In the Matter of An Application for Bail By Jeremy Schwalm
[2011] ACTSC 153
•5 August 2011
IN THE MATTER OF AN APPLICATION FOR BAIL BY JEREMY SCHWALM
[2011] ACTSC 153 (5 August 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – considerations to be taken into account when determining an application for bail – bail granted.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – interpreting the Bail Act 1992 (ACT) consistent with human rights – bail granted.
Court Procedures Rules 2006 (ACT), r 4733
Crimes (Sentencing) Act 2005 (ACT), ss 7, 12
Bail Act 1992 (ACT), s 9D, 22
Human Rights Act 2004 (ACT), s 18
Magistrates Court Practice Direction No. 1 of 2009
R v Goodwin (2009) 233 FLR 473
R v Hamid (2006) 164 A Crim R 179
Siganto v The Queen (1998) 194 CLR 656
In the matter of an application for bail by Massey [2008] ACTSC 145
In the matter of an application for bail by Skeen [2009] ACTSC 30
R (O) v Crown Court at Harrow [2006] 3 WLR 195
EX TEMPORE JUDGMENT
No. SCC 100 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 5 August 2011
IN THE SUPREME COURT OF THE )
) No. SCC 100 of 2008
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION FOR
BAIL BY JEREMY SCHWALM
ORDER
Judge: Refshauge J
Date: 5 August 2011
Place: Canberra
THE COURT ORDERS THAT:
Jeremy Schwalm be granted bail on the following conditions:
a. he be subject to the supervision of the Director General of Corrective Services or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to drug and alcohol treatment and counselling;
b. he be released into the company of an officer of ACT Corrective Services’ Managed Accommodation Program (MAP) and that he enter that program forthwith;
c. he remain in that program during the remand period and obey all reasonable directions of the person in charge of the program;
d. if, for any reason, he is discharged from the program or he completes the program, he is to report to the Registrar of the ACT Supreme Court within 24 hours with a view of returning to court for the reconsideration of his bail;
e. he is to abstain from the consumption of alcohol or illicit drugs; and
f. he is to submit to breath analysis or urinalysis when require by the person in charge of the program, the person delegated to supervise him or a police officer.
On 9 January 2008, Mr Jeremy William Schwalm was charged with assault occasioning actual bodily harm, alleged to have been committed on 25 August 2007.
The committal proceedings were conducted on 11 March 2008 and Mr Schwalm was committed to this court for trial. He was in custody at the time. The usual orders were made on 19 March 2008 about the filing and serving of the relevant pre-trial documents (see r 4733 of the Court Procedures Rules 2006 (ACT)).
On 11 April 2008, bail was granted to Mr Schwalm.
A tentative trial date was suggested for 1 December 2008 and on 19 August 2008 the matter was listed for arraignment at which it was expected that the trial date would be set. Mr Schwalm did not then appear, however, and the court was advised that he had matters in New South Wales which may, as in fact they did, result in Mr Schwalm not being able to attend to take a trial on the suggested date because he would be serving a New South Wales sentence of full time custody.
In fact, on 10 September 2008, Mr Schwalm was sentenced to a total period of 18 months’ imprisonment with a non-parole period of six months. He then appealed that sentence. The appeal was ultimately dismissed on 28 November 2008.
On 14 October 2008, I directed that a warrant should issue for Mr Schwalm’s arrest as he had not appeared on a number of directions hearings where he was required to appear. The intention was that when he was released from custody in New South Wales he would be arrested and returned forthwith to the Territory.
I do not know whether a warrant was in fact actually issued but it appears not to have been executed and, by June 2009, neither the court nor the parties seemed to know where Mr Schwalm was.
His record shows that he then received a series of prison sentences in New South Wales. On 25 February 2009 he was sentenced to 15 months’ imprisonment to date from 4 October 2008 with a non-parole period of seven months and then on 29 July 2009 he was sentenced to 15 months’ imprisonment to date from 4 January 2009 with a non-parole period of six months. On 15 December 2009, he was sentenced to a total of six months and 18 days to date from 27 November 2009. Finally on 19 May 2010 he was sentenced to seven months’ imprisonment. Thus he was, it appears, in New South Wales custody until 14 July 2010.
