Re JG[2023] QCHC 3

CHILDRENS COURT OF QUEENSLAND

FANTIN DCJ: The applicant child applies for bail, having been charged with 12 separate offences.  There are two offences on indictment:  a robbery in company with personal violence, on indictment 105 of 2022; and an assault occasioning bodily harm, in company, on an ex-officio indictment presented today.  In addition, there are 10 summary charges.  They are two charges of wilful damage by graffiti, one charge of common assault, one charge of possess dangerous drugs (cannabis), one charge of stealing, one charge of attempted stealing, one charge of contravene direction or requirement of police, one charge of failure to appear in accordance with undertaking, one charge of unlawful use of a motor vehicle, and one charge of receiving tainted property.  

The application for bail is opposed by the Crown.  

The applicant child was 15 years old at the time of the offending and, later, 16 years of age.  The circumstances of the offending are summarised in an agreed schedule of facts, which became exhibit 2.  

It is necessary to summarise the procedural history of the matter.  On the 7th of November 2022, an indictment was presented, charging the child with a single count of  robbery in company with personal violence.  On 28 November 2022, the matter was listed for sentence on 2 February 2023, today’s date. No pre-sentence report order was made.  On today’s date, the date of the sentence, I was informed that the Crown was presenting an ex-officio indictment for the offence of assault occasioning bodily harm in company and that 10 summary charges would also be transmitted.  

I did not proceed with the sentence.  I made an order for a pre-sentence report and adjourned the sentence.  The pre-sentence report order contained a number of special conditions, including a requirement for a psychological assessment of the child, and the production of any reports and assessments conducted by medical or allied health professionals.  

There is evidence before me, provided only this morning, in the form of a medical report dated August 2019, from a paediatric psychiatrist, which refers to the child having a diagnosis of Attention Deficit Hyperactivity Disorder as well as possible Foetal Alcohol Spectrum Disorder, and Attachment Disorder.  At the time of the report, at least, she was unmedicated.  

Because of that information coming to light on the day of sentence, I made a decision to adjourn the sentence to enable further information to be placed before the Court to assist it on sentence.  

I was informed that, due to a lack of adequate resourcing and availability of mental health professionals to assess the needs of children in the criminal justice system in Queensland, it would take a minimum of eight weeks for a psychological assessment and report to be provided.  As a result, the sentence has been adjourned to early April 2023 to enable that to occur.  

The child has now spent 94 days remanded in detention in total in three separate periods (that is, over three months) for the offences before the Court.  At the time of the offences, she had no criminal history.  

Following the adjournment of the sentence, Defence counsel made an oral application for bail and a proposed conditional bail program was prepared, which the child has signed.  For completeness, I record that the child was arraigned and pleaded guilty to all of those charges.  

Relevantly, the child has been incarcerated for 94 days on remand in three separate periods: one day from 24 to 24 May; a period of 30 days from 14 June to 14 July inclusive; and a period of 63 days from 1 December 2022 to 2 February 2023.  As I observed earlier, that is a period of over three months in detention.  Some of those 94 days were spent in a police watch-house, although it is not yet clear exactly how many.  It may be two days, or it may be slightly more.  

While the child has been in detention for the last period, which is more than two months, she has been performing well.  Exhibit 5 contains evidence that she is polite and respectful to staff.  She has generally had consistent positive behaviour, albeit in the period shortly before Christmas there were some issues.  She engages well with her peers and is compliant and respectful to staff directions usually.  She has demonstrated to staff some insight into her offending by identifying substance misuse and negative peer influences.  She has expressed the view that she does not wish to return to detention.  On release, she would like to re-engage in education and return to the local high school.  On her return to community, she would also like to obtain her driver’s licence and make positive changes in her life.  

The child is subject to a long-term guardianship child protection order which was granted in the Childrens Court at [redacted] in Cape York in November 2011.  At that time, she was only four years old.  She has been in the care of the Department of Child Safety since that age.  Most recently, she has self-placed with a cultural aunt since March 2022, with mixed success.  At times, she has been absent from that accommodation and living a transient lifestyle with negative peer influences.  

If the child is not granted bail, she will serve a further two months, at least, in detention before being able to be dealt with on sentence.  

Before the bail application was made today, the prosecution and Defence joint submission on penalty was that, for all of the offending, the child should be sentenced to a probation order and released from detention immediately on probation.  

In considering the bail application, the Court must have regard to the sentence order likely to be made for the defendant applicant if found guilty: section 48AA(3).  

The Crown conceded that, on sentence, the child would be unlikely to serve any more time in detention than she has already served on remand; that is, the 94 days already served.  No party submitted that a sentence of detention would be open or appropriate.  That is notwithstanding that the two offences on indictment are objectively serious. But it is, in my view, a correct concession to make, given the time served on remand, the child’s lack of criminal history, her personal circumstances, and the mitigating factors in her favour.

The application for bail must be determined in accordance with the provisions of part 5 of the Youth Justice Act 1992 (Qld).  That Act is governed by the principles listed in schedule 1, Charter of Youth Justice principles.  Principle 18 states, ‘A child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances’.  

