R v Hancock (No 2)
[2022] ACTSC 193
•25 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hancock (No 2) |
Citation: | [2022] ACTSC 193 |
Hearing Dates: | 22 July 2022; 25 July 2022 |
DecisionDate: | 25 July 2022 |
Before: | Refshauge AJ |
Decision: | 1. The application for bail is dismissed. 2. The listing on 29 July 2022 at 2:30pm be vacated. 3. The proceedings be listed on 5 August 2022 at 2:30pm for mention. 4. Daniel Thomas Hancock be remanded in custody until then. 5. Daniel Thomas Hancock be permitted to appear in Court by audio visual means at that time. 6. Daniel Thomas Hancock be marked as a Prisoner at Risk. |
Catchwords: | CRIMINAL LAW – BAIL – Application for Bail – Cancelled Drug and Alcohol Treatment Order – Surgery Recouperation – Risk of Harm in Custody – COVID-19 Risk – Bail Refused |
Legislation Cited: | Bail Act 1992 (ACT) pt 2, ss 5, 9A, 9E, 22 Corrections Management Act 2007 (ACT) ss 9, 53 Human Rights Act 2004 (ACT) s 18 |
Cases Cited: | Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 Re an application for bail by Merritt (No 2) [2010] ACTSC 7 |
Texts Cited: | Philip Moss AM et al, “So Much Sadness in Our Lives”: Independent Inquiry into the Treatment in Custody of Steven Freeman (Report, Canberra, ACT; 7 November 2016) |
Parties: | The Queen (Crown) Daniel Thomas Hancock (Offender) |
Representation: | Counsel S Whitfield (Crown) Self-represented (Offender) |
| Solicitors ACT DPP (Crown) Self-represented (Offender) | |
File Numbers: | SCC 5 of 2021 SCC 6 of 2021 |
REFSHAUGE AJ:
Introduction
Daniel Thomas Hancock has applied for bail to let him, before he is sentenced, to recuperate from an operation at his mother’s place in the community.
Bail has been available at common law since early times (see In the matter of an application for bail by Pikula [2015] ACTSC 3 at [5]-[6]), though it has, from time to time, been modified by statute. Relevantly for the ACT, this is the Bail Act 1992 (ACT).
Though, of course, the statue must be followed on its terms, the purposes of bail within the Bail Act, especially as identified from s 22, have been described in In the matter of an application for bail by Islam [2010] ACTSC 147; 4 ACTLR 235 at 293; [258] as being to ensure an accused person turns up for trial, to protect the community and the administration of justice, and to protect the liberty of persons presumed to be innocent: see, also, Re an application for bail by Merritt (No 2) [2010] ACTSC 7 at [30].
In some sense, this might require an approach to the decision that may be described as a matter of risk management: see Re an application for bail by Merritt (No 2) at [52]; Hildebrandt v Director of Public Prosecutions [2006] VSC 198 at [12]. Caution against the use of this language was expressed in Dunstan v Director of Public Prosecutions [1999] FCA 921; 92 FLR 168 at 184; [56]. This was also linked to the possibility that this approach would result in preventative detention for which there is no legislative warrant: see Dunstan v Department of Public Prosecutions at 174; [21], 184; [56]. It is, therefore, preferable to use the legislative term of ‘likelihood’ within the context of assessment to be undertaken as required by s 22 of the Bail Act. While this may seem somewhat of a semantic distinction, it is preferable to follow the legislative language, for all language brings a context of meaning beyond what the dictionary often records.
In the case of Mr Hancock's application, the relevant considerations are somewhat different for he is a convicted person, for whom there is no presumption of innocence but, regardless, whose liberty is still a relevant issue: s 18 of the Human Rights Act 2004 (ACT).
In this application, no actual evidence was filed or given, except as noted below (at [8]-[11]). As is common in such applications, though by no means universal, despite s 4(1)(a) of the Evidence Act 2011 (ACT), factual assertions were made in the submissions to the Court. Given that Mr Hancock appeared for himself, some accommodation for this is required, but the Crown, ably represented by Mr S Whitfield, did the same and, as was appropriate, did not object to the hearing proceeding in this way. The few, but relevant, challenges to any assertion were debated in the hearing.
