SUPREME COURT OF QUEENSLAND

CITATION:	Wheaton v Jason (a pseudonym) [2024] QSC 122	
PARTIES:	WHEATON
(applicant)
v
JASON (A PSEUDONYM)
(respondent)	
FILE NO:	6094 of 2024	
DIVISION:	Trial Division	
PROCEEDING:	Application	
ORIGINATING COURT:	Supreme Court at Brisbane 	
DELIVERED ON:	7 June 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	21 May 2024	
JUDGE:	Davis J	
ORDER:	1.	The application is dismissed.	
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL – where the respondent is a child – where he has a lengthy criminal history including numerous offences of breaking and entering dwelling houses and unlawfully using motor vehicles – where he has been placed on probation on numerous occasions – where he was sentenced to four months detention to be served by way of a conditional release order – within a month of being sentenced to four months detention to be served by way of a conditional release order he was charged with further offences – the offences were 5 counts of burglary, 7 counts of attempted burglary, 1 count of unlawfully entering premises (a car), 1 count of unlawful use of a motor vehicle and 1 charge of stealing petrol – where an Acting Magistrate sitting in the Childrens Court gave the respondent bail on conditions – where the applicant applies for the revocation of bail – whether the respondent is likely to endanger the public – whether bail should be revoked
Bail Act 1980 (Qld), s 19B,
Youth Justice Act 1992 (Qld), s 48, s 48AAA, s 48AA, Sch 1
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited
Director of Public Prosecutions v Filippa [2005] 1 Qd R 587; [2004] QSC 470, cited
Iordache v DJM [2023] QSC 134, cited
Re JTL [2021] QSC 211, considered 
R v SCU [2017] QCA 198, followed	
COUNSEL:	B Trenear for the applicant
A Davie for the respondent
T Huni appeared for the Chief Executive of the Department of Children, Youth Justice and Multicultural Affairs	
SOLICITORS:	Ms Trenear was instructed directly by the Queensland Police Service 
Skuse Graham Criminal Lawyers for the respondent
	
[1]	This is an application brought pursuant to s 19B of the Bail Act 1980 (Qld) to revoke the bail of Jason granted on 10 May 2024 in the Toowoomba Children’s Court.  
[2]	A review pursuant to s 19B of a decision to grant bail is a reconsideration de novo.  It is not an appeal and therefore the exercise of this Court’s discretion is not dependent upon the identification of error.  
[3]	The relevant provisions of the Youth Justice Act 1992 which concern the granting of bail to a child are ss 48, 48AAA and 48AA.  I analysed these provisions in detail in Iordache v DJM.  
[4]	As observed in Iordache v DJM, the following arise from the provisions:
1.	there is a presumption in favour of granting bail to a child;
2.	bail must be refused if, after considering all of the circumstances, including conditions which might be imposed upon any grant of bail, there is an unacceptable risk that, relevantly here, “the child will commit an offence that endangers the safety of the community or the safety or welfare of a person”; and
3.	in determining that question, the Court must have regard to the matters prescribed by ss 48AA(3) and (4).
[5]	Section 48AA(3) and (4) provide relevantly:

          “48AA	Matters to be considered in making particular decisions about          release and bail
…
(3) 	Also, if the decision is being made by a court, the court must have regard to the sentence order or other order likely to be made for the child if found guilty.
(4)	In making a decision mentioned in subsection (1)—
	(a)	the court or police officer may have regard to any of the following matters of which the court or police officer is aware—
(i) 	the nature and seriousness of the alleged offence; 
(ii)	the child’s criminal history and other relevant history, associations, home environment, employment and background; 
(iii) 	the history of a previous grant of bail to the child; 
(iv) 	the strength of the evidence against the child relating to the alleged offence; 
(v) 	the child’s age, maturity level, cognitive ability and developmental needs; 
(vi)	whether a parent of the child, or another person, has indicated a willingness to the court or police officer that the parent or other person will do any of the following things—
(A) 	support the child to comply with the conditions imposed on a grant of bail; 
(B) 	notify the chief executive or a police officer of a change in the child’s personal circumstances that may affect the child’s ability to comply with the conditions imposed on a grant of bail; 
(C) 	notify the chief executive or a police officer of a breach of the conditions imposed on a grant of bail;
(vii) 	if the child is an Aboriginal person or Torres Strait Islander—a submission made by a representative of the community justice group in the child’s community, including, for example, a submission about—
(A) the child’s connection with the child’s community, family or kin; or 
(B) 	cultural considerations; or 
(C) considerations relating to programs and services established for offenders in which the community justice group participates;
Note— 
	See also section 48AC.
