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Re Noah Jackson (a pseudonym)[2023] QChCM 5

Re Noah Jackson (a pseudonym)[2023] QChCM 5

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Re Noah Jackson (a pseudonym) [2023] QChCM 5

PARTIES:

NOAH JACKSON

(Applicant)

v

COMMISSIONER OF POLICE

(Respondent)

FILE NOs:

Mount Isa CCM 186/23, 204/23, 218/23, 220/23, 232/23 236/23, 247/23, 258/23, 278/23 & 283/23, 

PROCEEDING:

Bail Application

COURT:

Children’s Court, Mount Isa

DELIVERED ON:

8 June 2023

DELIVERED AT:

Mount Isa 

HEARING DATE:

30 May & 6 June 2023

MAGISTRATE:

E. Mac Giolla Rí

ORDER:

Bail granted

APPEARANCES:

Ms C. Nitz / Sgt C. Purcell, QPS (30 May/6 June)

Ms A. Mariani / Ms K. Rose, ATSILS (30 May/6 June) 2023

Ms J. Green, Youth Justice

Ms K. Allan, Child Safety Court Liaison

Ms E. Metcalf, Education Queensland Court Liaison

Background

  1. [1]
    On 30 May 2023 Noah Jackson applied for bail. On 6 June 2023 I granted Noah bail with conditions. These are my reasons for that decision.
  1. [2]
    Noah is an indigenous boy with an intellectual disability in the care of the State of Queensland. Noah turned 12 in March 2023. Noah had spent 13 days in either Mount Isa watchhouse or Cleveland Youth Detention Centre in Townsville (‘Cleveland YDC’).

Material

  1. [3]
    In deciding this application, I have had regard to the following material:
  1. a.
    Individual Crisis Management Plan, written by Noah’s care home, 6 April 2023
  1. b.
    Medical Report, Dr Christopher-Lee Wesner, 3 May 2023
  1. c.
    Affidavit of Objection to Bail, Const. John Davidson, 9 May 2023
  1. d.
    Conditional Bail Program, Leanne Joseph, 11 May 2023
  1. e.
    Notice of Exercise of Power, PPRA ss 365 & 367, Const Joel Bartle, 16 May 2023
  1. f.
    Affidavit of Objection to Bail, Const Joel Bartle, 16 May 2023
  1. g.
    Criminal History for Noah Jackson (Not for Production), 23 May 2023
  1. h.
    Notice of Exercise of Power, PPRA ss 365 & 367, Snr Const Jonathan Watson, 23 May 2023
  1. i.
    ‘Our Day Routine’, Noah’s care home, 31 May 2023
  1. j.
    ‘Individual Routine and Structure’, Noah’s care home, May 2023
  1. k.
    Affidavit of Objection to Bail, Snr Const Jonathan Watson, 23 May 2023
  1. l.
    Letter, Caitlin Moloney, Child Safety Senior Court Liaison Officer, 2 June 2023[1]

Offending and Custodial Situation

  1. [4]
    Noah was remanded in custody on 24 May 2023 because he repeatedly committed property offences while he was on bail. Between 8 and 22 May 2023 Noah was released on bail six times and committed further offences six times. Every time he was released on bail he reoffended more or less immediately.
  1. [5]
    Noah’s offences and grants of bail are set out below:

No.

