R v AX
[2015] ACTSC 292
•11 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v AX |
Citation: | [2015] ACTSC 292 |
Hearing Date(s): | 11 September 2015 |
DecisionDate: | 11 September 2015 |
Before: | Refshauge J |
Decision: | AX be granted bail to appear in the ACT Supreme Court on 17 November 2015 on the following conditions: a) That he travel on 11 September 2015, in the company of his grandparents to Oolong House, 11 Junction Street, Nowra and admit himself to and remain in the rehabilitation program conducted by that agency; b) That, if he is not admitted to the program, or leaves that program, or is discharged before he completes the program, he is to report in person to the Registrar of the Supreme Court within one working day with a view to his bail being reviewed; c) That he complete the residential rehabilitation program at Oolong House and obey all reasonable directions of the officer in charge of the program; d) That he consent to the officer in charge of the program providing details of his progress and participation in the program to his solicitor; e) That he not consume alcohol or possess or consume illicit drugs; and f) That he return to Canberra on 16 November 2015 for the purpose of appearing in court on 17 November 2015 and reside at [redacted] while in Canberra. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – bail – application to vary bail – applicant seeking rehabilitation – deferred sentence order |
Cases Cited: | Saga v Reid [2010] ACTSC 59 |
Parties: | The Queen (Crown) AX (Defendant) |
Representation: | Counsel Mr A Williamson (Crown) Mr T Pasipanodya (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal Solutions (Defendant) | |
File Number(s): | SCC 171 of 2014 |
REFSHAUGE J:
AX has been charged with offences of possessing child pornography, using a child to produce child pornography and two counts of using a carriage service to transmit child pornography.
He was granted bail on 25 August 2015 to attend a drug rehabilitation program at the Weigelly Centre, Woodstock, NSW. Unfortunately, when that agency learnt of the offences with which he had been charged, it declined to admit him to the program.
Subsequently, AX was assessed as suitable to attend a similar program at Oolong House. I have described that program in R v McMahon [2015] ACTSC 14 at [22]-[23]. On 7 September 2015, I varied his bail conditions to permit him to attend that program.
AX entered the program on 7 September 2015 in accordance with the conditions of his bail undertaking. On 10 September 2015, however, he was discharged because he was found in possession of cannabis.
Nevertheless, the Acting Chief Executive Officer of the Oolong Aboriginal Corporation, which conducts the program, said that AX had “shown commitment to the program and been very active in the CBT (Cognitive Behaviour Therapy) groups.” As a result, and rather unusually, the agency was prepared to allow him to re-enter the program.
Accordingly, AX has applied for a further bail variation to permit that. The variation was opposed by the Crown, which submitted that his bail should be revoked.
I have heard what the Crown has to say, and there is, as usual, much force in what the Crown prosecutor, Mr A Williamson, has had to say, but it seems to me there are two matters that weigh just sufficiently to justify the variation of the bail.
The first is that the drug involved in the breach is cannabis and not, as it appears to me from the material before me, including the material on which I heard the original variation, the drug of choice for AX, the more serious drug of ice with which AX was earlier involved. Cannabis is an illegal drug and it is not to be countenanced or approved. It is, however, generally regarded by the legislature as of less seriousness than the original drug, ice, for which his rehabilitation was primarily directed. His rehabilitation should, of course, also be directed towards cannabis as well.
Secondly, as I have said many times in cases such as Saga v Reid [2010] ACTSC 59 at [89], the courts do recognise that drug addiction is a pernicious and deep-seated addiction and that it may take a number of opportunities and failed attempts in order to address that.
As to the seriousness of the offences, I accept what Mr Williamson says, that these are serious offences. I do not have details, but, from the nature of them, they are clearly offences which ordinarily would require a custodial sentence, although how that would be served depends upon the instinctive synthesis of the sentencing judge.
In this case, the sentencing judge, Burns J, has accepted that a period of rehabilitation for drugs is appropriate, and while this has been a very significant breach, nevertheless, it comes early in the program. It comes when he has otherwise shown commitment to the program, which is evidenced by the willingness of the agency to readmit him, and I think, in all those circumstances, that he should be given the opportunity to be readmitted to the program.
Accordingly, I will vary the bail conditions that I made on 7 September as follows:
a) That he travel today, that is 11 September 2015, in the company of his grandparents to Oolong House, 11 Junction Street, Nowra and admit himself to and remain in the rehabilitation program conducted by that agency;
b) That, if he is not admitted to the program, or leaves that program, or is discharged before he completes the program, he is to report in person to the Registrar of the Supreme Court within one working day with a view to his bail being reviewed;
c) That he complete the residential rehabilitation program at Oolong House and obey all reasonable directions of the officer in charge of the program;
d) That he consent to the officer in charge of the program providing details of his progress and participation in the program to his solicitor;
e) That he not consume alcohol or possess or consume illicit drugs; and
f) That he return to Canberra on 16 November 2015 for the purpose of appearing in court on 17 November 2015 and reside at [redacted] while in Canberra.
[His Honour then spoke directly to AX]
AX, what the Crown says is right; you are facing serious charges and you may well be sentenced to a term of imprisonment. I cannot say. It is not my case. It is a matter for Burns J at the end of the day, after hearing all the evidence. Nevertheless, his Honour has given you the opportunity of addressing the drug addiction, which clearly, in his Honour's view, contributed to that offending behaviour, and if you can do that, then his Honour will presumably proceed in a way that he indicated when making the deferred sentence order.
This is, as the Crown has said, a significant breach. I actually tossed up whether I should think about it over the weekend and put you in the remand centre over the weekend, just to show how serious it is. But you have started well at the program, despite this setback and, in my view, the court would want to allow you to continue that. You must understand though that you on very slippery ice at the moment, both at Oolong House but also with this Court.
You have exhausted the leniency now, and it would need extraordinary circumstances to justify a continued placement at Oolong House if you commit further breaches. There can be no doubt that if you commit a breach of this kind again, then bail would be revoked and you would be returned to custody.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 30 September 2015 |
0
2
0