Crombie v The Queen - [2020] SASC 197

Supreme Court of South Australia
(Criminal: Application)
CROMBIE v THE QUEEN
[2020] SASC 197
Ruling of The Honourable Justice Livesey (ex tempore)
2 October 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with entering a place of residence as a trespasser with the intention of committing theft, assault and multiple counts of breach of bail. Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing her bail.
Held, allowing the application;
1. The primary difficulty for the applicant is that she is charged with numerous breaches of bail agreements.
2. Nonetheless there is some evidence that these are explained, in part, by untreated mental illness.
3. Bail is granted on the basis of strict home detention conditions, residing with her parents and requiring that the applicant obtain mental health treatment.
Bail Act 1985 (SA) s 14, s 17, s 22; Criminal Law Consolidation Act 1935 (SA), s 20, s 134, s 170; Summary Offences Act 1953 (SA), s 17, referred to.

CROMBIE v THE QUEEN
[2020] SASC 197
Criminal: Application
LIVESEY J:
Introduction

This is an application for a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following a Magistrate’s refusal to grant bail on 26 August 2020. On this review, the applicant seeks bail on strict home detention conditions, which will allow her to reside with her parents who are prepared to act as guarantors.
Ultimately, I have decided to grant bail on this basis, albeit that only the applicant’s father will be required to provide a guarantee.
The subject alleged offending
The applicant is charged on Information dated 20 August 2020 with the following offences:
1On 31 July 2020 without reasonable excuse failed to comply with a bail agreement entered into on 26 May 2020, contrary to s 17(1) of the Act;
2On 31 July 2020 without reasonable excuse failed to comply with a bail agreement entered into on 24 June 2020, contrary to s 17(1) of the Act; and
3On 31 July 2020 without reasonable excuse failed to comply with a bail agreement entered into on 21 April 2020 contrary to s 17(1) of the Act.
It is alleged that on 31 July this year the applicant spoke with an officer from the Department for Correctional Services seeking a pass to see her doctor. The applicant was given permission to attend her doctor’s practice. However, on 7 August checks were made regarding the applicant’s attendance. These revealed that she did not attend her doctor’s practice but instead attended a private residence and a supermarket without permission.
On 20 August 2020 police attended at the applicant’s nominated bail address in West Lakes, whereupon she was located and arrested. The applicant declined to answer questions.
The circumstances of the applicant
The applicant is 35 years of age and appears never to have been before the criminal court until 2019.
Nonetheless, I have been told that the applicant has had significant problems with mental health issues and drug‑taking. It has been emphasised to me that the applicant’s difficulties this year and last are at least in part referable to two relationships which have now come to an end.
The applicant has been charged on Information with the theft of a handbag and contents on 20 April 2019 contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The prosecution alleges that the theft occurred at the Adelaide Casino early during the evening of Saturday, 20 April 2019 whilst the owner of the handbag was operating a poker machine. Subsequent review of closed‑circuit television footage from the casino disclosed the applicant and her then domestic partner. It is alleged that the footage also shows the applicant leaning through the machines and taking the handbag.
The applicant and her then domestic partner were stopped by police on 6 August 2019 because they were riding their bikes along Grand Junction Road, Rosewater, without a helmet and with insufficient lighting. Checks revealed that they were wanted in connection with the Casino theft. The applicant told police that she had been to the Casino but did not steal a handbag. She said that she had been in “similar situations” when she had been recently mistaken for another woman “who is a kleptomaniac”. When asked about the closed‑circuit television footage, the applicant is alleged to have said words to the effect that “if it is me in the footage, then it is me”.
The applicant was granted police bail but failed to attend the Magistrates Court on 10 September 2019. A warrant was issued.
The applicant next came before the Court on 26 November 2019 and was remanded to 22 January 2020. On that occasion, she did not attend and, though a warrant was issued, it lay on the file pending notification by the Registrar of the next hearing date.
When the matter was next called over on 13 March 2020, the applicant did not appear and the warrant was issued. The applicant was arrested and then brought before the Court on 16 March 2020. Bail was again granted with conditions including residence at an address in Rosewater.
By the time of the next appearance on 23 March 2020, the applicant was again in custody. At a hearing on 27 August the applicant remained in custody but was, by this time, represented by her present solicitor. The matter was remanded to a pre‑trial conference in the Adelaide Magistrates Court on 13 October 2020.
The applicant has also been charged on Information with being on premises without lawful excuse on 6 March 2020, contrary to s 17(1) of the Summary Offences Act 1953 (SA) (the Summary Offences Act).
The applicant is also charged on Information with being on premises without lawful excuse on 6 March 2020 contrary to s 17(1) of the Summary Offences Act.
The prosecution alleges that on 6 March 2020 a motorcycle was observed near a commercial premises in Port Adelaide. An employee investigated and discovered a man walking out of one of the offices. When seen, he fled through an unlocked gate. The employee then saw the applicant sitting under a verandah smoking a cigarette near the motorcycle.
