IN THE MATTER OF AN APPLICATION FOR BAIL BY DEAN SIMONDS - [2011] ACTSC 93

IN THE MATTER OF AN APPLICATION FOR BAIL BY DEAN SIMONDS
[2011] ACTSC 93 (24 May 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – bail – turns on its own facts.

Court Procedures Rules 2006 (ACT), r 4734

EX TEMPORE JUDGMENT

No. SCC 71 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 24 May 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 71 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

IN THE MATTER OF AN APPLICATION FOR BAIL BY DEAN SIMONDS

ORDER

Judge:  Refshauge J
Date:  24 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

The application be adjourned to 5 August 2011 at 9.30 am. .

The arguments about the appropriate policy to manage the public health and criminal justice implications of the use of mind altering substances presently made illegal are currently debated intensively in the community, but in the meantime the public health and criminal justice systems have to deal with the reality that the costs of illicit drugs and their addiction cause significant distress, damage and crime.
Mr Dean Simonds has been charged with aggravated burglary, assault occasioning actual bodily harm and theft. He has been remanded in custody since he was before the court on 20 November 2010. Mr Simonds has now applied to me for bail pending his trial, which has not yet been listed. The defence filed their answers to the questionnaire required by r 4734 of the Court Procedures Rules 2006 (ACT), only on 7 April 2011.
A tentative trial date has been offered, but there are issues that Mr Simonds and his lawyers need to resolve before arraignment and the court is awaiting their response to those issues. It is, however, likely that his trial will be listed in mid 2012.
Mr Simonds has a long history of criminal offences of which he has been convicted. Many relate to drug offending directly, such as possession and supply of drugs, and his record includes others which it would be reasonable to infer were drug related, such as possession of stolen property, receiving, stealing and burglary.
His record extends back to 1999 and since then he has accumulated convictions for a total of 65 offences, though a number are relatively minor traffic or other offences for which he was fined. In addition, there are a number of offences of violence where, of course, members of the community have been physically or directly harmed.
The current offences, to which he has pleaded not guilty, relate to what, if proved, was a nasty serious home invasion which involved the use of actual violence and the

possession of a knife. A weapon that the courts regard as making an offence of violence more serious, as well as the actual injury inflicted by the use of a crow bar.

