Gumley, Re an application for bail

[2009] QSC 435

SUPREME COURT OF QUEENSLAND

CITATION:	Gumley, Re an application for bail [2009] QSC 435
PARTIES:	MELISSA JANE GUMLEY (applicant)
FILE NO:	BS 13261 of 2009
DIVISION	Trial
PROCEEDING:	Applications
DELIVERED ON:	27 November 2009
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2009
JUDGE:	Fryberg J
ORDERS:	As in Annexure A.
CATCHWORDS:	Criminal law – Procedure – Bail – Other matters – Application for bail – Multiple indictments pending sentence hearing – Relevant considerations – Short defined period and imposing of more stringent than usual conditions – Bail granted
COUNSEL:	P Nijhof (solicitor) for the applicant K W Dent for the respondent
SOLICITORS:	Locantro Lawyers for the applicant Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR:  The applicant faces two charges arising out of an incident which took place on the 12th of July 2009.  On that day she is alleged to have committed the offence of robbery with violence and the offence of unlawful use of a motor vehicle. 

The Crown alleges that she hired a taxi and after driving a short distance produced a knife, held it close to the driver's face and demanded his money.  He managed to escape from the vehicle without being harmed, and the applicant is alleged then to have crawled across to the driver's seat and driven off in the taxi.  When it was later located a navigation system, a mobile phone and about $60 in cash was missing.  The applicant was subsequently apprehended and made admissions to the police.  She has been in custody since then for some 139 days. 

She faces a number of other charges which pre-date the ones to which I have referred.  There is outstanding against her a 20 count indictment before the Supreme Court which has been listed for sentence in March next year.  The most serious count on that indictment is trafficking, although the facts supporting that charge disclose very low level trafficking and that the charge arose entirely out of admissions which she made to the police.  There is also a 16 count indictment in the District Court relating to multiple fraud, burglary and property offences.  It is expected that that will also be dealt with in March next year.

One might also infer, given the strength of the Crown case, a strong prospect of the same result following in respect of the present charges.

The applicant has five entries in her criminal history, all revolving around minor drug related matters.  She has no convictions in relation to bail.  She does suffer a mental disorder which can be quite disabling to her, but which is managed if she maintains her medication regime.  That has been exacerbated by her history of addiction to amphetamines and heroin.  Since she has been in custody she has been tested a number of times and has been free of drugs.  In fact the period since she has been in custody seems to have been very beneficial to her health for her psychiatric condition has stabilised and she has achieved a clarity of thought which was not possible while she was at large and took illicit drugs.

She has a strong family network consisting primarily of her father and her brother in Brisbane, and they have now a better understanding of what is required for the management of her psychological issues.  That all said, she is in a position where she must show cause why her continued detention is not appropriate.  The number of charges which are outstanding against her, the seriousness of them and the high probability that she will be sentenced to a substantial period of imprisonment even with a plea of guilty, leaves me with considerable concern that as the hearing date approached she would be at considerable risk of lapsing back into her drug regime if she were at large, and of failing to report to the Court when the matter was called on.

It does not seem to me that someone who has, as she has evidently done, offended while on bail, has sufficiently demonstrated that she has overcome her problems in the time since she has been in custody.  They are serious drug problems and while she has apparently made great progress, I am not persuaded that the risk of re-offending is such that she should be granted bail for the whole of this period.

There is one other factor which is raised by her and which is part of her application for bail, and that is that her mother is terminally ill and is expected to die fairly soon.  It is evident from her affidavit that that is an important part of the reason for her application at this time.  Following discussion during the hearing she has made application in the alternative for bail from the 1st of December 2009 to the 15th of December 2009.

I do not think that her desire to see her mother is a factor which would make much difference to a grant of bail for the whole of the period between now and when she is due to be sentenced.  It is unfortunate when people have relatives who are likely to die while they are in custody, but that is something which ordinarily cannot be given much weight in a bail application.  When, however, the application is for a short period such as a fortnight and is able to have special conditions attached to it, it is possible that different considerations apply.  It seems to me that for the period of the 15 days covered by the alternative application it would be possible to impose conditions which would not be possible for the whole of the period between now and the March hearing.  I say would not be possible in the sense that they would not be practicable and would be unreasonable.

Conditions which I have in mind are first, that throughout the period of the 15 days the applicant remain in her father's company at all times.  That is a burdensome task for her father to undertake, but it is a condition which I think would reduce the risk of her re-offending and the risk of her running away.  That could be further reinforced were her father to provide a written undertaking to the Court that he would immediately report any breach of the conditions of bail, including obviously the condition that she remain in her father's company, forthwith to the office of the Director of Public Prosecutions.  Those conditions would not be reasonable for a longer period as I have said, but it seems to me that in a period as short as a fortnight, they would be reasonable conditions and that they would make the difference between my state of mind of not being satisfied that she has shown cause and the contrary.

I also take into account that the period which is sought is in December, that is in the near future, and that the risk at this time is much lower than it is likely to be in the month immediately preceding the sentencing.

When I weight up all of the evidence to which I have referred, it seems to me that only to the extent that she seeks bail for the limited period has she shown cause that her continued detention is not justified.  To that extent she has shown cause because appropriate conditions can be imposed.  The purpose of the application, of course, is to enable her to visit her mother in Melbourne.  I see no reason why she should not be allowed to travel to Melbourne for that purpose.

I have already referred to two of the conditions.  There are many other usual conditions which must be imposed in such a situation, and no doubt they are matters which will willingly be accepted by her.  For those reasons I will grant bail.

...

