IN THE MATTER OF A BREACH OF BAIL BY AMIR MIGUEL ASGARI
[2009] ACTSC 74
•23 June 2009
IN THE MATTER OF A BREACH OF BAIL BY AMIR MIGUEL ASGARI
[2009] ACTSC 74 (23 June 2009)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – breach of bail – whether bail should be revoked – bail not revoked.
Bail Act 1992 (ACT), s 22
Burton v R (1974) 3 ACTR 77
EX TEMPORE JUDGMENT
No. SCC 113 of 2008
No. SCC 173 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 23 June 2009
IN THE SUPREME COURT OF THE )
) No. SCC 113 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 173 of 2008
THE QUEEN
and
AMIR MIGUEL ASGARI
ORDER
Judge: Refshauge J
Date: 23 June 2008
Place: Canberra
THE COURT ORDERS THAT:
Amir Miguel Asgari be granted bail to appear at the ACT Supreme Court on 9 July 2009 and as and when required thereafter on the following conditions:
(i) that he accept supervision by the Chief Executive, or the Chief Executive’s delegate and obey all reasonable directions of the person delegated to supervise him;
(ii) that he reside at 16 Ammon Place, Kambah but not absent himself from that place of residence between 10 pm and 6 am daily;
(iii) that he abstain from the use of alcohol and illicit drugs;
(iv) that he submit, as and when required, to breath analysis and urinalysis;
(v) that he report to the officer in charge at Woden Police Station every day between the hours of 8 am and 8 pm;
(vi) that he not contact, directly or indirectly, or approach Martin Dolezal;
(vii) that he, upon release, attend at 4.30 pm upon ACT Corrective Services at Eclipse House for the purpose of arranging supervision.
Mr Amir Miguel Asgari is facing serious drug offences to which he has pleaded guilty. These include trafficking in MDMA and possession of cocaine, MDMA, methylamphetamine, cannabis and cannabis resin. He has been on bail for some time. Neither counsel could tell me exactly how long, but on the court records it appears to have been since 27 August 2007.
The bail conditions to which he is subject are not as strict as many that are imposed these days, but they do include what is commonly known as a curfew, namely that he reside at 160 Boddington Crescent, Kambah, ACT and not absent himself from that place of residence between midnight and 6 am daily.
He comes before me having breached those bail conditions. The breach was detected when he was stopped in a motor vehicle he was driving at 1.50 am this morning on Drakeford Drive, Isabella Plains, about three or four suburbs away from where he was to reside at Kambah. He was subject to breath analysis and the analysis showed him to have a breath alcohol content of 0.122%, a level three reading which would render him liable to a maximum penalty of nine months imprisonment or 15 penalty units.
He has appeared in the Magistrates Court for this offence and has been bailed without conditions to appear in that court again on 14 July 2009. That is perhaps a little surprising since he has already accumulated two prior drink driving offences, an offence of driving in a manner dangerous and driving whilst disqualified.
It appears that he had only had his licence returned, after the last 12 months disqualification, on or about 9 March 2009, less than four months ago. Nevertheless, that is a matter for the Magistrates Court and I do not wish to say any more about it.
Mr Asgari told police that he did not realise what time it was and that he was, “trying to help a mate out by giving him a lift home.” Curiously, there is no mention in the statement of facts about whether there was also another passenger in the car and, if so, where that passenger lived.
Given the level of intoxication and the fact that the police officers described him as having watery eyes, slurred speech and as being breathless, it is probably true that his faculties were so impaired that he did not in fact know that he had passed the curfew time. This is an explanation but, of course, no excuse. The fact that he clearly was self-intoxicated meant that he had put himself in a position where he was at risk of breaching his bail conditions.
It is, of course, clear that he was blatantly in breach of his bail. It was one hour and 50 minutes after the curfew time had started. It is also probably a notorious fact that drug dealers do their work sometimes at night, especially in relation to what might be called party drugs. Suspicion, however, is not a sure basis on which to decide this issue of whether bail should be revoked and whether bail should be granted again, although that risk is no doubt the reason why the curfew was imposed in the first place and why a breach of it is so relatively serious.
I am also aware that Mr Asgari is to be sentenced by the Chief Justice on 9 July 2009, only about three weeks away. In Burton v R (1974) 3 ACTR 77, Fox J relied on the fact that sentencing was to take place shortly thereafter to refuse bail in that case.
Ms J Campbell, who appeared for the DPP, fairly put the case. She noted that the charges that Mr Asgari is facing are ones where a jail sentence would be well within range. Mr K Saeedi, who said all that could be possibly said on behalf of Mr Asgari, agreed to this assessment.
Were the offence committed by Mr Asgari in the commission of the breach of bail to have been of a kind that Mr Asgari is facing in this court, I would have had no hesitation in refusing him bail. This is a borderline case. Courts, as Mr Asgari must realise, impose bail conditions in a way that is intended to satisfy the court that the liberty of the offender bailed can be granted in the context of the objectives of the Bail Act1992 (ACT) (see s 22) and that those objectives, including the attendance of the defendant at court, the protection of the community against the commission of further offences and the interests of the offender and other persons, can be properly protected. Mr Asgari must realise that he cannot automatically expect that bail will not be revoked where he breaches conditions that the courts expect him to obey.
I have said it is a borderline case and Mr Saeedi has relied upon the undoubted fact that this is the first occasion on which Mr Asgari comes before the courts for drug offences. Had he a history of drug offending, which he will now have by virtue of the pleas of guilty that he has entered into, breaches of conditions such as a curfew, imposed obviously because of the nature of the offences, would also justify the court in refusing to allow him further bail.
On balance, however, I am prepared to grant him bail again, but on conditions that are, on this occasion, somewhat stricter than those that have already been granted. I will grant him bail then on the following conditions:
-that he accept supervision by the Chief Executive, or the Chief Executive’s delegate and obey all reasonable directions of the person delegated to supervise him;
-that he reside at 16 Ammon Pl, Kambah but not absent himself from that place of residence between 10 pm and 6 am daily;
- that he abstain from the use of alcohol and illicit drugs;
-that he submit, as and when required, to breath analysis and urinalysis;
-that he report to the officer in charge at Woden Police Station every day between the hours of 8 am and 8 pm;
-that he not contact, directly or indirectly, or approach Martin Dolezal;
-that he, upon release, attend at 4.30 pm upon ACT Corrective Services at Eclipse House for the purpose of arranging supervision.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 23 June 2009
Counsel for the prosecution: Ms J Campbell
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
Counsel for the accused: Mr K Saeedi
Solicitor for the accused: Kamy Saeedi Lawyers
Date of hearing: 23 June 2009
Date of judgment: 23 June 2009
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