I was told that he returned to the Territory earlier this year in order to bring the outstanding ACT matters to a head. It appears that he did attempt to resolve the outstanding matters, for he appeared in the ACT Magistrates Court on 15 February 2011 and was dealt with by way of fines for a charge of unlawful possession of stolen property on 10 February 2008 and for breach of a bail undertaking to appear in court on 24 October 2007.
Regrettably, the matter in this court was apparently not mentioned and no steps were taken by the prosecution to arrange for any warrant to be executed or the matters to be referred to this court.
Unfortunately, his good intentions did not last and after his appearance in court he has committed a number of offences and been charged with others. As best I can tell, he was charged with:
a. dishonestly riding in a motor vehicle belonging to another person between 20 and 23 January 2011;
b. burglary between 9 and 10 February 2011;
c. stealing from the premises burgled;
d. possession of stolen property on 14 February 2011;
e. possession of a drug of dependence on 16 March 2011;
f. possession of cannabis on that day;
g. possession of cannabis on 19 April 2011;
h. possession of stolen property on 19 April 2011;
i. having with him an article for use in theft on 19 April 2011; as well as
j. failing to appear and answer to his bail on 10 October 2008.
Of these offences, I was also told that he has now pleaded guilty to the charge of possession of the various drugs, of having an article for use in theft and one of the charges of possession of stolen property, to all of which he was sentenced to a term of imprisonment which was suspended on the day on which he was sentenced.
Presumably, as required under s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), a Good Behaviour Order was also then made.
No doubt because he was in custody in New South Wales at the time, the prosecution offered no evidence on the charge of failing to answer his bail and that charge was dismissed. He has pleaded not guilty to the charges of burglary, theft and dishonestly riding in the motor vehicle. Those matters are listed for a case management hearing (see Magistrates Court Practice Direction No. 1 of 2009) on 11 August 2011, and will no doubt then, or at an adjournment of that hearing, be given a date for hearing that appears likely to be later this year.
No plea has been entered on the second charge of possessing stolen goods and I understood that representations were being made to the prosecution about that charge and that will also be listed at the case management hearing on 11 August 2011.
As to the trial of the charge in this court, it appears unlikely that it will be listed until the fourth sittings in 2012, namely November to December 2012.
On 20 April 2011, Mr Schwalm appeared in the Magistrates Court to answer a breach of bail which he admitted. He was then remanded in custody and has been in custody since then.
On 6 May 2011, he applied for bail in this court and it was refused. On 10 June 2011 he again applied for bail. That application was adjourned to 17 June 2011 and then to 20 June 2011 and then adjourned generally.
The application was re-listed on 1 July 2011, it was again adjourned generally until it came before me on 27 July 2011. I adjourned it to 29 July 2011 so that Mr D Claxton, who appeared for Mr Schwalm, could obtain further evidence about certain of the matters alleged in the application.
The application then proceeded and I reserved my decision until today.
Mr Schwalm has been assessed as suitable for the Managed Accommodation Program (MAP) conducted by ACT Corrective Services. I heard on 29 July 2011 from Mr Mark Snee of that program. It is a residential program designed as a half-way house for appropriate offenders on release from prison to help them to adjust to their integration into the community, as well as for those on bail remand to assist them address criminal issues preparatory to sentencing.
The house is staffed 24 hours a day and, while not a custodial setting, has strict rules. A curfew is imposed on residents from 10 pm to 7 am and they are subject to random urinalysis. All breaches of rules are reported, and the residential staff have no discretion about that. Mr Snee referred to a particular instance which demonstrated the stringency of that approach.
The staff assist the residents with counselling and other rehabilitation options, as well as with securing employment. Residents may stay for up to six months. Mr Snee described the philosophy of the program as giving a second chance to persons admitted to the program.
It is clear that Mr Schwalm has a significant drug problem. He has, as is not unexpected for people in his situation, a mixture of circumstances that can be optimistic and those that inevitably engender pessimism.
