R v Agius - [2012] SASC 136

Supreme Court of South Australia
(Criminal: Application)
R v AGIUS
[2012] SASC 136
Reasons for Decision of The Honourable Chief Justice Kourakis (ex tempore)
16 July 2012
CRIMINAL LAW - PROCEDURE - BAIL - RECOGNISANCES - FORFEITURE AND ESTREATMENT - RELIEF FROM ESTREATMENT AND REDUCTION OF LIABILITY
Application for estreatment of monetary sums – the three applicants guaranteed the bail of the accused – the accused breached the conditions of his home detention bail by leaving the nominated premises in the bail agreement and removing the electronic transmitter bracelet – the three guarantors now apply for a reduction in the amount of forfeiture pursuant to s 19 of the Bail Act 1985 (SA) – whether the discretion in s 19(3) should be exercised in the circumstances - whether the guarantors have adequately complied with their obligations under the guarantee – whether the forfeiture will cause substantial hardship – whether the forfeiture amount will act as a deterrent to the person released on bail.
The three guarantors took the steps reasonably required of them to ensure the accused complied with the terms of his bail agreement and to alert the authorities to the breach of those conditions – however this consideration is not sufficient on its own to largely reduce the forfeiture amount and deterrence must be considered – great personal hardship would be caused by estreatment – the effect of forfeiture was not properly taken into account when pecuniary sums were fixed in this matter.
Held: Alerting authorities is not in itself sufficient to deny forfeiture – deterrence of person released on bail is an important consideration – hardship is not ordinarily a sufficient reason to reduce forfeiture but there were special reasons in this case – application allowed – monetary sums estreated but amounts of forfeiture reduced.
Bail Act 1985 (SA) s 7, s 9, s 17A, s 19, s 19(3), referred to.
Mokbel v DPP (2006) 14 VR 405; Re McKinnon (1986) 40 SASR 326; R v Rigney (1988) 49 SASR 389, considered.

R v AGIUS
[2012] SASC 136
Criminal: Application

KOURAKIS CJ (ex tempore): This is an application pursuant to s 19 of the Bail Act 1985 (SA) (the Act) for the estreatment of the monetary sums in which three guarantors, Ms Christine Agius, Ms Cindy Agius-Stevens and Ms Samarah Melaney, guaranteed the bail of Shane Andrew Agius. The guarantees were in the amount of $10,000, $5,000 and $5,000 respectively. Ms Christine Agius lodged $500 in cash with the Registrar of this Court. Ms Cindy Agius-Stevens lodged $100.
Shane Agius breached the conditions of his home detention bail by leaving the premises to which he had been bailed without permission and removing the electronic transmitter bracelet. He was apprehended by police several days later after a high speed pursuit which ended in a collision.
Ms Cindy Agius-Stevens and Ms Christine Agius have applied for a reduction in the amount of the forfeiture in the exercise of my discretion pursuant to…

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 R v Agius

Details

AGLC: R v Agius [2012] SASC 136
Case: [2012] SASC 136
Decision Date

CaseChat Overview and Summary

In the case of R v Agius, the Supreme Court of South Australia was asked to consider an application for the estreatment of monetary sums, following the accused breaching the terms of his bail agreement. The accused had been granted home detention bail, but left the premises without permission and removed the electronic transmitter bracelet. The three guarantors, who had provided financial guarantees for the accused, applied for a reduction in the amount of forfeiture pursuant to s 19 of the Bail Act 1985 (SA). The court was required to determine whether the discretion in s 19(3) should be exercised in the circumstances, whether the guarantors had adequately complied with their obligations under the guarantee, whether the forfeiture would cause substantial hardship, and whether the forfeiture amount would act as a deterrent to the person released on bail.

The court held that alerting authorities was not sufficient on its own to deny forfeiture, as deterrence of the person released on bail was an important consideration. However, the court found that there were special reasons in this case to reduce the forfeiture amount. The court acknowledged that the guarantors had taken the steps reasonably required of them to ensure the accused complied with the terms of his bail agreement and to alert the authorities to the breach of those conditions. The court also found that great personal hardship would be caused by estreatment, and that the effect of forfeiture had not been properly taken into account when the pecuniary sums were fixed. The court therefore allowed the application, and ordered that the monetary sums be estreated, but the amounts of forfeiture be reduced.

The court ordered that the sum of $300 be estreated from the guarantee of Ms Cindy Agius-Stevens, $1,500 from the guarantee of Ms Christine Agius, and $100 from the guarantee of Ms Samarah Melaney. The court was conscious of the hardship that these orders would cause, but hoped that they would serve to focus the accused's attention on making amends for his actions. The court also hoped that the amounts estreated would serve to disabuse the mistaken belief that guarantors would generally be saved the amount of their guarantee if they complied with the obligation imposed by s 17A of the Act.

Orders