Director of Public Prosecutions v D'Alessandro
[2024] ACTSC 69
•7 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v D’Alessandro |
Citation: | [2024] ACTSC 69 |
Hearing Date: | 7 March 2024 |
Decision Date: | 7 March 2024 |
Reasons Date: | 21 March 2024 |
Before: | Baker J |
Decision: | (1) I vary Mr D’Alessandro’s bail by imposing the following additional bail conditions: (a) Report to Tuggeranong Police Station weekly on Saturdays between 9:00am and 5:00pm; and (b) Not to leave the ACT without the permission of the Director-General of ACT Corrective Services or his or her delegate, except for the purpose of attending upon his legal representative. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – breach of bail through the alleged commission of further offences – jurisdiction of the Court to deal with breach of bail – application of ss 9D and 22 of the Bail Act 1992 (ACT) after a breach of bail – breach of bail not established on the balance of probabilities – bail conditions varied. |
Legislation Cited: | Bail Act 1992 (ACT), pt 2, div 6.2, ss 5, 6, 9C, 9D, 9E, 19, 20B, 22, 23, 43A,44, 56A, 56D Bail Act 2013 (NSW), s 78 Legislation Act 2001 (ACT), ss 155 and 156 |
Cases Cited: | Australian Capital Territory v Lewis [2016] ACTCA 34 In the matter of an application for bail by Jeremy Scott Campbell [2009] ACTSC 138 In the Matter of An Application for Bail By Nuno Rodrigues [2008] ACTSC 50 R v Charles [2016] ACTSC 177; 11 ACTLR 256 R v Charles [2017] ACTCA 35; 12 ACTLR 174 R v Cockburn [2015] ACTSC 297 R v Monfries [2011] ACTSC 203 |
Texts Cited: | Dictionary of Law Enforcement (Oxford University Press, 2014) |
Parties: | Director of Public Prosecutions ( Crown) Brandon D’Alessandro ( Offender) |
Representation: | Counsel B Chifuntwe ( Crown) Z McBride ( Offender) |
| Solicitors ACT Director of Public Prosecutions Bevan & Co ( Offender) | |
File Numbers: | SCC 201 of 2023 SCC 50 of 2024 |
BAKER J:
Introduction
The offender, Brandon D’Alessandro, was brought before the Court on an allegation that he had breached his bail by committing further offences. The prosecution contended that Mr D’Alessandro's bail should be revoked. Mr D’Alessandro contended that no action should be taken with respect to the alleged breaches, and that his bail should be continued.
After hearing submissions from both parties, I determined that it was not appropriate for Mr D’Alessandro’s bail to be revoked. However, I determined that Mr D’Alessandro’s bail should be varied to include two additional conditions, both of which were consented to by Mr D’Alessandro. These are my reasons for so ordering.
Background
On 11 May 2023, Mr D’Alessandro was charged with various counts of aggravated burglary by joint commission, theft by joint commission, and dishonestly driving in a motor vehicle. In brief, the prosecution case in respect of those charges is that on 2 January 2023, Mr D’Alessandro, along with five others, used two stolen vehicles to travel to shopping precincts in various suburbs, where they smashed the doors and windows of 19 different commercial premises in order to commit theft of items inside. The prosecution alleges that Mr D’Alessandro stole various items from 13 of those businesses, particularly targeting cash registers. The prosecution alleges that Mr D’Alessandro was the driver of one of the stolen vehicles.
On 28 February 2024, Mr D’Alessandro pleaded guilty to 19 counts of aggravated burglary by joint commission, 12 counts of minor theft by joint commission and one count of theft by joint commission in full satisfaction of the indictment (“the 2023 charges”). The sentence proceedings for these offences are presently listed for hearing on 8 May 2024.