Most significant is his criminal record, both recent and in the past. I have briefly outlined his custodial history since 2008 and then his criminal activities since returning to Canberra. His history shows a long record of offending. This includes dishonesty, drug and traffic offences in the Children’s Court, including periods of committal to an institution. Since becoming an adult he has continued that pattern though adding to it, rather worryingly, a number of offences of violence. He was also convicted of escaping from arrest, dealt with for a breach of probation order, and has a distressingly large number of offences of failing to appear in accordance with his bail undertaking; I have counted eight since 2001.
These are a basis for at least caution, if not pessimism, about his compliance with any conditional liberty that the court might grant.
A sentence of periodic detention was also cancelled and he has been convicted of driving whilst disqualified. These must give little confidence that he is able to abide by orders of the court.
Having made that clear, it is also clear that Mr Schwalm has not been especially deterred by prison sentences in the recent past. He has recently spent significant periods of imprisonment in New South Wales between 2008 and 2010. If he is convicted of the present offences pending in this Court and the Magistrates Court, he can expect to receive a further term of imprisonment.
On the other hand, he will be in custody for a significant further period of time. I am advised that he is unlikely to obtain a hearing in the Magistrates Court until about October or November this year, and the trial in this court, as I said above (at [16]), would be unlikely to be listed before November 2012.
In addition, Mr Schwalm has commenced medical treatment, which provides significant side effects including: mild headaches, flu-like symptoms, skin reactions, fatigue, nausea, insomnia, back, joint, stomach and muscle pain, irritability and depression, poor concentration, loss of appetite, dizziness, and diarrhoea. Although I have no evidence about which, if any, of those he actually suffers, some, however, can obviously be serious.
He has indicated that he wishes “to start a new path in his life” and the MAP would be the opportunity for that.
Offenders should receive adequate punishment for offending in a way that is just and appropriate. That is mandated by s 7 of the Sentencing Act. There are, of course, other purposes of punishment as that section of the Act requires the court to take into account.
To impose a just sentence includes an assessment of the prospects of rehabilitation. That can often only be assessed by finding out how an offender responds to opportunities for rehabilitation.
The circumstances of the offence are also relevant. I have regard to the case statements (see R v Goodwin (2009) 233 FLR 473).
The incident out of which arises the charge that he faces in this court is alleged to have occurred in August 2007, now nearly four years ago. That delay is, of course, substantially because of Mr Schwalm’s New South Wales incarceration. The allegation is that the complainant and Mr Schwalm were in a de facto relationship at the time. They were then living with Mr Schwalm’s father.
The complainant went to the local shops and got lost. She called Mr Schwalm, who gave her directions as to how she should return home, which she did. She then made dinner while Mr Schwalm went to bed with a migraine headache. Sometime later, the complainant went to check on Mr Schwalm, and he told her to leave him alone. Later she went back to ask Mr Schwalm whether he wanted dinner, and he struck her in the face a number of times with his fists.
This resulted in the complainant suffering a laceration to her top lip of approximately one centimetre in length, which appears, from what the complainant later said, had bled, a swelling to her nose, which obviously also bled, and a pain in her left eye. She was quite distressed.
Mr Schwalm later said that he had a headache and when the complainant came to get him up, he became angry and hit her. He did say, “I have never been that angry with anyone in my life and never hit anybody that hard.”
Violence against women, particularly in a domestic situation, is a very serious offence, and must be treated severely by the courts. Johnson J set out in R v Hamid (2006) 164 A Crim R 179 the seriousness of the offence and approach to such offences that the court should take. Nevertheless, the injuries actually suffered by the complainant do not make it a domestic violence assault of the most serious kind.
The seriousness and extent of the injuries is an important consideration when determining the sentence to be imposed (see Siganto v The Queen (1998) 194 CLR 656 (at 666)).
In addition, apart from one charge of common assault, for which Mr Schwalm was convicted and discharged on entering a recognizance imposed for other offences, he has no convictions for actual violence on his record. In that event, it seems unlikely that he would be required to serve a sentence of more than 18 months in full-time custody for the offence and, with the present state of the court lists, this is the likely pre-trial remand period.