Date

Offence

1st Court date/Police Bail/Court Bail result

1

10 March

Stealing

2/5/23 – Police NTA*/Given Bail

2

12 March

Stealing

2/5/23 – Police NTA/Given Bail

3

2 April

Stealing

2/5/23 – Police NTA/Given Bail

4

2 April

Stealing

2/5/23 – Police NTA/Given Bail

5

2 April

Enter Prem w/ Break

2/5/23 – Police NTA/Given Bail

6

2 April

Receiving

2/5/23 – Police NTA/Given Bail

7

2 April

Stealing

2/5/23 – Police NTA/Given Bail

8

3 April

Fraud

2/5/23 – Police NTA/Given Bail

9

3 April

Fraud

2/5/23 – Police NTA/Given Bail

10

3 April

Fraud

2/5/23 – Police NTA/Given Bail

11

3 April

Fraud

2/5/23 – Police NTA/Given Bail

12

9 April

Stealing

2/5/23 – Police NTA/Given Bail

14

17 April

Wilful Damage

2/5/23 – Police NTA/Given Bail

15

18 April

UUMV in Company

2/5/23 – Police NTA/Given bail

16

29 April

UUMV in Company

2/5/23 – Police Bail/Given Bail

17

4 May

Breach of Bail Cond

6/5/23 - Watchhouse/Given Bail

18

4 May

Breach of Bail Cond

6/5/23 - Watchhouse/Given Bail

19

4 May

Enter Prem

6/5/23 - Watchhouse/Given Bail

20

6 May

Breach of Bail Cond

8/5/23 - Watchhouse/Given Bail

21

6 May

Breach of Bail Cond

8/5/23 - Watchhouse/Given Bail

No.

Date

Offence

1st Court date/Police Bail/Court Bail result

22

6 May

Breach of Bail Cond

17/5/23 - Watchhouse/Given Bail

23

8-9 May

Breach of Bail Cond

12/5/23-Watchhouse/Given Bail[2]

24

12 May

Breach of Bail Cond

13/5/23 - Watchhouse/Given Bail

25

12 May

Breach of Bail Cond

17/5/23 - Watchhouse/Given Bail

26

13 May

Breach of Bail Cond

17/5/23 - Watchhouse/Given Bail

27

14 May

Breach of Bail Cond

17/5/23 - Watchhouse/Given Bail

28

15 May

Breach of Bail Cond

17/5/23 - Watchhouse/Given Bail

29

16 May

Breach of Bail Cond

17/5/23 - Watchhouse/Given Bail

30

17 May

Breach of Bail Cond

22/5/23 – Watchhouse/Given bail

31

19 May

Breach of Bail Cond

22/5/23 – Watchhouse/Given bail

32

21 May

Enter Premises

22/5/23 – Watchhouse/Given bail

33

21 May

Enter Premises

22/5/23 – Watchhouse/Given bail

34

21 May

Breach of Bail Cond

22/5/23 – Watchhouse/Given bail

34

23 May

Breach of Bail Cond

24/5/23 – Watchhouse/Remanded

35

23 May

Enter Premises

24/5/23 – Watchhouse/Remanded

36

23 May

Breach of Bail Cond

24/5/23 – Watchhouse/Remanded

* NTA = Notice to appear, i.e. not held in the watchhouse by police but given a notice requiring him to appear on a specified court date. 

  1. [6]
    Despite the volume of offences, I note that between 4 May and 23 May, Noah ‘only’ committed 3 substantive offences. The remaining offences were breaches of bail condition by not being at the care home when he was required to be by his bail conditions.
  1. [7]
    Up until October 2022 Noah had never committed an offence of any sort. Between 1 October 2022 and 20 March 2023 Noah was cautioned by police for the following offences:

