Supreme Court New South Wales

• Medium Neutral Citation: R v SK R v DK [2014] NSWSC 816
• Hearing dates: 20 May 2014
• Decision date: 20 May 2014
• Before: McCallum J

Decision

Conditional bail granted

• Catchwords: CRIMINAL LAW - bail - unacceptable risk of serious offending - whether able to be sufficiently mitigated by conditions - where applicants vulnerable children
• Legislation Cited: Bail Act 2013
• Category: Procedural and other rulings
• Parties: SK (applicant); DK (applicant); Crown
• Representation: Counsel: B Rigg (applicant DK); M Zaki (applicant SK); T Spohr (Crown); Solicitors: Legal Aid (applicants); Director of Public Prosecutions (Crown)
• File Number(s): 2014/129939; 2014/129936
• Publication restriction: Applicants' names are anonymised.

Judgment

1 HER HONOUR: Before the Court are two release applications under s 49 of the Bail Act 2013. The applications have been heard together, since the applicants are twins. They are both now aged 15.

2 In determining the application, the Court must have regard to the presumption of innocence and the general right to be at liberty.

3 The first issue to be determined is whether either applicant presents an unacceptable risk of the kind identified in s 17 of the Bail Act. Those risks are the risk of failure to appear, the commission of a serious offence, endangering the safety of victims, individuals or the community or interference with witnesses or evidence. The Crown submits in each case that there is a risk of the commission of a serious offence and risk to the safety of the victim or individuals or the broader community. The Crown does not suggest any risk of failure to appear.

4 The material before the Court tendered by the Crown amply sustains that conclusion. The more difficult task in determining the present applications is the second question posed by the Bail Act, which is whether the risk identified by the Court can be sufficiently mitigated by the imposition of bail conditions.

5 The present applicants present a difficult series of considerations in respect of that issue. The applicant DK pleaded guilty to a charge of common assault and stealing from a person, which are the charges representing the first group of offences in respect of which bail is sought. He is due to be sentenced in respect of those offences on 25 June 2014.

6 As a result of his having pleaded guilty there is before me a detailed report prepared by Juvenile Justice in respect of him. Since SK is his twin, much of the background recited in that report is of plain relevance to SK's application as well.

7 The report recites a troubled background which goes a considerable way to explaining the criminal history and the current charges against the two boys. They were removed from their parents when they were not much older than one year due to instances of domestic violence and substance abuse. They spent considerable time with different foster carers until 2003 when they returned to live with their father and his new partner.

8 Further difficulties however were experienced and they were subsequently again removed from the care of their father and placed with foster parents. They were subsequently placed with a paternal aunt and uncle where unfortunately both physical and emotional abuse and neglect continued.

9 Presently, or at least until their arrest, they had an entitlement to reside at Gordon House, a Burnside facility operated by the Uniting Church. There they fell under the care of a social worker, Mr Jonathon Denton, who has provided a report to the Court in each case proposing conditions which would seek to mitigate the risk of future offending.

10 The question as to what conditions are required sufficiently to mitigate an unacceptable risk such as to warrant a grant of bail is an evaluative judgment which must necessarily be informed by the nature of the risk assessed by the Court.

11 Section 17 of the Bail Act makes it plain that Parliament intended that the assessment be very much focused on the individual circumstances of each case coming before the court and, further, that the assessment be informed not only by considerations of the protection of the community but also by considerations relating to the circumstances of the applicant.

12 That is made plain by the inclusion of s 17(3)(j), which requires the court in assessing whether there is "unacceptable" risk to have regard to any special vulnerability of the accused person.

13 The present applicants plainly are boys of acute vulnerability by reason of their youth and the circumstances of their background to which I have referred. Further, the Juvenile Justice report reveals that they have recently suffered the death of their sister, who was also living at Gordon House, apparently due to a drug overdose.

14 Those considerations lead to competing conclusions. On the one hand, they might be regarded as factors exacerbating the risk of offending; on the other they highlight the acute need for these boys to fall under the care of a considered and carefully planned proposal to meet their future needs, which will mitigate the risk of future offending.

15 Neither the prospect of refusing bail nor the prospect of releasing them from custody is entirely satisfactory or entirely risk-free. The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk.

16 With some hesitation I have concluded that the applicants should be released on bail on conditions which reflect the careful plan proposed on behalf of each of them with the input of Juvenile Justice and Mr Denton.

17 On balance I am satisfied that the conditions proposed sufficiently mitigate the risk I have identified of future offending. I have not recited the detail of the matters with which they are charged but have had careful regard to the content of that material in reaching this conclusion.

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Decision last updated: 21 July 2014