The King v EM [2025] NTSC 31

Blackwell v Bara [2022] NTSC 17; R v Ubonrat (unreported NTSC 15 July 2022); R v Wilson [2011] NTSC 15; S_ecretary, Department of Health & Community Services v JWB and SMB_ (1992) 175 CLR; Stanley v DPP [2023] HCA 3; Storie v Storie [1945] HCA 56; (1945) 80 CLR 597; Suttie v The Queen [2013] NTSC 37; The Queen v JDT [2011] NTSC 39; The Queen v Tirak (unreported NTSC 27 May 2019; The Queen v Williams [2012] NTSC 47; The Queen v Wilson-Anderson [2020] NTSC 53 referred to.

Crown: Office of the Director of Public Prosecutions

The King v EM [2025] NTSC 31

• [1] On 9 May 2025 I refused EM's application for bail and remanded him in custody pending receipt of a report under s 69 of the Yo_uth Justice Act 2005_ (NT). At the time I said that I would publish my reasons for that decision. The following are those reasons.

• [2] EM first appeared before me on the afternoon of 8 May 2025 and entered a plea of guilty to the following offence: that on 2 November 2023 at Alice Springs he had sexual intercourse with RJ without her consent knowing about or being reckless as to the lack of consent contrary to s 192(3) of the Criminal Code Act 1983 (NT).
• [3] The maximum penalty for that offence is life imprisonment.

• [4] At or about 6am on 2 November 2023, RJ, the victim, was walking her dog along a pathway in the Eastside area of Alice Springs. EM approached RJ on a bicycle and asked her for money to which RJ responded that she did not have any. EM then dismounted his bicycle, unzipped his shorts, exposed his penis and proceeded to masturbate.
• [5] RJ ran away in fear towards a nearby unit complex. EM followed her on his bicycle. When EM caught up to RJ he dismounted his bicycle, grabbed RJ by the shoulder and pinned her against a wooden fence. EM then forced his right hand down the front of RJ's pants and inside her underwear. He pushed his fingers inside her vagina a few times by about 1 to 1.5 centimetres. While this was occurring, RJ screamed for help while shouting at EM to get off her. When nearby residents came out to assist RJ, EM quickly left the scene on his bicycle.

• [6] EM was arrested on 24 January 2024. He was remanded in custody from that date until his committal hearing on 30 August 2024. He was then granted bail by the Youth Justice Court at Alice Springs subject to various conditions. That bail was subsequently extended by this Court until his appearance before me on 8 May 2025.

• [7] After EM entered his plea of guilty the parties sought orders that a pre-sentence report be prepared under s 69 of the Youth Justice Act. It was anticipated that the report would take approximately two to three months to prepare. It was at that point that the question of bail arose.
• [8] Initially EM's counsel sought a continuation of his bail, on the same conditions, under s 32 of the Bail Act 1982 (NT). He argued that such a continuation was not affected by the recent amendments to the Bail Act because of the transitional provisions of s 78(2)(b).[1] Counsel for the Crown did not oppose that course, nor contend otherwise.
• [9] Even though that was the agreed position of the parties, because EM had pleaded guilty to a very serious offence, I was not willing to act on it. In my view, once EM had entered that plea, the position in respect of bail was fundamentally different. From that point, he had to persuade the court that a grant of bail was appropriate in the significantly altered circumstances.
• [10] After hearing submissions from counsel I remanded EM in custody overnight so that I could further consider the matter the next morning. At that hearing both counsel agreed that meant that EM's application had become a fresh application for bail and the recent amendments to the Bail Act applied to EM's application.[2] It was also agreed that because EM's offence was a serious sexual offence, as defined in s 3A of that Act, the presumption against bail in s 7A(2) applied.

The recent amendments to the Bail Act

• [11] Insofar as they are presently relevant, the recent amendments to the Bail Act include the following:

(a) Section 7A (2) was amended to express the presumption against bail in substantially the same terms as previously stated, but a note was inserted at the conclusion of that subsection stating: "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."

(b) Subsection (2AA), was inserted in section 7A, as follows: "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."

(c) Subsection (1)(aa) was inserted in section 24, to include in the matters that must be taken into consideration in determining whether to grant bail the following : "the risk (if any) to the safety of the community that would result from the accused person's release on bail."

(d) Subsection (2AB), was inserted in section 7A, as follows: "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 a 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:

1. commit a prescribed offence or a serious violence offence; or

1. otherwise endanger the safety of the community.

(e) Subsection (2)(a) was deleted from the criteria to be considered in bail applications for youths under section 24A. That subsection provided that: "the need to consider all other options before remanding the youth in custody", was a matter that must be taken into consideration in determining a bail application.

