Director of Public Prosecutions v Stacker

[2024] ACTSC 354

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Stacker

Citation: 

[2024] ACTSC 354

Hearing Date: 

6 November 2024

Decision Date: 

6 November 2024

Before:

McCallum CJ

Decision: 

Bail is refused.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – application for bail pending a potential defence of mental impairment – requirement to establish special or exceptional circumstances favouring the grant of bail – risk of applicant falling into drug or alcohol use and committing offences

Legislation Cited: 

Bail Act 1992 (ACT), ss 9D, 22

Cases Cited: 

R v Stacker [2017] ACTSC 240

R v Stacker [2019] ACTSC 219

Parties: 

Dylan Stacker ( Applicant)

Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

G Le Couteur ( Applicant)

T Kelliher ( Respondent)

Solicitors

Legal Aid ACT ( Applicant)

ACT Director of Public Prosecutions ( Respondent)

File Numbers:

SCC 40 of 2024

SCC 41 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․Dylan Stacker has been committed to this Court for trial on an indictment containing three counts of offences all alleged to have been committed on the same day, being one count of aggravated robbery, one count of driving a motor vehicle without consent and one count of possessing a prohibited firearm.  The offences are alleged to have been committed on 20 July 2023.

2․Mr Stacker comes before the Court today on an application for bail.  The principal proceedings are in the call-over on 18 November 2024 to obtain a hearing date.  Mr Stacker has foreshadowed raising a defence of mental impairment and to that end has served on the Crown a report from Associate Professor Andrew Carroll, forensic psychiatrist, dated 30 July 2024.  In that report, Associate Professor Carroll expresses the opinion that, because of Mr Stacker’s mental impairment (schizophrenia), it is more likely than not that he was unable to control his conduct that constituted all of the offending with which he is charged.  Associate Professor Carroll does not believe the offences would have been committed, but for the presence of the applicant’s acute schizophrenic symptoms.  It follows that, in his opinion, schizophrenia is a necessary causal factor contributing to the applicant’s commission of the offences.

3․The Crown has not yet had an opportunity to decide whether it will seek its own forensic report or contest the foreshadowed defence of mental impairment. 

4․Associate Professor Carroll’s report notwithstanding, the conclusions to which I have refereed do also point in the opposite direction, including at par 241, where he states that, notwithstanding the applicant’s actively psychotic state, he was “still able to know the nature and quality of the conduct i.e. that he was taking a car that did not belong to him, that he was using a ‘fake gun’ that others would assume could be real and that he was engaging in a robbery”.  I nonetheless propose to determine the present application on the basis that the report provides a proper foundation for the defence to be raised.  That is the lens through which I will consider the issues raised by the application. 

5․It is common ground that the application faces the hurdle of s 9D of the Bail Act 1992 (ACT), the applicant having been accused of serious offences and alleged to have committed the offences while a charge for another serious offence is pending or outstanding. Section 9D(2) provides that, in such circumstances:

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.

6․Subsection (3) provides that, even if special or exceptional circumstances are established, the court must refuse bail if satisfied that refusal is justified after considering the matters in s 22.

7․Ms Le Couteur, who appears for the applicant, relied on three factors to establish special or exceptional circumstances, making plain that she relied on those matters in combination rather than on the basis that any one individually would establish the required threshold.  They were, first, the findings of Dr Carroll, which support the defence of mental impairment; secondly, the fact that the Sentence Administration Board has made a parole order in respect of the applicant for previous sentences he was serving; and, thirdly, the fact that he now has available to him the prospect of increased support through the NDIS, based on his indication that he thought further support would assist him.  The support that will now be provided will be three hours each day, seven days a week.

8․The Crown submitted that those factors, even taken in combination, do not amount to special or exceptional circumstances.  I respectfully disagree.  In my view, the prospect that the applicant could possibly have a defence of mental impairment and, based on the assessment of the Sentence Administration Board, would otherwise be entitled to be on parole, but for being in custody in relation to these matters, is a sufficient combination of circumstances to satisfy the requirement of the section.

9․However, as I have indicated, my task does not end there. It remains necessary to consider the factors listed in s 22 of the Bail Act. The Crown relied primarily on the likelihood that the applicant if released on bail would commit an offence or endanger the safety or welfare of a person. Separately, as I will explain, the Crown relied on s 22(1)(c), which requires the Court to consider the interests of the person.

10․There can be no doubt that there is some risk that the applicant will commit an offence if released on bail.  That is indicated by his criminal history, which is extensive, and the circumstances (to the extent that they are before me) of those prior offences.

11․The Crown handed up two decisions of Elkaim J of separate offences for which he sentenced Mr Stacker.  The first, R v Stacker [2017] ACTSC 240, recites some history of the applicant’s subjective circumstances, including periods of consumption of alcohol and prohibited drugs.

12․Justice Elkaim had before him a report from Dr Sullivan, a psychiatrist, setting out an established diagnosis of schizophrenia which was then described as having a course of relapsing associated with poor insight, substance use and non-compliance with prescribed medication.

13․As submitted by the Crown, the offences for which Elkaim J sentenced Mr Stacker on that occasion were of some similarity to the present offences, one being an offence of aggravated robbery involving the use of a knife.  His Honour said at [22]:

Any armed robbery is, by definition, serious. There are obviously circumstances, such as where a gun is used, which are more serious. However, a knife is a very threatening weapon, especially when accompanied by gesturing and threats as occurred in the present matter.