Though Mr Simonds has pleaded not guilty, for the purposes of this application I have to assume that the prosecution have reasonable prospects of securing a conviction. That is to say, I have to assume that Mr Simonds may well be convicted of the offences.
This has two consequences. In the first place, it enables me to say that in that event he is likely to be sentenced to a significant period of imprisonment and this increases the risk of flight and Mr Simonds not attending to take his trial. It also raises the question of whether pre-trial and, possibly, pre-sentence rehabilitation, is of value in this case when his return to custody is a real, though, of course, not guaranteed possibility.
That return to custody is made more problematic by the possibility that he has not already, but will, if convicted, breach a parole order that was made in New South Wales, requiring him to spend even more time in custody in New South Wales. While some submissions were made by Ms T Warwick, who appeared for Mr Simonds, that the prosecution case has some weaknesses, it does not seem to me that they undermine the case to an extent that will have much effect on this bail application.
Essentially, Mr Simonds sought bail to undergo drug rehabilitation at the Canberra Recovery Services, conducted by the Salvation Army at Fyshwick. He has been assessed as suitable and a bed is currently available for him. This is a program to which offenders and accused persons are regularly referred by the courts, whether as a condition of bail, as part of a deferred sentence order or as part of a sentence, usually through conditions to a good behaviour order.
In opposition to bail, the prosecution has produced an extensive bundle of material relating to other charges being faced by Mr Simonds, namely an aggravated burglary and theft, alleged to have been committed by Mr Simonds. He was arrested with his then partner and another woman.
The opposition to bail includes a fear that he will reoffend. He has, as I have noted, an extensive criminal history, especially for drug and drug related offences. Indeed on 6 August 2010, he was released on parole from New South Wales where he had been convicted of various drug offences in 2008 and ten days later was arrested and charged with further such offences. These, if proved, will no doubt, together with the offences he is facing in the ACT, result in his parole being revoked and presumably he will spend further time in prison.
It was submitted, with great force I have to say, that his history, particularly his recent history, gives no confidence that he can be in the community without committing further offences. This is reinforced by his behaviour whilst in custody at the Alexander Maconachie Centre while on remand. He has seven incidents recorded against him relating to assaults and possession of items that he should not have.
In addition, I was informed today that he was found to have used drugs, as shown by urinalysis on 19 April 2011 and 8 May 2011, both of which occurred after this application for bail had been made, although Mr Simonds’ application for bail has been adjourned a number of times. Mr Simonds has previously completed a program with Canberra Recovery Services.
He thought, in his letter to me, that this was in 2005, but he was admitted to the program in October 2006, receiving his completion certificate in August 2007. That, of course, was only about five months before he committed the supply drugs offences for which he received the significant sentence of imprisonment in New South Wales from which he was paroled in August last year.
Mr Simonds wrote a letter to me setting out his claim for bail. In it he said that he had been “fighting” his drug addiction for ten years. He says he was not really ready to admit that he was a drug addict in the earlier stages, but in his previous period at Canberra Recovery Services, he gradually did lead to a recognition of this and, as he put it, “I put my head down and I graduated ten months later with a heap of new living skills and changed [sic] now.”
He claims that his life was back on track and he stayed drug free and held an apprenticeship for three years. That cannot quite be right in the terms of the history I have before me for he has convictions for drug offences committed in September 2006 and January 2008. He says, however, that his relapse into drug use occurred when he arrived home unexpectedly to find his partner in bed with another man.
He says that he could not deal with the trauma and he attempted self-harm, but found that he soon fell back into his old ways with drugs. He says that he is now desperate to address his offending behaviour and is serious about wanting what Canberra Recovery Services has to offer. He says that he has three young boys and wants to be able to provide some fatherhood to them and become a responsible citizen. These are fine words and, of course, the court hopes that they actually do mean that he is ready to address his offending behaviour.
Mr C Todd, who appeared for the prosecution, pointed out that after three weeks at Canberra Recovery Services, residents are able to access day leave at the weekend and in due course leave for the whole of the weekend. That would provide Mr Simonds with a clear opportunity to abscond or indeed commit further offences. Mr Todd further noted that Mr Simonds has not undertaken the First Steps six week program in the Alexander Maconachie Centre.
I have a report from The Peppers Illicit Drug Rehabilitation Service where Mr Simonds’ partner is now in the final stage of her rehabilitation. She has participated in a number of programs and also engaged in volunteer work in the community. The report stated that she “... has made good progress ... [and has] remained abstinent from alcohol and other drugs...” She was admitted to the program on 19 January 2011.
The options for drug treatment of remand prisoners at the Alexander Maconachie Centre are limited and Mr Simonds will have to wait for over twelve months for his trial and to deal with other matters that he has yet to face in New South Wales and possibly Queensland. Unfortunately, he has not really yet shown the commitment to address his drug issues while in the Alexander Maconachie Centre at this stage.
While I accept that his drug use, as disclosed in the urinalysis conducted earlier this year is a two edged sword, for those using drugs need rehabilitation, as Ms Warwick perceptively said, but there needs to be some evidence of commitment before entering a residential rehabilitation program where abstinence is mandated.
Mr Simonds has not yet shown the commitment he has put into the words of his letter. I am prepared to give him that opportunity. I propose to adjourn this application, subject to his consent, to give him that opportunity to show that he can abstain from drugs, that he can behave without further incident in the Alexander Maconachie Centre and start the First Steps Program.
I accept that he says he is committed to change. If he can prove that to me, then I am prepared to support that by giving him that opportunity.

[His Honour then spoke directly to Mr Simonds as follows]:
Mr Simonds, I think probably we need to give you about seven or eight weeks to do that, but I said earlier, “Strike while the iron is hot”. I am prepared to do that, but you are not there yet.
You have to show you can stay out of trouble, stop using drugs and have started the First Steps Program. Now, the First Steps Program, I understand, is beyond your control. You have to apply yourself and do your darnedest to get in. I do not necessarily require you to finish it, but you have to prove more than just fine words on your letter.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex-Tempore Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 24 May 2011

Counsel for the Applicant:  Ms T Warwick
Solicitor for the Applicant:  Daryl Perkins Solicitors
Counsel for the Respondent:   Mr C Todd
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  24 May 2011
Date of judgment:  24 May 2011