IN THE MATTER OF AN APPLICATION FOR BAIL BY DAVID LAIPATO

[2014] ACTSC 130

IN THE MATTER OF AN APPLICATION FOR BAIL BY DAVID LAIPATO
[2014] ACTSC 130 (17 April 2014)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Application for bail – Bail granted with conditions – no matter of principle

EX TEMPORE JUDGMENT

No. SCC 71 of 2014

Judge:              Refshauge J
Supreme Court of the ACT

Date:               17 April 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCC 71 of 2014
AUSTRALIAN CAPITAL TERRITORY    )          

THE QUEEN

v

DAVID LAIPATO

ORDER

Judge:  Refshauge J
Date:  17 April 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. Mr Laipato be granted bail from 24 April 2014 at 9:30 am with the following conditions:

(a)        that there be a cash surety in the sum of $1,000;

(b)        that he be subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him;

(c)        that he report to the officer-in-charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 7:00 am and 8:00 pm;

(d)        that he reside at [redacted];

(e)        that he remain in and be present at his residence between the hours of 8:00 pm and 7:00 am daily;

(f)         that he not enter the suburbs of Dunlop and Bruce;

(g)        that he not use illicit drugs or alcohol;

(h)        that he submit to urinalysis when directed by the person delegated to supervise him and it is recommended that that urinalysis be undertaken weekly;

(i)          that he submit to mentoring by CADAS and investigate and, if found suitable, undertake counselling and drug rehabilitation by an agency agreed between CADAS, the person authorised to supervise him and himself;

(j)         that he enrol for and, if accepted, undertake the course in building arranged by the Capital Training Institute of Australia;

(k)        that he not approach directly or indirectly, harass, annoy or intimidate [redacted];

(l)          that he not approach [the complainant] or be within one hundred metres of her unless she expressly consents to that, which consent may be withdrawn at any time and he not remain in the presence of [the complainant] if she objects to him being in her presence.

1. David Christopher Laipato has applied for bail in respect of charges of assault, threatening to kill and choking a person arising out of an incident that occurred on 16 February 2014, where he visited a woman with whom he had been in a relationship for about twenty months.  The allegation is of serious violence to her at that time, including choking her to insensibility and only being stopped from doing so when her friends pulled him off her.  He has, I am told, made four applications for bail.  The most recent one was an application made to Master Mossop, when he sought bail to attend the funeral of a relative and Master Mossop granted him bail on that day to attend the funeral and he complied with the conditions of bail.

1. I was told, without objection, that one of the factors in the refusal of bail on the previous occasions had been the fear that Mr Laipato would approach his former partner and that there would be the commission of further offences as a result. 

1. His incarceration and bail applications have had a somewhat chequered history.  At the time of the bail application before Master Mossop, the complainant had put in place a domestic violence order.  However, on 28 March 2014, she withdrew her application and the order was dismissed.  Since that time, she has actually visited Mr Laipato at the Alexander Maconochie Centre (AMC).

1. On 17 April 2014, the complainant attended on the office of the Director of the Public Prosecutions and a file note, which has been tendered, records that she has no concerns for her safety providing that Mr Laipato is not using drugs or drinking.  She acknowledged that she had been out to visit him at the AMC and she was reported as saying, “I’m for him getting bail”.  She hoped that there would be some bail conditions in place.  There is a reference to “no contact” and a repeat of her worry about her safety when he is drinking and using drugs.

1. It was suggested by the Crown that the urinalysis of 31 March and on 4 April had been positive to amphetamines and methamphetamines.  Material provided from the Correctional Centre computer, which was helpfully provided by a Corrections Officer who was present at the hearing of the bail application, discloses that that is not correct, that there is no record of a positive return of drug urinalysis since 19 February 2014 when there was a positive record for methamphetamine but that was shortly after Mr Laipato was arrested and taken into custody.  It appears, therefore, that there has been some change in his drug situation.

1. It was also put to me that Mr Laipato has an obligation, and there is a need for him, to be at home to assist his mother.  His mother has recently undergone knee surgery and is rendered immobile, requiring one to one care while she recovers from that surgery for approximately eight weeks.  Evidence was given by her husband that, culturally, Mr Laipato has an obligation to assist the family and that he is finding it difficult to obtain other persons who can do that.  There are, however, a number of persons within their, the Tongan, community who have not been asked and who may be able to assist.  He has spoken to three relatives and they are unable to assist.  There is an alternative in that he could take leave without pay, although that would obviously put significant financial pressure on the community.

1. I also have a letter from the minister of the church at which Mr Laipato worships and he says that:

During David’s detention, his parents have continued to visit him on a number of times each week and I have also kept in touch with him over this time as well.  On earlier occasions when on parole, David has worshipped with us on Sunday and participated in other church activities at various times during the week.  I understand if bail is approved, he will reside with his parents at Kambah.  They are concerned to ensure David will not breach bail requirements.  I seek your sympathetic consideration of Tavito (David) Laipato’s situation believing the time is now right for him to begin the process of moving into his next stage of life.  David has learnt, I believe, from the difficult places he has been in the past.

