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 s 19(3) of the Act. I will consider, on my own motion, the same discretion with respect to the forfeiture of the pecuniary sum of Ms Samarah Melaney’s guarantee, even though she has not appeared personally and is not represented today.
An important term of a guarantee of bail as it is defined by s 7 of the Act is the guarantor’s undertaking that, if the person released on bail fails to comply with a term of the bail agreement, he or she will forfeit the sum specified in the guarantee.
The stipulation of a pecuniary forfeiture in the event of breach serves two purposes. First, it motivates the guarantor to actively supervise the released person to ensure compliance with the conditions of bail and it motivates the guarantor to take steps to ensure that a bailed person who breaches the conditions of bail is quickly taken back into custody. The risk of forfeiture encourages a level of supervision beyond the obligation imposed by s 17A of the Act.
In this case, I am satisfied on the basis of statutory declarations put before me that all three guarantors, by and large, took the steps reasonably required of them to ensure that Shane Agius complied with the terms of his bail agreement and to alert authorities to his breach of those conditions.
The second purpose of the monetary sum on which guarantees are conditioned is to act as a deterrent against breaches by the person released on bail. Persons released on bail with the assurance of guarantees should know that, generally, the guarantors will forfeit the pecuniary sum stipulated by the guarantee if they breach the terms of their bail.[1] The burden carried by the guarantors to show that the full sum should not be forfeited is a heavy one.[2]
[1] Mokbel v DPP (2006) 14 VR 405.
[2] Re McKinnon (1986) 40 SASR 326 at 328.
In that way, guarantees provide a level of assurance which allows the release on bail of persons in custody. That assurance derives from the deterrence of any breach of bail by the defendant effected by his or her knowledge that the guarantors will suffer the stipulated forfeiture if the terms of the bail agreement are breached.
If it were generally thought that guarantors could readily escape the consequences of forfeiture merely by doing all that they reasonably could to supervise bail, the deterrent effect would largely be lost. As a result, fewer prisoners might be released on bail because the courts will not be sufficiently confident to grant bail.
There is a presumption of bail and Mr Agius received the benefit of that presumption even though he was a poor bail risk. There was always a high probability that Mr Agius would breach his bail and re-offend. I was persuaded that those risks would be adequately contained in his case because of the evidence I heard from Ms Christine Agius.
Ms Christine Agius gave an empassioned plea on behalf of her grandson. She explained the steps which she would take to ensure compliance with bail. I deliberately set a high pecuniary sum to act as a deterrent for Mr Agius. I told Mr Agius that if he were to abscond, it would be the equivalent of trashing his grandmother’s car because, in effect, that was her only possession.
In this case, I was minded to forfeit up to 75 per cent of the stipulated pecuniary sums. However, on further reflection, I have decided to reduce the amount of forfeiture by much more for the following reasons.
First, the Director of Public Prosecutions has taken the position that no more than the cash amounts lodged by the guarantors need be forfeited. It is not for me to go behind the reasons for the Director’s decision. It is a relevant consideration that the Director has taken that position.
The second reason is that an order forfeiting an amount close to 50 per cent of the stipulated sum will cause substantial hardship, not just to the guarantors, but to their dependants. Ms Cindy Agius-Stevens has three children, one of whom has a medical condition which is expensive to treat. In the case of Ms Christine Agius, I am sure her salary goes to support not only herself, but her extended family. The guarantors and their families will suffer greatly if I were to estreat a major part of the pecuniary sum.
Ordinarily personal hardship will not be a sufficient reason to reduce the amount of the forfeiture unless there has been a change in the financial circumstances after the guarantee was given.[3] For that reason it is important, in cases in which the bail authority determines that a substantial guarantee is required, that the bail authority is satisfied that forfeiture will not result in a degree of hardship which, in the event of a breach, might move a court to reduce the stipulated forfeiture. A bail authority is empowered by s 9 of the Act to make inquiries relevant to an application for bail. That power extends to ascertaining the financial worth of proposed guarantors because their worth may affect the value of the pecuniary sum which is stipulated, which in turn may enhance the assurance of the authority that the person released on bail will comply with its terms.[4]
[3] Mokbel v DPP (2006) 14 VR 405.
[4] R v Rigney (1988) 49 SASR 389 at 395 per Perry J.
I failed to fully consider the effect on the guarantors of forfeiture when I fixed the pecuniary sums of their guarantees. I doubt that I would have fixed such high amounts if I had. It may be that without the assurance of high stipulated sums, I would not have granted bail. I acknowledge that the guarantors must nonetheless carry some responsibility for entering into guarantees with forfeiture conditions they could not afford. Be that as it may, I did not take sufficient care to stipulate pecuniary amounts proportionate to the guarantors’ means. Having regard to the great emotional pressure under which the guarantors undertook their obligations in this case, I accept that this is a special case in which the hardship that they, and their dependants, will suffer is a reason to reduce the amount of the forfeiture.
The third reason is that I suspect that there is a view which is, no doubt, to some extent based on decisions of the criminal courts on applications for estreatments, that if a guarantor does as much as reasonably can be expected, they will generally be spared the greater part of the stipulated sum. For the reasons I gave earlier, in my opinion, that view is mistaken. The deterrent effect of guarantees will only work if guarantors lose a substantial amount of the sum guaranteed. Nonetheless, it would be oppressive to strictly apply that approach in this case and to, in effect, make examples of the guarantors before me. It may take a little time for the approach I have outlined to be consistently applied.
Taking the above considerations into account, I order:
·Estreat the sum of $300 of the sum stipulated in the guarantee of Ms Cindy Agius-Stevens;
·Estreat the sum of $1,500 of the sum stipulated in the guarantee of Ms Christine Agius;
·Estreat the sum of $100 of the sum stipulated in the guarantee of Ms Samarah Melaney.
I am very conscious of the hardship those orders will cause. I hope that they serve to focus Mr Agius’ attention on just how much he has to do to make amends for this.
I also hope that the amounts I have estreated serve to disabuse some of the mistaken belief that guarantors will generally be saved the amount of their guarantee if they at least comply with the obligation imposed by s 17A of the Act.