Director of Public Prosecutions v Beniamini
[2022] ACTSC 367
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Beniamini |
Citation: | [2022] ACTSC 367 |
Hearing Date: | 22 December 2022 |
DecisionDate: | 22 December 2022 |
Before: | McCallum CJ |
Decision: | (1) Grant bail on the following conditions: (a) Report to Tuggeranong Police Station every Monday and Friday between the hours of 8:00am and 8:00pm. (b) Reside at [REDACTED] and not change address without express permission of the Supreme Court. (c) That the applicant is not to have any contact whatsoever with [REDACTED]. This condition does not preclude Yolanda Beniamini from having contact with [REDACTED] including for the for the purpose of facilitating contact between the Applicant and the Applicant’s children. (d) The Applicant, upon direction by a Police officer while reporting, is to give Police access to his phone for the purpose of ensuring that the Applicant is not contacting [REDACTED] by any communication means (e) The Applicant is not to enter the suburb of [REDACTED]. (f) The Applicant is not to consume illicit substances, including cannabis. (g) The Applicant is not to contact directly or indirectly or by any means assault, threaten harass, intimidate, or be within 100 metres of [REDACTED]. (h) Not to be released until 23 December 2022 and note that in the meantime the DPP will inform [REDACTED] that it is a condition of his bail that he have no contact whatsoever with her and that she should inform police or the DPP immediately if he breaches that condition. (2) The accused is excused from attending if legally represented on the next occasion. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Conspiracy to cultivate and traffic cannabis – likelihood of the accused committing an offence – likelihood of the accused harassing or endangering the victim – where accused previously breached conditional liberty |
Legislation Cited: | Bail Act1992 (ACT) ss 9A, 9D, 22 |
Cases Cited: | R v Cockburn [2015] ACTSC 297 |
Parties: | Director of Public Prosecutions Adam Angelo Beniamini (Accused) |
Representation: | Counsel A Chatterton (DPP) T Jackson (Accused) |
| Solicitors ACT Director of Public Prosecutions Burley Griffin Chambers (Accused) | |
File Number: | SCC 225 of 2022 |
McCALLUM CJ:
Adam Beniamini was arrested on 10 March 2022 and charged with offences of conspiracy to cultivate and traffic cannabis. He was initially granted bail in respect of those offences on conditions including a reporting condition, a prohibition on consuming illicit substances and a no contact condition in relation to Crown witnesses.
In the meantime, he was arrested and charged with domestic violence offences. He was then refused bail and has recently been sentenced for those offences to a total sentence of four months’ imprisonment which, when backdated to the date of his arrest, has already expired.
In those circumstances, he now seeks bail again in relation to the original offences. But for the circumstances arising from the domestic violence offences, it would have been a relatively easy decision to grant bail again on the original conditions.
I accept, as submitted by Mr Jackson, that the intervention of the domestic violence offences in circumstances where those offences have been finally dealt with and the sentence served means that the application is not subject to the hurdle in s 9D of the Bail Act1992 (ACT). In my view, that is the clear meaning of the statute, but support for that approach if it were required may be found in the judgment of Refshauge J in the R v Cockburn [2015] ACTSC 297. I respectfully agree with his Honour's analysis of the issue in that judgment.
It then follows that the applicant is entitled to bail in accordance with s 9A of the Act which in turn takes the decision-maker to the criteria in s 22. There does not appear to be any suggestion of a risk that the applicant will not appear when required. The more difficult question is the likelihood of his committing an offence or harassing or endangering the safety of his ex-partner, who is the mother of his three children and the victim of the most recent domestic violence offences.
That concern is heightened when one undertakes a close analysis of his criminal history, which includes a number of domestic violence and assault offences. I have been informed that the most serious of those, a charge of recklessly inflicting grievous bodily harm, relates to an assault committed on a man the applicant perceived to be flirting with a different partner with whom he had a relationship in between two periods of his relationship with the mother of his children.
The criminal record also indicates that he has served a number of short terms of imprisonment as a result of assaults and that is a matter of concern in that he does not appear to have been deterred, or at least does not appear to have engaged with his own difficulty in controlling his conduct in relation to women. In that context, I note that in 2010 he was sentenced by Refshauge J to a short period of fulltime custody, a further period of periodic detention and then a good behaviour bond, which included conditions requiring him to attend programs particularly addressing his alcohol consumption. He also has more than one prior driving offences involving the consumption of alcohol.
Against that is the difficult consideration which enlivens the consideration in s 22(1)(c), namely, the interests of the applicant. If bail is refused today, he will be in custody for a considerable period of time. The Court is not currently listing trials in this category until into the second half of the new year and the applicant has not yet even had his first directions hearing following his committal for trial to this Court. The case against him is not weak and it may be that it is ultimately resolved other than by awaiting trial. However, in circumstances where I am told he is pleading not guilty, it is appropriate to have regard to that delay and the prospect of his remaining in custody for that lengthy period.
I have in those circumstances asked the applicant's counsel to put before the Court evidence from the applicant's mother, who has given evidence by telephone this afternoon indicating her preparedness to supervise the applicant's relationship with his children in a way that will ensure he has no contact with their mother. As submitted by Mr Jackson, a grant of bail can never be risk free.
While there are some grounds for having concern for the safety of the mother of the children, on balance I do not think it is appropriate for the Court to supervise that relationship, in circumstances where he is not seeking bail in relation to any offence concerning her, by the mechanism of refusing bail in relation to an unrelated offence, particularly where conditions can be imposed to protect her.
For those reasons, I make the following orders:
(1) Grant bail on the following conditions:
(a) Report to Tuggeranong Police Station every Monday and Friday between the hours of 8:00am and 8:00pm.
(b) Reside at [REDACTED] and not change address without express permission of the Supreme Court.
(c) That the applicant is not to have any contact whatsoever with [REDACTED]. This condition does not preclude Yolanda Beniamini from having contact with [REDACTED] including for the for the purpose of facilitating contact between the Applicant and the Applicant’s children.
(d) The Applicant, upon direction by a Police officer while reporting, is to give Police access to his phone for the purpose of ensuring that the Applicant is not contacting [REDACTED] by any communication means
(e) The Applicant is not to enter the suburb of [REDACTED].
(f) The Applicant is not to consume illicit substances, including cannabis.
(g) The Applicant is not to contact directly or indirectly or by any means assault, threaten harass, intimidate, or be within 100 metres of [REDACTED].
(h) Not to be released until 23 December 2022 and note that in the meantime the DPP will inform [REDACTED] that it is a condition of his bail that he have no contact whatsoever with her and that she should inform police or the DPP immediately if he breaches that condition.
(2) The accused is excused from attending if legally represented on the next occasion.
| 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: |
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