IN RE: AN APPLICATION FOR BAIL BY MANDELLA LOKER NONO - [2014] ACTSC 111

IN RE: AN APPLICATION FOR BAIL BY MANDELLA LOKER NONO
[2014] ACTSC 111 (29 April 2014)

CRIMINAL LAW – BAIL – breach of curfew – transfer under s 90B Magistrates Court Act 1930 (ACT) resulted in the applicant being subject to two separate bail undertakings – numerous breaches – on parole in NSW – not a reason to delete a condition purely because applicant has difficulty complying with it

Magistrates Court Act 1930 (ACT), s 90B

EX TEMPORE JUDGMENT

No. SCC 47 of 2014

Judge: Burns J
Supreme Court of the ACT

Date: 29 April 2014

IN THE SUPREME COURT OF THE )

) No. SCC 47 of 2014

AUSTRALIAN CAPITAL TERRITORY)

MANDELLA LOKER NONO
Applicant
v

THE QUEEN

Respondent

ORDER

Judge:Burns J
Date:29 April 2014
Place:Canberra

THE COURT ORDERS THAT:

The application for bail is refused.

It appears that the applicant for bail was originally charged by the police with respect to those two offences and appeared before the Magistrates Court at which time he was remanded in custody. He was ultimately granted bail on 4 December last year. There were conditions of bail at that time as to where he was to reside and a curfew condition requiring him to be in his residence from 8 pm each day until 7 am the following morning.
After he was committed for trial, there remained certain summary matters connected with the charges that were committed for trial and those summary matters remained in the Magistrates Court. Subsequently, they have been transferred to this court under the provisions of the Magistrates Court Act 1930 (s 90B).
However, it appears that the applicant was on bail with respect to the matters that were in this court and also the matters that were in the Magistrates Court.
Confusion arose because of an application, which was made by the applicant to vary his bail conditions concerning his place of residence, in the Magistrates Court and it appears that his bail conditions were varied in the Magistrates Court on 9 April 2014 to require him to reside at a unit at XX Forbes Street in Turner. He remained, however, on bail to reside at an address in Braddon in respect of his Supreme Court matters.
It appears to be common ground that the applicant has been before the court on a number of occasions with respect to breaches of his curfew condition. I understand it to be accepted that he was dealt with in the Magistrates Court on 3 February, 6 March, 15 March and 9 April this year with respect to breaches of his curfew condition. On those occasions, bail was simply continued.
When the applicant was picked up on the current breach in the Magistrates Court, the matter was adjourned to 28 April to deal with an application to vary his bail conditions. Upon appearing in the Magistrates Court yesterday, the Magistrate hearing the matter transferred the remaining Magistrate Court matters to the Supreme Court under s 90B. The effect of that transfer was that he was subject to two different bail undertakings in the Supreme Court. The breach facts before the Court relate to the breach of the Magistrates Court bail (which by virtue of the transfer is now the second bail undertaking in the Supreme Court), but would in any event constitute a breach of the pre-existing Supreme Court bail undertaking.
On 22 April, the applicant was arrested by police at XX Forbes Street in Turner with respect to a further alleged breach of his bail conditions. As I have already noted, there was a disparity between the bail conditions that applied with respect to the charges that were before this court at that time, that is the charges upon which he was committed for trial, and the charges that at that time were before the Magistrates Court and which have subsequently been transferred to this court. The bail conditions that applied with respect to the Magistrates Court matters at that time required him to reside at XX of XY Forbes Street in Turner. I understand that effectively to mean unit XY of XX Forbes Street in Turner.
At 9.10 pm on 22 April, police were conducting foot patrols in the courtyard attached to XX Forbes Street in Turner and I note that that is an apartment complex. The applicant’s bail condition required him to be actually within his unit between the hours of 8.00 pm each day until 7.00 am the following morning. Police observed him outside his unit, albeit still on the property of XX Forbes Street in Turner on 22 April 2014 during the period of his curfew.
At that time, he was arrested; although I do not understand that the reason for his arrest was because of the breach to which I have referred. Rather, police had formed the view that the applicant was the person that they had seen on the preceding day, 21 April 2014, at Illawarra Court flats at about 8 pm. Again, the person who was observed on 21 April was observed at a time which would have been within the curfew period which had been imposed upon the applicant.
The person that police spoke to on 21 April at Illawarra Court Flats gave a name of James Okleo. Police made inquiries and particularly inquiries in relation to the address which was given by James Okleo as being his residence. The name of the applicant was found to be associated with that particular address. Police then viewed a photograph of the applicant and Constable Fitzgerald, who gave evidence before me today, satisfied himself from that photograph that the applicant was the person who identified himself as James Okleo on 21 April 2014 at the Illawarra Court flats in Belconnen.
If I am satisfied on the balance of probabilities that it was the applicant who was present at that time, then I would be satisfied that that was a breach of the applicant’s bail that applied both in relation to his Magistrates Court proceedings and also in relation to the charges before this court. On the evidence given by Constable Fitzgerald, I am satisfied on the balance of probabilities that it was the applicant that Constable Fitzgerald spoke to at Illawarra Court flats on 21 April this year meaning that I am satisfied on the balance of probabilities that he was in breach of his bail undertaking.
I consider to that to be a significant breach. I am, of course, satisfied that on the following evening he was also in breach of his bail by not actually being present in his unit at number XY of XX Forbes Street, Turner during the entirety of his curfew period. However, if I had only been satisfied of that breach and not of the earlier breach on 21 April, I would not have viewed that breach as a particularly serious one.
As such, there have been some five breaches of the curfew condition imposed upon the applicant since 1 February this year. In addition, I note that there is evidence by way of a Consumer Assessment Form which was tendered during the course of these proceedings that in an interview with Mental Health Services conducted on 9 April this year the applicant advised that he is a daily cannabis user and also frequently uses methamphetamines.
From the bar table, Mr Robertson, who represents the applicant, said that his client disputed the proposition found in the form suggesting that he is a frequent methamphetamine user, saying that his client had made an admission that he had used methamphetamines in the past. He did not apparently dispute the fact that the applicant was a cannabis user.
The use of such substances, whether amphetamines or cannabis, is an offence in this Territory. So that even if there was some doubt about whether he was a frequent methamphetamine user, the fact that he continues to use cannabis means that he has continued to commit offences during the period that he has been on bail with respect to this most serious offence.
In addition to which, from the criminal history which is put before me, it appears that he is currently still on parole with respect to an offence of armed robbery in New South Wales.
In my opinion, the curfew condition which was imposed upon the applicant was perfectly appropriate and, indeed, necessary.
It was put to me that I should release the applicant on bail and effectively delete the curfew condition because the applicant “struggles”, in the words of Mr Robertson, to comply with that condition. No reason was put before me, or any legitimate reason put before me, as to why he may struggle to comply with such a condition.
In my opinion, I can have little confidence that the applicant will comply with bail conditions if he is released upon bail. I am satisfied that he has breached his bail on numerous occasions since bail was granted in December last year. As such, I am going to revoke the bail that he was released on and he will be held in custody. I am simply satisfied that there is too great a risk of further offences occurring if he is allowed to be at liberty on bail.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 29 May 2014

Counsel for the Applicant:  Mr J Robertson
Solicitor for the Applicant: Legal Aid ACT
Counsel for the Respondent:  Mr M Thomas
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  29 April 2014
Date of Judgment:  29 April 2014