The effect of Part 5, section 48(2) is that the child should be released on bail unless the Court is required under the Act to keep the child in custody, or is exercising a discretion under the Act to keep the child in custody.

There is no provision in the Act requiring a child to show cause that detention in custody is not justified.  

The starting point for considering the application is section 48AAA(2), Releasing children in custody – risk assessment:

(2) The Court … must decide to keep the child in custody if satisfied – 

1. (a)
   if the child is released, there is an unacceptable risk that the child will commit an offence that endangers the safety of the community or the safety or welfare of a person; and
2. (b)
   it is not practicable to adequately mitigate that risk by imposing particular conditions of release on bail.

Pursuant to subsection (3), the Court may (that is, it has a discretion) decide to keep the child in custody if satisfied that, if the child is released, there is an unacceptable risk that:

1. (a)
   the child will not surrender into custody as required; or
2. (b)
   the child will commit an offence, other than an offence that endangers the safety of the community or the safety or welfare of a person; or 
3. (c)
   the child will interfere with a witness or otherwise obstruct the course of justice.

In making the decision about whether there is an unacceptable risk and whether to release a child, the Court may have regard to the matters set out in section 48AA(4)(a).  

Dealing with those matters in turn, in this case the offences on indictment are objectively serious.  They involve robbery in company with personal violence on the 13th of June 2022 and an assault occasioning bodily harm in company on the 22nd of March 2022.  

The robbery in company with personal violence involved the applicant child, with another girl aged 16, grabbing a mobile phone from a 14 year old girl and assaulting that girl by punching and kicking her, including while the girl was on the ground.  When the applicant child was arrested, she cooperated with police by participating in an interview and making admissions to the offending.  

The earlier offence of assault occasioning bodily harm in company again occurred when the applicant child was in the company of other juveniles and involved an assault on a hotel manager at about 6.25 pm.  That person suffered cuts, swelling, and lumps to her forehead.  The other person was also subjected to a common assault.  

The summary charges to which she has pleaded guilty are less serious.  They include two offences of graffiti, which are trivial; possession of a very small amount of cannabis; acting as a lookout while another child stole a bottle of alcohol; acting as a lookout when another child attempted to steal a bottle of alcohol; and failing to appear in the Childrens Court on one occasion.  Most of the offences occurred between March and May 2022, with the exception of the robbery on 13 June.  There are then two offences together on 18 and 20 November; they involve the child being present in a stolen car.  Her fingerprints were located on the rear-side door.  There is no information to suggest that she was the driver or the person who stole the car. There is also an offence of receiving tainted property, which involves the child being found in possession of alcohol, which had been stolen from an RSL club.  She and other children were present at the RSL club when entry was gained and alcohol was stolen from it.  The child was located heavily intoxicated and had very little recollection of the incident.  

Relevantly, the two most serious offences occurred 10 months ago and seven months ago, respectively.   

The other offending is significantly less serious.  

Turning to the other factors the Court may have regard to, the child had no criminal history at the time this spate of offending was committed.  

The State of Queensland, through the Department of Child Safety, is responsible for her care and guardianship.  She had been living, for part of it, with her cultural aunt.  It is proposed, if she is released on bail, that she would live with that same person, and an appointment would be made for her to enrol in the local high school, which she has expressed a desire to do.

The Crown has helpfully provided a chronology of the relevant events, which became an annexure to the Crown’s outline of submissions originally for sentence but which were also relevant for the bail application.  

That chronology demonstrates that the child’s previous response to bail conditions was poor at the start.  That is, when she was first remanded in custody on the 24th of May, she was granted bail the following day, presumably after a night in the watch house, and she then committed the robbery in company with personal violence within only three weeks of that.  She was remanded in detention again on the 14th of June, served 30 days in detention, and was granted bail again on the 14th of July.  There was then a relatively lengthy period of more than four months in which it appears she did not commit any other offences.  But it culminated in the offences of unlawful use of a motor vehicle and receiving tainted property in late November, for which she was remanded in custody again.  She has remained in custody for 60 days since then, or rather, more than 60 days since then.  

The child’s response, therefore, to conditions on the conditional bail program previously has been mixed.  At times, she has been successful in complying with them, but at other times, she has not and she has reoffended.  There is a document in exhibit 5 which sets out further information about her compliance.  It records that of 37 occasions when she was required to report to Youth Justice, she did report on 29 occasions and failed to attend on eight.  She attended programs on about half the number of times she was required to do so.  She has participated in some programs.  In fact, on 28 separate occasions.  

The offending appears to have occurred when she was sleeping rough, associating with other young children committing offences, and engaging in substance abuse.  

The child has pleaded guilty to the offences, so the question of strength of evidence against her is not relevant.  

I have already referred to the medical report setting out what scant information is available so far.  On its face the child has a number of significant impairments, which may affect her cognitive ability, her ability to assess risk and to assess the consequences of her behaviour, and importantly, her impulse control.  Those matters are obviously relevant to her risk of reoffending if she is not properly assessed and treated for those conditions.  

