R v GD
[2015] ACTSC 174
•26 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v GD |
Citation: | [2015] ACTSC 174 |
Hearing Date(s): | 26 June 2015 |
DecisionDate: | 26 June 2015 |
Before: | Refshauge J |
Decision: | 1. GD be granted bail from Monday 29 June 2015, to be released into the company of an officer of the Director General on the following conditions: a. That GD be under the supervision of the Director General or her delegate and obey all reasonable directions of the person supervising him, especially as to residence and treatment or counselling for drug and alcohol issues, with the expectation that such directions will require participation in the Ted Noffs Foundation PALM Program; b. That GD not consume alcohol or illicit drugs; c. That GD submit to breath analysis and urinalysis when reasonably directed by the person supervising him; d. That GD consent to any person or agency providing him with treatment or counselling or other support providing to the person supervising him any information about his treatment and progress; e. That GD present himself to the person supervising him within 24 hours of him ceasing, without the consent of the person supervising him, to participate in any program in which he has been directed to participate, with a view to him returning to court for the purpose of having his bail reviewed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Practice and Procedure – Bail – Young person – Applicant seeking rehabilitation – Previous failure to honour bail undertaking |
Legislation Cited: | Bail Act1992 (ACT), ss 22, 23 Children and Young People Act 2008 (ACT), s 94 |
Cases Cited: | Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 Hogan v Hinch (2011) 243 CLR 506 |
Parties: | The Queen (Crown) GD (Offender) |
Representation: | Counsel Mr J Hiscox (Crown) Mr H Jorgensen (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 134 of 2015 SCC 135 of 2015 |
REFSHAUGE J:
GD has been charged with a number of serious offences, for which he has been committed for trial and sentence to this Court. There are two counts of aggravated burglary, a count of theft, a count of dishonestly riding in a motor vehicle without consent and dishonestly taking a motor vehicle without consent.
The offences are alleged to have been committed between 6 and 14 April 2015. He was arrested on 10 April 2015 and granted bail, but after being again arrested for the offences committed on 9 and 14 April 2014, which it is alleged were committed while he was on bail, was remanded in custody and has remained in custody since then.
A further offence or offences relating to a burglary in Hall are to be preferred against GD. At present, those offences are expected to be laid on 7 September 2015, as that is the date to which some offences that are presently before the Children's Court have been adjourned, and he can then be charged. I was also told that he is facing some charges in New South Wales, although I do not have any details of those.
GD has pleaded guilty to three of the offences in this Court and not guilty to the other two. I have the Statement of Facts prepared by police for the offences. The case against GD appears to be strong, even in respect of the offences to which he has pleaded not guilty. There is forensic evidence linking him to the sites of the various offences and CCTV shows what is said to be GD at these locations. I am told, however, that in relation to the offences to which he has pleaded not guilty, the connection between him and the offences, despite his presence at the location, will be seriously in issue.
GD has now applied for bail. He has been offered a place in the Ted Noffs Foundation PALM program located at Watson, ACT. This program is designed to assist "young people who wish to reclaim their lives and their relationships from the effects of problematic drug or alcohol use". A letter confirming that GD has a place in the program described it as follows:
The PALM program adopts a holistic approach to addressing the many complex issues that young people can present. The methods employed include a living skills program, a recreation program, individual counselling (for any issue, including D&A issues), vocation/education program, cultural awareness and sensitivity and a comprehensive group work program which encompasses a mix of therapeutic, vocation/education, living skills and recreation groups. Groups are run across the seven days. PALM operates as a therapeutic community adopting an approach which is inclusive and encouraging.
It offers a fully supervised 24 hours a day, seven days a week program but participation is voluntary and so participants can leave at will. The program’s staff, however, will provide a full report to Juvenile Justice or Youth Justice within three days of that occurring. Illegal activity of which staff become aware is also reported.
The agency will not accept a participant whose bail conditions require participation in the program, although it accepts that conditions may require supervision with the capacity for the bail supervisor to give directions such as to participate in the program. This, it is said, provides the flexibility necessary for appropriate treatment options.
