IN THE MATTER OF AN APPLICATION FOR BAIL BY SAMNANG OEUR
[2011] ACTSC 108
•10 June 2011
IN THE MATTER OF AN APPLICATION FOR BAIL BY SAMNANG OEUR
[2011] ACTSC 108 (10 June 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – interpreting the Bail Act 1992 (ACT) consistent with human rights – bail granted.
Human Rights Act (2004) (ACT)
Bail Act 1992 (ACT)
EX TEMPORE JUDGMENT
No. SCC 80 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 10 June 2011
IN THE SUPREME COURT OF THE )
) No. SCC 80 of 2010
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION FOR BAIL BY SAMNANG OEUR
ORDER
Judge: Refshauge J
Date: 10 June 2011
Place: Canberra
THE COURT ORDERS THAT:
Samnang Oeur be granted bail to appear in the Supreme Court on 19 July 2011 at 9.30 am on the following conditions:
a. he reside at 14 Harford Street, Richardson, ACT;
b. he not absent himself from his place of residence between the hours of 8.30 pm and 8.00 am daily and to present himself to any police officer at that address if requested during that period;
c. he report to the Tuggeranong Police Station every day between 8.00 am and 8.00 pm;
d. he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him including as to treatment and counselling for drug use;
e. he accept mentoring by CADAS, to obey all reasonable directions of any officer of CADAS and to consent to CADAS providing any information reasonably required by the officer delegated to supervise him;
f. he abstain from the use of illicit drugs;
g. he submit to urinalysis as and when required;
h. he accept counselling at Directions ACT in accordance with the treatment plan referred to in the letter from Directions ACT dated 31 May 2011 (being Exhibit 1 in this bail application) and consent to that agency providing any information reasonably required by the officer delegated to supervise him or CADAS; and
i. he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City, on release from bail.
This is an application for bail by Mr Samnang Oeur who has been committed for trial to this court on a charge of trafficking in a controlled drug other than cannabis.
He has been on bail but breached his bail and was unsupervised and non-compliant with his bail conditions for some months before he surrendered himself to police and came back before the court. I then remanded him in custody on 25 May 2011 and adjourned the matter so that there was a possibility of some application for further bail to be made.
It appears from the evidence that I have now heard that Mr Oeur recognised that his absence from the bail structure system was going to lead him into difficulties and although he had relapsed at that time into drug use, he took steps to reduce his drug use prior to surrendering himself. He also appears to have made a plan for addressing his drug use, at least in the short term, in part motivated by his wish to re-engage with his partner and to have access to his child. That will, of course, be a long and difficult road because Care and Protection Services (CPS) have taken some steps to take the child into care, partly because his partner has also relapsed into drug use, but she has now entered rehabilitation at The Karralika Program (Karralika). Mr Oeur, in due course, wishes to join her there, which seems, on the evidence before me, to be a possibility.
The difficulty in the short term is that Mr Oeur is currently on a dose of 25 millilitres of methadone and Karralika currently has not been accepting people who are taking methadone. That, I am told, may be changing and it may be that in the future there is some realistic possibility of Mr Oeur and his partner both spending time at Karralika.
It appears that Mr Oeur has the capacity to show insight and to plan what he wants to do. It is a pity that some of that planning was not instituted before he had accumulated a depressingly long history of offending, particularly in relation to drug offences, which has led him not only to where he now is, but also having to have spent time in prison on earlier occasions.
It has been put to me by Mr S Drumgold, who appeared for the Prosecution, in what is a persuasive submission, that the proposed arrangements currently for Mr Oeur are somewhat risky. He will be living in the community and will be obtaining counselling and support from Directions ACT, but, having transitioned from a usage of approximately a gram of heroin (cut down to about half a gram immediately before surrendering himself) to what is likely to be much less - although one cannot say no drug use in the Alexander Maconochie Centre (AMC) – to be released back into the community where, to a large extent, his access to drugs will be unregulated, there is a real risk.
I am mindful that the Human Rights Act (2004) (ACT) (the Human Rights Act) requires me to interpret the Bail Act 1992 (ACT) (the Bail Act) in a way that is consistent with human rights, and one of the human rights is to be free, at liberty in the community while awaiting trial. That is subject to reasonable limitations and the Bail Act is properly a reasonable limitation on that and requires me to be concerned about issues including whether he will attend to take his trial, whether he will commit further offences while on bail and whether he will put himself in a situation of risk. There are other considerations under the Bail Act, but those appear to me to be the significant ones at this time.
It seems to me, presently, that it is unlikely that Mr Oeur will gain significant rehabilitation while in the AMC. There are provisions in the AMC for assistance and I do not want it to be thought that I am unaware of the support that can be accessed within that Centre. It seems to me, however, that one of the significant supports for Mr Oeur would be some kind of residential rehabilitation and that is certainly not available for him on remand in the AMC.
Nevertheless, some intensive support in the community is perhaps not inappropriate because it puts Mr Oeur in a situation where he has really to address his commitment because there is the real likelihood of temptation and opportunity in the community.
I am satisfied that he has thought through some of the issues that he needs to address. He has a place to stay and it is with a person whose occupation shows that she has some understanding of the challenges that Mr Oeur will face, and, by virtue of her contact with his partner, she has a clear understanding of the circumstances that he presently presents.
He is still looking to join his partner in Karralika and that commitment is a strong one, if it can be motivated, for good. I have to recognise that there is also the real possibility that if I release Mr Oeur on bail, and it is difficult for him to get into Karralika or he does not actually feel committed for that, I may have two disasters on my hands if both he and his partner take off and return to drug use and to crime.
It is always a difficult exercise to balance the needs that the court must take into account under the Bail Act, and the need for liberty as mandated under the
Human Rights Act.
It seems to me, however, in this case that it is worth taking the risk because I think the opportunity for Mr Oeur to address his drug addiction has a real motivator behind it, which is reinforced by the planning and the actual operation of that plan, that he has put in place with his addressing of the reduction of drug use prior to surrendering himself and accessing the methadone program in the way that he has.
Accordingly, I am prepared to grant Mr Oeur bail, but on the very strict conditions as follows, that:
a. he reside at 14 Harford Street, Richardson, ACT;
b. he not absent himself from his place of residence between the hours of 8.30 pm and 8.00 am daily and to present himself to any police officer at that address if requested during that period;
c. he report to the Tuggeranong Police Station every day between 8.00 am and 8.00 pm;
d. he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him including as to treatment and counselling for drug use;
e. he accept mentoring by CADAS, to obey all reasonable directions of any officer of CADAS and to consent to CADAS providing any information reasonably required by the officer delegated to supervise him;
f. he abstain from the use of illicit drugs;
g. he submit to urinalysis as and when required;
h. he accept counselling at Directions ACT in accordance with the treatment plan referred to in the letter from Directions ACT dated 31 May 2011 (being Exhibit 1 in this bail application) and consent to that agency providing any information reasonably required by the officer delegated to supervise him or CADAS; and
i. he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City, on release from bail.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 10 June 2011
Counsel for the Applicant: Mr C Lynch
Solicitor for the Applicant: Craig Lynch and Associates
Counsel for the Respondent: Mr S Drumgold
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 10 June 2011
Date of judgment: 10 June 2011
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