The four matters of evidence were as follows.
First, Mr Hancock produced some documents which he tendered without objection and admitted. The first was a letter from Dr Adrian Doherty, resident medical officer at The Canberra Hospital, to Dr Stewart Cameron Edgell, a general practitioner at the Alexander Maconochie Centre, being a discharge summary relating to the admission to hospital of Mr Hancock on 17 July 2022. The other two were emails, of one sentence each, from Mr Hancock's mother. No objection to the tender was raised and they were admitted into evidence. No challenge was made to the contents of any of the material, though comment was made on the effect of them and their significance.
Then, secondly, Mr Hancock made an assertion about his prospective admission to the residential drug rehabilitation We Help Ourselves, commonly known as WHOS. It operates Mandala House, a residential therapeutic community in the southern New South Wales (NSW) city of Goulburn. The status of Mr Hancock's application was an issue between the parties and he advised that his admission had been approved and that his lawyer (unable to appear in this application) had correspondence to that effect. I directed my Associate to contact Mr Hancock's lawyer and obtain a copy of any such correspondence. Ultimately, an email stream from his lawyer to WHOS and in reply was produced, tendered without objection and admitted into evidence. No challenge was made to the contents, though the Crown did dispute the effect of them as asserted by Mr Hancock.
10. Thirdly, the Court was aware of certain matters from its involvement with supervision of him in the Treatment Order. First, the Court had previously approved Mr Hancock visiting his mother at her address in Sussex Inlet, NSW. Secondly, Mr Hancock was subject to existing warrants issued in NSW for various charges. The Court took notice of those circumstances and, thirdly, his progress under the Treatment Order referred to below without any objection.
11. Finally, the fourth matter was oral evidence was given by Ms Julie Blunden, Case Manager of the Alcohol and Drug Services of Canberra Health Services, who produced a document tendered without objection and admitted into evidence. It was prepared, it appears, by the Clinical Health Emergency Coordination Centre as at 12 July 2022 setting out the risk assessment for various scenarios, such as transient contact of less than 5 minutes where the parties are less than 1.5 metres apart. This showed that, even without a mask, the infection exposure was likely to be moderate which permitted the infected person to continue to work if asymptomatic, preferably at home, but not necessarily, and to be tested. If a mask was worn and without effective personal protection equipment, including face shields or gowns, the level of risk was also moderate.
Background
12. On 16 March 2021, Mr Hancock was convicted of nine offences: possessing a prohibited weapon, two spring-assist flick knives; possessing a prohibited weapon, a taser; burglary; five counts of theft and driving whilst disqualified. He was sentenced to a total term of four years imprisonment but which was ordered to be served by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act): see R v Hancock [2021] ACTSC 52.
13. On 24 May 2022, however, the Treatment Order was cancelled. He was remanded in custody. Once a Treatment Order is cancelled for unsatisfactory circumstances, as here, the original sentence that was imposed, but suspended on the making of the Treatment Order, is either imposed or Mr Hancock must be re-sentenced. Some of the circumstances under which re-sentencing occurs are set out in R v Tonna (No 2) [2020] ACTSC 362 at [78]-[79].
14. In this case, Mr Hancock sought that, before a decision was made as to which of these options should be chosen, he might explore some of the possibilities for him to continue with his drug rehabilitation. Accordingly, the proceedings were adjourned. He was remanded in custody.
15. The letter from Dr Doherty showed that Mr Hancock had presented at The Canberra Hospital on 17 July 2022 with abdominal pain. He was not admitted but arrangements were made for elective surgery to take place on 26 July 2022, that is tomorrow. This appears to be elective surgery foreshadowed to the Court on 16 July 2021, though no date had then been set. Whether the appointment has now arrived, or whether his pain has hastened, is not clear and may not be relevant.
16. Mr Hancock advised that he is likely to require recuperation for two to four weeks in order for him to heal properly from the surgical intervention. His mother was prepared to collect him after the surgery and take him to her home at Sussex Inlet, NSW, for that recuperation.