• [12] Inserting subsections (2AA) and (2AB) in s 7A of the Bail Act has the effect of requiring a court or authorised person to undertake a two-step process when considering an application to which the presumption against bail applies. The first step, as required by s 7A (2) and (2AA), is to consider the criteria in s 24 and, if the applicant is a youth, s 24A, to determine whether the applicant has discharged the onus to overcome that presumption.

1. The content of that onus was described by Kelly J in The Queen v Williams [3] as follows:

"It seems to me that the plain words of section 7A do nothing more than cast an onus on the applicant to satisfy the court that bail ought not to be refused, and that in considering whether or not the applicant for bail has satisfied that onus, the court must (as in all other bail applications) take into consideration the matters set out in section 24 of the Act, and no others. If the applicant does not satisfy that onus, then bail should be refused."[4]

• [14] In considering the matters in ss 24 and 24A, the amendments have made two important changes. First, the risk (if any) to the "safety of the community" that would result if a person were released on bail is "the paramount consideration" of the criteria prescribed by those provisions. A "paramount consideration" is one that "must be treated as the highest level of importance". [5] Nonetheless, "other considerations are not entirely excluded...[they]... are only subordinated".[6] Secondly, remanding a youth in custody is no longer to be considered as the option of last resort.[7]
• [15] The second step is mandated under s 7A (2AB). It occurs if an applicant for bail has discharged their onus under the first step. It requires the decision maker to consider, separately or "in isolation from" the matters considered under the first step, whether they have "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.
• [16] EM's offending was of a sexual nature, it was violent and it was very serious. Those features of it raise the obvious question as to what, if any, criminogenic and/or psychological factors influenced it. Any proper assessment of the risk EM poses to women in the Alice Springs community were he to be released on bail therefore, in my view, requires consideration of those factors.

• [17] To attempt to discharge his onus to displace the presumption under

s 7A(2), EM tendered four letters or reports. They included a report from Dr Sally Cleworth, a Child and Adolescent Psychiatrist in respect of EM's present mental condition and two letters detailing the cultural and other supports being provided to, or available for, EM and his family. None of those reports addressed the factors mentioned above.

• [18] Nonetheless the fourth report touched on them, albeit tangentially. That report was prepared by Mr Daniel Vicaretti, a clinician from the Australian Childhood Foundation which operates a specialist program called Safe Connections. That program provides therapeutic support to "children and young people aged between 8 to 17 years who have displayed inappropriate and/or problematic harmful sexual behaviour."
• [19] Mr Vicaretti's report details four sessions that he has conducted with EM since 4 April 2025, one by video link and three in person. Mr Vicaretti noted that EM has demonstrated a willingness "for therapy to continue". He then records that "further assessment and therapeutic provisions remain ongoing with a view to supporting him to make sustained positive behavioural and emotional changes." However, Mr Vicaretti does not provide any elaboration as to what aspects of EM's behaviour those changes concerned, nor why they may be positive.

• [20] It follows that I do not have any evidence before me with respect to the criminogenic or psychological factors affecting EM's offending such that I can make any proper assessment whether EM poses a risk to the community were he to be released on bail. Since that risk is the paramount consideration under s 24 of the Bail Act, it necessarily follows that I do not consider that EM has discharged his onus to overcome the presumption prescribed by s 7A(2) of that Act. For those reasons, I refused EM's application for bail.

[1] That section relevantly provides that: "sections 7A, 24 and 24A, as in force immediately before the commencement, continue to apply in relation to the following: (a) an application for bail that was made before the commencement; (b) a continuation of bail under section 32 if the bail was granted before the commencement.".

[2] It was therefore unnecessary to determine whether that was already the position as described above at [9].

1. [3] [2012] NTSC 47 at [5].

[4] The insertion of the note at the conclusion of s 7A(2) supports this approach. See also The Queen v JDT [2011] NTSC 39 per Blokland J; Suttie v The Queen [2013] NTSC 37 per Hiley J; The Queen v Tirak NTSC unreported 27 May 2019 per Grant CJ; The Queen v Wilson-Anderson [2020] NTSC 53 per Riley AJ; Blackwell v Bara [2022] NTSC 17 per Southwood J; cf R v Wilson [2011] NTSC 15; R v Ubonrat NTSC unreported 15 July 2022 per Reeves J.

[5] See Stanley v DPP [2023] HCA 3 at [41] per Gageler J.

[6] Secretary, Department of Health & Community Services v JWB and SMB (1992) 175 CLR at 270 and Storie v Storie [1945] HCA 56; (1945) 80 CLR 597 at 611-612.