New bail laws for children in New South Wales

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NSW Supreme Court judge is concerned that new bail laws targeting teenagers are "unfairly discriminatory".
Australia Criminal Law
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A New South Wales Supreme Court Judge has concerns that new bail laws targeting teenagers are "unfairly discriminatory", in that they treat a child's freedom in a less favourable manner than an adult in the same situation.

The laws came into effect on Wednesday, 3 April 2024 and make it more difficult for teenagers (those 14 – 18 years old) on bail for break and enter or motor vehicle theft offences to receive bail, if they are charged with further offence(s) of the same type.

On 16 April 2024, Judge Julia Lonergan heard an application for bail in the Supreme Court made in relation to an indigenous young person who was 17 years old (referred to as 'RB' due to his age).

The judgement is contained within R v RB [2024] NSWSC 471. It is the first published judgement which comments on the new provisions, contained within section 22C of the Bail Act 2013 ( NSW).

This section specifies that a bail authority (i.e., police, Magistrate or Judge) must not grant bail to a young person for a relevant offence alleged to have been committed while they were on bail for another relevant offence unless the authority has a 'high degree of confidence' that they will not commit a serious indictable offence, if bail is granted.

A 'serious indictable offence' refers to an offence carrying a maximum term of imprisonment of five years or more. Furthermore, the relevant offences are serious breaking and entering offence (i.e., those punishable by a maximum penalty of 14 years imprisonment or more) or motor vehicle offences (i.e., stealing a car, or traveling in a stolen car whilst knowing it has been taken without consent).

A decision under this section should only be made after the bail authority assesses bail concerns, as well as any bail conditions which could reasonably be imposed to address any bail concerns or risk that the young person will commit a further serious indictable offence.

Bail concerns referred to concerns that an accused person may fail to appear at any proceedings for the offence, commit a serious offence, endanger the safety of victims, individuals, or the community, or interfere with witnesses or evidence.

In RB's matter, the prosecution had initially sought to argue that the new laws applied to RB, however it was ultimately deemed that they did not.

This was as the alleged offending for which RB was granted bail, and the alleged offending in February 2024 whilst on bail, both occurred prior to the commencement of the provision.

It was held that the Parliament's intention through the 'transitional provision' which states that section 22C 'extends to offences committed or alleged to have been committed, or charged, before the commencement of the amendment' was only to refer to the initial relevant offence.

This essentially means that this initial offence would, after a young person is granted bail, trigger the effect of the provision, should a further relevant offence be committed whilst on bail after section 22C commenced.

In obiter (i.e., comments made in passing that are not necessary for the decision), Judge Lonergan made further general observations regarding section 22C.

Her Honour noted how there was: "a concern that it operates in an unfairly discriminatory way upon a section of the community, children aged 14 to under 18, who have been widely and specifically recognised as a group that need support and guidance, not incarceration and disconnection from their family and the community."

She observed how the provision provides for a 'higher bar' (of uncertain meaning and application) than the regime which applies to adults in exactly the same circumstances, comparing it to the 'show cause' test applicable to adults applying for bail in some circumstances.

The show cause requirement applies to adults accused of certain crimes (i.e., offences involving serious personal violence, firearms, those attracting a penalty of life imprisonment, commercial level drug manufacture, importation, serious sexual offending against children) as well as those who allegedly commit a serious indicatable offence whilst on bail or parole, or subject to an arrest warrant.

It provides that a bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why their detention is not justified.

The 'show cause' requirement does not require there to be something 'special or exceptional' and it may be shown through a culmination of different factors. If the accused person shows cause, the application will then proceed to the 'unacceptable risk test'.

This involves the accused person demonstrating that there is no unacceptable risk that cannot be mitigated by the imposition of bail conditions. Whether there is an unacceptable risk involves an assessment of the bail concerns previously outlined.

The 'show cause' requirement does not apply to a person under 18 years of age at the time of the alleged offence.

Judge Lonergan noted how the show cause test has no requirement that the Court reach a 'high degree of confidence' that the adult concerned will not commit a serious indictable offence whilst on bail.

"Whether it is the accused or the Crown that bears the onus is not really the issue...

"It is the requirement that a court refrain from releasing a child accused of certain offences unless it can conclude to a level approaching certainty (although not actually certainty) that the child will not commit a further serious indictable offence where there is no such requirement regarding an adult." she explained.

Her Honour noted how there is a 'lack of coherence' between the bail court's obligations to comply with the Children (Criminal Proceedings) Act 1987 (NSW) and the requirements of section 22C.

Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) relevantly provides that a Court ought to have regard to principles such as that 'children have rights and freedoms before the law equal to those enjoyed by adults' and 'require guidance and assistance'.

Furthermore, it highlights that 'it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption' and to 'allow a child to reside in his or her own home'. The Court ought to also assist in the 'reintegration into the community' of children who commit offences 'to sustain family and community ties'.

This was stated to be in conflict with section 22C "which treats a relevantly charged child's freedom in a less favourable way than an adult's freedom in exactly the same circumstances."

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