1. He certainly has been in difficult places in the past.  His record is one that is very troubling.  His most recent offence is a serious one of possessing of a prohibited weapon although I had no information about the weapon that was possessed.  He was sentenced to imprisonment for six months for the offence, but that sentence was immediately suspended with certain conditions.  Earlier than that, there have been a number of assaults, three occasions where he committed assaults occasioning actual bodily harm and one offence of recklessly inflicting grievous bodily harm.  He was sentenced to imprisonment for that latter offence for three years with a non-parole period of one year and six months.  The parole has not ended because of breaches of that parole and will not end until October 2014.

1. Mr Laipato’s father is prepared to offer a cash surety of $1,000 and to have his son live at his home, obviously in order, in part, to assist him with his wife’s rehabilitation and recovery.  Mr Laipato has also been involved in a building course through the Capital Training Institute and he has available to him a class to start on 5 May 2014 if he is able to do that.

1. The Crown have submitted that there is, in view of his history and the nature of his offending, a risk of re-offending if he is granted bail.  There is also, in the Crown’s submission, a risk of Mr Laipato harassing or endangering the safety of the complainant and intimidating other witnesses.  The matter is not an easy one and is finely balanced.  It seems to me, however, that, in all the circumstances, I can grant Mr Laipato bail on very strict conditions and that he will realise that his situation is such that a breach of any condition of the bail will result in him being incarcerated and, given his present circumstances and the seriousness of the offences with which he has been charged, the likelihood of further grant of bail is remote if not almost non-existent. 

1. I grant bail to Mr Laipato, to commence on 24 April 2014 at 9:30 am with the following conditions:

(m)       that there be a cash surety in the sum of $1,000;

(n)        that he be subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him;

(o)        that he report to the officer-in-charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 7:00 am and 8:00 pm;

(p)        that he reside at [redacted];

(q)        that he remain and be present at his residence between the hours of 8:00 pm and 7:00 am daily;

(r)         that he not enter the suburbs of Dunlop and Bruce;

(s)        that he not use illicit drugs and alcohol;

(t)         that he submit to urinalysis when directed by the person delegated to supervise him and it is recommended that that urinalysis be undertaken weekly;

(u)        that he submit to mentoring by CADAS and investigate and, if found suitable, undertake counselling and drug rehabilitation by an agency agreed between CADAS, the person authorised to supervise him and himself;

(v)        that he enrol for and, if accepted, undertake the course in building arranged by the Capital Training Institute of Australia;

(w)       that he not approach directly or indirectly, harass, annoy or intimidate [redacted];

(x)        that he not approach [the complainant] or be within one hundred metres of her unless she expressly consents to that, which consent may be withdrawn at any time and he not remain in the presence of [the complainant] if she objects to him being in her presence.

1. [His Honour then spoke directly to Ms Laipato]

1. Mr Laipato, your counsel will explain those conditions to you but because you are in the AMC and she is here, I need to just briefly explain those to you.  You have been on bail before.  I think you understand the conditions, but you are under supervision.  You have a residence condition where you must live.  You have a curfew.  You must not use drugs and alcohol.  You have to submit to urinalysis.  You have to be under the care of CADAS and you have to investigate, with them, drug counselling.  Now, that might be just, you know, once a fortnight from ACT Health or Directions ACT or one of those places, but I think you need to start plugging into that connection.  You are not to make any contact with the witnesses in this case and your relationship with [the complainant] is entirely at her request;  that is, she can come and see you but if she says, “It is ending”, then that is it.  I do not know whether you have an anger problem.  I have not done anything about that, but if you do, you need to talk to your probation officer about that and get some help because your history is a really bad one and this is almost your last chance.  It is never your last chance, you know, there is always the possibility of a further chance, but you are in real danger at the moment that, if you do not take this opportunity and comply to the letter with every one of these bail conditions, you will just spend your time in and out of jail forever and that is no good for you or for your family or for the complainant if there is some future there with you.  This is really serious stuff, all right, and those conditions are for the protection of the community but also to give you the opportunity to meet your obligation to your parents and if you are genuine, as Ms Bolas tells me you are, about making a new start, then this is your opportunity to show that you really can do so.  I have given you the opportunity.  Do not misuse it because there will be no sympathy for you if you do.

   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: 29 July 2014

Counsel for the Crown:  Mr M Fernandez
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:  Ms K Bolas
Solicitor for the defendant:  Kim Bolas Criminal & Family Lawyers
Date of hearing:  17 April 2014
Date of judgment:  17 April 2014