Deer v The Queen - [2021] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

DEER v THE QUEEN
[2021] SASC 71
Judgment of the Honourable Chief Justice Kourakis (ex tempore)
8 June 2021
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
This is an application for a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA).
The applicant is charged with the several offences, namely failure to comply with terms of his bail agreement, possession of articles to commit offences in suspicious circumstances, interfering with a motor vehicle without consent and dishonestly taking property without consent. The applicant is 27 years old and suffers from special needs as a consequence of a brain injury he incurred following an accident when he was around eight years old. A Magistrate refused bail on account of the seriousness of the charges, the risk of reoffending and risk of breaching bail.
Held by Kourakis CJ, allowing the application:
1. The prisons of this state should not be used as dust bins into which persons suffering the severe cognitive impairments of Mr Deer should be swept. This State can and should do better.
2. Bail is granted on curfew and home detention conditions with electronic monitoring.
Bail Act 1985 (SA) ss 14(2)(a), 17(1); Summary Offences Act 1953 (SA) s 41(1); Criminal Law Consolidation Act 1935 (SA) ss 86A(1), 134, 270C(1) , referred to.

DEER v THE QUEEN
[2021] SASC 71
Criminal: Application

KOURAKIS CJ (ex tempore): This is an application for a review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA).
Mr Deer was taken into custody on 5 April 2021 after police found him and another individual riding pushbikes around the Lockleys area at approximately 4.00 am in the morning. Mr Deer was charged with the following offences.
First, with a contravention of a term or condition of his bail agreement pursuant to s 17(1) of the Bail Act 1985 (SA) by being outside his home address beyond curfew without reasonable excuse. That bail agreement was imposed for offences of theft and being lawfully on premises on 30 September 2020, although those charges were withdrawn on 14 April 2021 about a week after he was apprehended.
Secondly, he is charged pursuant to s 41(1) of the Summary Offences Act 1953 (SA) for being in the possession of a pair of sunglasses, a car key, costume jewellery, a fridge magnet and a portable battery charger which were suspected of having been stolen or obtained by unlawful means. Although the items were not of any significant monetary value I have no doubt that the owner was inconvenienced and some items may have held some sentimental value.
Thirdly, Mr Deer is charged with being in possession of articles which were intended to be used in the commission of an offence in suspicious circumstances pursuant to s 270C(1) of the Criminal Law Consolidation Act 1935 (SA). He was found by police in possession of a glove, scissors and a full-face cloth mask that they allege were intended to be used in the offence of theft, or of which theft is an element.
Fourthly, he is charged with two counts of interfering with a motor vehicle without the consent of the pursuant to under s 86A(1) of the Criminal Law Consolidation Act 1935 (SA).
Finally, he is charged with committing theft by taking personal property from one of the vehicles, namely a purse containing bank cards and cash. This is a summary offence pursuant to s 134 of the Criminal Law Consolidation Act 1935 (SA).
A Magistrate refused bail on 7 May 2021 on the grounds of the seriousness of the offending, the risk of re-offending and the risk of breaching bail.
Mr Deer has a long record of similar offending and of failures to comply with supervision conditions. He was sentenced in the Adelaide Magistrates Court on 25 February 2021 to seven months’ imprisonment for aggravated dishonesty offences. This sentence was suspended upon on him entering a bond for a period of 12 months which included supervision and curfew. Another bond was imposed on the same day for a shorter period of imprisonment on his conviction of an offence of driving while disqualified.
It appears that Mr Deer did not attend on any of the appointments made with respect to those supervision orders. The Prosecutor informed the Court that the alleged offences committed on 5 April 2021 occurred just over a month after the sentence was imposed.
The explanation for much of Mr Deer’s offending is his significant cognitive disability. As a child of primary school age, he attended the Cowandilla Special School. When he was around eight years old he was injured in a motor vehicle accident in which he suffered serious facial and brain injuries. Mr Deer was left with a substantial disability. He has learning difficulties and special needs. Mr Deer cannot read or write.
Despite Mr Deer’s failure to take up community correction services there is no evidence that Community Corrections Officers made any attempt to contact him beyond the standard letters and phone calls that are made in all cases. There is no evidence that officers of the Department of Correctional Services left their offices in an attempt to find him and make arrangements which he can understand and follow to attend the counselling and supervision he clearly requires. I understand and sympathise with the caseload pressures on Community Corrections officers but someone in Mr Deer's condition is not going to be helped by sending letters which he cannot read.
Counsel for the applicant has informed me that he is considering whether there should be an appeal against conviction and/or sentence in respect of the orders made on 25 February 2021. There may be a question of Mr Deer's competency to commit these offences. Although the fact of a suspended sentence makes imprisonment at least for the length of that suspended sentence a likelihood, it is not a certainty. Once all the matters are investigated there may be avenues either on appeal, or through special circumstances or proper cause applications for some amelioration of that sentence or overturning of the convictions.
What can be said, with much greater certainty, is that the prisons of this State should not be used as dust bins into which persons suffering the severe cognitive impairments of Mr Deer should be swept. Mr Deer has now spent close to two months in custody. This State can and should do better. There is an opportunity to start doing better by releasing Mr Deer into home detention at his brother’s residence. He, and with the support of their elder sister, have come together to provide Mr Deer with the support he needs to change direction.
I have spoken to Mr Deer directly, who appeared on this review by audio‑visual link. Plainly enough he is anxious to leave prison but I also detect some understanding and insight on his part on what his brother might offer and what he might achieve with proper support. That hope may not be a vain one. With the help of Community Corrections and his family members, Mr Deer has an opportunity to take the necessary steps to attend the appointments which will help him make a meaningful change to his life.
The conditions which I will impose, including the imposition of home detention bail with an electronic monitoring and a curfew, will serve to protect against the risk of future breaches of bail and repeat offending by Mr Deer. At the same time they will not be so restrictive so as to cause Mr Deer to breach bail by inadvertence caused by his cognitive difficulties.