On 11 May 2023, Mr D’Alessandro was refused bail. He was remanded in custody until 21 September 2023. On 21 September 2023, Mr D’Alessandro was granted bail by this Court. I understand that the grant of bail was consented to by the prosecution at that time, on the basis that the grant of bail would permit Mr D’Alessandro to attend a full-time rehabilitation program.
I was informed that Mr D’Alessandro successfully completed the three-month rehabilitation program. After completing the program, Mr D’Alessandro was subject to stringent bail conditions, effectively in the nature of house arrest, which precluded him from leaving his home unless he was in the presence of a specified list of persons. On 9 February 2024, these conditions were again varied by consent, so as to remove the condition requiring Mr D’Alessandro to remain in his home unless in the presence of one of the specified persons. The change also permitted Mr D’Alessandro to move to a new address.
No issues arose with any of the above conditions until 6 March 2024, when Mr D’Alessandro was charged with committing further offences (“the 2024 charges”). The 2024 charges related to two sets of alleged offending. The first comprised five counts of aggravated burglary by joint commission, four counts of theft by joint commission, one count of ride/drive a motor vehicle without consent, one count of driving while disqualified and one failing to stop for police. Each of these offences were allegedly committed on 22 January 2023, shortly after committing the 2023 charges and prior to his arrest for the 2023 charges.
The second set of alleged offending included in the 2024 charges comprised one count of driving while disqualified, in relation to driving a Mercedes-Benz vehicle on 12 January 2024, and one count of ride/drive a motor vehicle without consent, in relation to being in the passenger seat of a stolen Audi vehicle on 20 February 2024 ("the fresh offences”).
On 7 March 2024, Mr D’Alessandro was arrested and brought before the Magistrates Court in respect of the 2024 charges. Magistrate Temby granted Mr D’Alessandro bail in respect of these charges.
However, the prosecution contended that the fresh offences, allegedly committed on 12 January 2024 and 20 February 2024, constituted a breach of Mr D’Alessandro’s Supreme Court bail on the 2023 charges and that his Supreme Court bail should be revoked. For this reason, after Mr D’Alessandro was released on bail on the 2024 charges by the Magistrate’s Court, these proceedings came before me on an urgent basis for consideration of Mr D’Alessandro’s Supreme Court bail status.
The applicable law
Jurisdiction
It was common ground that Mr D’Alessandro came before this Court pursuant to s 56A of the Bail Act 1992 (ACT), which provides as follows:
56AArrest for failure to comply with bail condition
(1)This section applies if—
(a)a person has been granted bail in the ACT or a State; and
Note State includes the Northern Territory (see Legislation Act, dict, pt 1).
(b)a police officer believes on reasonable grounds that the person—
(i) has failed to comply with a bail condition; or
(ii) will not comply with a bail condition.
(2)A police officer may, without a warrant, arrest the person.
Section 56AD then provides as follows concerning the jurisdiction of the Court when a person has been brought before the Court under s 56A:
56ADArrested person to be brought before court
(1)If a police officer arrests a person under section 56A, the police officer must bring the person before a court as soon as practicable.
(2)The court may—
(a)for a person granted bail in the ACT—exercise the same powers in relation to bail as it has in relation to any other accused person in custody; …
It is well-established that the bringing of a person to Court under s 56A does not of itself revoke a previous grant of bail: R v Charles [2017] ACTCA 35; 12 ACTLR 174, affirming declarations made in R v Charles [2016] ACTSC 177; 11 ACTLR 256. Rather, s 56AD (previously s 56A(4)) activates the Court’s jurisdiction to revoke, enlarge or vary bail under s 19 of the Bail Act: R v Charles [2016] ACTSC 177; 11 ACTLR 256 at [68], [86], [88] and [91].
Section 19 of the Bail Act provides:
19 Court bail—general
(1)A court may, in accordance with this part, make any of the following orders in relation to bail (a bail order):
(a)an order granting bail to an accused person who is being held in custody in relation to an offence with which the person has been charged;
(b)an order enlarging, varying or revoking bail granted to the person.