When police attended, the man told them that he was waiting for his female friend to come out of the commercial premises. The search revealed the applicant inside the premises and she was escorted out of the building. When the applicant was spoken to by police under caution, she said that she thought the premises were abandoned and she had gone inside to “have a look”.
The applicant was on this occasion with a different man, a Mr Bugg.
The applicant came before the Court on 16 March 2020 and was granted bail on conditions which included that she would not approach or communicate with Mr Bugg. Another of her bail conditions was that she reside at an address in Rosewater.
The applicant has been charged on Information with the following further offences:
1On 13 March 2020 entered the place of residence of the complainant as a trespasser with the intention of committing theft, contrary to s 170(1) of the CLCA;
2On 13 March 2020 assaulted the complainant, contrary to s 20(3) of the CLCA; and
3On 13 March 2020 drove a motor vehicle without authorisation, contrary to s 74(2) of the Motor Vehicles Act 1959 (SA), in circumstances where the applicant had never been authorised to drive under that Act or the law of any other State or Territory of the Commonwealth.
The prosecution alleges that at around 9 am on 13 March 2020 the complainant heard a noise and saw a man fall through the ceiling of his residence. The man then assaulted the complainant before running out of the house. The complainant saw that there was a woman waiting nearby and they both fled.
When police attended, they formed the view that the intruders were targeting the hot water system. They observed that the complainant had injuries to his face and hands. Shoe prints were located and a crime scene investigator called to conduct an examination of the scene.
A short time later, the applicant contacted police and told them that Mr Bugg was being assaulted at the complainant’s address. The applicant provided a description of Mr Bugg’s clothing.
A short time later, police were contacted about clothing that matched the descriptions given by the complainant and the applicant. The clothing had been located in a bin, together with a bag that contained a mobile phone and the identification of Mr Bugg.
At around the same time, police stopped the applicant whilst she was driving nearby. The applicant was arrested and, following a caution, told police that she and Mr Bugg had gone for a walk but she took shelter behind the complainant’s property because she was not feeling well. She said that she must have dozed off but awoke to a crashing sound coming from inside the house. The applicant said that she thought that her partner was inside being assaulted. She saw an elderly naked man coming out of the house. She ran to the car and called police.
By an Information dated 23 March 2020, the applicant has also been charged with the following offences:
1On 16 March 2020 providing false information in an application for release on bail, knowing it to be false, contrary to s 22 of the Act; and
2On 20 March 2020 without reasonable excuse failed to comply with a bail agreement entered into on 16 March 2020, contrary to s 17(1) of the Act.
The prosecution alleges that, after the applicant’s arrest in connection with the trespass matter on 13 March 2020, she was released on bail to reside at an address in Rosewater. When police attended that address they spoke with the occupants who said that the applicant did not live at that address and was not welcome to do so. A few days later, police attended a different address in Woodville West and discovered the applicant with Mr Bugg. They confirmed that the applicant was subject to bail conditions which prevented her being with Mr Bugg. Accordingly, the applicant was arrested. She said she knew of her bail conditions but was with Mr Bugg because she loved him.
The applicant has been charged on Information with the following offences:
1On 3 April 2020 without reasonable excuse failed to comply with a bail agreement entered into on 23 March 2020, contrary to s 17(1) of the Act; and
2On 3 April 2020 without reasonable excuse failed to comply with a bail agreement entered into on 23 March 2020, contrary to s 17(1) of the Act.
The prosecution alleges that on 23 March 2020 the applicant attended the Port Adelaide Community Corrections Centre where she was advised about the terms and requirements of her bail agreements and directed to attend again on 3 April 2020 for supervision. The applicant failed to attend. A warning letter was sent. The applicant was directed to attend on 8 April 2020. The applicant again failed to report. The matter was referred to police and, on 21 April 2020, the applicant was located, arrested and taken to a police station. The applicant told police that she knew about her bail agreement but failed to report because she did not think that she was required to do so.
The applicant has been charged on Information dated 7 June 2020 with the following offences:
1On 26 May 2020 without reasonable excuse failed to comply with a bail agreement entered into on 21 April 2020, contrary to s 17(1) of the Act; and
2On 26 May 2020 without reasonable excuse failed to comply with a bail agreement entered into on 23 March 2020, contrary to s 17(1) of the Act.
The prosecution alleges that on 26 May 2020 police attended an address in Semaphore Park and discovered the applicant and Mr Bugg in the front bedroom of the premises. The applicant was arrested and taken to a police station, but on this occasion declined to answer questions.
The applicant has been charged with the following matters by Information dated 11 June 2020:
1On 10 June 2020 without reasonable excuse failed to comply with a bail agreement entered into on 21 April 2020, contrary to s 17(1) of the Act;
2On 21 April 2020 provided false information in an application for release on bail, knowing it to be false, contrary to s 22 of the Act; and
3On 26 May 2020 provided false information in an application for release on bail, knowing it to be false, contrary to s 22 of the Act.