The program is further described as follows:
As young people progress through the program, time away from the program is introduced to start practising the skills they are developing while in the program. This is assessed on a case by case basis and will depend on what supports the young person has in the community and how they are progressing through the program. Time away from the program starts as a day visit with a suitable person (usually family) accompanying the person for varied periods of time (usually four to eight hours). This can progress to overnight visits and then weekend visits. It is important to note that young people are part of the program during these visits, and as such have the normal expectations placed upon them. These include remaining drug and alcohol free, staying within agreed limits and complying by [sic] all bail conditions. All visits are to be negotiated with the knowledge and permission of the appropriate Youth Justice Officer or Juvenile Justice Officer assigned to the case.
It is also possible for GD to progress to what is known as the CALM program following the PALM program of nine to 10 weeks.
10. GD is 16 years old. He is Sudanese and came to Australia when he was eight years old. He appears to have permanent residence. He currently lives with his mother. He struggled at school and has not participated in regular education since Grade 5. He has been drinking alcohol for some time and smoking cannabis since he was 12 years old. Alcohol remains a problem but more recently he has been introduced to methylamphetamine and that is now a significant problem for him.
11. He did complete a rehabilitation program in Dubbo in late 2014 for about eight weeks. That clearly has not resolved his drug issues. As I pointed out in Saga v Reid [2010] ACTSC 59 at [89], drug addiction is a pernicious problem which can take a number of attempts to resolve.
12. He has a criminal record which includes a finding of guilt for 11 offences. Worryingly, these include two offences of dishonestly driving a motor vehicle without consent, two offences of going equipped for theft, damaging property, failing to appear after giving a bail undertaking, possessing an offensive weapon with intent, minor theft and, most worryingly, two offences of aggravated robbery, as well as common assault and damaging property. He has breached Good Behaviour Orders on four occasions. He has been sentenced to imprisonment. The present proceedings will be next mentioned in court on 20 August 2015.
13. I had helpful evidence from GD's case worker, Timothy Shields, an experienced worker in child matters for about eight years. He has known GD for three years. He has seen him both inside and out of custody. He explained the difficulties that GD experiences with his family, especially with his father, who is estranged from the family, but with whom he has some contact. The contact is mostly when GD is in custody and is difficult when he is not in custody.
14. His mother, with whom GD lives, has high expectations which GD struggles to meet. He is the eldest child in the family and, as his father is not currently residing with his mother, he sees himself as the senior male in the family and is expected to provide for the family. This not only puts expectations on him but clearly makes it difficult for him, as he is currently without employment.
15. Since he has been in Bimberi this year, however, he has now completed Year 10 in about eight weeks. This was unexpected and demonstrative of his commitment and capacity to succeed if he puts his mind to his task. He recognises, also, according to Mr Shields, that when he turns 18 he will be treated as an adult and penalties will require, insofar as incarceration is concerned, him going to the Alexander Maconochie Centre, and he is fearful of that.
16. Mr Shields outlined some of the factors involved in the offending: GD’s drug use; the expectations of his family, especially without any current employment; and poor peer associates, especially people that he had met in Bimberi, not necessarily his co‑countrymen.
17. Mr Shields considers that GD will do well in the PALM program, that he is ready for the opportunity, with present commitment and motivation, and that he is liable to be able to take advantage of that opportunity.
18. GD has recognised that if he does succeed in the PALM program he may still be incarcerated at the end of the day because of the seriousness and number of offences which he is facing. Nevertheless, this is an opportunity to show that he has actually turned the corner. As has been said in cases such as R v Govinden (1999) 106 A Crim R 314 at 319; [35], courts should be sceptical of expressions of offenders that they have seen the light and turned a corner and reformed their ways.
19. While, as French CJ said in Hogan v Hinch (2011) 243 CLR 506 at 537, [32], rehabilitation is the surest protection of the community and in the public interest, and as the UK Court of Appeal said in R v Smith [1964] Crim L R 70, the public interest is rarely inconsistent with the interests of young offenders, nevertheless the courts should be cautious about accepting the opportunities that young offenders say they have taken to change their ways without some evidence and some assurance of that. The opportunity to participate in rehabilitation programs often gives that opportunity.