On the information available to me, the Department responsible for her care has not properly assessed her conditions or provided her with treatment and support for them, to date.  In those circumstances, it may be unsurprising that those conditions may have contributed to dysregulation and offending behaviour (relevant to risk).  They are also relevant, potentially, as a mitigating factor, on sentence.  

The child is Aboriginal, from a remote Cape York community.  No submission was made by a community justice group. 

Defence counsel submitted that in conferences the child had expressed remorse and demonstrated insight.  

Turning to section 48AA(4)(b), the Court may also have regard to the matters set out there, so far as relevant.  

The first is the principle that a child should be detained in custody for an offence only as a last resort and for the least time justified in the circumstances: principle 18 of the Youth Justice Principles.  

The second is the desirability of strengthening and preserving the relationship between the child and her family.  The person into whose care she is to be released if bail were granted is said to be her cultural aunt.  In those circumstances, bail would facilitate that factor.  

The third is the desirability of not interrupting or disturbing the child’s education.  There is a separation report before the Court, provided by the Department of Youth Justice, which became exhibit 2.  There is also a document from Education Queensland and Youth Justice, which became exhibit 4.  Together, they set out information about two things.  First, the extent to which the child has been given access to educational programs while in detention.  And second, the amount of time the child has been locked in her cell while she has been in detention.  

On the question of access to educational programs, the evidence is to the effect that for the entire time the child has been remanded in detention, she has attended the education unit at Cleveland Youth Detention Centre for one day only.  It is possible, on the most favourable construction of the documents, that she may have attended the education unit on another day.  But there is no dispute that that is the highest it goes.  That is, while the child has been in detention, she has not been afforded adequate access, or indeed almost any access, to education.  If she were released on bail there is a plan, at least, to seek her enrolment in year 11 at high school;  something which is clearly in her interests, but more importantly in the interests of the community.  

The authorised separation report contains evidence about 59 days of the 94 days the child has been remanded in detention.  It contains information about how many hours of the day the child was detained in her cell over and above the 12 hours overnight for sleeping.  

The effect of that document can be summarised in this way. There was no dispute from any party about this. 

Of the 59 days dealt with in the report, for 30 of those days – that is, for more than half of the time the child has been remanded in detention for the last two months – she has been locked up in her cell for 21 to 24 hours per day.  That is, the time out of the cell on those 30 days has been less than three hours.  

Of those days, for three days the child was locked in her cell for 24 hours per day.  That is, she was not released from her cell at all.  

Of those 59 days, for 40 days the child had less than five hours out of her cell.  

To detain a child in a cell for such lengthy periods of time is clearly undesirable, is likely to contribute to a deterioration of a child’s mental health, is likely to contribute to poor behaviour by a child, and subjects the child to trauma.  

Locking a child in a cell for up to 21 hours per day means that the terms of her incarceration have been more onerous than usual, apart from the fact that it has also meant that she has not been able to access the education unit.  

The consequences of such incarceration for a child who is burdened by the impairments referred to may well be worse than for a child who does not have those impairments.  

That is a factor I take into account in considering the desirability of continuing to hold the child in detention, and the other factors the Court must have regard to on the bail application.

Dealing with the balance of those factors, as the child is an Aboriginal person, the Court may also take into account the desirability of maintaining her connection with any family or kin.  In this case, it is proposed she live with a cultural aunt.  

I have already dealt with the likely sentence order. Both parties agreed that on sentence she would be unlikely to be required to serve any further time in detention than the period already served on remand. 

Turning then to the proposed bail conditions.  In deciding whether there is an unacceptable risk of a matter mentioned in section 48AAA(3), the Court may consider whether a condition could be imposed on a grant of bail to the child and having regard to the effect on the risk of imposing the condition.  

The proposed conditions of bail are set out in the conditional bail program document.  They include living at an address determined by the Department, attending and engaging with a case worker twice a week, attending school if required to do so, and attending programs.  The conditions involve the child engaging with Youth Justice and other support agencies for up to 20 hours per week.  

Given that the psychological assessment required for the presentence report, I am informed, must be conducted by a practitioner in the Cairns area, her release on bail may also facilitate her attendance in person at the relevant assessments required by the Court order for that.

As the authorities have frequently observed, no grant of bail is risk free.  

Clearly, there is some risk that the child, if released on bail, may commit another offence, whether it is one that endangers the safety of the community or the safety or welfare of a person, or may fail to appear or not surrender into custody as required.  

However, the question is whether the first and the second are unacceptable risks, and whether they can be adequately mitigated by conditions.  

Balancing those matters against the other considerations, including the fact that the child is unlikely to be required to serve any further time in detention, that the purposes of punishment and the other purposes of sentence are likely to be best served by releasing the child into the community under strict conditions, on the basis of the evidence and the submissions (particularly those matters I have referred to), I am satisfied that the risk of the applicant reoffending or failing to appear will be reduced to an acceptable level, and will be adequately mitigated, by imposing the conditions proposed in the conditional bail program.

I am also satisfied that continued detention of the child in the circumstances in which she has been detained to date has the potential to expose her to further trauma, and are currently serving little or no rehabilitative effect.  

For those reasons, bail is granted in accordance with the proposed conditional bail program provided.