The prosecution alleges that at around 1.30 am on 10 June 2020 the applicant was not at the address nominated for bail, it being a condition of bail that she remain at that address between 7 pm and 9 am. In addition, it is alleged that the applicant gave a residential address in Rosewater without the permission of the owner and therefore gave false information to the police in support of her release on bail. The owner of the nominated bail address has apparently told police that the applicant is an acquaintance, but she had not slept at the address for more than a month and that she was not welcome to nominate the address for her bail agreement.
Later that same day, the applicant attended at a police station to “hand herself in” for breaching her bail curfew but, when cautioned and interviewed, she declined to answer questions.
When these matters eventually came before the Magistrates Court on 20 August 2020, a home detention compliance report was sought and provided on 24 August 2020.
According to that report, during June 2020 the applicant had advised the Department for Correctional Services that she did not get along well with her parents and she required alternative accommodation. Whilst her engagement with supervision was generally described as “satisfactory”, she was guarded about certain information and, during July, there were a number of problems associated with the applicant failing to ensure that her electronic monitoring device was properly charged. Attempts to contact the applicant by mobile telephone number were on a number of occasions unsuccessful. When the applicant was spoken to about her non-compliance with directions at the end of July 2020, her responses were vague.
Earlier home detention enquiry reports revealed problems with the misuse of opiates and amphetamines. For example, on 10 March 2020 the applicant apparently admitted to having an ice pipe. On 12 June 2020 the applicant told officers from the Department for Correctional Services that she had been diagnosed with a bipolar disorder, ADHD, anxiety, depression and post‑traumatic stress disorder. She said that she had attempted suicide by overdose during her mid‑20s.
The application for review of bail
In support of the application for review, the applicant’s solicitor has filed an affidavit sworn 28 September 2020. Quite apart from usefully setting out a number of background matters, the affidavit deposes to the solicitor’s impression regarding the presentation of the applicant.
Amongst other impressions, the solicitor deposed to Ms Crombie being an “emotionally labile” 35‑year-old woman, “somewhat thought-disordered and confused”. She did not appear to understand the significance of court proceedings and breaches of bail, nor the relationship between bail and court.
According to that affidavit, the applicant had trouble keeping track of her matters and she had not realised the need for a lawyer. Nonetheless, she acknowledged that she is responsible for her actions and proposed to plead guilty to all matters save for the theft in 2019, which she could not remember, and the alleged serious criminal trespass matter in March 2020.
The applicant told her solicitor that she had been diagnosed with borderline personality disorder and suffered a number of bouts of severe depression for which she had been under the care of Queensland Community Mental Health. This was apparently preceded by a number of domestic violence incidents, the loss of two pregnancies, and possible brain injuries from domestic assaults. These had also resulted in a major back injury requiring significant rehabilitation. From this, there had developed an addiction on opioid‑based pain relief.
The applicant has been in custody since 20 August 2020, and following contact by her solicitor with the Adelaide Women’s Prison, the applicant is now being prescribed an anti‑depressant. Some of the applicant’s medical and mental health records have been obtained from Queensland.
The thrust of the application today is that the applicant requires assistance to address her unstable mental health issues and seek appropriate treatment. The applicant has apparently now terminated her relationships with the co‑accused men, the last of which was a few weeks ago. The applicant now says that she has rebuilt positive relationships with her parents, after being previously estranged, and she has been in constant contact with them. They are more than willing to provide guarantees.
The applicant maintains that she is not a flight risk and she is willing to submit to ongoing drug testing and any other monitoring regime that this Court may deem fit to impose. It is emphasised that the applicant’s mother does not work and will remain at home, able to closely supervise the applicant.
The disposition of the application
The applicant is not a prescribed applicant and enjoys a presumption in favour of bail pursuant to s 10 of the Act.
The underlying offending in 2019 and in March of this year would not ordinarily preclude bail, however the primary difficulty for the applicant is that she has had a large number of opportunities on both simple and strict home detention bail. Numerous reasons have been given for why the applicant has failed to honour her various bail agreements. Frankly, a number of these explanations are difficult to accept or condone.
I am conscious that there has already been a period of home detention bail with the applicant’s parents at West Lakes.
Nonetheless, I am prepared to accept that the failures to comply with bail agreements are explained, at least in part, by the inadequate treatment of a range of mental health issues. I was told earlier today that it is proposed that the applicant will plead guilty to a large number of matters and seek a referral to the treatment intervention court. I was also told that the applicant will soon be examined by Dr Lorraine Lim, a psychologist, who will prepare a report.
Nevertheless, I am concerned that there appear to be no clear plan for mental health assessment or treatment. Accordingly, whilst I am prepared to order bail on the basis of strict home detention conditions, those conditions will include that the applicant is obliged to obtain a mental health plan for treatment, counselling and support, together with supervision.
As well, the conditions will include that the applicant is obliged to reside at her parent’s home where her mother can supervise her, and in relation to which her father will provide a guarantee.
A draft bail agreement has been provided to the parties in respect of each matter for which the applicant requires bail. The parties have told me today that they have no issues with the terms of that agreement.
Nonetheless, the bail home detention enquiry report which was requested some days ago has not yet been received. Whilst I do not expect any difficulties with that report I must first see it before the terms of any bail agreement can take effect.