20. It is important to note that s 23 of the Bail Act1992 (ACT) does require special consideration to be given when bail for persons under the age of 18 years are being considered. GD falls within that category. Not only must the usual criteria for granting bail in s 22 of the Bail Act be considered but the principles set out in s 94 of the Children and Young People Act 2008, called the youth justice principles, are also to be considered. These are as follows:
94 Youth justice principles
(1) For the criminal matters chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that is relevant (the youth justice principles):
a) if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable;
b) a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;
c) a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity;
d) if practicable and appropriate, decisions about an Aboriginal and Torres Strait Islander child or young person should be made in a way that involves their community;
e) if a child or young person is charged with an offence, he or she should have prompt access to legal assistance, and any legal proceeding relating to the offence should begin as soon as possible;
f) a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary;
g) children, young people and other young offenders should be dealt with in the criminal law system in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances;
h) on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community;
i) it is a high priority that intervention with young offenders must promote their rehabilitation, and must be balanced with the rights of any victim of the young offender’s offence and the interests of the community.
21. Opposition to bail was expressed by the Crown. That was based on a number of matters. The first was the risk of re-offending. This risk must be soundly based and not merely speculative (Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at 184; [56]). GD's record, however, especially his recent record, is not an unreasonable basis for that suspicion. Certainly, there is a reasonable basis in the fact that, more recently, he was not only arrested and bailed, but then committed further offences of a similar type.
22. On the other hand, since he has been in custody he has applied himself and seems to be ready for an opportunity to address his offending behaviour. He has indicated a degree of insight and a degree of commitment, and that is to be recognised. He will, of course, be under constant supervision in the PALM program and that is important.
23. The second ground was that much of what is offered in the PALM program can, in fact, be obtained in Bimberi. Staff from the Ted Noffs program attend each week and GD has accessed their services for counselling for drug and alcohol issues. He would be able to access some employment opportunities, also, but only if he was sentenced as a prisoner. As a remand prisoner, those opportunities are unavailable to him.
24. Currently, he could only be sentenced for some of his offences. While the courts are required, through the principle of totality (see Mill v The Queen (1988) 166 CLR 59 at 63), to ensure that subsequent sentencing for offences which are dealt with at different times, although related in time or for other reasons, must be carefully calculated to ensure that they do not result in excessive sentences because they are sentenced differently, that is always problematic and it is always difficult.
25. Though GD could be sentenced for those matters to which he has pleaded guilty, that cannot occur now until at least after 20 August, some considerable period away, and there is no chance that he would be able to be sentenced shortly after that for the offences for which he is pleading not guilty.
26. Thirdly, there is the likelihood of a custodial result. It is true that, having regard to the number of offences and the nature of the offences and GD's criminal history, a custodial sentence must be likely. I raised with Mr Shields the problem of allowing GD to go to the PALM program with the risk that he would be incarcerated when ultimately sentenced for these offences. Mr Shields rightly pointed out that that would appear to be futile because of the damage his returning to custody would cause. GD must also recognise that even if he were granted bail, a further custodial sentence would be a real possibility, especially if the fresh charges proceed and he is found guilty of them.
27. His history also has another aspect, and that is that he has been found guilty of failing to appear after a bail undertaking. Although that is only such offence on his record, it is fairly recent. He also has four breaches of court orders on his record and that must give the courts some pause about whether he will comply with his obligations.
Consideration
28. This is not an easy matter. If GD were an adult, there would be no difficulty in making a decision, namely, I would refuse him bail. The circumstances of his offending, notwithstanding his now present commitment to reform, are simply likely to result in a lengthy term of imprisonment in all the circumstances.
29. Despite the wish of the courts to encourage rehabilitation and give support to those who genuinely are committed to their rehabilitation, there are limits to that. On the other hand, GD is a young person and statutorily entitled to the consideration that the youth justice principles require the courts to apply.
