Alvin (a pseudonym) v Director of Public Prosecutions
[2022] ACTSC 358
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Alvin (a pseudonym) v Director of Public Prosecutions |
Citation: | [2022] ACTSC 358 |
Hearing Date: | 16 & 20 December 2022 |
DecisionDate: | 20 December 2022 |
Before: | McCallum CJ |
Decision: | Grant bail on the conditions at [11]. |
Catchwords: | CRIMINAL LAW – BAIL REVIEW – review of decision of Magistrates Court – where Court is satisfied of change in circumstances – where applicant has pleaded guilty to domestic violence charges – where applicant demonstrated powerful motivation to undergo drug rehabilitation – where applicant cannot be assessed for residential rehabilitation while in custody |
Legislation Cited: | Bail Act 1992 (ACT) ss 9D, 19, 22, 43A |
Parties: | Bryan Alvin (a pseudonym) (Applicant) Director of Public Prosecutions (Respondent) |
Representation: | Counsel Z McBride (Applicant) A Brown (Respondent) |
| Solicitors Bevan & Co (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | MBA 6 of 2022 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 28 November 2022 Court File Number: AM1208/21 |
McCALLUM CJ:
Bryan Alvin (a pseudonym) applies for bail having been refused bail by a magistrate on a recent review. Section 43A of the Bail Act1992 (ACT) provides that this Court has power to review the decision only if satisfied that the applicant has shown a change in circumstances relevant to the granting of bail since the previous decision. I indicated when this matter first came before me last week that I was satisfied there was a relevant change in circumstances in that the applicant has now pleaded guilty to a number of offences and been given a sentence date. In my assessment, that is a relevant change in circumstances because it removes what I would regard to be one of the potential risk factors for bail, namely, the risk to the applicant’s partner of her being prevailed upon by him to withdraw complaints to matters to which he has now pleaded guilty.
Section 9D of the Act poses a separate hurdle for the applicant in that some of the offences are alleged to have been committed whilst he was on bail or facing charges for other offences. That imposes a requirement that he establish special or exceptional circumstances favouring the grant of bail.
When the application came before me last Friday, I indicated that I was satisfied that a combination of factors combine to constitute special or exceptional circumstances in this case. First, the plea of guilty and the fixing of a sentence date early in the new year in the Magistrates Court poses a powerful incentive for the applicant to undertake residential rehabilitation so that he can demonstrate to the magistrate that he is a person with some prospects of rehabilitation.
Secondly, and perhaps in his case more compellingly, the applicant has been informed by Child Youth and Protection Services that he is required to undergo residential rehabilitation before they will contemplate restoring to him the care of a child he has from an earlier relationship, as well as a 12-month-old child he has with his current partner, the victim of some of the domestic violence offences.
The applicant gave evidence before me last Friday. He presented a powerful and compelling case for giving him this opportunity. He has previously been successful in undergoing drug rehabilitation after being dealt with for a large number of offences in 2013 and 2014. Until the recent matters and some other matters in New South Wales, he appears to have had a period of almost seven years with no encounter with the criminal justice system. I accept that he is powerfully motivated to get back onto a functional path. In my assessment, those factors satisfy the requirement of s 9D.
Finally, even being satisfied that special or exceptional circumstances exist, I must consider the factors in s 22 of the Bail Act and must still refuse bail if refusal is justified after considering those factors. The first factor is the likelihood of his appearing in court in relation to the offences. There is nothing in his record to suggest any risk that he will not appear when required.
More pertinently, the second factor is the likelihood of his committing an offence, harassing or endangering the safety or welfare of a person, or interfering with evidence or intimidating a witness if granted bail in relation to the offence. The matters to which he has pleaded guilty show some history of conflict with his current partner, including one matter to which I understand he has pleaded guilty involving an allegation of headbutting her and some suggestion of a violent encounter with her in the context of a heated argument between them. He is also alleged on that date to have smashed up the place where he was staying. That was on 13 March 2022 at a time when the applicant frankly admits he was addicted to ice. He has been in custody at the Alexander Maconochie Centre (AMC) since that date (over nine months).
In his evidence last week, he stated that he has managed to remain drug free during his period at the AMC notwithstanding the fact that drugs are known to be readily available there. Whilst the Court should always approach such evidence with a measure of scepticism, based on the applicant's appearance and the way in which he gave evidence last week, I accept that he appears to have improved his health significantly since the time of his arrest. I also accept that he is highly motivated to enter into residential rehabilitation.
The difficulty, which poses something of a ‘Catch-22’ situation for the applicant, is that he cannot be assessed for suitability for residential rehabilitation whilst he is in custody. Accordingly, he seeks bail for a short period of time to allow that assessment to be undertaken and will then need to make an application under s 19 of the Bail Act to vary the conditions of his bail in order to permit him to undergo residential rehabilitation.
My hesitation in granting bail last week was based principally on the fact that, within that short period, there will be the festive season, not to mention the obvious freedom of being released after nine months in custody, and the risk during that period of his falling off the rails with the newfound freedom of returning to the community. Having heard today from the applicant and the person with whom he proposes to reside, I consider that, while there is some risk, it is a risk which is warranted in the circumstances so as to enable the applicant to take advantage of this window of opportunity he has to enter into residential rehabilitation, demonstrate to the Court and Child Youth and Protective Services his capacity to rehabilitate, and generally get himself back on a path of functional living in the community.
The person with whom the applicant proposes to reside has himself had some difficulties in the past including a conviction less than seven years ago for trafficking heroin. However, he presented in court today as a man committed to a functional lifestyle who is prepared to support the applicant in a similar path of rehabilitation. In all the circumstances, whilst I accept that bail can never be risk free, it seems to me that the interests of the applicant are such as to warrant granting bail for the period necessary for him to be assessed for residential drug rehabilitation. Accordingly, I propose to grant bail on the following conditions:
(a)To reside at [REDACTED] between 9pm and 6am.
(b)That Bryan Alvin be under the supervision of the Director General of Community Services or their delegate and obey all reasonable directions of the person supervising him, especially as to residence and treatment or counselling for drug and alcohol issues, with the expectation that such directions will require participation in the Canberra Recovery Hub rehabilitation program;
(c)That Bryan Alvin within 24 hours report to the Canberra Recovery Hub (CRH) for assessment for suitability in their rehabilitation program.
(d)Within 24 hours of assessment, Mr Alvin is to provide a copy of the assessment to his lawyers and to the DPP.
(e)Report to the Tuggeranong Police Station every Tuesday and Friday starting on 23 December 2022.
(f)That Bryan Alvin enrol in the residential rehabilitation program, if offered, as soon as practicable.
(g)He is to abstain from the consumption of alcohol and illicit drugs.
(h)That Bryan Alvin submits to breath analysis and urinalysis when reasonably directed by the person supervising him.
(i)Any variation application may be made to McCallum CJ
(j)Present himself to the front door of the residence upon reasonable request by police during the period of curfew.
(k)Comply with the condition of his DVO as varied from time to time.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: 15 March 2023 |
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