Supreme Court New South Wales

• Medium Neutral Citation: R v S M [2013] NSWSC 1542
• Hearing dates: 16/10/2013
• Decision date: 16 October 2013
• Jurisdiction: Common Law - Criminal
• Before: RS Hulme AJ

Decision

Conditional bail granted. See judgment for conditions

• Catchwords: CRIMINAL LAW - application for bail - consideration of criteria within s 32 of the Bail Act 1978
• Legislation Cited: Bail Act 1978
• Cases Cited: R v Brown [2013] NSWCCA 178; R v Hilton (1986) 7 NSWLR 745
• Category: Principal judgment
• Parties: S M (Applicant); Regina (Respondent)
• Representation: Counsel: R Neil (Applicant); C Shaw (Respondent); Solicitors: Legal Aid (Applicant); Director of Public Prosecutions (Respondent)
• File Number(s): 2013 / 298351

Judgment

1 On 11 September 2013 SM was arrested and charged with robbery in company and at the time of the robbery, inflicting grievous bodily harm on the victim. He has also been charged with disposing of some of the property stolen. SM had been in custody ever since and seeks bail. The charge against him is next listed for mention in the Campbelltown Children's Court on 16 December 2013.

2 The victim was walking through a reserve at about 10.45 pm on 6 September 2013 when he was set upon by the Applicant and then some 4 other youths. The victim was punched and after he had fallen to the ground, kicked by some of his assailants and also stomped on by some, including, according to some of the evidence before me, the Applicant. The victim was left screaming uncontrollably. Injuries to the victim as the result of this attack were very serious. His brain and vision were damaged and he suffered multiple fractures of the nose and eye socket. Surgery to insert titanium plates to the right side of his face and to reconstruct his right ear was necessary. Items stolen included a scooter, backpack and mobile phone. It seems that in the period immediately before the attack the offenders had been drinking alcohol in the reserve.

3 On 11 September 2013 the Applicant was within a few days of attaining 16. He has not previously been charged with any offence and has the support of his parents and siblings. He voluntarily attended a police station with his sister and admitted some participation in the attack, albeit not to the extent outlined above. During his bail hearing the Applicant did not give evidence but his brother did. His brother said that he was talking on behalf of the family a number of other members of which were in court.

4 On the Applicant's behalf it is proposed that conditions of bail include requirements that he live with his sister who is not employed outside her home, that he remain in her premises except for the purpose of attending work or school or in the company of his parents or siblings, and that he not associate with his co-offenders. The brother's evidence indicated that the family was close, none had been in trouble with the police and the Applicant would derive a deal of support from them. It is proposed that the Applicant undertake a full time apprenticeship. There was no challenge to this evidence which I accept.

5 The Applicant's father has health issues and is not employed. The Applicant's mother works full time and is willing to deposit $1,000 by way of surety.

6 The outcome of these proceedings must be governed by the terms of the Bail Act 1978. The offence is one mentioned in s 9 of that Act and as a result there is no presumption favouring a grant of bail. Accordingly my decision is to be made by reference to the terms of s 32. So far as presently relevant that section provides:

(1)(1) In making a determination as to the grant of bail to an accused person, an authorised officer or court shall to take into consideration the following matters (so far as they can be reasonably ascertained) and the following matters only:

(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 only regard to

(i)...

(b) the interest of a person, having regard only to

(i)...

(b)(i) the protection of:

(i)...

(c) the protection and welfare of the community, having regard only to

i) the nature and seriousness of the offence, in particular whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900, and

(ii) whether or not the person has failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition previously imposed in respect of the offence, and

(iii) the likelihood of the person interfering with evidence, witnesses or jurors, and

(iv) whether or not it is likely that the person will commit any serious offence while at liberty on bail, but the authorised officer or court may have regard to this likelihood only if permitted to do so under subsection (2), and

(v) if the offence for which bail is being considered is a serious offence, whether, at the time the person is alleged to have committed the offence, the person had been granted bail, or released on parole, in connection with any other serious offence, and

(vi) if the offence for which bail is being considered is an offence that involves the possession or use of

(2) The authorised officer or court may, for the purposes of (1)(c)(iv), have regard to whether or not it is likely that the person will commit one or more, serious offences while at liberty on bail if the officer or court is satisfied:

(a)...

7 In light of the Applicant's past and his brother's evidence I am satisfied that there is a high likelihood that, if admitted to bail, the Applicant will appear in court as required. I am also satisfied that the Applicant's interests argue for bail being granted. There is nothing to suggest that the victim of the offence or any other person falling within the terms of paragraph (b1) of s 32(1) is in need of any protection.

8 I turn then to the terms of s 32(1)(c). It inspires a number of remarks. Firstly there is in the opening line reference to "protection" and "welfare". Prima facie, both because of their meanings and the use of the 2 terms they mean different things. Protection is directed to the future; Welfare, while it may include protection, has a wider operation albeit in the context of whether bail should be granted, again it is the future that is being considered.

9 Secondly, though all sub-paragraphs are directed to providing guidance for the future, in their terms some of the sub-paragraphs look to the past and some to the future. In the former category are sub-paragraphs (i), (ii), (v) and (vi): In the latter group are sub-paragraphs (iii) and (iv).