(viii) any other relevant matter; and
	(b) 	for a decision mentioned in subsection (1)(d)—the court or police officer may have regard to any of the following—
(i) 	principle 18 of the youth justice principles; 
(ii) 	the desirability of strengthening and preserving the relationship between the child and the child’s parents and family; 
(iii) 	the desirability of not interrupting or disturbing the child’s living arrangements, education, training or employment; 
(iv) 	the desirability of minimising adverse effects on the child’s reputation that may arise from being kept in custody; 
(v) 	the child’s exposure to, experience of and reaction to trauma; 
(vi) 	the child’s health, including the child’s need for medical assessment or medical treatment; 
(vii) 	for a child with a disability—the disability and the child’s need for services and supports in relation to the disability;
(viii) if the child is an Aboriginal person or Torres Strait Islander—the desirability of maintaining the child’s connection with the child’s community, family and kin; 
(ix) if the child is under 14 years—the particular desirability of releasing children under 14 years from custody due to their vulnerability and community expectations that children under 14 years are entitled to special care and protection; 
(x) 	the likely effect that refusal to release the child would have on—
(A) 	a person with whom the child is in a family relationship and for whom the child is the primary caregiver; or 
(B) 	a person with whom the child is in an informal care relationship; or 
(C) 	if the child is pregnant—the child of the pregnancy …”
[6]	The considerations prescribed by s 48AA(4)(b) are relevant because this is a decision mentioned in s 48AA(1)(d), namely:
“(d)	 whether to release the child without bail or grant bail to the child;”
[7]	Principle 18 of the Youth Justice Principles provides:
“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.”
[8]	Jason may have some mental impairment so ss 48AA(4)(a)(v) and (b)(vii) are relevant.  Jason is an Aboriginal person so s 48AA(4)(b)(viii) applies.  Jason is over the age of 14 years so s 48AA(4)(b)(ix) has no relevance. 
[9]	Section 48AF operates so as to remove the presumption in favour of a grant of bail where a child has allegedly committed prescribed offences while on bail.  Jason was not on bail when he allegedly committed the offences the subject of this application, although he was subject to orders under the Youth Justice Act. Section 48AF has no operation here.  
The circumstances 
[10]	What is alleged by the applicant is that there is an unacceptable risk that Jason will, whether alone or with others, break and enter houses and steal cars.  That, it is submitted, is activity said to constitute an offence that “endangers the safety of the community and safety or welfare of a person”.
[11]	The decision of Henry J in Re JTL has been cited to me.  There, his Honour observed:
“[3]	It is as well to reiterate, as I have in previous reviews, that juveniles breaking into homes and later unlawfully using vehicles stolen from those homes are committing offences which endanger the safety of the community, including themselves. That is because of the risk of violence occurring as between them and the dwelling occupants, many of whom will be tempted to apply force to detain or repel offenders breaking into their home. It is also because of the risk of vehicles in the hands of untrained children drivers crashing and doing injury. Such dangers do not always crystallise into actual harm or injury but it is the very real risk of such harm or injury occurring which means such offending ‘endangers the safety of the community’.”
[12]	His Honour there is, in my respectful view, not purporting to state a principle of law.  His Honour is making the observation, based on the long experience of the courts, that offences involving the invasion of a residence are potentially dangerous because of the prospect for confrontation and violence.  His Honour’s comments as to children driving vehicles is also obviously, with respect, correct.  
[13]	Jason was born on 4 March 2009 and is now 15 years of age.  He is, as I have already observed, Indigenous. 
[14]	Jason has a disturbing criminal history.  Between 14 October 2021 and 4 April 2024, he was convicted on no less than 12 separate occasions.  He is a serial burglar and thief of motor vehicles.  He has also been convicted of stealing, public nuisance, wilful damage by graffiti, attempted robbery with actual violence whilst armed and in company, breaches of bail, unlawful entry of a vehicle for the purpose of committing an indictable offence, obstructing a police officer and wilful damage of police property.