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ANNEXURE A

IN THE SUPREME COURT OF QUEENSLAND

REGISTRY:   Brisbane
  NUMBER:       BS 13261/09

Applicant:                 MELISSA JANE GUMLEY

AND

Respondent:              THE DIRECTOR OF PUBLIC PROSECUTIONS

ORDER

Before:  Fryberg J

Date:  27 November 2009                

Application filed:       25 November 2009

In relation to the following charges:

(a)That on the 12^th day of July 2009 at Brisbane in the State of Queensland one Melissa Jane GUMLEY robbed Harman Jit SINGH and Melissa Jane GUMLEY was armed with a dangerous instrument namely a knife; and

(b)That on the 12^th day of July 2009 at Brisbane in the State of Queensland one Melissa Jane GUMLEY unlawfully used a motor vehicle namely a motor vehicle without the consent of Black & White Taxi trading as Black and White Cabs the person in lawful possession thereof,

And upon the provision of an undertaking to the court by the Applicant’s father, Peter John GUMLEY, to the effect that for the duration of her bail he will:

(a)Keep his daughter in his constant company;

(b)Report any breaches of that supervision requirement or any other bail conditions to the Office of the Director of Public Prosecutions;

(c)Supervise the taking of her medications prescribed to her by her psychiatrist by ensuring she takes the medication as and when directed by her psychiatrist in his presence in his presence; and

(d)Immediately direct his daughter to seek attention for her mental health from staff at either the Broadmeadows Medical Centre or Inala Mental Health Centre, if he forms the view that her mental state in any way deteriorates over the course of her bail period,

IT IS ORDERED THAT the Applicant be admitted to bail upon her own undertaking with such undertaking being conditioned as follows:

1.      The Applicant be released from custody on bail on 1 December 2009;

2.      On 16 December 2009 by 12:00 noon, the Applicant must surrender herself to the General Manager of Brisbane Women’s Correctional Centre at Grindle road, Wacol QLD 4076, where the said General Manager is commanded to receive the Applicant and keep her in custody and bring her to the Supreme Court at Brisbane or to any other Court at the sittings specified by that Court at the date, time and place, fixed for the trial or sentence, notice of which shall be given to him or his solicitor by the Director of Public Prosecutions or a person authorised by the Director of Public Prosecutions, in respect of the above offences.

3.      Following her release from custody, the Applicant is to reside at:

a.her father’s address of 114 Shoebrook Road, Willawong until such time as she, in the company of her father, travels to Melbourne to visit her mother;

b.When in Melbourne, 38 Augustine Terrace, Glenroy, Victoria with her father and other relatives;

c.For the duration of any period between her return to Queensland and her surrender into custody as specified in condition 2, at her father’s address as abovestated.

4.      That the Applicant remain in the constant company of her father at all times for the duration of the time that she is on bail.

5.      That the applicant provide details of her travel itinerary to the Supreme Court Bail Section of the Brisbane Office of the Director of Public Prosecutions via facsimile to [phone] at least one business day prior to her departure to Melbourne and return to Queensland in accordance with the scheduled return set out in that itinerary which must be on or before 15 December 2009.

6.      That the Applicant report to police twice during the bail period established by conditions 1 and 2 of this order, with such reporting to occur at the Fawkner Police Station (located at 1151 Sydney Road, Hadfield, Victoria) on the following dates and times, unless the Director of Public Prosecutions agrees otherwise:

a.Friday, 4 December 2009 between 9:00am and 4:00pm

b.Friday, 11 December 2009 between 9:00am and 4:00pm

7.      In the event that the Applicant’s mother’s death (or a significant deterioration in her health such that death is imminent at the time) coincides with the Applicant’s requirement to report in accordance with condition 6 of this order, the Applicant or her father shall contact the Director of Public Prosecutions by telephoning [phone] or [phone] to reschedule her reporting as is permitted under condition 6.

8.      That the Applicant must not consume any illegal drugs or non-prescribed controlled drug and must submit to random urine tests (at her own expense) as and when required by the Office of the Director of Public Prosecutions or by a police officer stationed at Fawkner Police Station (or such other station where the Applicant is required by condition 6 to report) with the results of such testing to be disclosed to the Director of Public Prosecutions within 7 days of the date of the test.

9.      That the Applicant take all medication prescribed to her by a psychiatrist and do so, in the presence of her father, as and when required in accordance with the directions given to her by the psychiatrist.

10.    The Applicant shall comply with all directions given to her by her father in relation to seeking psychiatric or medical attention for her mental health.

11.    That the applicant not contact or attempt to contact, either directly or indirectly, any witnesses in these proceedings.

12.    The Applicant not leave the State of Queensland without the prior written consent of the Director of Public Prosecutions, other than to travel to Melbourne to visit her ill mother;

13.    The Applicant not apply for any passport and surrender any passport currently issued to her to the Officer in Charge of the Inala Police Station.

14.    The Applicant not attend at, or approach within one hundred (100) meters of any point of international departure, including airports unless it is incidental to accessing a domestic airport for the purpose of travel to or from Melbourne.

15.    The Applicant must not commit any offence punishable by imprisonment whilst subject to this order.

IT IS FURTHER ORDERED THAT if the Applicant fails to surrender in accordance with condition 2, a warrant for her arrest be issued forthwith upon filing in this court of an affidavit by the General Manager of the Brisbane Women’s Correctional Centre deposing to such failure.

REASONS FOR GRANTING BAIL

Reasons as stated in the transcript of the order

………………………………
Registrar
Supreme Court of Queensland

Brisbane