Re JOD[2022] QSC 260

SUPREME COURT OF QUEENSLAND

HENRY J:   The applicant seeks review of a Magistrate’s decision to release the 14 year old male respondent on bail. 

The respondent has an appalling juvenile criminal history including many offences of unlawful use of a motor vehicle, stealing, trespass, burglary, and entering premises and committing indictable offences.  He has received multiple cautions, reprimands, good behaviour bonds, Restorative Justice Court Diversion referrals, probation orders and community service orders.  Earlier this year between 25 March and 17 May he served 53 days detention as his sentence for offending including four burglaries, one attempted burglary, five unlawful use of motor vehicles, two dangerous operation of motor vehicles, and charges of possession of implements and receiving tainted property.

The charges the subject of this review, his guilt of which is admitted, continue his entrenched pattern of offending, particularly by burglary and unlawful use of motor vehicles.  Those offences are: three charges of unlawful use of a motor vehicle, three charges of burglary, and one charge each of unlawful possession of suspected stolen property and receiving tainted property. 

At the time of those offences, committed on 22 and 23 September 2022, he was on bail for four counts of robbery whilst armed in company.  The conditions of that bail required him to live at a named address with his grandmother and not be found away from that address between 9 pm and 6 am, unless with his grandmother, and that he not contact the complainants. 

He was arrested for the offences the subject of this review on 23 September 2022 and refused bail in the Innisfail Magistrates Court the following day.  He made a further application for bail on 27 September 2022 in the Cairns Magistrates Court and again bail was refused.

He came before the Cairns Magistrates Court again on 11 October 2022.  He pleaded guilty to the charges the subject of this review, a pre-sentence report was ordered and his sentence was listed to occur on 1 November 2022.  He was on that date granted bail, conditioned that he reside at a named address with his grandmother and “must not be found to be away from that residence between 6 pm and 6 am unless with his grandmother”. 

A bail compliance record evidenced in this application shows that during the curfew period since his release on bail, the decision under review, he was not home during the curfew time on 11 October – the very day that he was granted bail – 12 October, 13 October, 14 October, 15 October and 17 October.  The document records these as occasions of non-compliance.  The document is ambiguous as to whether on some of those occasions his grandmother was home, leaving the hypothetical possibility open that he was out in company with his grandmother on at least some of those occasions.  But bearing in mind these curfew checks generally occurred between at about 10 and 11.30 pm, it is doubtful his grandmother was complicit in he, a 14 year old boy, repeatedly not being home at that hour of the night.  Further, on at least three of the non-compliant occasions his grandmother was home, and in respect of at least another three of the non-compliance entries, persons spoken to at the house were unaware of his whereabouts.  I therefore infer he was in breach of the curfew conditions on at least the majority of the aforementioned dates.

A review of this kind is a hearing de novo – see DPP v Filippa [2005] Qd R 587.  The statutory considerations relevant to the making of the decision below must have parallel relevance now.  They include that the respondent is in a show-cause position having been on bail at the time of the offences the subject of the review – see 48AF Youth Justice Act – and that the matters to be considered in this hearing de novo include those listed in ss 48AA and 48AAA. 

Section 48AA (4) contains an array of considerations including principle 18 of the Youth Justice Principles, which, in most cases of juvenile bail hearings, weigh heavily in favour of the grant of bail.  However, as explained by me in Re JTL [2021] QSC 211, there comes a point where the many favourable considerations which generally trend in favour of granting juveniles bail are outweighed by the unacceptable risk that a juvenile will commit an offence endangering the safety of the community or safety or welfare of a person. 

In the present case, the fact that the respondent was on bail at the time of the offences the subject of this review, a circumstance which placed him in a show-cause position, is of course concerning.  However, the greater concern arises out of his pattern of offending involving burglaries and unlawful use of motor vehicles.  True it is, in committing the latest offences he was not on bail for offences of that category and, rather, was on bail for the robbery offences.  But it remains that he has a long history of burglary and unlawful use of motor vehicle type offences and those types of offences were of course offences for which he was in detention earlier this year.  That he, in the most recent set of offending, has effectively continued with his pattern of committing burglary and unlawful use of motor vehicle offences, points to an extremely high risk that he will commit further such offences whilst on bail.  It doubtless explains why at least the first two Magistrates referred to earlier refused him bail. 

As I explained in Re JTL, those types of offending endanger the safety of the community because of the risk of violence occurring between the juvenile and victim residents, and because vehicles being unlawfully used by untrained children drivers are at risk of crashing and doing injury.  The very real risk of such harm or injury occurring means such offending endangers the safety of the community.

None of this is to suggest that in every case where a juvenile with a history of burglary and unlawful use of motor vehicles again commits like offences they ought be refused bail.  But in the present case, there is such a clear pattern of repeat offending of that kind as to so raise the likelihood of the juvenile continuing to commit such offences that I am satisfied there is an unacceptable risk the respondent will commit an offence that endangers the safety of the community if released on bail.  In some cases of this kind the concerning risk may be sufficiently mitigated by the imposition of conditions so that there is not an unacceptable risk – see s 48AA.  However, in the present case it is clear that even the imposition of the residential requirement and curfew whilst he was on bail was inadequate to mitigate against the risk.  Indeed he failed to comply with the curfew condition again after being placed on bail by the decision under review.

In determining this matter, I do not have the benefit of a transcript of what transpired below.  Whether there was some material before the learned Magistrate which is not now advanced before me for the respondent remains unknown.  I am alive to the possibility the learned Magistrate generously considered the further length of time until sentence may give rise to a total time in custody which would exceed the period of total detention likely to be imposed.  If so, respectfully, that would appear to have been a generous view. 

In any event, whilst, of course, the length of time in custody whilst awaiting sentence as compared to the prospective likely period of detention ordered is plainly a relevant consideration, it is not, as my reasons already given explain, the only relevant consideration.  And in a case of this kind, for the reasons I have explained, the interests of avoiding endangering the safety of the community compel in my view the conclusion that it is appropriate to revoke his bail granted below.

When this application came before me yesterday, the respondent’s legal representatives sought an adjournment to have an opportunity to allow more material.  I then explained concern as to whether I ought, if granting the adjournment, revoke his bail in the meantime because of the force of the materials against him.  In the end result, the length of time sought for the adjournment was shortened, so it returned before me only one day later, today.  When the matter was before me yesterday the respondent was not present, he was not served in such a way as to require he be present in circumstances where his lawyer was.  However, I directed that he was required to be present for the continued hearing today, conscious as I was, though I did not say it out loud, that in the result that I did rule in the applicant’s favour there could be an orderly process by which he would enter custody.

I was of course also conscious that his presence would presumably aid, not only his legal representative but perhaps even the Youth Justice representative who would be present.  On resumption today, his lawyer confirmed that his client was told he had to be here and both his lawyer and the Youth Justice officer informed the Court that, despite that, the respondent had apparently indicated that he did not intend to come.  I do not propose to dally over seeking to try and punish him for his failure to appear, for example, for contempt. 

I have power pursuant to s 19D to issue a warrant for his apprehension, directing that he brought before a stated Court.  On one view, I could have him brought before this Court, but that appears to be inefficient.  The preferable course is that he simply be brought before the Magistrates Court against a background where I now formally order, for the reasons given, that the application is granted, and the respondent’s bail is revoked.

Accordingly, pursuant to s 19D Bail Act, I order that a warrant be issued for the apprehension of the respondent and direct that he be brought before the Magistrates Court and that the warrant so indicate.