(2)In deciding whether to make a bail order in relation to an accused person, a court may have regard to any information it considers relevant and reliable.
(3)This Act does not limit the number of applications in relation to bail that an accused person may make to a court in accordance with this Act.
(4)A court must deal with an application in relation to bail as soon as reasonably practicable.
(5)However, a court may decide not to hear an application in relation to bail if the application is frivolous or vexatious.
Section 19 of the Bail Act must be read together with s 20B, which provides that the Supreme Court has power to make a bail order if “a proceeding for an offence with which the person is charged is before the Supreme Court”.
The activation of s 19 of the Bail Act by s 56AD bypasses the review provisions contained in div 6.2 of the Bail Act. Accordingly, it is not necessary for the prosecution to make an application under ss 43A or 44 of the Bail Act seeking an order that bail be revoked. Of course, the prosecutor should nonetheless inform the Court of the order which they submit should be made under s 19, including whether the prosecution contends that the Court should revoke bail.
An important consideration in determining whether the Court should vary or revoke bail under s 19 will be whether the person has in fact breached a bail condition or there is evidence that the person will not comply with a bail condition.
Although the Bail Act does not expressly require the Court to make a finding as to breach (cf s 78 of the Bail Act 2013 (NSW)), it is a necessary implication from ss 56A and 56AD that the Court must “determine whether [the person] has breached any of [their] conditions of bail”: R v Charles [2017] ACTCA 35; 12 ACTLR 174 at [27] and [55]. That determination is to be made on the balance of probabilities: s 55 of the Bail Act and R v Monfries [2011] ACTSC 203 at [28] – [29].
The determination of whether a bail condition has been breached will not, of itself, finally resolve the question of whether bail should be revoked or varied under s 19 of the Bail Act. Even where a breach of a bail condition is established, the Court may determine that the breach is not such as to justify the revocation of bail or any variation in the conditions of bail. On the other hand, where it has not been established that a bail condition has been breached, it may nonetheless be appropriate for bail to be revoked or for bail conditions to be varied, in particular, where the evidence before the Court indicates that the risk of breach of bail conditions is such as to justify the revocation or variation of bail: R v Charles [2017] ACTCA 35; 12 ACTLR 174 at [21] – [24].
The application of pt 2 and ss 9D and 22 of the Bail Act where there is an allegation of breach of bail
The parties’ submissions
During the hearing, an issue arose as to the application of s 9D of the Bail Act to the present proceedings. Section 9D provides as follows:
9DBail for serious offence committed while charge for another pending or outstanding
(1)This section applies if—
(a)a person is accused of a serious offence; and
(b)the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.
Example
Claude is served with a summons to attend the Magistrates Court to answer a charge that he has committed the offence of taking a motor vehicle without consent (punishable by 5 years imprisonment under the Criminal Code, section 318 (1), and so a serious offence for this section). Before the court date, Claude is arrested and charged with having committed an aggravated robbery the day after being served with the summons (punishable by 25 years imprisonment under the Criminal Code, section 310, and so also a serious offence for this section). At the time of the alleged aggravated robbery, the charge of taking a motor vehicle without consent was still pending. This section will apply to any decision about the grant of bail to Claude in relation to the aggravated robbery charge.
(2)A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3)However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering—
(a)for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or
(b)for a child—the matters mentioned in section 23 (Criteria for granting bail to children).
It was common ground that the offence of ride/drive in a motor vehicle without consent is a serious offence within the meaning of s 9D.
There was no dispute that s 9D applied in the proceedings before Magistrate Temby to require that his Honour be satisfied of special or exceptional circumstances before granting bail to Mr D’Alessandro in respect of this offence. Magistrate Temby was satisfied that special or exceptional circumstances were established.