17. Despite Mr Hancock submitting to the Court that he had been accepted into the program at WHOS Goulburn, the emails evinced merely that his lawyer had made inquiries which showed that Mr Hancock could only be admitted to WHOS from the community and that the facility would not admit him from custody. There was no assessment nor placement at WHOS for Mr Hancock as yet.
18. Mr Hancock did say, subsequently in submissions, that he had spoken to someone at WHOS and that they required a letter from him regarding the result of the surgery and then he was likely to be discharged, but there was no evidence of this guarantee of admission nor any details of any conditions for the admission, including whether it was possible for him to do so from custody in these particular circumstances.
The issues
Submissions of Mr Hancock
19. Mr Hancock submitted that he should be permitted to recuperate at his mother's place in NSW. He submitted that his main problem was that, in the Alexander Maconochie Centre, he was at risk of injury after his surgery. There were other residents in the section in which he was housed who had some animosity to him. He feared that, as they would know that he had had abdominal surgery, it was likely that they would punch him in the stomach, causing serious injury.
20. He further submitted that he would need to return to the hospital for his sutures to be removed. As he had to have resolved his health from the operation before he could be admitted to WHOS in Goulburn, the opportunity for rehabilitation with his mother was the best option for him.
21. He pointed out that, when he had been discharged from the Karralika Therapeutic Community Inc., where he had been rehabilitating under the Treatment Order, he had returned to Court, even though he knew that he was likely to be incarcerated.
22. His mother, in her brief emails, said she was willing to take him to collect him from the hospital after the operation and take him to her home. She did not provide any other information.
23. As noted above (at [10]), Mr Hancock, though at the time in residential drug rehabilitation, had been earlier permitted under the Treatment Order to visit his mother for a week after she had been discharged from hospital following significant surgery. He then returned successfully to Canberra and into residential drug rehabilitation.
24. He further submitted that, from August 2020, he was permitted to live in Queanbeyan, NSW, from mid-August 2021 for some time and, from about mid-November, was permitted to live in Canberra but continue to work in Queanbeyan.
25. As also noted above (at [10]), Mr Hancock has current warrants issued in NSW following convictions in his absence for offences of having goods in custody suspected of being stolen and driving whilst disqualified. Both are offences rendering him liable to imprisonment. The warrants were issued under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
26. He noted, however, that despite working in Queanbeyan and visiting his mother, he had never been arrested by NSW police under the warrants.
27. In further submissions today, Mr Hancock also raised the risk to him of becoming infected by COVID-19 in the Alexander Maconochie Centre, which he asserted would be likely to be detrimental to him post-surgery.
Submissions of the Crown
28. Mr Whitfield for the Crown submitted that the Alexander Maconochie Centre had a statutory obligation under the Corrections Management Act 2007 (ACT) to provide for his proper care. Thus, it is noted that s 9(b) of that Act requires the Centre to exercise its functions to provide Mr Hancock with decent, humane and just treatment; that s 53(1) of that Act requires him to have a standard of care equivalent to that available to other people in the Territory and for the Centre to ensure the provision of appropriate health services, including conditions to promote his health and wellbeing and, relevantly, protect detainees from exposure to infection risks (s 53(1)(d)). These include necessary health and programs including rehabilitation programs (s 53(2)(d)(ii)). The Crown pointed out that these legal obligations would require Mr Hancock’s transfer to and appropriate care on his discharge from hospital while recovering from surgery.
29. It was noted that Mr Hancock's mother home had not been assessed for suitability as a place for him to reside, though it does appear that this is only really relevant to offenders subject to a Treatment Order. Obviously, bail is unlikely to be granted where a bailee is going to reside at a place where he or she is likely to be in contact with or, worse, involved in any illegal activity. That he was permitted to visit there at his mother's place before implicitly means that it has been found suitable from that perspective.
30. The Crown submitted that Mr Hancock was facing a substantial period of imprisonment and that he was in custody awaiting sentence. This raised a real risk of flight, it was submitted.