10 x Wilful Damage

7 x Stealing or analogous offence

3 x Trespass

2 x Common Assault

1 x Enter Dwelling

Care & Placement

  1. [8]
    Noah has a significant disability, namely, Foetal Alcohol Spectrum Disorder (‘FAS-D’). Noah has also been diagnosed with ADHD. FAS-D can manifest itself with varying degrees of disability. I don’t have material that allows me to understand the precise extent of Noah’s disability, though I accept that Noah must have a material impairment because he has been approved for an NDIS package on the basis of his intellectual disability.
  1. [9]
    Noah initially entered the care of the State of Queensland in 2012, when he was less than one year old. He entered ‘care’ because of neglect by his parent(s). In 2014 he was placed in the care of extended family (‘kinship care’) but that arrangement broke down earlier this year and in March 2023 his kinship carer ‘surrendered’ him to the care of the Department of Child Safety, Seniors and Disability Services (‘Child Safety’).
  1. [10]
    I do not have details of the circumstances surrounding the carers ‘surrendered’ of Noah but I note that Child Safety has since determined that leaving Noah with that carer would have exposed him to an unacceptable risk of harm due to neglect.
  1. [11]
    Child Safety has not yet obtained formal, legal custody or guardianship of Noah but for all practical purposes Child Safety is now the entity with responsibility for Noah.
  1. [12]
    Since the end of March 2023, Noah has been placed in a residential care home. This placement has coincided with an escalation in Noah’s offending.
  1. [13]
    The daytime staff to child ratio at the home is 1:2. In early April 2023, the Residential Care Organisation running the home prepared an “Individual Crisis Management Plan” (‘ICMP’) for Noah. The ICMP notes that Noah has particularly challenging behaviours:
  1. a.
    Noah has historically had extreme difficulty managing his emotions, though recently he has coped better with support from staff and by using a safety plan;
  1. b.
    If unable to manage his emotions, Noah will scream verbal abuse at staff or throw items around. In certain circumstances Noah may throw rocks, assault staff, make threats to staff and steal staff belongings;
  1. c.
    Due to his earlier exposure to domestic violence, if Noah misbehaves he will often target female staff rather than male staff;
  1. d.
    When upset, Noah can engage in risk-taking, including an instance where he grabbed the handbrake and steering wheel while being driven;
  1. e.
    Noah leaves the home at night and walks the streets with friends. When upset, Noah will often leave the home and return to potentially unsafe family members.
  1. [14]
    The ICMP also notes that:
  1. a.
    Noah works well with staff he trusts;
  1. b.
    Noah is ‘triggered’ when commitments to him are not kept or when he gets a sense that he has been lied to by staff; and
  1. c.
    When triggered, Noah will sometimes accuse care home staff of looking after him ‘just for the money’.
  1. [15]
    That Noah thrives on trust and decompensates where trust is lacking is unsurprising. Noah’s Child Protection history suggests that he has been the victim of trauma, neglect and abuse. Given this history, it must be extremely difficult for Noah to trust anyone. Information from Education Queensland, discussed later in these reasons, suggests that Noah compensates for his lack of trust in adults by forming extremely deep connections with other children in similar circumstances to himself.
  1. [16]
    In submissions on 30 May 2023, Ms Mariani said that she had spoken to the Team Leader at the care home, who advised that Noah needs a care ratio of 1:1. [3] This is a fairly authoritative statement that Noah needs improvement in his care arrangements.
  1. [17]
    On adjourning the application on 30 May 2023 I invited Child Safety to provide further information on the availability of such a care model for Noah.  In response to that invitation the Court received a letter from Ms Caitlin Moloney on 2 June 2023.
  1. [18]
    In that letter, Child Safety asserts that “…it is in [Noah’s] best interest that upon release from custody he return to his [current] placement…” It is difficult to see how this could possibly be correct, given that Noah committed the offences that have landed him in Cleveland YDC while in that placement. In effect, Child Safety are proposing ‘more of the same’ care, which obviously risks more of the same behaviour.
  1. [19]
    Child Safety’s letter disclosed that Child Safety has discussed Noah’s case with the same Team Leader identified by Ms Mariani. The letter, in effect, asserts that no 1:1 care model is available for Noah in Mount Isa or Townsville. The letter does not assert that 1:1 care is not the appropriate care model for Noah or that 1:1 care is not available elsewhere in the State. There is no suggestion in the letter that Noah’s Team Leader has resiled from her earlier statement to Ms Mariani that Noah needs 1:1 care.
  1. [20]
    The letter raises valid considerations in relation to Noah’s connection to kin and country here in Mount Isa but to give primacy to such a consideration might ignore the urgency of Noah’s present situation:
  1. a.
    The care model to date has not prevented a 12 year old with an intellectual disability, in the care of the Sate of Queensland, from landing in prison.
  1. b.
    Detention is likely to be doing Noah significant harm.[4]
  1. c.
    In any event, while Noah is in detention in Townsville, he is far removed from his kin and country.
  1. d.
    Noah is at risk of landing back in detention in Townsville (and away from his country) if there are no improvements in his care.
  1. [21]
    Noah’s care is a matter for Child Safety. I have attempted to analyse and understand how he is being cared for because it is highly relevant to his risk of reoffending, which is, in turn, relevant to whether he should be granted bail.
  1. [22]
    Ultimately, I must decide this bail application on the basis that, if released, Noah will be returning to the care arrangement that failed to prevent the offences listed above.