However, Mr McBride, who appeared for Mr D’Alessandro both in the Magistrates Court and in the proceedings before me, contended that s 9D did not apply to the present proceedings. Mr McBride pointed out that the operative subsection in s 9D is sub-s 9D(2), which provides that a Court “must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail” (emphasis added). Mr McBride submitted that the present proceedings do not concern an application for the “grant” of bail, as Mr D’Alessandro already has the benefit of the bail previously granted by the Supreme Court in relation to the 2023 charges.
Mr McBride drew the Court’s attention to Refshauge J’s decision in R v Charles [2016] ACTSC 177; 11 ACTLR 256. As noted above, in Charles, Refshauge J held that s 56A did not have the effect of revoking the offender’s existing bail. His Honour reasoned that as bail had not been revoked, it was not necessary for the offender to apply for bail. His Honour held that it followed that s 9D did not apply because that section only prohibits the “grant” of bail in the absence of exceptional circumstances: R v Charles [2016] ACTSC 177; 11 ACTLR 256 at [93] and [95]. This latter aspect of the decision was not expressly considered by the Court of Appeal.
In response, the prosecutor pointed out that the word “grant” is defined in the Dictionary to the Bail Act as follows:
grant, in relation to bail (other than in section 22 (Criteria for granting bail to adults) or section 23 (Criteria for granting bail to children)), includes continue.
(emphasis added)
Section 19 of the Bail Act does not use the word “continue”. However, the prosecutor submitted that if a decision is not made to revoke bail (either because bail is enlarged,[1] varied or no action is taken by the court), bail would, in substance, be “continued”. The prosecutor therefore contended that s 9D applies where the Court is considering what action should be taken in response to an allegation that a person had breached, or may breach, a bail condition. The expanded definition of the term “grant” was not referred to in the Charles decision.
[1] The term “enlarging” bail is not defined in the Bail Act. It appears to be a reference to extending bail to a later date: see definition of ‘enlarge bail’ in Dictionary of Law Enforcement (Oxford University Press, 2014).
On the facts of the present case, the prosecutor nonetheless conceded that the evidence demonstrated that special or exceptional circumstances were established in respect of Mr D’Alessandro. Specifically, the prosecutor noted that Mr D’Alessandro has successfully completed an intense rehabilitation program, and that that the most serious of the new offences (the aggravated robberies) were alleged to have been committed in January 2023, well before his completion of that program.
Consideration
Although the prosecutor conceded that s 9D was demonstrated on the facts of this case, the applicability of s 9D raises a broader issue as to the proper approach to be taken by a court when determining whether bail should be revoked or varied where there is an allegation that a person has breached their bail. Resolving this issue requires a consideration of the broader context in which bail decisions are made under the Bail Act.
A grant of bail entitles a person to be at liberty until the person is required to appear before the Court: Australian Capital Territory v Lewis [2016] ACTCA 34 at [52]; s 6(2)(b) of the Bail Act.
Bail may be granted by a Court with appropriate jurisdiction where the person comes before the Court on outstanding charges, the person is not serving a sentence of imprisonment, and the person is otherwise entitled to apply for bail: s 5 of the Bail Act. If a person in custody does not apply for bail, the Court is not required to make a bail decision and the person will remain in custody until the finalisation of the proceedings: In the matter of an application for bail by Jeremy Scott Campbell [2009] ACTSC 138 at [11] – [12].
There are various presumptions in pt 2 that may apply to an application for a grant of bail. For example, the court must be satisfied that there are “special or exceptional circumstances” before granting bail in respect of murder and specified serious drug offences (s 9C), or where the person has been sentenced to a period of imprisonment and an appeal against conviction or sentence is pending (s 9E). Section 9D is a further presumption in this form. It requires the court to be satisfied of “special or exceptional circumstances” where a person is accused of a serious offence and the person is alleged to have committed the offence while a charge for another serious offence is pending or outstanding.
As noted above, a grant of bail entitles a person to remain at liberty until the next occasion that the person is required to attend court: s 6(2) of the Bail Act.
