Palmieri v The King - [2024] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

PALMIERI v THE KING
[2024] SASC 153
Decision of the Honourable Acting Chief Justice Livesey (ex tempore)
19 December 2024
CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL
CRIMINAL LAW – PROCEDURE – BAIL - CONDITIONS
By an application dated 4 December 2024, a review of bail is sought following a Magistrate’s decision to refuse bail on 20 November 2024 at Adelaide, pursuant to s 14(2)(a) of the Bail Act 1985 (SA).
The applicant is charged on Information dated 1 March 2024, with one count of trafficking in a controlled drug (49 grams of methylamphetamine), contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA).
The applicant was on home detention bail when, on 29 October 2024, police attended the applicant’s home detention bail residence and, during a search, found the applicant leaving through the back door whilst holding a bag with a substance suspected to be approximately 16 grams of methylamphetamine. By separate Information dated 30 October 2024, the applicant is charged with another count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
The applicant relied on what were said to be difficult personal circumstances and hardship in prison.
Held – granting bail on home detention conditions:
1.The applicant will remain on remand until his trial can be reached in the District Court at some stage during 2027.
2.The applicant may well spend longer in prison on remand than under any non-parole period he may receive under a sentence imposed in accordance with the sentencing standard in R v Young (2016) 126 SASR 41. The long time spent in prison on remand is also likely to rule out any prospect of a non-custodial sentencing option.
3.To provide some means of ensuring that the applicant is not “set up to fail”, the home detention bail conditions must ensure that the applicant adheres to medical and mental health treatment and require that he address his drug addiction issues by participating in the Matrix programme (when a position becomes available), along with regular and random drug testing.

Bail Act 1985 (SA) ss 10, 14; Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 138, referred to.
Adams v The Queen (2022) 141 SASR 204; Heng v The Queen [2022] SASCA 24; R v Lian [2023] SASCA 122; R v McIntyre [2020] SASCFC 101; R v Palmer [2016] SASCFC 34; Reynolds v The King (2023) 306 A Crim R 173; R v Young (2016) 126 SASR 41; Dunstan v DPP (1999) 92 FCR 168, considered.

PALMIERI v THE KING
[2024] SASC 153
Criminal – Application: Livesey ACJ (ex tempore)
Introduction

By an application dated 4 December 2024, bail is sought following a Magistrate’s decision to refuse bail on 20…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palmieri v The King

Details

AGLC: Palmieri v The King [2024] SASC 153
Case: [2024] SASC 153
Decision Date: 19 December 2024

CaseChat Overview and Summary

The matter of Palmieri v The King was heard in the relevant court, where the applicant was seeking bail. The applicant, facing a new charge of trafficking in a controlled drug, was already under consideration for bail conditions related to a previous charge. The crux of the dispute lay in the applicant's mental health, custodial conditions, and the risk of re-offending, with the prosecution arguing against any form of bail due to the perceived risk of re-offense. The applicant, on the other hand, argued that his mental health would be better managed outside of prison, given his history of suicidal ideation and attempts.

The court was required to weigh the applicant's mental health needs against the risk of re-offending and the presumption in favour of bail. The legal issues included whether the applicant's mental health issues warranted a grant of bail and if there was a significant risk of re-offending that would rebut the presumption in favour of bail. Additionally, the court needed to determine if the applicant could be adequately managed within the prison system or if his needs were such that they could only be met outside of custody.

In reaching its decision, the court considered the applicant's history of mental health issues and suicidal ideation, as well as the evidence that his health would be better managed outside of prison. The court accepted that the applicant's mental health needs would indeed be better managed if he were granted bail. While the prosecution argued that the risk of re-offending rebutted the presumption in favour of bail, the court did not find sufficient evidence to overturn this presumption. The court also took into account the applicant's parental responsibilities and the impact of his potential re-offense on his children. Consequently, the court decided to grant home detention bail with specific conditions, including the requirement for certain individuals to act as guarantors and provide cash sureties.

The court ordered home detention bail with the conditions set out in the draft bail agreement, recognising the need for the applicant to receive appropriate mental health care outside of prison. The court emphasised the importance of the applicant's mental health management and the potential benefits of bail in this regard. The final orders included the terms of the bail agreement, which reflected the specific conditions agreed upon by the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The bail agreement must also reflect that Ms Barke, Ms R Palmieri, Ms Thomson, Ms T Palmieri and Ms T Keddie are prepared to act as guarantors and that Ms R Palmieri ($5,000), Ms Thomson ($2,500) and Ms Barke ($5,000) will provide cash sureties. Conclusion I will order home detention bail on the conditions set out in the draft bail agreement.

Ratio Decidendi

Legal Principle Established

On a separate Information dated 30 October 2024, the applicant is now charged with another count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).[2] [2] MCCRM-24-043484.Consideration of the bail review On 12 and 18 December 2024 I was assisted by detailed submissions and affidavit evidence from both parties. Evidence was led from the applicant’s OARS supervisor, Mr Palmer.[3] I accept his evidence, though it was given in general terms, about the applicant’s declining mental health and difficulties with his Corrections officer immediately before his second arrest. He told me that other clients had encountered difficulties with the same officer.[3] Offenders Aid and Rehabilitation Services of South Australia. Mr Palmer gave evidence without the benefit of his file. I have received a generally favourable home detention report regarding residence with Ms Remi Thomson, his former domestic partner and the mother of their two children. The issue raised in the report concerns an Intervention order obtained by the applicant, which remained in place for one month, following an incident between the applicant and Ms Thomson some time ago. I am assured that there is now no issue and they have been constructively co-parenting their children in recent years. The applicant has no prior convictions for drug offending and his prior offending concerning bail occurred well over a decade ago. The applicant is not a prescribed applicant, and he has the benefit of a presumption of innocence and a presumption in favour of bail pursuant to s 10 of the Bail Act. The prosecution is opposed to all forms of bail and contends that the presumption in favour of bail is rebutted by the risk that the applicant will re‑offend. The prosecution has not submitted that there is any risk of absconding or interfering with evidence. Ms Thomson has provided a letter addressing her recent decline in health and her need for assistance with the care of their children. The applicant has parental responsibilities for six children. One of the applicant’s children has been diagnosed with autism and requires additional assistance. The applicant contends that he suffers from a number of mental health issues for which he is currently prescribed an anti-depressant medication, Sertraline. The applicant submitted that whilst in custody he cannot receive adequate care and support for his mental health. The material available to me suggests there have been incidents involving suicide attempts or suicidal ideation involving the applicant before and after his initial arrest. There is a report about the applicant’s suicidal ideation whilst on remand. He has spoken about the suicide of another prisoner. The prosecution has produced a SA Prison Health Service report dated 16 December 2024 in support of the proposition that the applicant’s health issues can be managed in prison. Whilst I am not convinced that the applicant’s health needs cannot be managed in prison, I accept that they will be better managed out of prison.[4] [4] Cf R v Polymiadis, 8 August 2023, McIntyre J, p 4; R v Pietrantonio, 23 January 2024, Parker AJ, p 2, both cases concerning “special circumstances” under s 10A of the Bail Act.