[15]	Jason has been the subject of various orders, apart from bail orders.  On 18 August 2022, he was placed on a good behaviour bond and made the subject of a graffiti removal order.  He was placed on probation on each of 6 October 2022, 17 November 2022, 22 May 2023, 8 June 2023, 13 July 2023 and 3 October 2023.  On 21 December 2023, he was placed on a good behaviour bond and on 4 April 2024, he was sentenced to four months detention to be served by way of a conditional release order.
[16]	The current offending was allegedly committed while Jason was subject to an eight month probation order made on 3 October 2023, a six month good behaviour bond made on 21 December 2023 and a four month detention order to be served by way of a six month conditional release order made on 4 April 2024.  The alleged offending occurred on 5 May 2024, about a month after the imposition of the detention order.
[17]	The alleged offending is serious.  
[18]	At about 12:15 am on 5 May 2024, Jason and four others allegedly entered a dwelling at Middle Ridge and stole various things including the keys to a motor vehicle.  The motor vehicle was then stolen and used to drive to various other places which were then burgled.
[19]	At 1:00 am on 5 May 2024, there was an attempted burglary of an address in Kearneys Spring.  At 1:25 am, there were attempts to enter two residences in Middle Ridge.  At 1:40 am, there was an attempt to break and enter a dwelling in Rangeville.  At 2:37 am, access was gained to a dwelling in Harlaxton and some things were stolen.  At 3:08 am, there was an attempt to break into a house at Glenvale.  At 3:50 am, there was an attempt to enter a house in East Toowoomba. In attempting to gain entry, a louver was broken.  This alerted the resident of the dwelling and he made himself known so the group fled.  At that address, entry was gained to two vehicles and a car key and a laptop computer was stolen. At 4:00 am, Jason and his accomplices allegedly entered a dwelling at Mount Lofty and stole various items.  
[20]	During the morning, prior to 3:00 am, the group allegedly entered a vehicle in Kearneys Spring and stole a passport, identification, bank cards and computer equipment.  At 3:25 am, they allegedly forced entry into a dwelling at Cotswold Hills and stole a bag containing $3000.  At about 6:00 am, Jason and his accomplices allegedly attended an address in Mount Lofty and damaged a door while attempting to gain entry.
[21]	At 12:35 am, the group allegedly attended a service station in Drayton where they pumped $69.51 of fuel into the vehicle they had solen in Middle Ridge and then left without paying.
[22]	Sometime during the morning of 5 May 2024, the group allegedly attended a dwelling at East Toowoomba, crawled under a partially raised garage door, entered the dwelling and stole a purse containing a driver’s licence and $70.
[23]	Between 12:15 am and 6:00 am on 5 May 2024, Jason was allegedly party to 5 counts of burglary, 7 counts of attempted burglary, 1 count of unlawfully entering a motor vehicle, 1 count of unlawful use of a motor vehicle, and 1 charge of stealing petrol.
[24]	Acting Magistrate Ryan gave Jason bail on the charges subject to conditions namely:
1.	Jason would live with his father at an address in Cunnamulla;
2.	Jason must be at the bail address between 9:00 pm and 6:00 am unless accompanied by his mother or father;
3.	Jason must report to the Cunnamulla Police Station every Monday; and
4.	Jason must not go to Toowoomba except for court purposes.
[25]	No transcript of the learned Acting Magistrate’s reasons for granting bail is before me.  As earlier observed, the current application is not dependent upon identification of error.  However, the bail order is the result of a reasoned decision of the Acting Magistrate and consideration of the reasons may well be helpful.  A magistrate’s reasons for granting bail should usually be before this Court in applications such as the present.
[26]	By s 48AA(3), regard must be had to the sentence or other order likely to be made if the child is found guilty.  As previously observed, Jason has a lengthy criminal history for like offences to those the subject of the current grant of bail.  The last sentence was a period of detention notwithstanding it was accompanied by a release order.  The current offending may result in detention.
[27]	The offending is as I have said, serious.  For the reasons explained by Henry J in Re JTL, offending of this nature is likely to endanger the public and also the offenders themselves.  The fact that there were no weapons involved in the current offending might reduce, but certainly does not eliminate, the risk of a violent confrontation with residents of the houses burgled.  No person was injured during the alleged offending, but for the reasons explained by Henry J in Re JTL, the potential for tragedy is always present.  The offenders here attempted to break into several houses.  Many of their attempts failed.  That was because alarms were activated or, in one case, they were confronted by a resident.  In none of those circumstances did they resort to violence.  They simply fled.