Although the grant of bail has, in one sense, come to an end when the person next attends court pursuant to their bail undertaking, it is not necessary for the person to apply for fresh grant of bail at that time. Section 33(1) makes clear that a previous grant of bail may be “continued” by the Court. Section 33(3) further provides for an automatic continuation of the bail that was previously granted by the court. Section 33(3) states:
(3)If no direction is made by the court in relation to bail, whether or not the accused person appears in accordance with the undertaking—
(a)the court is taken to have continued bail; and
(b)the undertaking to appear and any bail conditions continue to apply.
In other words, s 33 clearly indicates that the Court does not need to redetermine whether bail should be granted each and every time that the person appears in court in response to their bail undertaking. Accordingly, the Court is not required to take account of the s 9D presumption in deciding whether to continue bail under s 33.
The extended definition of the word “grant” in the Dictionary of the Bail Act does not alter the above analysis.
Importantly, whilst the word “grant” is defined to include “continue”, ss 22 and 23 are expressly carved out from this extended definition. Section 22 of the Bail Act prescribes the criteria which must be considered by the Court when determining whether to grant bail to an adult. (Section 23 sets out the criteria to be considered by a Court when granting bail to a child.) These criteria include the likelihood of the person appearing in court in relation to the offence (s 22(1)(a)) and the likelihood that the person, if released on bail, will commit a further offence, harass or endanger anyone’s safety or welfare, interfere with evidence, intimidate a witness or otherwise obstruct the course of justice (s 22(1)(b)). The interests of the person must also be considered (s 22(1)(c)).
The carving out of ss 22 and 23 from the extended definition of the word “grant” confirms the clear legislative intention that when the Court is determining whether to “continue” bail pursuant to s 33 of the Bail Act, the Court does not need to re-apply each of the s 22 criteria. That is, the Court is not required to consider each of the s 22 criteria afresh each time bail is continued under s 33.
Section 9D (and other presumptions in pt 2) are not the subject of a similar express carve out from the extended definition of the word “grant”. However, the extended definition of the word “grant” in the Dictionary definition will not apply where the Bail Act evinces an intention that the definition not apply to any particular use of that term: ss 155 and 156 of the Legislation Act 2001 (ACT).
It would be incoherent for the legislation to direct that the Court need not reconsider the s 22 criteria when determining whether to continue bail under s 33; but nonetheless require the Court to reconsider the bail presumptions contained in pt 2 of the Bail Act in respect of that decision. Such an effect would defeat the purpose of the carve-out of ss 22 and 23. This incoherence is particularly apparent given many of the pt 2 presumptions refer back to s 22. Such an effect would also be inconsistent with s 33(3), which deems bail to have been continued even where a bail direction is not made by the Court.
Accordingly, when read in context, it is clear that the expanded definition of the word “grant” does not apply to require that the Court apply the presumptions contained in s 9D when determining whether to “continue” bail under s 33.
What, then, is the purpose and effect of the expanded definition? When read in context, it is apparent that the purpose of the expanded definition of the term “grant” was to expand the application of the availability and effects of a grant of bail, to a decision to continue bail. For example, the expanded definition has the result that s 6 of the Bail Act, which speaks of the right of a person “granted” bail to “remain at liberty”, will equally apply to a person whose grant of bail has been continued. The expanded definition was not, however, intended to expand the ex-ante criteria and presumptions that apply to a grant of bail to a decision to continue bail. It does not have the effect of requiring a reconsideration of bail criteria each and every time that bail is “continued”.
It follows that the expanded definition of the word “grant” does not apply to s 9D (and other like presumptions). Rather, the word “grant” in s 9D will only apply where the Court is considering whether to make an order “granting” bail simpliciter, rather than where the Court makes an order “continuing” bail.
This operation of s 9D is critical to an understanding of the proper procedure to be applied where a person is brought before the Court on a suspected breach, or anticipated breach, of bail under s 56A of the Bail Act.
