and a lower bar than that required under the second step. Furthermore, the locality that is pivotal to the word "community" mentioned above, indicates that, in this matter, it is the safety of the Northern Territory community and, in particular, the community in and around Darwin with which this provision is concerned.
• [34] Methamphetamine is notoriously harmful to those who consume it and, by extension, to the community of which those persons are members, relevantly, in this matter, the Darwin community. Accordingly, if the defendant's alleged offending were to be repeated while he is on bail, that harm would inevitably result to those persons and to that community. However, if the defendant resides in Sydney while he is on bail, as his proposed conditions of bail require, the likelihood of that harm occurring to that community, would be significantly reduced. That is so, most obviously, because in that location, he will be thousands of kilometres away from Darwin. While that likelihood would be even further reduced if he were to comply strictly with those conditions, for the reasons given below, I doubt that will occur. Nonetheless conducting the kind of assessment described above, I would assess the risk that the defendant poses to the safety of the Darwin community, for the purposes of subsection 24(1)(aa) of the Act, as low.
• [35] The next community interest matter in subsection 24(1) of the Act is contained in subsection 24(1)(a), namely the probability of the defendant answering his bail. As mentioned earlier, that subsection uses the words "will appear in court" thus requiring an assessment involving greater certainty and a higher bar. In addition, the use of the word "only" in the introductory words to that subsection limits the relevant matters to those listed. Finally, the expression "the community" appearing in subsection 24(1)(a)(i) refers to the Darwin community because, in addition to the matters mentioned above, the Local Court at Darwin is the Court in which he will be required to appear to answer his bail.
• [36] This last conclusion presents the defendant with a significant difficulty. First and foremost, that is so because he accepts that he has no ties at all to that community. And that deficiency is compounded when the other matters specified in subsection 24(1)(a) of the Act are considered. Specifically, while he has not previously breached a bail recognizance,[19] his prior criminal record for a drug-related offence,[20] together with the nature and seriousness of his present alleged offending and the severity of his likely penalty if he is found guilty[21] make it less probable that he will appear to answer his bail. It is compounded even further in respect of the last matter because I do not accept the defendant's contention that the Crown's case on the supply charge (count 1) is weak. The degree of planning involved in allegedly acquiring such a large quantity of methamphetamine, then secreting it in a spare tyre and finally arranging to transport that tyre personally by road from New South Wales to Darwin suggests, at least on a prima facie basis, a level of involvement beyond that of a mere courier.
• [37] Nor, for the following reasons, does the evidence of Mr Bazzi, Constable Verity and Ms Bicknell summarised above enhance that probability.[22] First, while the defendant's bail conditions are undeniably stringent, that is of little moment if, as Constable Verity's affidavit demonstrates, there is no independent mechanism in place to enforce them in New South Wales. In this regard, I place little weight on the assurances of the defendant's mother and brother. All the more so where both the defendant and his brother have recently been convicted of criminal offences in New South Wales, thus demonstrating a lack of regard for the law and legal constraints.
• [38] Secondly, Sydney is the largest city in Australia. If the defendant breaches the conditions of his bail and disappears into that city, it will be self-evidently difficult to locate him and even if he is located, the delay and expense to his prosecution posited by Constable Verity in his affidavit is very likely to occur. Thirdly, having regard to the estimated street value of the methamphetamine involved in the defendant's alleged offending, namely approximately $700,000, that probability is not improved by the $50,000 cash surety that has been offered by his brother.
• [39] For these reasons, after conducting the assessment described above, I would assess the probability of the defendant answering his bail, for the purposes of s 24(1)(a), as low.
• [40] Finally, I turn to the "interests of the person" matters in

subsection 24(1)(b) that the defendant has advanced to justify his grant of bail.[23] As with subsection 24(1)(a), the use of the word "only" in the introductory words to that subsection limits the relevant matters to those listed.

• [41] With respect to those matters, first, I accept the defendant's estimate that he will be likely to spend between 12 and 18 months in custody, on remand, before his matter comes to trial. I also accept that the conditions on remand in the Northern Territory's correctional facilities are overcrowded and harsh and that is compounded, in his case, by his remoteness from his family and his inability to obtain food which complies with his religious beliefs.[24] As well, I accept that he has a desire to be in Sydney to, among other things, instruct his lawyers and earn an income to fund his legal defence.[25] In addition, I have taken account of the other matters advanced by his counsel including his relative youth and his unblemished history in respect of bail breaches.[26]

• [42] Ultimately I have concluded that, with the exception of the paramount considerations in subsection 24(1)(aa) of the Act, the community interest matters in subsection 24(1) of the Act, as discussed above, outweigh the interests of the defendant as advanced by him. I have excepted the paramount consideration because I have concluded that the defendant poses a low risk to the safety of the Darwin community were he to be released on bail. That aside, I consider the community interest prevails because there is a low probability that the defendant will answer his bail.
• [43] It follows that I do not consider that the defendant has overcome the presumption against bail contained in s 7A of the Act. Accordingly, the order made by the Local Court on 30 June 2025 is set aside and the defendant is remanded in custody.

[1] Misuse of Drugs Act 1990, s 3, sch 1.

[2] Since the applicant is not a youth, s 24A does not apply.

[3] [2025] HCA 16 (DZY) at [23]. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

[4] As expressed in, among others, subsection 24(1)(aa) and 24(1)(a).

[5] As expressed in subsection 24(1)(b).

[6] See JM v R [2015] NSWSC 978 at [33] per Garling J and Simpson v R [2021] NSWCCA 264 at [76] per Dhanji J with whom Harrison and Davies JJ agreed.

[7] (1995) 37 NSWLR 639.

[8] See at 646 and see also the observations of Kirby J at 657.

[9] [2025] NTSC 31 at [12] to [15].

[10] Except subsection 24(1)(a) which refers to: "the probability of whether or not the person will appear in Court....".

[11] See RB v R (No 2) [2024] NSWSC 845 at [69](8) per Walton J (RB) and R v TB [2025] NSWSC 38 at [14] per Lonergan J.

[12] [2024] NSWSC 845, ("R v RB").

[13] See the comments in R v RB at [68].

1. [15] See RB at [69](9) and (10), subsequently applied in R v BH [2024] NSWSC 1577 at [13] - [14] per Yehia J, and R v TB [2025] NSWSC 38 at [13] per Lonergan J.

[16] Noting that under s 7A of the Act the applicant bears the onus.

[17] See DZY at [23] set out at [21] above and see also Workpac Pty Ltd v Skene [2018] FCAFC 131 at [106].

[18] While there are four other uses of the word "community" in the Act none indicates a contrary meaning: s 3 uses the word in the definition of Community Youth Justice Officer; s 24(5)(e) requires consideration of "the desirability of preserving a child victim's living arrangements and family and community relationships", and subsection 27A(1)(ib)(ii) and the note to that section use the expression Community Youth Justice Officer.

[22] Section 24(1)(a)(iv) requires consideration of: "any specific evidence indicating whether or not it is probable that the person will appear in court".

[23] For completeness I record that I consider the matters in subsections 24(1)(c) to (h) are either neutral or are irrelevant for present purposes.

[26] s 24(1)(b)(iiib) and s 24(1)(d).