[28]	It is hard to assess the strength of the evidence against Jason at this point.  The offenders are, in the main, captured on closed-circuit television footage.  The footage shows a person of the general build of Jason participating in the offences and clothing like that worn by the offender was being worn by Jason at the time of his arrest.
[29]	As previously observed, Jason has a long criminal history and there is a definite pattern of persistence of committing offences involving entering dwellings.  However, while he has been on bail on numerous occasions and has been convicted of breaching bail, in the main, he has complied with bail conditions. That must be balanced against the fact that Jason was subject to a detention order and a conditional release order at the time of the commission of the current alleged offences. 
[30]	Jason’s parents separated when he was very young and he has sometimes lived with his mother and sometimes with his father.  His mother lives in Toowoomba and that is where many of his antisocial peers reside.  This is, no doubt, why the present bail conditions limit his activities (curfew for example) and forbid him from entering Toowoomba.  It is submitted that his father’s residence in Cunnamulla is a more stable and disciplined environment. Jason’s father is supportive, but says he will alert the police if Jason breaches bail. However, Jason’s criminal history also includes offences which have occurred in Cunnamulla, presumably while in contact with his father.
[31]	Jason has not been attending school. He says he wishes to return to school. He was placed on the conditional release order over two months ago and there is no evidence of any substantial attempt to attend school. Jason’s father is attempting to enrol him. 
[32]	Jason identifies as Indigenous but there is no evidence of any particular involvement of the Indigenous community in his life. 
[33]	Jason has been diagnosed as having an intellectual disability but there is no evidence that it is of a gravity to hinder him from complying with orders. 
[34]	It is undesirable for a child to be in custody.  Custody is, by Youth Justice Principle 18, a last resort.
[35]	Jason has a long history of breaking into citizens’ houses and stealing cars.  As his criminal history has progressed, the response of the courts has become stronger towards him.  Now, within a month of being sentenced to a detention order, he has again allegedly entered houses and stolen a car. For the reasons already explained, such activity endangers the public as the offending leads to the potential for confrontation and violence.  
[36]	R v SCU is a decision made consequent upon a sentence appeal.  The Court of Appeal there analysed the Youth Justice Act and observed:
1.	the Youth Justice Act establishes a regime for the dealing with children who commit offences, which regime is separate from that concerning adult offenders;
2.	in sentencing a child, the Youth Justice Act must be applied notwithstanding that application of the Act may deliver very different outcomes than if the child was being sentenced as an adult;
3.	a fundamental requirement of the Youth Justice Act is that a sentence of detention is a last resort and “At the forefront of the strictures imposed by the Act is the obligation of a court to consider all other options that are reasonably available before imposing a sentence of detention”; and
4.	of that requirement, Sofronoff P observed:
“[54]	These are simply the requirements of common sense and the application of life experience when considering the problems posed by children who commit offences. Whatever might be the grave consequences of imprisonment for an adult who commits an offence such as arson, the consequences of incarceration for a child are likely to be more far-reaching because it is experienced at the start of a life, more severe because of the effect of separation from home, from parents and loved ones and more likely to have potential for harm rather than good, by reason of bad associations made within a detention centre and the harsh experiences encountered there.”
[37]	His Honour’s observations are founded in Youth Justice Principle 18.  Youth Justice Principle 18 applies upon the consideration of bail.
[38]	Despite that the alleged offending occurred while subject to orders, Jason is not in a show cause situation.  There is, as I have explained, therefore a presumption in favour of bail being granted.
[39]	The vast majority of Jason’s past offending occurred in Toowoomba.  The current alleged offences occurred in the Toowoomba region.  The alleged offending the subject of the current application has apparently occurred in the company of others.
[40]	While, as I have observed, some offending has been committed by Jason in Cunnamulla, that is quite limited.
[41]	The denial of bail for a 15-year-old Indigenous boy with some intellectual impairment is a serious step which, by force of the Youth Justice Act, may only be taken as a last resort.  In my view, that point has not yet been reached.
[42]	The conditions imposed by the learned Acting Magistrate effectively remove Jason from the Toowoomba area and therefore, his criminal minded peers, and place him in the control of his father.  As earlier observed, his father has offered support and has offered to report any bail breaches.  The addition of a curfew which can be monitored by police will be a practical barrier to Jason’s offending in the future.
[43]	In the circumstances, the applicant has not disturbed the presumption in favour of granting bail and the application should be dismissed.
Order
[44]	I order:
1.	The application is dismissed.