10 Thirdly, the restrictive terms of sub-paragraph (iv) and sub-section (2) seem to me to provide a context against which the operation of sub-paragraph (i) is to be considered. Putting aside the circumstance where some further offence might constitute interference such as contemplated by sub-paragraph (iii), sub-paragraph (iv) indicates that the possibility of an Applicant re-offending by committing a serious offence may only be taken into account if the Court is able to conclude as envisaged by sub-section (2). What then is the significance to be given to sub-paragraph (i) and to the offence referred to therein, i.e. the offence with which the Applicant has been charged?

11 Given the limitations in sub-paragraph (iv) and sub-section (2), except insofar as that offence is the offence with which the Applicant has been charged may also have a relevance under sub-paragraph (iv), it does not seem to me that that offence can have anything to say on the topic of the protection of the community. It can however bear on the topic of welfare. Thus it seems to me that it can reasonably be said that the welfare of the community is advanced by having incarcerated, and not at liberty and free to re-offend, those who, on reasonable grounds, appear to have committed serious, particularly very serious, offences, even if those offences are not yet proved. Notwithstanding the presumption of innocence, it is something of an affront to civilised society to have walking around someone who, for example, seems to be clearly guilty of such an offence merely because he has not been convicted.

12 I have said enough to indicate that the offence alleged against the Applicant is very serious and this, even if one takes into account as circumstances of the offence matters such as the Applicant's youth and, as appears to be the case, that the offence was unpremeditated. While a bail application is not a trial and I am not called upon to decide whether the Applicant in fact be guilty, it is clear that the evidence against him is strong. The terms of paragraph (c) preclude me, in making a judgment under that paragraph, having regard to matters such as the undesirability of locking up young persons and in the circumstances of the case I am satisfied that the welfare of the community argues against a grant of bail.

13 In so concluding I do not disregard the innumerable statements over the years to the effect that the refusal of bail should never occur as a form of punishment and that the grant or refusal of bail is determined principally on the probability or otherwise of an applicant appearing at Court - see for example R v Brown [2013] NSWCCA 178. Given the terms in which s 32 of the Bail Act is expressed, I am not sure that a statement to the latter effect gives sufficient weight to paragraphs (b) and (c) of s 32(1) particularly once the conclusion be reached that "Section 32 is a mandatory, exhaustive and exclusive statement of the criteria to be considered in bail applications." - R v Hilton (1986) 7 NSWLR 745 at 750. While s 32(1)(a) and (b) are important, so is paragraph s 32(1)(c).

14 Furthermore, if bail is denied because the welfare of the community is furthered by doing so, that denial is not imposed as a punishment. It is no more a punishment than if bail is denied on any other of the grounds set out in s 32(1)(b1) or (c).

15 It becomes then a case of weighing up the competing considerations that arise under paragraphs (a), (b) and (c). There is no easy way of comparing the weight to be given to the various matters and the result must to a large extent be subjective. In the result the conclusion at which I have arrived is that, notwithstanding the view I have formed about the welfare of the community, I should grant bail.

16 Subject to some further definition the terms of bail advanced on the Applicant's behalf are satisfactory. Accordingly, subject to any matter of detail either of the parties may wish to raise, the order I propose is:-

In respect of all offences in respect of which the Applicant is due to appear at the Campbelltown Children's Court on 16 December next, I grant bail subject to the following conditions:

1. The Applicant is to enter into an agreement to observe the following requirements as to his conduct while at liberty on bail:-

(i) He is to reside with XXX XXX at XX XXXX XXXX Smithfield;

(ii) He is not to leave XX XXXX XXXX Smithfield except for the purposes of attending work or school or in the company of one or more of his parents or siblings viz XX, XXX, XXXX, XXXXX, XXXXXX or XXXXXXX;

(iii) He is to be of good behaviour;

(iv) He is to appear at the Campbelltown Children's Court on 16 December 2013 and on such other dates to which the proceedings against him may be adjourned;

(v) He is to report to the officer in charge of the Fairfield Police Station once on each Monday, Wednesday and Friday between the hours of 8am and 8pm;

(vi) He is not to associate with XX, XXX, XXXX, XXXXX, or XXXXXX;

(vii) He is not to contact directly or indirectly, except through his legal advisors, any witness of whom he has received or receives notice of that person is likely to be called at his trial or committal proceedings; and

(viii) He is not to consume alcohol or enter any licensed premises.

2. Bail will be further conditioned upon:

(i) One acceptable person depositing $1,000 in cash and entering into an agreement to forfeit such amount if the applicant fails to comply with his bail undertaking.

3. Bail is to be automatically revoked in the event of any breach of any one of these conditions and the applicant may there upon be arrested by any police officer.

17 I record my view that XX XXXX is an acceptable person.

18 Given that the Applicant is a juvenile, and it appears that a number of his co-offenders are also, I further order:-

There be no publication, beyond the parties to the proceedings and their legal advisers, the Applicant's family and any authorities concerned in the implementation, enforcement or variation of this decision, of the names and address mentioned in the conditions of bail.

Decision last updated: 19 November 2013