As was made clear in the Court of Appeal’s decision in Charles, a previous “grant” of bail is unaffected where a person is brought before the Court under s 56A of the Bail Act. It is not necessary for such a person to “apply” for bail.
Where a person is brought before the Court under s 56A, the Court must consider whether to revoke, vary or enlarge bail under s 19(1)(b) of the Bail Act. None of these decisions constitute a “grant” of bail. As the extended definition of “grant” does not apply to s 9D (and like presumptions), s 9D (and like presumptions) will have no application to the determination of whether bail should be revoked, varied or enlarged under s 19(1)(b). As stated above, as used in s 9D, the word “grant” only means “grant” simpliciter and does not extend to a continuation of bail. (In these circumstances, it is not necessary to consider the prosecutor’s submission, referred to at [26] above, that orders varying or enlarging bail constitute a “continuation of bail”.)
Rather, as the person who is brought before the Court under s 56A has the benefit of an existing grant of bail, the Court must first consider whether there has been a breach (or there is an anticipated breach) of the person’s bail conditions, and second, whether, in view of that breach (or anticipated breach), it is appropriate to revoke or vary the person’s bail conditions.
In determining whether to revoke or vary bail, the Court should take into account the bail considerations listed in s 22 (for example, any risk of the person not appearing or committing further offences and the interests of the person). The Court may also take into account the legislative intention expressed in presumptions such as s 9D: see similarly In the matter of an application for bail by Nuno Rodrigues [2008] ACTSC 50 at [16]. However, when doing so, it is important to bear firmly in mind the nature of the proceedings. Specifically, the person is not “applying” for a “grant” of bail. It is not necessary for the person to satisfy the Court that “exceptional or special circumstances” are established or that the s 22 criteria are fulfilled. Rather, the person has the benefit of an existing grant of bail, which should be continued unless the Court is satisfied that an order should be made for that grant of bail to be varied or revoked.
Conclusion
In conclusion, the following procedure may be applied where a person is brought before the Court on an allegation that the person has breached a condition of their bail:
(i)The Court should consider whether it is satisfied that there has been a breach of a bail condition or conditions. This is to be determined on the balance of probabilities: s 55 of the Bail Act.
(ii)If the Court determines that there has been a breach of a bail condition or conditions, the Court should then consider whether the breach is such as to justify the revocation of bail or variation of bail conditions. Orders revoking or varying a previous grant of bail should not be made unless the Court is satisfied that such revocation or variation is appropriate.
(iii)Whether or not the Court has determined that there has been a breach of a bail condition or conditions, the Court should also consider whether the evidence satisfies the Court that there is a risk of a future breach of a bail condition or conditions. If the Court is satisfied that there is such a risk, the Court should then consider whether the risk is such as to justify the revocation of bail or variation of bail conditions. Again, orders revoking or varying a previous grant of bail should not be made unless the Court is satisfied that such revocation or variation is appropriate.
(iv)Although the presumptions set out in pt 2 do not apply of their own force to the Court’s determination as to whether to revoke or vary bail, when considering whether bail should be enlarged, revoked or varied, the Court may consider the legislative intention expressed in those provisions.
The above procedure is not prescriptive and may be varied in the circumstances of the case. For example, where the alleged breach is minor, it may not be necessary for the Court to reach a concluded decision as to whether the breach occurred. It may be sufficient for the Court to conclude that, even if the breach were established, it would not be such as to justify the revocation or variation of the person’s bail conditions.
A further reason for the inapplicability of s 9D in the present case
Further to the above, it may also be noted that in R v Cockburn [2015] ACTSC 297 at [20], Refshauge J held that in the words “in relation to the serious offence” should be read into s 9D(2) of the Bail Act, such that the Court is only required to make a finding of “special or exceptional circumstances” where the Court is considering the grant of bail for a serious offence that was alleged to have been committed “while a charge against the person for another serious offence [was] pending or outstanding” (that is, for a second or subsequent serious offence).