14․Justice Elkaim had occasion to sentence Mr Stacker again on 15 August 2019, in R v Stacker [2019] ACTSC 219. On that occasion he was again sentenced for an aggravated robbery. That was a robbery committed at an IGA store. One of the victims was a school student working in his first job. Justice Elkaim noted that his victim impact statement to some degree minimised the effects of the offending on him but that a separate statement from the boy’s mother provided a more comprehensive picture of the effects on her son.

15․The submission that the earlier offences are strikingly similar to the matters for which Mr Stacker now is due to face trial must be accepted. If I accept, based on the report of Associate Professor Carroll, that the current offences were committed due to a state of mental impairment, that conclusion at the same time raises an extremely difficult evaluative judgment in the assessment of the factors listed in s 22.

16․Associate Professor Carroll’s report was, of course, obtained for the purpose of supporting the defence.  It is a comprehensive report which provides a detailed review of Mr Stacker’s psychiatric history.  Of particular concern in the recitation of that history is a close consideration of the period of some six weeks before the commission of the alleged offences on 20 July 2023.  In the leadup to that time, on 23 May 2023, Mr Stacker was seen by his mental health team as his depot anti-psychotic medication was three days overdue.  It was noted that he was slightly paranoid with his “usual issues” and that he had stated that he was not drinking regularly.  On 26 May 2023, Mr Stacker’s mother called Tuggeranong Mental Health team wanting to know whether Mr Stacker could be put on Valium for his depressive mood.  She stated that she was aware he was then struggling to overcome an alcohol and drug addiction.

17․A telephone call was made from clinicians to Mr Stacker in which it was noted that he had declined to attend for his depot anti-psychotic.  The note states, “guarded as usual and insisted that everything is okay”.  I will not recite all of the entries after those two entries, save to observe that, on 17 July 2023, Canberra Hospital Alcohol and Drug Service made a note indicating that they had received a call from Mr Stacker stating that he had been kicked out from the pharmacy he was dosing at.

18․Contact was made with the pharmacy who noted that staff had “caught Dylan diverting his dose a few times now.  Apparently, Dylan told Nathan (pharmacist) that he has someone standing over him and wanting his dose”.  A welfare call was made to Mr Stacker from Tuggeranong Community Health Centre Adult Community Mental Health.  That note recorded that Mr Stacker “said he is doing well”.

19․On 18 July 2023, there was a note that he was on 32 milligrams of Suboxone daily but was caught diverting doses at the community pharmacy and that he had missed the dose of the day before.  As already noted, the date of the alleged offending was 20 July 2023.

20․Professor Carroll expresses the opinion in respect of the offending on that date that it may have been contributed to by the fact (as Mr Stacker told Professor Carroll) that, as soon as he commenced on the depot, he stopped taking Olanzapine altogether, asserting that the relevant clinicians had told him to do that.

21․Professor Carroll notes:

This is significant because it takes several cycles of a depot, i.e. several months, for it to reach therapeutic levels and best practice means that therefore the oral antipsychotic that it is replacing needs to be continued with at the same time in order to maintain therapeutic antipsychotic levels in a person’s central nervous system.

22․However, the history of the notes to which I have referred suggests that, rather than not taking oral antipsychotics during that period because doctors had told him not to, Mr Stacker may have been diverting that medication.  Certainly, that is the suggestion that emerges from the notes on the second-last and third-last day before the commission of the alleged offences.

23․My reason for reciting these matters in such detail is not in any way to express any view about Mr Stacker’s potential defence but, rather, to point to the obvious difficulties of managing the condition of schizophrenia when the patient, often for good reason, finds tolerance of the medication difficult or is subjected to other distractions or pressures in respect of taking those medications.  That causes me significant concern for the bail proposal put forward.

24․Ms Le Couteur has proposed bail conditions calculated to achieve a careful wrap-around of services with a number of safety nets so that, in the event that Mr Stacker were to become non-compliant with his medication again, there would be opportunities for those supporting him to take steps before anything went too badly to address the difficulties.

25․There is also before me an affidavit from Mr Stacker’s mother, who has lengthy experience and ample qualification in dealing with people with mental health.  That is no doubt in addition to the care and very close experience she must have with her own son over many years coping with the difficulties that he faces.

26․I have not found this an easy decision to make for that reason.  I have no doubt that Ms Rebecca Brown, Mr Stacker’s mother, is deeply committed to his care and would very much like to see him out of custody.  The difficulty is that the experience of the notes described by Professor Carroll illustrates that the very nature of the condition from which Mr Stacker suffers makes it difficult for people to tell when spiralling is beginning.  That is complicated by the fact that there is probably, again due to the nature of his condition, a measure of active concealment where the patient will be likely to say they are fine, probably believing they are when in fact due to an interruption in medication they are not.

27․That brings me to the Crown’s second point about the protection of Mr Stacker’s own interests.  That is usually a matter relied upon by an applicant contending that they need bail in order to prepare for a hearing or for other personal reasons.

28․In the present case, it is the Crown that points to the interests of the applicant.  The Crown submits that, although it may be accepted that incarceration is more onerous for a person with schizophrenia, were the applicant to be released without adequate support and engage in further offending, his circumstances would be worse.

29․Notwithstanding the careful proposal that has been put forward by Ms Le Couteur and the powerful evidence of Mr Stacker’s mother, which I have no doubt accepting, I am not persuaded that the conditions proposed in the bail proposal will adequately protect the applicant in this complex situation.  There is a very real risk that Mr Stacker might again spiral or fall into drug or alcohol use and commit offences before he is dealt with for the matters before this Court. 

30․For those reasons bail is refused.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: