Re Noah Jackson (a pseudonym)
[2023] QChCM 7
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- Unreported Judgment
- Re Noah Jackson (a pseudonym)[2023] QChCM 7
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Re Noah Jackson (a pseudonym)[2023] QChCM 7
Re Noah Jackson (a pseudonym)[2023] QChCM 7
MAGISTRATES COURT OF QUEENSLAND
CITATION: | Re Noah Jackson (a pseudonym) [2023] QChCM 7 |
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 & 360/23 |
PROCEEDING: | Bail Application |
COURT: | Children’s Court, Mount Isa |
DELIVERED ON: | 4 August 2023 |
DELIVERED AT: | Mount Isa |
HEARING DATE: | 14, 18, 25 & 27 July 2023 |
MAGISTRATE: | E. Mac Giolla Rí |
ORDER: | Bail refused |
APPEARANCES: | Snr Const Grabbe Mr V Knox, ATSILS Ms J. Green, Youth Justice Ms K. Allan / Ms C. Moloney, Child Safety Court Liaison |
Background
- On 27 July 2023 I refused bail to Noah Jackson. I explained the consequences of that decision to Noah and reserved my reasons.
- Noah is an indigenous boy with an intellectual disability. Noah is in the care of the State of Queensland. Noah is twelve years old.
- On 6 June 2023 I had granted Noah bail with conditions. I published my reasons for granting bail, Re Noah Jackson (a pseudonym).[1] All the facts contained in that judgement are relevant to this decision.
- When released on 6 June 2023 Noah had been remand for 13 days in relation to 36 offences: 17 property offences, 2 offences of unlawful use of a car and 17 charges of breaching his bail conditions.
- When I granted Noah bail I had concerns about the adequacy of the care Child Safety was providing for Noah.
- Prior to being remanded in custody, Noah had been placed in a residential care home. In my earlier judgment I noted that the Team Leader in Noah’s care home had said that Noah needed a better model of care than was available in that placement. The Team Leader’s view was that Noah needed a 1:1 ratio of carer to child. Only a 1:2 ratio was available in the placement. Noah’s needs are high because of his intellectual disability.
- In the earlier bail proceedings I raised this matter directly with the parties. In response to my concerns Child Safety provided its view in writing that
“…it is in [Noah’s] best interest that upon release from custody he return to his [current] placement…”[2]
- In the earlier judgement I wrote:
“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.”[3]
Charges
- As things transpired, Noah is one of several children charged with involvement in a series of major crimes on the night of 12 to 13 July 2023, including:
- The theft of a car from a local caravan park.
- The dangerous operation of that car on public roads.
- The stolen car was driven through fences: of a house, a school and a council property.
- The stolen car rammed several cars that were being driven by members of public.
- The stolen car drove onto the grounds of three schools and performed dangerous manoeuvrers, damaging school infrastructure and terrifying young students.
- The stolen car rammed a car that had driven across a school’s driveway to prevent the stolen car’s progress.
- Although there is no assertion by prosecution that Noah was the driver of the car, it appears that Noah was in the stolen car at all relevant times. Video footage played on the first day of the bail application shows that all occupants of the care were enthusiastic participants, at least at the stages depicted in the footage.
Noah’s conduct between release and new charges
- The information available to me from the residential care home, Education Queensland, Child Safety and his lawyer in relation to Noah’s conduct between release on 6 June and the newcharges seven weeks later suggests that, despite Noah’s substantial intellectual and behavioural issues[4] he was going really well, in that:
- Noah was consistently attending school where he was being taught according to a modified program.
- Noah was consistently well behaved in his placement, which was a big turnaround.
- Noah was compliant with his ADHD medication, which appeared to be a factor in his improved behaviour.
- Noah had not committed any offences.
- Noah had complied with his bail conditions, including his curfew.
- Unfortunately, there were also indications that Noah was at risk of committing further offences in that:
- Other children were visiting Noah at night at the residential care home to try to get Noah to leave his placement, inferentially to commit offences. The other children would come to his window and try to get him to leave the placement, inferentially to commit offences.
- Initially and, it appears, on several occasions Noah refused to leave his placement.
- During the day, when Noah was away from his placement, these children bullied and assault Noah for his refusal to leave the care home at night.
- Ultimately, Noah took to sleeping in the loungeroom at the care home so that he would not be present in his room when the children came knocking at night.
- Apparently, Noah became involved in the alleged offending after he had returned to sleeping in his bedroom and received another visit to his window from a child or children involved in the offending. On this occasion he did not resist the invitation join the other children.[5]
- I am satisfied that Noah’s intellectual disability played a substantial part in his inability to navigate the complex situation where the following forced were acting on him:
- His requirement to comply with his bail conditions.
- His evident desire to go to school and behave well.
- His fear of being assaulted if he didn’t go with children who visited his window at night.
- The undoubted temptation offered by the sense of belonging he must experience with the other offending children and the excitement of being in a car driven at high speed.
Child Safety insist same placement is in Noah’s best interest
- When this matter came on as a bail application, I expressed the view that despite Noah’s best efforts and intentions there remained a substantial risk that, if released, Noah would be unable to resist further invitations to leave placement to commit offences.
- I invited Child Safety to explore the possibility of finding a placement for Noah that provides what the Team Lead in his current placement views as the required 1:1 level of care. I adjourned the bail application on several occasions to allow Child Safety the opportunity to explore any options that may be available.
