Police v Brown

[2014] QMC 1

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Brown [2014] QMC 1

PARTIES:

POLICE

(prosecution)

v

JARROD KEVIN ANTHONY BROWN

(defendant)

FILE NO/S:

MAG252101/13(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge - Application for Bail

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

14 January 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 January 2014

MAGISTRATE:

The Honourable Judge Carmody AO

ORDER:

Bail refused

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE - Bail – Participant in a criminal organisation – Whether cause is shown that continuing pre-trial detention is justified – Whether defendant is an unacceptable risk of reoffending

Bail Act 1980, s 8, s 15, s 16

COUNSEL:

JA Wooldridge for the prosecution

PL Hanlon for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution

ATSILS for the defendant

1. This is a contested application for bail by an alleged participant in a declared criminal organisation. Section 16(3A) of the Bail Act 1980 has the effect of deeming current or past participants in criminal organisations as prima facie bail risks and presumes a continuing pre-trail detention is justified unless the applicant proves to the contrary. The statutory presumption in favour of depriving an alleged participant in a criminal organisation of liberty pending trial is not easily displaced. See R v Masters (1992) 26 NSWLR 450 at 473, Sica v DPP (Queensland) (2010) QCA 18 at 52 and Lacey v The Attorney-General for Queensland (2009) QCA 274 at paragraph 54.

1. The clear legislative intention is that despite the general right to personal liberty and the common law presumption of innocence alleged criminal participants should ordinarily be refused bail. This applies regardless of the nature and seriousness of the charge or other common bail considerations, such as personal or financial hardship and family distress and the prejudice of delay and the inconvenience of incarceration. This is because of the underlying assumption that participants will continue to offend, impose an unacceptable risk to community safety, order and welfare if they are released.

1. The public policy objectives of the current bail laws relating to participants in criminal organisations will normally be met by detention rather than release in the absence of cogent and compelling evidence that apparent or presumed risks to the community can be adequately met by conditional liberty.

1. Evidence of disassociation by an applicant is relevant but not decisive of the question whether continuing confinement is warranted or not.

1. Arguably, pre-trial detention of an alleged participant in a criminal organisation will only be unjustified to the extent that it exceeds what is reasonably necessary in all the circumstances to achieve the stated objects of the bail laws; that is, to prevent repeat offending and protect the community from unacceptable risks of harm posed by criminal groups and their associates.

1. The applicant contends that continuing custody is unjustified in his case because: (a) although he once was he no longer is a member of the Bandidos Motorcycle Gang (b) the relevant offences with which he is currently charged are relatively minor and unlikely to result in a substantial prison sentence on conviction (c) he is willing to abide by demanding non-contact, reporting and residential conditions, including a curfew (d) his criminal history does not include any bail violations (e) the charges will be defended on the grounds of provocation or justification.

1. The applicant is 25 years old. He had travelled from Brisbane to Townsville with his parents for a family Christmas a day or so before he was arrested. Earlier that month he had attended two counselling sessions with a clinical psychologist. His employment situation is unclear, but he has partially completed a boilermaker apprenticeship. The defendant has a long history of public nuisance and violence offences dating back to 2007 when he was only 19. In 2009 he was ordered to 18 months probation, which he breached twice in 2010 by committing like offences.

1. In January 2013 he was ordered to perform 120 hours community service for wilfully damaging somebody else’s property, of which he has completed less than half.

1. At the time of his arrest in Townsville on the present charges he was on bail for possessing 33.4 grams of methylamphetamine, unlawfully possessing explosives, as well as assaulting police and being involved in the infamous riot in a crowded Broadbeach restaurant between the Bandidos and Finks and also participated in an ensuing confrontation with police outside the Southport Police Station on the 27th of September 2013.

1. I’m not persuaded either by the evidence adduced by the applicant or submissions made on his behalf by Mr Hanlon of counsel that continuing detention is unjustified.

1. The supporting material does not address his current status with the Bandidos at all. On the 19th of September 2013 he was photographed for police identification purposes in full Bandidos attire. He was bailed on the same day. Eight days later he and up to 70 other Bandidos caused a riot in a family restaurant on the Gold Coast and continued public disturbances outside the Southport Police Station. Again, he was granted bail on strict conditions. Just before Christmas he travelled with his parents to Townsville while on bail for two separate criminal transactions and within two days is arrested again for public nuisance and assaulting police.

1. In doing so he’s demonstrated that the risk assessment made two months earlier by the Magistrate at Holland Park was undeservedly generous. He either lacks the insight or the commitment needed to obey the rules of social behaviour.

1. Notwithstanding the submissions made from the Bar Table at the Holland Park Magistrates Court on the 20th of October 2013 I am far from convinced that the applicant has genuinely or effectively disassociated from the Bandidos or disavowed its criminal activities. Nor have I been given any reason for optimism that releasing him is a risk that can reasonably and responsibly be taken with the safety of others in the community.

1. Mr Brown is an incorrigible offender against public order. He has no respect for the authority of the law or those who enforce it. He is an unacceptable bail risk quite independently of the presumed dangers he poses as a criminal participant. He lacks basic self-discipline and control and is prone to aggression and violence disproportionate to any provocation both as a member of a pack and on his own. His parents obviously are interested in his welfare, but have no influence over his activities. They are unable to moderate his behaviour, particularly when affected by alcohol or drugs. Bail would be an unsafe bet.

1. Ongoing pre-trial detention is justified despite what in isolation might be characterised as comparatively minor offending unlikely to result in a substantial prison term and even though there is no apparent likelihood of flight or interference with witnesses. Based on past performances he would probably turn up for court dates and obey most bail conditions except to keep the peace and be of good behaviour. Curfews and abstinence conditions would merely set him up for failure. He is unlikely to be able to resist the lure of drinking venues or recreational drug use and physical violence appears to be the natural consequence of intoxication for him.

1. Crime prevention and community protection clearly warrants continued confinement in this case. No less a measure is likely to satisfy the overall public interest. Bail is refused.