Director of Public Prosecutions v Smith

[2023] ACTSC 367

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Smith

Citation: 

[2023] ACTSC 367

Hearing Date: 

7 December 2023

Decision Date: 

7 December 2023

Before:

McCallum CJ

Decision: 

Bail is refused.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – sex offences – application for bail refused – criminal history for similar offending – serious mental health concerns – where the conditions proposed could not mitigate the risk of further offending

Legislation Cited: 

Bail Act 1992 (ACT) ss 9B, 22

Mental Health Act 2015 (ACT)

Parties: 

Director of Public Prosecutions

Lachlan John Smith ( Accused)

Representation: 

Counsel

J Melloy ( DPP)

K Bolas ( Accused)

Solicitors

ACT Director of Public Prosecutions

Kim Bolas Legal Group (Accused)

File Number:

SCC 106 of 2023

SCC 107 of 2023

McCALLUM CJ:       

1․This is an application for bail by Lachlan Smith, who stands charged with sexual offences alleged to have been committed against his former partner and the mother of his two-year-old child.  The offence with which Mr Smith is charged is a schedule offence, and accordingly, the presumption for bail does not apply to the application: Bail Act 1992 (ACT) s 9B. Accordingly, the application is to be determined on a neutral basis by reference to the criteria listed in s 22 of the Act.

2․The Crown case appears, to me, to be strong.  The complainant alleges that when she was 32 weeks’ pregnant, the accused compelled her to get down onto her knees and perform oral sex on him.  At that time, she was 32 weeks’ pregnant with the child to which I have referred.  The accused has indicated today that the issue in the trial will not be whether the acts were committed but will be an issue of consent.  That does not derogate from my assessment that the Crown case is strong.

3․The application is brought in circumstances where, until the end of October, the applicant was in custody, on remand for other matters.  Those matters have now been finalised in the Magistrates Court, and he has been sentenced to terms of imprisonment, all concluding on 31 October 2023.  It follows that he is now on remand only in relation to these matters, and that, of course, is a concern.  The Court should always be astute to ensure that people do not remain on remand awaiting trial against the risk of ultimately being acquitted, and it is important, in that context, to always be mindful of the presumption of innocence.

4․The difficulty for the applicant in the present case is what I perceive to be a real likelihood that, if he is released on bail, he may commit further offences or endanger the safety or welfare of other persons.  The reason for that concern comes not only from his criminal record, but from the Justice Health Services Mental Health Assessment Report dated 3 November 2023, which was evidently prepared for the purposes of the matters finalised in the Magistrates Court. 

5․The author records a history of the applicant’s experience with poor mental health, even as at the date of the report just over a month ago, he reported experiencing some paranoia about ASIO.  He stated that his paranoia had significantly reduced since being at the Alexander Maconochie Centre, but attributed that to his knowledge that ASIO was less motivated to monitor him if he was in custody because he was being watched by security staff.

6․The report records inconsistent engagement with mental health services, a history of aggression, involvement with the criminal justice system, and challenging family and interpersonal dynamics.  The author says, on page three, that the applicant has a major mental illness that requires ongoing treatment with antipsychotic medication.  He does not currently require treatment under the Mental Health Act 2015 (ACT) because his engagement with Justice Health appears to be appropriate to his clinical needs. However, the author states, “Mr Smith would benefit from assertive follow-up from GMHT once released from custody, as he is at risk of being lost at care.”

7․In all the circumstances and based on the current bail proposal, which would see the applicant live with his mother, who is one of two persons in need of protection, who has the benefit of family violence order, I am not persuaded that the risk of further offending can be mitigated by the conditions proposed.

Orders

8․The orders I make are:

(1)Bail is refused.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate:

Date: