A NSW supreme court judge who granted bail to a 12-year-old Aboriginal boy has questioned a policy that prevents youth justice workers from supporting alleged offenders in the community until they have pled guilty.
Judge Dina Yehia said in her decision, released on Wednesday, that she had some “disquiet” about a 2005 bail protocol that exists between the children’s court and youth justice which prohibited supervision by youth justice workers of an alleged offender on parole unless they had pled guilty.
Yehia made similar comments in another decision that was also published on Wednesday in relation to the case of a 14-year-old Aboriginal boy who was granted bail.
The 12-year-old, known as JH, had been in custody for almost a month after breaching a previous bail.
He is accused of shoplifting, “minor” violence towards his carer, using lighters to damage property, and breaking into a school and causing damage by fire, and pleaded not guilty to charges of larceny, malicious damage, and aggravated break, enter and commit a serious indictable offence.
Yehia said that the concept of doli incapax, or JH having the mental capacity to know that what he was accused of doing was wrong, was likely to be a “major issue” in the case. If the prosecution can’t prove mental capacity existed, the charges can be dropped.
The prosecution opposed the bail application, but said in written submissions that while JH had made admissions to some offences, “he does not seem overly bright”.
Yehia said that the 2005 policy was premised on the basis that to supervise a young person on bail, and to effectively provide services, youth justice caseworkers would need to engage with that person about their offending behaviour, and that it would be inappropriate to do that if the person has pleaded not guilty.
“I accept that a capacity to engage effectively with underlying issues giving rise to the offending conduct may require discussion about that conduct,” she said.
“I do not, however, accept that it is a necessary precondition to supervision on bail.
“I see no reason why supervision on bail, by way of ensuring that the applicant attend school or other education programs, employment programs, or drug and alcohol counselling, would not be possible unless the applicant has pleaded guilty or been found guilty.”
Yehia said that in making the remarks she did not want to be critical of any individual youth justice worker, and appreciated “their hard work, commitment and dedication”.
Yehia said after receiving additional material about the care that could be provided by support agencies despite the protocol, she was confident that the risk of reoffending by JH was reduced.
She outlined that JH had been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder and conduct disorder.
He was taken from the care of his parents in 2011, based on ongoing concerns about neglect, unsafe living conditions and their substance use.
JH was exposed to “chronic violence” perpetrated by his father against his mother, Yehia found.
He was placed in foster care but experienced multiple placement changes before being placed with his maternal grandmother, but she struggled to meet his needs and that arrangement ended last year before he was placed in an “intensive therapeutic care home”.
“The applicant is a 12-year-old Aboriginal child with a background of profound disadvantage and deprivation,” Yehia said.
“It is entirely fitting that someone of his young age and vulnerability should be supported and supervised intensively in the community rather than detained.”
In the other bail decision released on Wednesday, Yehia found that another Aboriginal boy who had been in custody for almost two months should also be released despite the protocol.
The 14-year-old, known as JB, may also rely on the doli incapax principle, Yehia said. A bail report provided to the court showed a number of charges had previously been dismissed on that basis.
That same report stated that JB could not be supervised by youth justice on bail unless he pleaded or was found guilty because of the protocol, Yehia said.
“I make the following remarks, acknowledging that I have not been privy to the discussions and agreements that led to the protocol. However, I am compelled to make these remarks because I have raised these concerns in several bail applications that came before me,” she said.
“The applicant in this case is currently engaged in various interventions in detention … one asks rhetorically how it is that he can engage in such treatment whilst in detention, but not be supervised on bail in the community by Youth Justice, when, in both instances, he is awaiting the proceedings being heard having pleaded not guilty.”