31. There was also a risk, the Crown further submitted, that post-operative medication maybe such as to enliven his drug dependence and may lead to him using illegal drugs or selling his drugs, so that post-operative medication could be better supervised while he was in custody.
32. The uncertainty of the actual period of recovery was also a matter of concern, it was submitted.
33. Arrangements for supervision were not available at his mother's place, the Crown submitted, but such supervision would be a necessary condition if bail were to be granted. If a requirement for reporting to police was made, then the execution of the warrants seemed to be almost certain. There were health dangers of this, as the NSW police, whether arresting him on such reporting or otherwise, would not be aware of his medical history and may not provide, or perhaps may not even be able to provide, him with suitable accommodation to enable his recovery to continue.
Risk of infection
34. A further issue arose after the application had been adjourned. When the hearing resumed, Mr Hancock advised, as noted above (at [27]), that the Alexander Maconochie Centre had been subject to a significant outbreak of COVID-19. He was fortunately not affected and this would not interfere with the scheduled surgery.
35. He expressed concern, however, about the risk of him returning to the Centre where the virus was, apparently, widespread. The outbreak was mentioned in the media and communications from the Centre to the ACT Courts and, while these were not in evidence, the Crown did not contest the fact of the outbreak. Mr Hancock submitted that personal protective measures were not used and that, when he was returned to custody from the operation, it is likely that he would be infected with the virus and that this would be detrimental to his recovery and, perhaps, his health more generally.
36. Given this matter, the Court invited Mr Whitfield to make inquiries about what facilities would be available to Mr Hancock to ensure that his health was not put at risk in these circumstances.
37. As a result of the Crown’s inquiries, the Court was informed that Mr Hancock would, on his return to custody, be placed in the health facilities of the Alexander Maconochie Centre and not be released from there until his medical condition was such as to justify him being in safety in the general population. Mr Whitfield submitted that, given the lack of credibility of Mr Hancock in relation to his position with respect to WHOS Goulburn, the Court should not rely on his assertions on the lack of protective measures without further evidence.
38. I do not consider that I can directly reject the assertions of Mr Hancock, but it does require more careful crafting of the conditions to accommodate the Court’s concerns to ensure, if Mr Hancock were to return to the Alexander Maconochie Centre, this would not impact his recovery nor general health.
39. The document referred to at [11] set out the policies of the Canberra Health Services, which includes not only the Alcohol and Drug Services but also Justice Health, which manages health in the Alexander Maconochie Centre.
Consideration
40. The Bail Act regulates the approach that a court must take to bail. Thus, Part 2 sets out the provisions relating to the availability of bail. The principal provision is in s 5(1) that an accused person (which, according to the Dictionary, includes a person convicted of an offence, as is Mr Hancock) may be granted bail in relation to any period when the person is not required to attend court in relation to the offence with which the person has been charged and which, in the circumstances of the Bail Act, includes an offence with which the person has been charged but also convicted.
41. Since Mr Hancock is not yet to be sentenced as he has sought time first to undergo and recover from the surgery and then to prepare his case for his sentencing, he is not currently required to attend court.
42. Section 5(2) of the Bail Act, however, provides that an accused person must not be granted bail in relation to any period during which he is serving a sentence of imprisonment. That, however, does not seem to apply to Mr Hancock. Though he has been sentenced to imprisonment and, despite the cancellation of the Treatment Order, he is not serving the imprisonment originally imposed until, under s 80ZE(2) of the Sentencing Act, the sentence has been imposed if he is not re-sentenced.
43. Given the limits in s 80ZB(1)(e) of the Sentencing Act on the time for which a person, who, like Mr Hancock, has breached a condition of his Treatment Order, can be kept in custody in respect of the breach is 14 days (as to which see R v Tonna (No 2) at [66]-[68]), it was not possible to detain Mr Hancock in custody in respect of the breach that led to consideration of cancellation of the Order. This ultimately required cancellation as there was no other facility available for him so that he might properly prepare for sentencing.
