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ABB v Director of Public Prosecutions[2023] QCHC 33

ABB v Director of Public Prosecutions[2023] QCHC 33

CHILDRENS COURT OF QUEENSLAND

CITATION:

ABB v Director of Public Prosecutions [2023] QChC 33

PARTIES:

ABB

(applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO/S:

CCJ 369/23

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Bail Application

ORIGINATING COURT:

Hervey Bay Childrens Court

DELIVERED ON:

1 September 2023 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2023

JUDGES:

Dearden DCJ

ORDER:

  1. (1)
    Application for bail granted.

CATCHWORDS:

CRIMINAL LAW – YOUTH JUSTICE – APPLICATION FOR BAIL – where the applicant child applies for bail in respect of 3 offences – where the applicant has a relevant criminal history – where the applicant child is in a show cause position – where the applicant child has previously shown disregard for bail conditions – where the applicant child is at risk of reoffending – whether the applicant child is at risk of spending too much time in detention for the offences

COUNSEL:

N Honnef for the applicant

A Spiteri for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. Introduction
  1. [1]
    This is an application for bail by the child, ABB, in respect of the following offences: 
    1. Dangerous operation of a vehicle (1 April 2023);
    2. Evasion offence (1 April 2023); and
    3. Driving of a motor vehicle without a driver licence never held (1 April 2023).
  2. [2]
    The chronology is set out in exhibit 1 [2]-[7].  This indicates that the applicant was initially charged with these offences on 26 April 2023 and was granted watch-house bail with a residential condition and a no-contact condition, but as a result of further offending, the applicant was remanded in custody on 24 May 2023, sentenced for a large number of offences on 19 July 2023, then granted bail for the current offences on that date, matters were transferred to Maryborough, further matters were then listed at the Hervey Bay Childrens Court and on 25 July 2023 the applicant’s bail was revoked in respect of various offences but not these current matters, but the bail on these current matters was revoked on 8 August 2023. 
  3. [3]
    The applicant was sentenced on 16 August 2023 for the balance of her outstanding offences at the Hervey Bay Childrens Court and remains in custody only on the three remaining offences which are the subject of this application.
  4. [4]
    The remand in custody report identifies 52 days of eligible remand credit.[1]  It would appear that the applicant has been in custody for longer than that, but at this stage, at least, Mr Honnef, for the purpose of this application, accepts the remand credit eligibility in the Youth Justice provided “remand in custody” report.[2]
  5. [5]
    The offences themselves are clearly concerning, particularly the dangerous operation of a motor vehicle, which involved a dark-coloured vehicle being the subject of a police chase at 10.45 pm on 1 April 2023 driving at speed, through a red light, colliding with another vehicle, attempting to flee and, at least it will no doubt be submitted, the applicant being the driver.
  6. [6]
    The applicant does have a relevant criminal history and, as indicated, has recently been dealt with for a range of offences and is currently the subject of various orders, including a nine-month probation order from 16 August 2023, a nine-month probation order and reprimand from 19 July 2023, a six-month good behaviour order on 22 February 2023 and the court-diversion referral on 18 January 2023.[3]
  7. [7]
    The applicant points out that the offending the subject of this application pre-dates the imposition of the supervised orders for probation from July and August 2023.
  8. [8]
    The applicant’s outline of submissions sets out the relevant law in respect of bail.[4] The respondent’s submissions similarly traverse the relevant law.[5] I accept those outlines of the relevant applicable law.
  9. [9]
    The applicant is currently 14, and is in a show cause position because she was on bail at the time of the offences occurring, although those matters have since been finalised.  The applicant was, prior to being remanded, living in a residential statement and has a residence to go to, has identified negative peers as triggers for her offending, seeks to return to school and work with cultural and therapeutic programs (the applicant is indigenous) and has support from youth justice and child safety for returning to school and engaging with therapeutic services.
  10. [10]
    Although all of those are positives, of course, the Crown correctly identifies the concern here which raises the clear tension between the risk that the child will serve custody that would not otherwise be served as a final resolution of these current matters against what the Crown submits is an unacceptable risk that the child will commit further offences - which risk cannot be adequately mitigated by imposing conditions on the release of bail.
