IN THE MATTER OF AN APPLICATION FOR BAIL BY ANNETTE HABER
[2011] ACTSC 97
HUMAN RIGHTS ACT 2004 (ACT)
IN THE MATTER OF AN APPLICATION FOR BAIL BY ANNETTE HABER
[2011] ACTSC 97 (20 April 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – presumption of bail.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – balancing the risk considerations – bail granted.
Bail Act 1992 (ACT)
Human Rights Act 2004 (ACT), s 18
Crimes (Sentencing) Act 2005 (ACT), Pt 8.1
Burton v The Queen (1974) 3 ACTR 77
Griffiths v The Queen (1977) 137 CLR 293
EX TEMPORE JUDGMENT
No. SCC No 87 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 20 April 2011
IN THE SUPREME COURT OF THE )
) No. SCC No 87 of 2011
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION FOR BAIL BY ANNETTE HABER
ORDER
Judge: Refshauge J
Date: 20 April 2011
Place: Canberra
THE COURT ORDERS THAT:
Annette Haber be released on bail not before 8.00 am on 23 May 2011, to appear at the ACT Magistrates Court on 5 July 2011 on the following conditions:
- She reside at 37 Fairweather Circuit, Lyneham, ACT.
- She accept supervision of the Chief Executive or her delegate and obey all reasonable directions of the person delegated to supervise her.
- She submit to counselling and case management by Directions ACT and obey all reasonable directions of the counsellor and case manager of that agency and that she consent to that agency providing any information reasonably required of the Chief Executive or the person delegated to supervisor her.
- She not consume alcohol.
- She submit to breath analysis when required by the Chief Executive or the person delegated to supervise her or by any police officer.
- She report to the officer in charge of Civic Police Station twice each day, once between the hours of 8 am and 11 am and once between the hours of 5 pm and 8 pm, the first such reporting to be between 5 pm and 8 pm on 23 May 2011.
- She not drive a motor vehicle, or be in the driving seat of a motor vehicle or be in the possession of the keys of a motor vehicle.
- She not assault, threaten, harass or intimidate Bradley O’Meara, Harley O’Meara or Sharni Haber-Dunn.
- She not communicate with or attempt to communicate with, directly or indirectly, Sharni Haber-Dunn.
- She not be within 100 metres of Sharni Haber-Dunn.
- She report on 23 May 2011, upon her release, to Directions ACT, to arrange counselling and to ACT Corrective Services to arrange supervision.
There is no doubt that the applicant for bail, Annette Haber, is an alcoholic. That is, she abuses alcohol and it leads her to behave disgracefully, aggressively and criminally. Police have had, on many occasions, to attend on premises where she is often found drunk and aggressive.
She has pleaded guilty to a serious assault on her partner when she used a metal bar to hit him. She has breached her bail by using alcohol on two occasions that have been brought to the notice of the court. There were probably other occasions when in breach of her bail conditions, she has used alcohol because of her addiction, but I have no express evidence of this.
When, on the second breach, after I had already granted her continuing bail after a first breach, she was arrested for consuming alcohol, I was inclined to refuse her bail but her counsel applied for it. Evidence was given that the real risk was of further alcohol consumption. Constable Paul Garner indicated that twice daily reporting conditions would allow appropriate monitoring of alcohol abuse.
Nevertheless, I was not persuaded that this was, in itself, sufficient: there had to be in place a rehabilitation proposal since expressions of commitment to comply with the bail condition not to consume alcohol had now to be considered worthless. When the application resumed before me today, I was presented with a case plan that showed significant involvement with Directions ACT and a number of other agencies.
It included the use of anti-craving medication, individual counselling, attendance at Smart Recovery meetings and a number of other strategies that were designed to address the alcohol addiction as well as other issues, such as employment.
Mr J Silk, who appeared for Ms Haber, submitted that these arrangements, together with the proposed reporting requirements foreshadowed, would be adequate and permit Ms Haber to show, for the first time, that she was able, genuinely, to address the alcoholism which probably was the primary if not only cause, of her offending behaviour.
Mr T Hickey, who appeared for the prosecution, opposed bail submitting that Ms Haber’s relapse into alcohol use was inevitable, and this placed her child and possibly her partner at risk of assault, or at least in the case of her child, exposure to quite unacceptable behaviour. He submitted that nothing short of residential rehabilitation was appropriate and without that, the risk was so great that bail should not be granted.
Bail is, of course, an exercise in assessing and balancing the risks that the Bail Act 1992 (ACT) (the Bail Act) requires the court to consider: risk of flight, risk of re-offending, risk of interference with witnesses, risk of self harm. Refusal of bail is not to be used as punishment and the Bail Act is to be interpreted consistently with the rights set out in the Human Rights Act 2004 (ACT), especially the right not to be detained, as a general rule, in custody awaiting trial under s 18(5) of that Act.
If, however, after assessing the risks mentioned above, the defendant or accused should not be granted bail because those risks are unacceptable, then bail should be refused. In this case, Ms Haber has been granted bail and has, on two proved occasions, breached the condition that was expressly designed to prevent the occurrence of the behaviour that caused the offending with which she has been charged and in at least one case to which she has pleaded guilty.
Indeed, she was, on 30 March 2011, sentenced on a charge of driving a motor vehicle with a prescribed concentration of alcohol in her blood, to a term of imprisonment which was suspended and a good behaviour order was made, which amongst other obligations, required her to attend certain programs as directed, “particularly in relation to alcohol abuse”.