44. The 14 days in his case and others, such as R v Tonna (No 2), was not long enough to provide a reasonable time to allow preparation for his case as to re-sentencing to be made, especially if it included arranging admission to another residential drug rehabilitation facility and, as often, if it is one unavailable under a Treatment Order, such as a facility interstate. Thus, it is clear that the hearing can be adjourned after cancellation when Mr Hancock is no longer under the Treatment Order but he is also not serving the sentence of imprisonment under the sentence, which has not yet been imposed. This further period of post-cancellation in custody will, of course, be taken into consideration when the sentencing proceedings resume.
45. The other section in the Bail Act that needs consideration is s 9E, which provides that bail must not be granted unless special or exceptional circumstances are shown in the case of an accused person convicted and sentenced to a term of imprisonment except only when an appeal is pending in relation to the conviction or sentence. Although Mr Hancock has been convicted and sentenced to imprisonment, he has not appealed the conviction or sentence and is not awaiting appeal. There was some suggestion in CommonwealthDirector of Public Prosecutions v Germakian [2006] NSWCA 275; 166 A Crim R 201 at 207-8; [29] that the principles applicable to an application for bail pending appeal should apply to such an application pending sentence. It is noted, however, that there were various statutory issues in that case, which was a NSW case applying a different Bail Act than that which applies in this Territory. This makes the direct applicability of this case uncertain. Nevertheless, it does suggest that a case for bail pending sentence should be tested very carefully before the case can be made for bail.
46. Further, in Victoria, though again there are also statutory provisions that may be relevant, it was pointed out in In the matter of an application for bail by Skura [2003] VSC 207 at [6] that, under the common law, there was no presumption of an entitlement to bail following a plea of guilty. Under the Bail Act, of course, that has been changed to some extent by statute. That Court did hold (at [9]), however, that the prospects of a substantial term of imprisonment and the relative proximity of the sentencing hearing date were relevant. See, also, Yuen v Director of Public Prosecutions [2014] VCS 197 at [6].
47. In this case, of course, there is a prospect of a substantial period of imprisonment and the sentencing date will occur in the relatively near future. None of the other provisions of Part 2 of the Bail Act specifically apply, other than s 9A, which provides that an accused person is entitled to be granted bail unless the Court is satisfied, having regard to the criteria mentioned in s 22 of the Bail Act, that refusal is justified.
48. Thus, an accused person, having been convicted, is entitled to bail pending sentence, unless the criteria in s 22 satisfies the Court that refusal is justified. This appears to be the position: R v Antonovic (No 1) [2021] ACTSC 219 at [4]; R v EN [2020] ACTSC 302 at [42].
49. Of course, the Court must consider the criteria set out in s 22 of the Bail Act and also the other provisions, such as the likelihood of a term of imprisonment and the proximity of the sentencing hearing.
50. At common law, the primary consideration was whether the person would appear to take his or her trial or sentencing: Re an application for bail by Merritt (No 2) at [30]. This is also referred to in s 22(1)(a) of the Bail Act.
51. In this case, Mr Hancock is facing the possibility of a lengthy term of imprisonment. Though he has now served some periods of custody, either under the Treatment Order or on remand in custody while awaiting the imposition of sentence - a period of over seven months now - and then a period of over one month, taken into account as “a quasi-custodial period” in residential drug rehabilitation prior to sentencing, he still has approximately something over three years of the sentence to serve. The likelihood of a sentence of imprisonment being imposed is expressly relevant under s 22(2) of the Bail Act. That period of imprisonment also includes a period of Pre-Sentence Custody prior to him being sentenced.
52. Further, in this case there is a greater degree of certainty than is available when an accused person is awaiting sentence following conviction or even a plea of guilty, but it is not a definite certainty as Mr Hancock may be re-sentenced and, if that includes a further period of residential drug rehabilitation, it would involve the suspension of the term of imprisonment.