  11. [11]
    In that respect, the Crown points out the persistent offending by the child since September 2022, the disregard for previous bail orders and the clear and obvious risk of similar offending (unlawful use of a motor vehicle and, of course, driving whilst unlicensed at an age when it’s not even possible to get a licence) would cause, it’s submitted, this court to consider refusing the application for bail.
  12. [12]
    The Crown also points out that the child is subject to a long-term guardianship order and her previous bail has been to an address where the applicant is supervised by care-workers, but that supervision has been unable to prevent further offending.  The proposed draft conditions would require the applicant to live, unless permission were otherwise provided, at the residential care address in Tinana specified in the draft, but would impose a 6 pm to 6 am curfew and would require no contact with co-offenders and attendance on and compliance with a conditional bail program.
  13. [13]
    That conditional bail program would include negotiating the applicant’s return to school (she is currently 14 and still subject to a statutory obligation to attend school), reintegration in her community and engaging her in positive diversionary and cultural activities (the applicant is indigenous and has an interest in the equine therapy program), as well as various other programs to assist her in both cultural reconnection, and therapy, and undertaking job readiness, and substance abuse counselling, as well, of course, as attending with her youth justice worker, undertaking the programs, including the CHART Program and the Rethinking Our Attitude to Driving (ROAD Program), as well as receiving personal support.
  14. [14]
    I accept and understand the reservations and concerns of the Crown, but ultimately, in the difficult balancing exercise between the risk of further offending and the minimal likelihood that this child would receive a sentence of detention given her age, the relative lack of criminal history at the time of the offending, and the very substantial period of time already spent in detention which must be taken into account, I consider that there is force to the submission that any sentence order in these circumstances would not go beyond a community-based order.
  15. [15]
    The issue, then, is whether the risk of further offending, which is frankly acknowledged by Mr Honnef for the applicant, is sufficiently mitigated by the proposed draft conditions which I have just identified in the draft order.  In that respect, Mr Honnef relies on the child’s residence at a child safety residential address with support of the bail conditions (which includes a 12 hour a day curfew), he points to the applicant’s insight into her offending and the self-identified influence of negative peers, her eagerness and willingness to reengage with mainstream education and engage in cultural and therapeutic programs and, of course, the support of a conditional bail program, as well as the applicant’s unhappiness about being in detention.
  16. [16]
    Finally, with some force, in my view, the clear indication to the applicant that any reoffending on a grant of bail obtained from this court would see not only her return to custody, but Legal Aid Queensland being most unlikely and unwilling to undertake any further application for bail.
  17. [17]
    In all of those circumstances, I accept that the applicant should be granted bail and that the conditions proposed both in the substantive bail order in draft and the conditional bail program appropriate and adequately ameliorate the risk of further offending.  It follows also, of course, that any further offending will see an immediate - if not revocation of bail, at least a refusal of bail on any further offending and, effectively, the applicant remanded back in detention pending the resolution, at least, of these matters and any further offending. 

Order

  1. [18]
    In all of the circumstances, then, I make the following orders:
    1. Application for bail granted.

Footnotes

[1] Exhibit 3 – Remand in custody report.

[2] Exhibit 3 – Remand in custody report.

[3] Exhibit 1 – Outline of submissions on behalf of the applicant child, [10]-[12].

[4] Exhibit 1 – Outline of submissions on behalf of the applicant child, [14]-[26].

[5] Exhibit 2 – Outline of submissions on behalf of the respondent, [18]-[25].

Close

Editorial Notes

  • Published Case Name:

    ABB v Director of Public Prosecutions

  • Shortened Case Name:

    ABB v Director of Public Prosecutions

  • MNC:

    [2023] QCHC 33

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    01 Sep 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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