The present proceedings concern the bail granted by the Supreme Court for the 2023 charges. These charges were not alleged to have been committed whilst any charges against Mr D’Alessandro were outstanding. This provides a further basis for concluding that s 9D was not enlivened in the present proceedings.
A final note
Before turning to the application of the above principles to the present proceedings, I wish to observe that it is unsatisfactory that a matter as basic as the procedure to be applied, and the criteria to be taken into account, concerning allegations of a breach of bail conditions are not clearly set out in the provisions of the Bail Act, and that the principles to be applied must be determined by the application of inference and necessary implications. I recommend that the legislature consider amending the Bail Act to clearly set out the procedure and considerations to be applied when determining the action to be taken following an allegation that a person has breached the conditions of their bail.
Determination
Has a breach of a bail condition been demonstrated?
As outlined above, the first question to be determined is whether the prosecution has demonstrated that there has been a breach of a bail condition.
The prosecutor relied upon the two fresh offences as constituting a breach of the Supreme Court bail conditions, namely, driving while disqualified and ride/drive a motor vehicle without consent.
The offence of ride/drive a motor vehicle without consent was alleged to have been committed on 20 February 2024. At this time, the defendant was not subject to any bail condition prohibiting him from leaving his house without a specified person. It was a condition of Mr D’Alessandro’s bail that he not commit any offences whilst on bail. Accordingly, this incident could only constitute a breach of bail if the prosecution satisfies the Court of the commission of the offence of ride/ drive motor vehicle on the balance of probabilities.
Mr McBride foreshadowed that the issue in respect of this alleged offence will be whether the prosecution can demonstrate beyond reasonable doubt that Mr D’Alessandro was aware that the vehicle was stolen. The information before me indicates that the vehicle was stolen within 13 hours of Mr D’Alessandro being seen in the vehicle. Other than the temporal proximity of the theft to Mr D’Alessandro’s presence, there is no other evidence that Mr D’Alessandro was aware that the vehicle was stolen in the material before me. Of course, I do not have the full brief of evidence, and it may be that the police have other evidence in support of this element. I cannot say. On the evidence presently before me, I am not satisfied on the balance of probabilities that the element of dishonesty can be established. It follows I am not satisfied that this incident constituted a breach of a bail condition.
The offence of drive whilst disqualified is alleged to have been committed on 12 January 2024. On that date, Mr D’Alessandro was disqualified from driving. If established, this offence would constitute a breach of the bail condition prohibiting him from committing any offences whilst on bail. If established, the offending would also constitute a breach of three further bail conditions, namely that Mr D’Alessandro:
(i)remain at his home at all times unless in the presence of specified persons;
(ii)not be in the driver’s seat of a motor vehicle; and
(iii)not be in possession of car keys or fob.
However, the Statement of Facts indicates that the evidence in support of this charge is unusual. On 6 March 2024, during the conduct of a search warrant at the offender’s home, police conducted an examination of the offender’s phone. In the “Snapchat” application, police identified a video of Mr D’Alessandro driving the Mercedes-Benz. I was informed that this video constitutes the only evidence in support of this charge. The video was not in evidence before me.
For this evidence to demonstrate a breach of bail, it will be necessary for the prosecution to establish that the driving depicted in the video occurred on a date when Mr D’Alessandro was disqualified from driving and/or subject to the bail conditions set out at [57] above.
The evidence before me included an assertion by police that the driving occurred on 12 January 2024. However, there was no indication in the material as to the basis upon which this assertion was made. Mr McBride submitted that it will not be sufficient for the prosecution to rely on the date of the Snapchat video to demonstrate the date that the driving occurred. Depending on where the video was found in the app, the date may, for example, record the date that the video was received in the Snapchat app, rather than when the video was taken. The prosecutor was not able to provide any further information concerning the basis upon which the prosecution will allege that the video was taken on 12 January 2024.