The factors militating against a grant of bail are:
a. his record of criminal offences, including recent offences, and particularly his record of breaching bail undertakings to appear;
b. the seriousness of the offences, for any of which he could receive a sentence of imprisonment. While he has pleaded not guilty to all but one of them, I must, for the purpose of this bail application, assume that the prosecution have reasonable prospects of proving the allegations beyond reasonable doubt;
c. the commission of offences very recently since returning to Canberra, being the charges to which he has pleaded guilty and for which he has been sentenced; and
d. his drug addiction, which makes him a risk in the community heightening the risk of reoffending.
On the other hand, the factors which favour the grant of bail are:
a. his expressed intention to pursue a new start in life and address his criminal behaviour, though clearly that must be approached with caution;
b. his voluntary return to Canberra when it seems likely that no warrant was ever actually issued;
c. the place he has in the MAP, where he can be supported and appropriate rehabilitation programs made available to him. The philosophy of the program is very much in line with Mr Schwalm’s expressed intentions;
d. the plea of guilty to a significant number of offences committed this year, showing a degree of acceptance of responsibility and insight into his situation and having resolved those issues; and
e. the time that will pass before Mr Schwalm’s trial will be held in the Magistrates Court and, more particularly, in this court, and, in particular, the relationship between that and any sentence imposed.
In this context, I have not considered the offences to be dealt with in the Magistrates Court, for the drug rehabilitation that Mr Schwalm will receive through participation in the MAP will be particularly relevant to those offences if he is convicted.
Further, any custodial sentence will bring his bail to an end and cannot be unacceptable incarceration so far as the offence in this court is concerned.
A major problem for Mr Schwalm is that the offences for which he is awaiting trial in the Magistrates Court were committed while the charge he is facing in this court was pending even though it was quite old at the time.
For the purposes of the Bail Act 1992 (ACT), both were serious offences. Under s 9D of that Act, the court may not grant bail in those circumstances unless the court is satisfied that special or exceptional circumstances exist favouring the grant of bail.
I considered the meaning of “special or exceptional circumstances” in In the matter of an application for bail by Massey [2008] ACTSC 145 (at [7] to [8], [28]) and In the matter of an application for bail by Skeen [2009] ACTSC 30 (at [32] to [39]). I adopt what I there said.
Mr Schwalm must show (either individually or in combination) unusual or uncommon circumstances would justify the grant of bail and they must relate to the granting of bail.
I am also aware that the phrase “exceptional circumstances” has been considered by the House of Lords in a human rights context which, in view of the enactment in the Territory of the Human Rights Act 2004 (ACT) and, in particular, s 18 of that Act, is relevant for my consideration.
In R (O) v Crown Court at Harrow [2006] 3 WLR 195, Lord Brown, giving the leading speech, expressed a preference for treating the requirement for exceptional circumstances to impose on the applicant for bail as an evidential burden only and that, once discharged, the burden would shift to the prosecution to show that those circumstances did not exist.
Taking all this into account, it is a finely balanced judgment, but, in the end, I am satisfied that, in this case, special or exceptional circumstances exist favouring the grant of bail and that, having regard to the matters to which I must have regard in s 22 of the Bail Act, bail on strict conditions should be granted to Mr Schwalm.
Accordingly, I propose to grant bail to the accused on the following conditions:
a. that he be subject to the supervision of the Director-General or her delegate and that he obey all reasonable directions of the person delegated to supervise him, including as to drug and alcohol treatment and counselling;
b. he be released into the company of an officer of ACT Corrective Services’ Managed Accommodation Program and that he enter that program forthwith;
c. he remain in that program during the remand period and obey all reasonable directions of the person in charge of it;
d.
if, for any reason, he is discharged from the program or he completes the program, he is to report to the Registrar of the ACT Supreme Court within
24 hours with a view to returning to court for reconsideration of his bail;
e. he is to abstain from the consumption of alcohol or illicit drugs;
f. he is to submit to breath analysis or urinalysis when required by the person in charge of the program, the person delegated to supervise him or a police officer.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 September 2011
Counsel for the applicant: Mr D Claxton
Solicitor for the applicant: S & T Lawyers
Counsel for the respondent: Mr J Lawton, Mr T Jackson and
Mr D Sahu-Khan
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 27, 29 July 2011 and 5 August 2011
Date of judgment: 5 August 2011
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