No information was given to me by Ms Haber or the prosecution of what programs, if any, she had been directed to attend and what progress she had made, if any, at attending them. Evidence was given by Constable Sally Hardiman. She stated that police had attended, not infrequently, on Ms Haber when complaints were made about her behaviour, but no doubt very frustratingly, support for prosecution was not forthcoming from the complainant which meant charges could not be laid.
She also stated that she had apprehended Ms Haber on at least one occasion for a drink-driving offence when she was well affected by alcohol but driving with children in the car. She also gave evidence of her concern about the circumstances in which Ms Haber’s young son was living. She had made a number of contacts with Care and Protection Services but for whatever reason, no action was taken.
She did say, however, that an older daughter, the complainant in an assault charge that was defended, was no longer living with Ms Haber. This had resulted in a further breach of bail, for Ms Haber had sent a birthday card to her daughter, despite a condition in her bail that she could not contact her directly or indirectly. These cumulative breaches of bail would provide sufficient justification for the court to refuse bail.
If Ms Haber cannot comply with the conditions imposed, then she has no further entitlement to her liberty. I had also noted that the matters are listed for hearing on 5 July 2011, not a long time away from now. As this court said in Burton v The Queen (1974) 3 ACTR 77, the relative proximity of a hearing is a valid reason for refusing bail.
The concern for Ms Haber’s child is also a legitimate concern, though if the body charged with the responsibility to monitor that, namely Care and Protection Services, has not taken action, a court should be very cautious about using bail to achieve an objective that that agency has chosen not to pursue, namely the separation of child and mother.
That, of course, might be overtaken where there is a concern or specific danger to the child, but nothing of that kind was in evidence other than foul and completely inappropriate language and aggressive behaviour to police in the child’s presence in respect of the most recent breach of bail.
Mr Hickey submitted that the case plan was too thin, that the protections were not of sufficiently restrictive a character to ensure that the inevitable relapse into alcohol would not occur. There is a reasonable basis for that submission.
On the other hand, this appears to be the first occasion on which Ms Haber has actually taken positive steps and committed herself to an alcohol rehabilitation program. Often the opportunity pre-sentence can be more important than the post-sentence subsequent requirement. This is part of the justification for what used to be known as the Griffiths Remand (see Griffiths v The Queen (1977) 137 CLR 293) and is now a deferred sentence order under Pt 8.1 of the Crimes (Sentencing) Act 2005 (ACT).
Evidence of Ms Kayleen Mallett, from Directions ACT, was that a residential option through Arcadia House had been discussed. This is an eight week program but there is currently an eight week waiting list for it. She expressed confidence in the ability of Directions ACT, with the associated supports offered, to manage Ms Haber, but fairly acknowledged that there was no guarantee of success. Importantly, she accepted that she had an obligation to report any failures or breaches of Ms Haber.
At the end of the day, Ms Haber has to address her alcohol abuse. She will have to live in the community at some stage and she must address the risks and temptations that that will bring.
While the offences for which she has been charged are serious and a sentence of imprisonment is well within range as a sentencing option, they do not breach the suspended sentence imposed on her by Chief Magistrate Burns, nor will they necessarily or inevitably result in imprisonment. In these circumstances, the sooner Ms Haber commences rehabilitation and learns to manage her addiction within the community, the sooner the community will benefit.
I have had to consider this matter very carefully as the balance between bail and remand is finely poised, even taking into account the presumption in the favour of bail. In the end I have decided to grant Ms Haber bail but on very strict conditions and to note in these remarks, that any breach of any significance of any term is extremely likely to result in the revocation of the bail.
Recording that in these remarks enhances the prospect that other judicial officers that may have to consider any such breach can be informed of the approach that I have taken and the understanding Ms Haber must have of her obligations in this regard. The conditions are strict and detailed and I do not believe that they will set up Ms Haber to fail if she is genuine in her now proposed commitment to rehabilitation.
She will, however, be at risk if it is merely a façade and her commitment disappears shortly after her release.
Because of the unlikelihood of her obtaining the desired medication quickly, I have decided that she should be released not before 8.00 am on Monday 23 May 2011, to appear at the ACT Magistrates Court on 5 July 2011 on the following conditions:
a. She reside at 37 Fairweather Circuit, Lyneham, ACT.
b. She accept supervision of the Chief Executive or her delegate and obey all reasonable directions of the person delegated to supervise her.
c. She submit to counselling and case management by Directions ACT and obey all reasonable directions of the counsellor and case manager of that agency and that she consent to that agency providing any information reasonably required of the Chief Executive or the person delegated to supervisor her.
d. She not consume alcohol.
e. She submit to breath analysis when required by the Chief Executive or the person delegated to supervise her or by any police officer.
f. She report to the officer in charge of Civic Police Station twice each day, once between the hours of 8 am and 11 am and once between the hours of 5 pm and 8 pm, the first such reporting to be between 5 pm and 8 pm on 23 May 2011.
g. She not drive a motor vehicle, or be in the driving seat of a motor vehicle or be in the possession of the keys of a motor vehicle.
h. She not assault, threaten, harass or intimidate Bradley O’Meara, Harley O’Meara or Sharni Haber-Dunn.
i. She not communicate with or attempt to communicate with, directly or indirectly, Sharni Haber-Dunn.
j. She not be within 100 metres of Sharni Haber-Dunn.
k. She report on 23 May 2011, upon her release, to Directions ACT, to arrange counselling and to ACT Corrective Services to arrange supervision
I note that I would expect that police would subject Ms Haber to breath analysis on every occasion she reports.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 20 April 2011
Counsel for the Applicant: Mr J Silk
Solicitor for the Applicant: Jeffrey Silk Solicitor
Counsel for the Respondent: Mr T Hickey
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 20 April 2011
Date of judgment: 20 April 2011
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