In the absence of any information concerning the date that the video was taken, I am not satisfied on the balance of probabilities that the evidence relied on by the prosecution in respect of the drive whilst disqualified allegation constitutes a breach of a bail condition.
Should bail otherwise be revoked or varied?
As outlined above, the fact that I am not satisfied that a bail condition has been breached does not finally determine whether bail should be revoked or varied under s 19(1)(b) of the Bail Act. I must also consider whether the bail should be revoked or varied for any other reason, including whether there is a risk that Mr D’Alessandro will fail to appear or commit further offences.
The material in evidence before me included a Bail Consideration Form which referred to recorded phone calls between Mr D’Alessandro and his brother, who is currently in custody. Police allege that in one of these phone calls, Mr D’Alessandro and his brother discuss leaving for Queensland when his brother is released from custody. However, there was no information in the evidence before me as to when those intercepts occurred. Other intercepted phone calls referred to in the evidence are stated to have occurred in January 2023. Mr D’Alessandro has been on bail since 21 September 2023.
In the absence of any information suggesting that the calls occurred more recently than January 2023, I am not prepared to infer that any risk that Mr D’Alessandro will not appear is sufficient to justify the revocation of bail.
There was also material in evidence before me that indicated that police believe that Mr D’Alessandro is the ringleader of a group who steal from residential premises, and that they believe that Mr D’Alessandro may have been recently involved in the theft of an Audi in Kaleen. However, there is no information that indicates what the basis of this belief is. Again, in the absence of any such evidence, I am not prepared to conclude that the risk of re-offending is sufficient to justify the revocation of bail.
The new robbery offences are serious offences. However, they are alleged to have been committed within a month of the robbery offences for which the offender is presently on Supreme Court bail. As noted above, I was informed that since that time, Mr D’Alessandro has successfully completed a period of full-time residential rehabilitation. There is no suggestion that Mr D’Alessandro has committed any further offences of that nature since the completion of that rehabilitation.
In view of the matters outlined at [53] – [61] above, I am not satisfied that the alleged fresh offences are such as to indicate that there is a sufficient risk of the commission of further offences to justify the revocation of bail.
I have also taken account of the interest of both Mr D’Alessandro and the broader community in facilitating Mr D’Alessandro’s continued rehabilitation. Mr D’Alessandro is young. I was informed that, prior to the breach, Mr D’Alessandro had recently commenced full-time employment. He is living with his partner. It is in Mr D’Alessandro’s interest, and the interests of the broader community, that these community ties not be interrupted by incarceration whilst he awaits his sentence and trial.
However, although not sufficient to justify revocation, the material before me does give rise to some concerns about the possibility of future non-appearance and/or the commission of further offences. Most importantly, the evidence that Mr D’Alessandro was a passenger in a vehicle that had been recently stolen gives rise to a concern that he may be associating with persons who are engaging in criminal activities. Such association does not constitute a breach of a bail condition, but it does give rise to some concerns about the risk of non-compliance with bail conditions in the future.
I was satisfied that these residual concerns were appropriately addressed by way of the strengthening of Mr D’Alessandro’s bail conditions – specifically, by the addition of a weekly reporting condition and a condition prohibiting Mr D’Alessandro from leaving the ACT, except for the purpose of attending upon his legal representative (whose office is in Queanbeyan). Mr D’Alessandro consented to the addition of these two conditions.
Orders
For the above reasons, the following orders were made:
(1)I vary Mr D’Alessandro’s bail by imposing the following additional bail conditions:
(a)Report to Tuggeranong Police Station weekly on Saturdays between 9:00am and 5:00pm; and
(b)Not to leave the ACT without the permission of the Director-General of ACT Corrective Services or his or her delegate, except for the purpose of attending upon his legal representative.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 21 March 2024 |
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