Submissions against bail

  1. [23]
    The primary submission against bail is that Noah will reoffend if he is released on bail. In assessing this risk, it is relevant that Noah has failed to comply with bail conditions when imposed. These conditions were imposed on him to limit the risk that he will re-offend.
  1. [24]
    The affidavits of objection to bail emphasise Noah’s risk of reoffending and, in various ways, communicate the police view there is nothing, short of locking him up, that will stop his offending. In support of this, police have referred inter alia to:
  1. a.
    His desire to go to Cleveland YDC to be with his brother;
  1. b.
    His strong personal connection to other juvenile offenders; and
  1. c.
    The inability of those with care for him to prevent him from offending.
  1. [25]
    On 6 May 2023 a curfew condition was imposed precluding Noah from being away from his residential care home unless he was attending school or in the company of a worker from the care home. The QPS conducted thirteen curfew checks at the care home between 6 and 23 May 2023. Noah was found to be compliant with his curfew only once.
  1. [26]
    In addition, from 12 May 2023 Noah’s bail conditions required him to comply with a conditional bail program (‘CBP’). The CBP is a series of daily pro-social and educational activities designed to keep Noah busy and to reduce the risk that Noah would reoffend. Noah did not comply with the CBP in any meaningful way.

Submissions in favour of bail

  1. [27]
    Ms Mariani argued, very ably, that there are features of Noah’s case that favour granting bail. I will analyse these below.
  1. [28]
    Noah is only twelve years old. Section 48AA(4)(ix) of the YJ Act notes the particular desirability of releasing children under fourteen from detention and the community’s expectation that children under fourteen are entitled to special care and protection.
  1. [29]
    The YJ principles require that detention should only be imposed as a last resort and, even then, for the least time justified by the circumstances.
  1. [30]
    A co-offender who increased Noah’s risk of offending has left Mount Isa. Noah committed some of his recent offences with a friend, Jack (a pseudonym). Jack was a resident at the same care home as Noah. Noah and Jack would often leave the home to sleep rough, to roam the streets or to commit offences. In fact, Noah’s most recent breach of bail offence on 23 May 2023 occurred when Noah was actually attending school but Jack came to the school gate and convinced Noah to leave school, in breach of his bail conditions.
  1. [31]
    As a result of Jack’s offending, Jack’s extended family have taken him to live in the Northern Territory. Ms Metcalf of Education Queensland told the Court that Noah’s teachers noticed that Noah made unusually strong attachments to other children. It appears to me that Jack had a major influence over Noah and his offending.
  1. [32]
    I find that Jack’s departure from Mount Isa significantly reduces Noah’s risk of offending but there remains a risk that, under the current care arrangement, Noah may form other, intense anti-social friendships when released.
  1. [33]
    Although the affidavits of objection to bail question whether Noah attends school, there is good evidence that Noah attended school and this is a factor that reduces Noah’s risk of offending. Ms Metcalf advised that a modified school program has been devised for Noah and in the weeks immediately before he was remanded in custody his teachers noted a particular improvement in his attendance and participation. This was linked to Noah re-starting his medication for ADHD at around the same time as the improvement. I accept that Noah’s attending school is a protective factor against offending.
  1. [34]
    It was argued that Noah is much more likely to attend school and receive an education if he is in the community rather than remanded in custody at Cleveland YDC.[5] I agree with that submission.
  1. [35]
    Noah has spent thirteen days in Cleveland YDC. I have no reason to expect that the regime at Cleveland YDC of keeping children in their cells for 21 hours a day, as discussed in numerous recent decisions, has improved.  Insofar as Noah is amenable to deterrence, there is a chance that the amount of time that Noah has already done in Cleveland YDC may convince Noah that there will be unpleasant consequences for any future criminal actions.
  1. [36]
    I note, however, that Noah has frequently said to police that he wants to go to Cleveland YDC because he wants to be with his brother who is already there.[6] Nevertheless, he instructed his lawyer to apply for bail so I give some weight to the possibility that Noah may not wish to return to detention.
  1. [37]
    There remains a question as to whether a twelve year old with intellectual disabilities can actually be deterred by the prospect of detention. I note the assertion in one of the police affidavits that “[i]t appears that no amount of time in the watchhouse of in custody is a deterrent to his behaviour”[7]. This is an insightful comment and consistent with academic research in this area. A feature of youth and impaired intellectual functioning is often an inability to appreciate that actions will have consequences.
  1. [38]
    I note Youth Justice’s report that, while in detention, Noah is reported to have behaved well and was not involved in any disciplinary incidents.
  1. [39]
    I have the option of imposing a further CBP on Noah but Noah’s earlier failure to comply with his CBP leads me to doubt whether he is up to participating meaningfully in a CBP. Ultimately, I don’t see a CBP as likely to mitigate the risk Noah will re-offend.
  1. [40]
    Dr Wesner’s report suggests that, until recently, Noah’s ADHD has been unmedicated for 2 years. I accept Dr Wesner’s opinion that Noah will benefit from medication. As noted above, Noah’s teachers have noted a recent improvement in his school performance. That improvement coincided with his restarting medication. I find that medication is also likely to reduce Noah’s risk of offending.
  1. [41]
    The ‘Individual Routine and Structure’ and ‘Our Daily Routine’ documents produced by the care home demonstrate that Noah can have a full and structured day. This should further mitigate Noah’s risk of offending.

