R v Dowling (No 1)
[2020] ACTSC 374
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dowling (No 1) |
Citation: | [2020] ACTSC 374 |
Hearing Dates: | 19 August 2020; 17 September 2020 |
DecisionDate: | 17 September 2020 |
Before: | Refshauge AJ |
Decision: | 1. Ms Dowling be granted bail from 10:00 am on 18 September 2020 to appear before the Court on 2 October 2020 and at such other times as the Court may direct from time to time. 2. Bail be subject to the following conditions, that: a. Ms Dowling travel directly from custody to Lesley's Place, conducted by Toora Women Incorporated. b. Ms Dowling admit herself to the residential rehabilitation program at Lesley's Place and not leave the program without the leave of the Court or in order to attend directly for urinalysis and return immediately thereafter. c. Ms Dowling comply with all the rules of the program and the directions of the officer in charge of the program. d. if Ms Dowling leaves the program without the leave of the Court or is discharged from it, she must report to ACT Corrective Services by 4:00 pm on the next business day with a view to have her bail reviewed. e. she accept supervision by the Director of ACT Corrective Services, or his delegate, and obey all reasonable directions of the person supervising her. f. she remain at Lesley's Place from 5:00 pm to 7:00 am and not leave the residence during those hours except in a medical emergency. g. Ms Dowling not consume alcohol or illicit drugs while on bail. h. Ms Dowling submit to urinalysis when directed by the person supervising her. 3. The sentencing hearing of the offences with which Ms Dowling has been charged will be listed for 2:30 pm on 2 October 2020. 4. The Crown are to file and serve its sentencing tender bundle by 1:00 pm on 25 September 2020. 5. The Crown are to file and serve any written submissions and comparable decisions on which it wishes to rely, on or before 1:00 pm on 30 September 2020. 6. Ms Dowling's counsel are to file and serve any documents which it is proposed to tender, on or before 10:00 am on 30 September 2020. 7. Ms Dowling's counsel are to file and serve any written submissions on which it proposes to rely, on before 1:00 pm on 1 October 2020. |
Catchwords: | CRIMINAL LAW – Judgment – Application for Bail – allegation of serious offence – presence of exceptional circumstances – opportunity for residential rehabilitation – bail granted |
Legislation Cited: | Bail Act 1992 (ACT) ss 9D, 9D(2) Crimes (Sentencing) Act 2005 (ACT) s 12A Criminal Code 2002 (ACT) ss 318(2), 326 |
Parties: | The Queen ( Crown) Akira Dowling ( Offender) |
Representation: | Counsel K Reardon ( Crown) D Turner ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service (NSW/ACT) ( Offender) | |
File Numbers: | SCC 176 of 2020 SCC 177 of 2020 |
REFSHAUGE AJ:
Introduction
On 19 August 2020, I heard a bail application by Akira Dowling who has pleaded guilty to 20 charges for which she is to be sentenced. The application was opposed. The charges included offences of burglary and of theft and other less serious dishonesty offences, as well as many driving offences including two of furious, reckless or dangerous driving. Of particular concern to the bail application was an offence of attempting to escape lawful custody.
Ms Dowling has a long Criminal Record also including many dishonesty offences and some drug offences. Again, worryingly in the context of her bail application are offences such as seven offences of failing to appear in answer to a bail undertaking, two offences of escaping, or attempting to escape, from lawful custody and one offence of providing a false name or address. In addition, she was found to have breached Good Behaviour Orders on four occasions, including by committing further offences. On one occasion, no action was taken and within six months she had further breached the Order.
She has also had to appear for other breaches of bail on seven occasions. Nevertheless, she wrote a thoughtful letter which was tendered to me and was received in evidence without objection or challenge. In it, she showed some insight into her offending and its causes, a good beginning for the development of an ability to avoid further criminality. She also informed that she has participated in education while in custody, has obtained a job and has commenced opioid dependence treatment injections but realised ‘that there is still plenty more work’ that she needs to do before she can put her drug addiction and criminality behind her.
It is essential that I view assertions of reform with scepticism and caution, but the steps actually taken, which I accept, do show some progress and it is not inappropriate to encourage and facilitate its continuance. There was also some motivation then present, as Ms Dowling sought to be reunited with and be a mother to her children.
The arrangements proposed for accommodation while on bail were not satisfactory. I felt no concern about the probity of the owner of the proposed home and, indeed, there was some suggestion that Ms Dowling was motivated to show that woman that she could reform, a useful incentive to her. I was concerned, however, that there would be no professional support or supervision and no recourse to the police were Ms Dowling to cease to reside there or otherwise breach her bail. Ms Dowling expressed the desire to proceed with her rehabilitation at ‘Lesley's Place’, the drug and alcohol residential and outreach service conducted by Toora Women Inc. and had applied for admission, though a place was not then available.
I was not satisfied with the arrangements and accordingly adjourned the bail application until 17 September 2020 and ordered that either party be given liberty to relist the application should a place at Lesley's Place become available before then.
A place has now become available, and Ms Dowling has been accepted. There is one complication with the place in that it does not have afterhours supervision after 5:00 pm which is a matter of some concern.