30. I am of the view that he is clearly ready for rehabilitation and is putting in an effort. While I accept that a return to custody will be a major setback for him, it is not necessarily futile. I do not accept that. I accept the submissions of Mr Jorgensen, who appeared for GD, that no rehabilitation is wasted on a young person, and indeed rehabilitation, even if followed by a period of custody, can give the young person strength and commitment and the expectation that, at the end of the day, they can succeed, which may indeed protect them from the worst challenges of incarceration.
31. I will grant bail to GD from Monday, 29 June 2015 to be released into the company of an officer of the Director General on the following conditions:
a) That he be under the supervision of the Director General or her delegate and obey all reasonable directions of the person supervising him, especially as to residence and treatment or counselling for drug and alcohol issues, with the expectation that such directions will require participation in the Ted Noffs Foundation PALM Program;
b) That he not consume alcohol or illicit drugs;
c) That he submit to breath analysis and urinalysis when reasonably directed by the person supervising him;
d) That he consent to any person or agency providing him with treatment or counselling or other support providing to the person supervising him any information about his treatment and progress;
e) That he present himself to the person supervising him within 24 hours of him ceasing, without the consent of the person supervising him, to participate in any program in which he has been directed to participate, with a view to him returning to court for the purpose of having his bail reviewed.
[His Honour then spoke directly to GD]
32. GD, I am going to release you from custody on Monday. You have pleaded guilty to some very bad offences, which ordinarily would result in you being locked up. You have been locked up before and that has led you into bad habits, with bad people. You have shown in the last few months that you realise that that is a dead end road, that that is a road to nowhere.
33. You have completed Year 10 and that has beaten the expectations of everyone around you. It shows it can be done. If you are really committed, then you need to knock this drug stuff on the head now, because otherwise - and I see it all the time in these courts - you will be in and out of gaol, and you are right to be concerned about going to the Alexander Maconochie Centre. It is not a nice place and that is why we send people there, because when they have done bad things they have to go to a place that is not nice and be locked up.
34. You have a bad record. You are starting off really badly, but the courts will support you if you genuinely, conscientiously commit yourself to reform. I am giving you the opportunity. You have heard what the Crown said; I am mad to do that. But you are still young, and I hope you are able to be saved from yourself. You have good support in Mr Shields, who has faith in you. I have faith in you; do not breach it.
35. If you do not take this opportunity and you come back before me because you have run amok again, then I will have no hesitation in locking you up and if you get locked up this time the chances of you being able make something of yourself are not really that good. This is serious stuff. You are at a crossroads.
36. Now, what I must tell you, though, is even if you do very well at the PALM program, I cannot promise you that at the end of the day you will not have to spend some more time in gaol in Bimberi, and that would be a bad thing, it would be unfortunate. The best possibility of avoiding that is to really put some effort into the program.
37. It is hard. It is not going to be easy. Drug addiction and mucking around with people who like to burgle other people's houses is fun and interesting and passes the time but it only leads you back to gaol. If you put some real effort into this and you do the right thing, then the courts will take that into account, but if you are found guilty of these other offences in Hall and whatever is happening in New South Wales, then there is going to be a real chance that you will do some time.
38. My belief, and I hope it is right, is that you will take this opportunity. If you do, my belief is that even if you have to spend some time in custody you will do it easier because you will know what the right things to do are. You will have confidence in yourself and you will know that you can achieve something when you get out, but you really need to put some effort into it and do it properly.
39. Now, if things get tough, and they will, and you cannot hack it any more, the worst thing you can do in the whole world is to run away. If things get tough and you just do not want it any more, go back and see Mr Shields. He will bring you back to court. I do not guarantee that you will not go back into custody but at least we will look at the options and see what can be done. What I do guarantee is if you run away and do not come back to court, you will go back to gaol. Nothing is more certain than that.
40. You have still to spend time in custody, until Monday. Take the time to think about everything and know that for yourself, but also for your family, for your mother, you need to put some effort into this and do the right thing and then you can make a good life for yourself in Australia. Once you turn 18, it is a different exercise altogether. Then you are in the big time, and it is much tougher there.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 28 July 2015 |
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