Decision

  1. [42]
    Ultimately, the question facing the Court in this matter is whether to continue to use a profoundly dysfunctional children’s prison to manage the behavioural difficulties of a disabled twelve year old boy. One might think that the question answers itself but that is not always the case. Very frequently this Court answers this question in the affirmative because those with care of the child have failed in their duty to protect the child and/or to protect the community from the child.
  1. [43]
    This decision falls to be decided only by reference to the Youth Justice Act 1992 (‘the Act’) and related case law.
  1. [44]
    In coming to a decision I must have regard to the Youth Justice principles, including Principle 1, that the community should be protected from offences and, in particular, recidivist high-risk offenders.
  1. [45]
    The affidavit of objection to bail asserts that s 48AAA applies.[8] As discussed in Re JTL [2021] QSC 211, section 48AAA(2) of the Act contemplates that if satisfied, if the child is released, there is an unacceptable risk that the child will commit an offence that endangers the safety of the community and that it is not practicable to adequately mitigate that risk by imposing particular conditions, then the Court must decide to keep the child in custody.
  1. [46]
    The concept of community safety is not limited to situations where a child inflicts violence on members of the community but extends to situations where the child’s offending creates a risk of harm including (but not limited to) where children entering dwellings when residents are at home or cars being driven by untrained children.[9]
  1. [47]
    In Noah’s case, I am not convinced that any of the offences to which this application relates rise to the level of community safety, even in the extended sense contemplated by JTL. None of the offences involve breaking into homes. The two charges of unlawfully using a car merely allege that Noah was a passenger in a stolen car. As such, s 48AAA(2) is not engaged.[10]
  1. [48]
    Under s 48AAA(3), I may remand (or grant bail to) a child in custody if I consider there is an unacceptable risk the child will commit any offence not endangering community safety. Otherwise, s 48(2) requires me to grant bail unless I am required by some other law to keep the child in detention.
  1. [49]
    Section 48AA sets out the matters I must consider in relation to the question of bail. Those considerations, on balance, support granting bail to Noah, namely:

Subsection

Remark

(3)

Noah will not receive a term of detention if convicted of these offences.

(4)(a)(i)

The offences, while numerous, are not particularly serious.

(4)(a)(ii)

Noah has no finalised criminal history and a limited not for production history.

(4)(a)(iii)

Noah has breached six grants of bail. This is the major factor against granting him bail.