Consideration
A difficulty in the way of the bail application, however, is in the form of s 9D of the Bail Act 1992 (ACT). It applies to persons who are ‘accused of a serious offence’ but are ‘alleged to have committed an offence while a charge against the person for another serious offence is pending or outstanding’.
It is an obvious and sensible provision which says that if someone goes about committing serious offences and then, after having been arrested and after having had their actions drawn to public attention and to their attention as criminality, and serious criminality for that matter, they go and commit similar offences, then bail should not be as readily as available as the Bail Act otherwise provides, in particular, by its presumption in favour of bail.
The Legislature has provided that, in those circumstances, ‘[a] court or authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail’ (s 9D(2) of the Bail Act). A serious offence ‘means an offence punishable by imprisonment for five years or longer’, with some exceptions not presently relevant.
In this case, Ms Dowling was arrested and charged on 8 March 2020 with, amongst other offences, dishonestly obtaining property by deception. This is an offence contrary to s 326 of the Criminal Code 2002 (ACT), which provides for a maximum term of imprisonment of 10 years.
On 20 April 2020, Ms Dowling was charged with dishonestly driving a motor vehicle without the consent of the owner. This is an offence against s 318(2) of the Criminal Code and renders Ms Dowling liable to a maximum term of imprisonment of five years.
Accordingly, s 9D of the Bail Act applies and Ms Dowling has to show special and exceptional circumstances before I may grant bail.
In order to evaluate that issue, which I note that the Crown raised fairly and has relied on to oppose bail, I will first consider the nature of the proposed rehabilitation centre. Lesley's Place is a residential rehabilitation agency specifically for women, and which will also allow her to gain access to accommodation following the end of the 12-week program that is conducted there. That is important in this case because, before her arrest, although she denied it, she was in fact homeless and had been couch surfing for some time. With the opportunity that this provides, that gives her the chance for stable accommodation which will be important for her rehabilitation.
In addition, the reasons I set out above are important in a case such as this, especially where they come together at a point in time where all the indicators that an opportunity for stable accommodation and reform can reasonably be taken now, while Ms Dowling is committed to it and the opportunities are there for her to engage in rehabilitation, for which she has clearly expressed some motivation and where there is some basis for that motivation. Her situation in that sense is somewhat special, though, of course, it is not unique and does not need to be unique in order to show special and exceptional circumstances, although it should not be common, which often the assertions of simply an opportunity to go into residential rehabilitation will be.
It seems to me that the issue is finely balanced, but, on balance, I am prepared to grant Ms Dowling bail. Accordingly, notwithstanding my hesitation about granting Ms Dowling bail, I am satisfied with the proposal to bail her to Lesley's Place and, as Mr Turner who appeared for Ms Dowling also pointed out, this would give Ms Dowling an opportunity in a practical way to show that she is sufficiently serious, trustworthy and ready for admission to a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT).
Accordingly, I will grant Ms Dowling bail, set a date for the sentencing hearing and give appropriate directions for the preparation of the hearing. Before I pronounce them, I should indicate the conditions that I propose and the arrangements for sentencing. The conditions I propose are that she be granted bail from 10:00 am tomorrow; that she travel directly from custody to Lesley's Place; that she admit herself to the program and not leave; that she comply with all rules of the program and the officer in charge of the program; that, if she leaves the program, she report to Corrective Services by 4:00 pm the next day; that she be at, and remain at, Lesley's Place from 5:00 pm to 7:00 am; and that she not consume alcohol or illicit drugs while on bail.
Disposition
I will grant Akira Dowling bail from 10:00 am on 18 September 2020 to appear before me on 2 October 2020 and at such other times as the Court may direct from time to time.
That bail will be subject to the following conditions, that:
(a)Ms Dowling travel directly from custody to Lesley's Place, conducted by Toora Women Incorporated.
(b)Ms Dowling admit herself to the residential rehabilitation program at Lesley's Place and not leave the program without the leave of the Court or in order to attend directly for urinalysis and return immediately thereafter.
(c)Ms Dowling comply with all the rules of the program and the directions of the officer in charge of the program.
(d)if Ms Dowling leaves the program without the leave of the Court or is discharged from it, she must report to ACT Corrective Services by 4:00 pm on the next business day with a view to have her bail reviewed.
(e)she accept supervision by the Director of ACT Corrective Services, or his delegate, and obey all reasonable directions of the person supervising her.
(f)she remain at Lesley's Place from 5:00 pm to 7:00 am and not leave the residence during those hours except in a medical emergency.
(g)Ms Dowling not consume alcohol or illicit drugs while on bail.
(h)Ms Dowling submit to urinalysis when directed by the person supervising her.
The sentencing hearing of the offences with which Ms Dowling has been charged will be listed for 2:30 pm on 2 October 2020.
The Crown are to file and serve its sentencing tender bundle by 1:00 pm on 25 September 2020.
The Crown are to file and serve any written submissions and comparable decisions on which it wishes to rely, on or before 1:00 pm on 30 September 2020.
Ms Dowling's counsel are to file and serve any documents which it is proposed to tender, on or before 10:00 am on 30 September 2020.
Ms Dowling's counsel are to file and serve any written submissions on which it proposes to rely, on before 1:00 pm on 1 October 2020.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Samuel Xiang Date: 21 May 2021 |
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