In the matter of an application for bail by Stephen Foster
[2014] ACTSC 247
•11 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application for bail by Stephen Foster |
Citation: | [2014] ACTSC 247 |
Hearing Date(s): | 11 August 2014 |
DecisionDate: | 11 August 2014 |
Before: | Refshauge J |
Decision: | Mr Foster is granted bail to attend to take his trial as and when notified on the following conditions, namely that: (a) He accept the supervision by the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him; (b) He report to the officer-in-charge of Civic Police Station every Monday, Wednesday and Friday between the hours of 8:00 am and 8:00 pm; (c) He subject himself to monitoring by the Court Alcohol and Drug Assessment Service (CADAS) and he discuss with them options for treatment and counselling; (d) He consent to any officer of CADAS providing to the person delegated to supervise him any recommendations made by that agency that he reside as directed by the person delegated to supervise him; (e) He not drink alcohol or consume illicit drugs; (f) He submit to urinalysis or breath analysis as reasonable required by the person delegated to supervise him; (g) He not be within one hundred metres of any jewellery store; (h) He not contact directly or indirectly [Redacted]. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRECTICE AND PROCEDURE – Bail – Applicant has long and depressing criminal history – Whether Applicant has “turned a corner” – Applicant’s substance abuse issues being addressed with methadone – No overwhelming risk of reoffending – Trial not imminent – Bail granted with conditions |
Cases Cited: | R v Govinden (1999) 106 A Crim R 314 |
Parties: | Stephen Foster (Applicant) The Crown (Respondent) |
Representation: | Counsel Mr J De Bruin (Applicant) Mr K Lee (Respondent) |
| Solicitors Legal Aid (ACT) (Applicant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number(s): | SCC 90 of 2014 |
Refshauge J:
Stephen Foster is charged with one count of burglary and one count of theft that arises out of an allegation that he stole jewellery worth $34,244 from the Gems & Gems shop in Canberra City, a jewellery store located within the arcade of City Walk.
Since that time, he has been further charged with theft of property from a jewellery store, on that occasion worth approximately $2,500 to $3,000 worth of jewellery, alleged to have been stolen on 15 September 2013, when he went with a female companion into a store and was said to have pocketed some jewellery from display stands.
Mr Foster has a long and depressing criminal history dating back to 1990 which includes thirty-three offences of dishonesty of various kinds including burglaries, thefts and similar matters and four offences for drug or drug related offences. That shows a continuing disregard of other people’s property and of the obligations of the law. He also has a number of other offences on his record, including traffic offences and some offences of what might be called street offences.
Perhaps worryingly for a bail application, he has two convictions for failing to appear in accordance with a bail undertaking for breaches of recognisance, two breaches of a good behaviour order, one very recently dealt with by the Magistrates Court and his periodic detention has been cancelled. The Court, in looking at that history, would be concerned about whether Mr Foster is prepared to comply with the obligations placed on him by court orders.
He says to me, however, that he has attempted, particularly while in custody, to address his drug issues. He says to me that he is on a methadone program and would want to transition to a nattrexone program. He also told me that he started at thirty milligrams of methadone and is now down to twenty milligrams.
He says to me that he has not been using drugs and, in support of that, says that while he was under supervision he would be required to undergo urinalysis and whilst in custody he has had urinalysis on a random basis and that none of those analyses have shown the presence of illicit drugs. Certainly, he has had significant prior contact with ACT Corrective Services and has been compliant with his supervision requirements for them.
The most recent failure to comply with the Good Behaviour Order, however, was his failure to comply with community service work, a condition that was made to the Good Behaviour Order. He was required to perform four hundred hours of community service work within twenty-four months, but completed only nine hours and for the breach of that order was sentenced to a period of imprisonment by Magistrate Dingwall who dealt with that breach.
Mr Foster, in effect, tells me that he has come to a turning point and is now looking at his age to start to manage his drug addiction and not continue to be affected by drugs to the extent that he is required to commit crimes for that purpose. He had, as at 11 June 2014, a place at Havelock House, although I have no direct evidence of whether that placement remains available.