(4)(a)(iv)

In a conventional sense there is reasonable evidence against Noah but there is a major question surrounding his capacity. The prosecution will have to prove beyond reasonable doubt that, despite his disability, Noah knew what he was doing was seriously wrong in a moral sense.[11] The material currently available to me suggests that the prosecution may have problems with this aspect of the case.[12]  

(4)(a)(v)

Noah is very young, immature, has low cognitive ability and high developmental needs. This suggests he should not be in custody.

(4)(a)(vi)

I have provided a detailed description of the ‘parental support’ available to Noah above. Unless a 1:1 care model is established, this aspect will be problematic for Noah on the question of bail.

(4)(a)(vii)

Noah is indigenous but I have had no submissions from a community justice group.

(4)(b)(i)

Noah has already been held for in detention for thirteen days.

(4)(b)(ii)

Releasing Noah will better enable him to preserve his connection to family.

(4)(b)(iii)

Noah’s education would be greatly helped by getting him out of detention.

(4)(b)(iv)

Noah’s reputation would be improved by removing him from detention.

(4)(b)(v)

Noah has experienced significant trauma and some of his actions, i.e. spending time on the street, are undoubtedly trauma responses.

(4)(b)(vi)

Noah’s access to health assessments and treatment will, in all likelihood be better if release.

(4)(b)(vii)

Noah has a disability and his access to services and supports will be better if released from detention.

(4)(b)(viii)

Noah is indigenous and his connection to community, family and kin will be better if he is released.

(4)(b)(ix)

Noah is only twelve years of age so it is particularly desirable that he be released from detention due to his vulnerability and community expectations that a twelve year old child is entitled to special care and protection.

  1. [50]
    Accordingly, bail is granted with residential, curfew and contact conditions

Footnotes

[1] This letter was sent after the initial bail hearing on my invitation to Child Safety to provide the Court with an update on current or potential care arrangements for Noah.

[2] Noah was remanded in custody for on 9/5/23 for 3 days before he was released on bail.

[3] Who, incidentally, is one of the authors of the ICMP

[4] See Re JG [2023] QChC 3, particularly pages 7-9.

[5] R v JG [2023] QChC 7, 5 April 2023, at page 6. Although R v YG was handed down in April 2023, the YJ Court Liaison officer was unable to report any recent improvement in access to education at Cleveland YDC since that time.  

[6] Snr Const Watson, 23 May 2023 at page 6

[7] Snr Const Watson, 23 May 2023 at page 6

[8] Snr Const Watson, 23 May 2023 at page 5

[9] Re JTL at [3]

[10] Even the Enter Dwelling on 14/2/23 on his ‘not for production’ history appears to have involved a church rather than a dwelling, see affidavit of Snr Const Watson, 23 May 2023 at page 7.

[11] RP v The Queen [2016] HCA 53 at [36]

[12] Evidence that the child ran away from store staff is unlikely, without more, to reach that threshold – see page 10 of the affidavit of Snr Const Watson, 23 May 2023.

Close

Editorial Notes

  • Published Case Name:

    Re Noah Jackson (a pseudonym)

  • Shortened Case Name:

    Re Noah Jackson (a pseudonym)

  • MNC:

    [2023] QChCM 5

  • Court:

    QChCM

  • Judge(s):

    E. Mac Giolla Rí

  • Date:

    08 Jun 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
R v JG [2023] QCHC 7
1 citation
Jump To
Cite 1 - [2023] QCHC 7
Re JG [2023] QCHC 3
1 citation
Jump To
Cite 1 - [2023] QCHC 3
Re JTL [2021] QSC 211
1 citation
Jump To
Cite 1 - [2021] QSC 211
RP v The Queen [2016] HCA 53
1 citation
Jump To
Cite 1 - [2016] HCA 53

Cases Citing

Case NameFull CitationFrequency
Department of Child Safety, Seniors and Disability Services v Mia Buckley (a pseudonym) [2023] QChCM 81 citation
Re Noah Jackson (a pseudonym) [2023] QChCM 73 citations
1

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