Director of Public Prosecutions v McConnell-Imbriotis

[2022] ACTSC 372

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v McConnell-Imbriotis

Citation:

[2022] ACTSC 372

Hearing Date:

14 December 2022

DecisionDate:

14 December 2022

Before:

Mossop J

Decision:

See [11]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application to vary bail – accused discharged from residential rehabilitation program – accused to live with family and to seek admittance to another rehabilitation program – consideration of availability of drugs in prison – bail varied

Legislation Cited:

Bail Act 1992 (ACT), s 22

Parties:

ACT Director of Public Prosecutions

Daniel McConnell-Imbriotis ( Accused)

Representation:

Counsel

M Thomas ( DPP)

E West ( Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Accused)

File Numbers:

SCC 168 of 2022

SCC 169 of 2022

MOSSOP J:

Introduction

1. This is an application for variation of the conditions of bail by Daniel McConnell-Imbriotis. After spending approximately seven months in custody on remand, he was granted bail on the condition that he attend the Karralika Rehabilitation Centre. He has spent approximately six months in the rehabilitation program at that centre, but was discharged from the program as a result of using Valium, which was not permitted to be taken whilst in that program. It also appears that he engaged in smoking at some earlier time.

1. There was also another allegation about his conduct but it is not clear whether that was an allegation which was substantiated. Consistently with his bail conditions, he reported to the court following his discharge in order to determine the position in relation to bail. The submission of the prosecution was that bail should be revoked. That was so that any further attempts to get into a rehabilitation program occurred whilst he was in custody. And hence, he was not able to possible commit further offences in the community and there remained a very strong incentive for him to pursue entry into a further residential rehabilitation program.

1. Mr McConnell-Imbriotis gave evidence in relation to his previous drug use and, disturbingly, to the availability of drugs within the prison. He gave evidence about his period of participation in the Karralika Residential Rehabilitation program and the circumstances which led to his discharge. He also gave evidence of his desire to pursue further residential rehabilitation at the Arcadia House Program, or alternatively, a hybrid program run by the Karralika organisation known as the Nexus Program.

1. The submissions made on behalf of the prosecution were that any stated intention on Mr McConnell-Imbriotis’ part, would be inadequate having regard to his previous use of drugs and inability to remain within the Karralika Program and therefore, that bail should be revoked and he should be remanded in custody pending a further application upon the availability of some other program.

1. I do not accept the submission that I should revoke bail. It must be remembered that at present, he has not been convicted of the offences with which he has been charged and that any consideration of the question of bail must be on the basis of the factors in s 22 of the Bail Act 1992 (ACT).

1. There is no suggestion that he would interfere with witnesses or harm anyone associated with the proceedings. The two issues are whether he will turn up when required to and whether he will commit further offences. The submissions of the prosecution were principally based on the possibility that he may return to using drugs and hence, commit offences by the use of drugs and also commit offences for the purposes of maintaining his habit. The proposal is that he live at his parents’ address in Lavender Bay in New South Wales and that there be a regime of reporting and supervision, which will reduce the risks to an appropriate level.

1. The conditions proposed involved the possibility of undertaking urinalysis when directed. The evidence was not sufficient to establish that this was likely to be an effective regime so as to permit random drug testing in a way that would provide a significant degree of assurance that there was no return to drug use. Notwithstanding that, in my view, the risks of further offending will be reduced to an acceptable level as a result of the modified version of the regime proposed in the proposed bail conditions.

1. There is clearly, having regard to Mr McConnell-Imbriotis’ past drug use, the risk that when removed from the strict environment of the Karralika Program, or from some other form of custody or quasi-custody, he will return to drug use. However, his evidence that he could obtain and have access to drugs within the prison was not challenged and it appears to me to be very likely that a return to prison on remand will reignite his drug use, both as a result of access to drugs and also access to the undesirable influences which inevitably arise in custody.

1. In those circumstances, in my view the most appropriate outcome is a grant of conditional bail which will minimise the risk of returning to drug use and encourage a return to a residential rehabilitation program.

1. For these reasons, I will vary bail so that it reflects the following conditions, the last of which I will hear any submissions about.

Orders

11.  [Submissions were made and the court made the following orders]

1.     Bail is varied so that it is on the following conditions:

1.     Accept supervision of ACT Corrective Services and comply with all reasonable directions.

2.     Accept monitoring by CADAS and consent to the provision of information by CADAS to ACT Corrective Services.

3.     Not to contact directly or indirectly by any means [name].

4.     Not to be within 100 metres of [an address in Dickson].

5.     Not to drink alcohol.

6.     Not to use illegal drugs, including cannabis or any other drug illegally obtained.

7.     Undertake urinalysis as directed by an officer of ACT Corrective Services.

8.     Not to drive, or be in the driver’s seat, of a motor vehicle.

9.     Not to approach within 100 metres of any point of international departure.

10.   Not to apply for any passport.

11.   Reside at [an address in Lavender Bay, New South Wales].

12.   Remain at his place of residence between 8pm and 7am and present to the front door of the residence when required to do so by a police officer.

13.   Report to a police officer at North Sydney Police Station between 8am and 7:30pm on Monday, Wednesday and Friday.

14.   Participate in any assessment or other requirement for entry into the Arcadia House Rehabilitation Program and accept any place in that program is offered.

15.   If not admitted into either the Arcadia House Rehabilitation Program or the Nexus Rehabilitation Programs by 2 February 2023, to present himself to court on that day.

2.     So long as he is legally represented and unless required by condition 15 of his bail conditions to appear, Mr McConnell-Imbriotis is excused from appearing on 2 February 2023.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 20 February 2023