- The initial response from Child Safety was that no 1:1 placements are available in Noah’s home town. In light of this Child Safety ultimately advised that it is Noah’s best interests to be placed in his the same placement again and that no placement outside Mount Isa or Townsville was considered because it risked harming Noah’s connection to country and kin.
- In relation to his connection to kin, Noah’s kin in Mount Isa include:
- His sister, who is also placed in a residential care home.
- His brother, who is currently in detention in Cleveland Youth Detention Centre in Townsville.
- An adult, who is the person Child Safety want to remove him from for his own safety.
- Child Safety’s position is not that 1:1 placement is not available in the State, only that there is no 1:1 placement available in Mount Isa or Townsville, i.e. the administrative sub-division of the State connected to the Child Safety office responsible for Noah.
- This insistence on a placement in Mount Isa or Townsville is difficult to understand because:
- There is no 1:1 placement available in this region.
- The current placement hasn’t prevented Noah from re-offending in a manner that caused extreme danger to the community.
- While placement off-country and away from kin may, generally, be inappropriate, the choice facing Child Safety (on Noah’s behalf) isn’t between a placement off-country and a placement on-country but a choice between a placement off-country and being remanded in prison.
- While in prison Noah faces a high risk of further harm, including extended solitary confinement because of staffing issues at Cleveland Youth Detention Centre.
- I am also conscious of the information provided by Child Safety in the recent matter of Mary Boland (a pseudonym) v Director of Child Protection Litigation.[6] In that case, data was sought from Child Safety concerning the efficacy of residential care. The purpose of the request was to assess how effective residential care might be at preventing young people from offending.
- In response to that request, a deponent on behalf of Child Safety averred that:
“[t]he Office of the Chief Practitioner[7] was contacted on 16 June 2023 requesting data and statistics relating to children being placed in residential placements. Advice received on 19 June 2023 indicated data, such as that requested by The Court is not currently held and therefore not available.”
- It seems highly unusual that such information is not held by Child Safety. It is difficult to understand how Child Safety monitors the quality and efficacy of the care provided to vulnerable children without such data. More relevantly, it is difficult to understand Child Safety’s insistence on placing Noah back in the same 1:2 placement where there is no data to justify that placement’s efficacy, particularly in circumstances where the Team Leader at that placement is saying that a better model of care is needed for Noah.
Factors in favour of bail
- One of the factors that contributed to Noah offending on 13-14 July 2023 was the return to Mount Isa of another child, Jack, who had previously been granted bail on condition that he reside in the NT and not return to Mount Isa, except for court.[8] Unfortunately, Jack’s family returned him to Mount Isa shortly before the offending. Jack was also involved in the offending. I am satisfied that Jack’s influence was a substantial reason for Noah’s involvement.
- Jack is now remanded in custody, and I accept that this is a substantial protective factor that will reduce the risk Noah will commit further offences.
- Equally, Noah’s excellent behaviour in the care home and his demonstrated commitment to school and his bail conditions between 6 June and 13 July are substantial factors in favour of bail.
- If Noah is not granted bail he is likely to spend a considerable period of time in custody because the defence will have to obtain reports on Noah’s capacity to “know that he ought not do the acts” with which he has been charged.[9] Given Noah’s intellectual disability, there is a real prospect that the prosecution may have difficulty proving Noah’s capacity.[10] This is not a hypothetical delay or a delay that can be said to be Noah choice or fault. There is a real prospect that any prison time Noah does will not ultimately be justified by operation of the law, other than as the law applies to the consideration of bail.
Relevant Law
- When I last considered bail for Noah I found that s 48AAA did not apply as there was no relevant risk to community safety,[11] that is not the case in this application. In my view there is a risk that Noah, if released will commit an offence that endangers the safety of the community if released, namely he may again participate in the highly dangerous activities with which he is now charged.
- The Youth Justice principles and the factors identified in my earlier judgement in relation to s 48A(2) and bail generally remain relevant[12] but I am required to refuse bail unless there are conditions that would adequately mitigate the risk Noah poses to community safety.
- I am conscious that s 48AA(6) requires that I not refuse bail only because of a lack of accommodation.
Discussion
- I am satisfied that, broadly, Noah did his best to avoid offending between his release on bail on 6 June and the alleged reoffending on 13 July 2023. I am also satisfied that Noah’s intellectual disability and the level of supervision at his residential care home are directly linked to his decision to join his co-offenders on 13 July, in circumstances where he had previously gone to great lengths and suffered assaults to avoid going with them.
- I am satisfied that returning Noah to his current placement, as proposed by Child Safety will not adequately mitigate the risk that Noah will reoffend. Any other bail conditions that I could impose are unlikely to mitigate the risk Noah will reoffend as long as he remains in that placement.
- In my view, Noah requires a 1:1 model of care, as proposed by the Team Leader in his current placement. If Child Safety can make such a placement available, Noah’s positive conduct between 6 June and 13 July suggests that a further bail application may be warranted.
Footnotes
[1][2023] QChCM 5
[2]Re Noah Jackson (a pseudonym) [2023] QChCM 5 at [18]
[3]At [18]
[4]At [8] – [15]
[5]The other children charged with involvement in the offending on 12 – 13 July 2023 were either 12 or 11 years old.
[6][2023] QChCM 6
[7]An office within Child Safety.
[8]Re Noah Jackson (a pseudonym) [2023] QChCM 5 at [30] – [33]
[9]Section 29(2), Criminal Code (Qld)
[10]BDO v The Queen [2023] HCA 13
[11]At [47]
[12]At [49]