Whilst in custody he has taken steps to address the matters that lead to his criminality and in particular, he has participated in the Schema Therapy Group at the Alexander Maconachie Centre. That Program aims “to change behavioural patterns by addressing persistent emotional vulnerabilities and persistent maladaptive coping styles”. It also “aims to strengthen positive coping styles”. It is said to be a useful therapeutic event intervention.
Mr Foster has, during the time he has been involved with the Group, addressed emotional vulnerabilities and maladaptive coping styles and shown improvements in mood and indicated insight into his own criminogenic behaviours.
He has five children. The eldest four are in foster care and he is estranged from his partner who is the mother of his children, although it has been recommended that he engage in mediation through Relationships Australia to try to resolve that position.
The most worrying aspect is whether I can find that Mr Foster has really turned the corner, as it is often put. The courts have said, in cases such as R v Govinden (1999) 106 A Crim R 314 at 319; [35], that we should be sceptical about assertions of offenders having turned the corner when there is not sufficient certainty about that issue. The most troubling aspect is that Mr Foster told the author of the Pre-Sentence Report that he had stopped using illicit drugs from about the beginning of 2012. These offences were committed late in 2013. I have no explanation for them or for that position. That is understandable because he has entered pleas of not guilty to the charges that are in this Court and I am not aware whether there is a plea of guilty or not to the other charge.
The evidence for those charges is not weak. I am not in a position, and indeed it is inappropriate on a bail application, to determine whether he is likely to be convicted of those offences or not but it is troubling that, while he was being supervised and while he was said to be not using drugs, these offences were committed.
Although a careful analysis of his history of offending shows that the most recent offence with which he has been charged in this Territory was committed on 27 August 2010, which is of course nearly four years ago, the number and frequency of his offending at an earlier time is of concern.
Mr Foster’s trial is listed for callover on 1 September 2014. It does not appear to me as though it is likely that that trial will occur in the next central criminal trial period as there are a large number of trials already listed for callover and which will be heard at a time not insignificantly earlier than the date of that callover. His trial is not imminent.
In all the circumstances, I think that I am not satisfied that there is necessarily an overwhelming risk that Mr Foster will continue to commit offences if released on bail and I am prepared to grant him bail on very strict conditions, although I have some hesitation in doing so. It seems to me that he has reached the stage where if he is going to break from his drug addiction and his criminal activity, the period in custody has given him some start for that and a period in the community will put him to test for that. If he fails, he can expect that leniency and such an opportunity is unlikely to be provided to him again.
I grant Mr Foster bail to attend to take his trial as and when told on the following conditions:
(a)He accept the supervision by the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him;
(b)He report to the officer-in-charge of Civic Police Station every Monday, Wednesday and Friday between the hours of 8:00 am and 8:00 pm;
(c)He subject himself to monitoring by the Court Alcohol and Drug Assessment Service (CADAS) and he discuss with them options for treatment and counselling;
(d)He consent to any officer of CADAS providing to the person delegated to supervise him any recommendations made by that agency that he reside as directed by the person delegated to supervise him;
(e)He not drink alcohol or consume illicit drugs;
(f)He submit to urinalysis or breath analysis as reasonable required by the person delegated to supervise him;
(g)He not be within one hundred metres of any jewellery store;
(h)He not contact directly or indirectly [Redacted].
[His Honour then spoke directly to Mr Foster]
Mr Foster, even if you are convicted of these three offences which may justify a gaol sentence, I am satisfied that you are starting to come to terms with your criminality and your drug using and that you should be given an opportunity. Do not waste it. If you do, you are getting to the age where there is not much that can be done by way of leniency. It is not going to be easy out there. You are going to have to work at it. The person delegated to supervise you, the Corrective Services officer, can assist you with that, as can CADAS, which can try to put you on the straight and narrow.
If your efforts today are a genuine measure, then you are entitled to this opportunity and you need to work at it and continue with it. If they are not it will soon be found out. You are not a very smart crook. I am not making any comment about these offences, but when you look at the facts of them they are not very smart offences, whoever committed them, and, you will be back in custody very quickly. If you are genuine about it then there is an opportunity to reconnect with your kids, to do something in that area that makes sense. Do not blow it because if you do blow it is a long, long way back on this occasion.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 10 November 2014 |
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