53. Here, as noted above (at [43]), the cancellation was significantly, though not wholly, a result of there then being no available residential drug rehabilitation placement suitable under a Treatment Order for Mr Hancock. If, however, the placement at WHOS Goulburn were available, that may well justify such a re-sentencing to permit that, though having regard to the cancellation of the current Treatment Order it could not now be done under a further Treatment Order: s 80ZB(1)(g) of Sentencing Act. The evidence, however, shows that, contrary to Mr Hancock's submission, there is not yet a placement at WHOS Goulburn facility. It is not unavailable, however, but he has not yet been offered a placement. If he is not, it appears almost certain that the term of imprisonment will be imposed.
54. A lengthy term of imprisonment is, of course, a motivation for flight. Mr Hancock submits that he did not do so after either the discharge from Karralika Therapeutic Community Inc. nor when he previously spent time at his mother's home. That is true, but only moderates this consideration to a limited degree.
55. There are, of course, steps that could be taken to limit that risk. As the Crown submitted, it would be usual to require reporting to a police station during a period of bail in these kinds of circumstances. While that was not done when Mr Hancock went to his mother's place previously, that, however, was only for a week and there were other mechanisms of supervision available under the Treatment Order which are not available outside that regime, including regular telephone contact with Case Managers.
56. Further, that was a period for only a week. Here the period is for up to about four weeks. This is relevantly different. The longer a person is out of custody, the less he or she is likely to be prepared to return to custody. That, of course, is a generalisation, but there is no reason to discount it completely in this case.
57. The difficulty with a reporting requirement is that this is highly likely to trigger the execution of the outstanding warrants as Ms Hancock's mother lives in NSW. Reporting to a NSW police station seems likely to have that effect. Apart from the risk to Mr Hancock's health by him being taken into custody in a jurisdiction where his medical situation would be unknown, an important criterion under s 22(1)(c) of the Bail Act and, contrary to that requirement, it is likely to mean that he would not return to Court in this Territory at least until after being sentenced in that jurisdiction.
58. It is also relevant that Mr Hancock's mother has not given any evidence in her emails other than to say that she would be able to transport him to and from the hospital, including to her home. There is no description of her home and surrounds, no confirmation that she will ensure that he remains at the house nor any arrangements should he not comply with bail conditions, such as not consuming drugs or alcohol. There was also no effort offered to give an undertaking to report to police or elsewhere should he fail to comply with any bail conditions, such as that he not leave the residence except in her company and remain in her company while outside the residence: see, for example, R v Pelecky (No 4) [2021] ACTSC 343 at [45](2).
59. It is also to be noted that, while Mr Hancock did engage in rehabilitation well at many points under the Treatment Order, there were substantial periods when his work did not permit the kind of scrutiny to which other participants were subject. Nevertheless, despite the length of time during which he was subject to the Order, his conduct more recently has been poor and, of course, led to the application for cancellation. This includes some drug use at an earlier stage. Mr Hancock was discharged from Karralika for alleged drug distribution within that facility, despite his denial of this.
60. It may be accepted that, were he to return to the Alexander Maconochie Centre after surgery to risk his health, as he describes it, that would be a powerful matter under s 22(1)(c) of the Bail Act in favour of the grant of bail. There is, of course, a medical facility in the Alexander Maconochie Centre, as the evidence shows, where he would be housed, at least in the first period of his return to custody after his surgery.
61. Further, this jurisdiction has a reasonably sophisticated and flexible “Prisoner at Risk” notification system where concerns, usually in relation to suicide, but flexible enough for this circumstance, to notify the authorities that special care must be taken. The notification allows a precise description of the risk as he has described it above (at [19]).
62. While it is difficult, without countervailing direct evidence, that Mr Hancock's description of exactly how, in the health centre of the Alexander Maconochie Centre, the staff do not use personal protection equipment, the challenge to his credibility over his submission as to admission to WHOS does require that. I approach his submission with caution.
63. While the policies in evidence do not guarantee adherence, it does show a range of proper protective actions which may be consistent with Mr Hancock's observations, but not necessarily inconsistent with the policies and not permitting the spread of COVID-19 to the extent that he would be at risk.
64. Whether there are other issues or circumstances which Mr Hancock has misunderstood or conflated, it is difficult to accept that medical staff would not comply with standard, indeed probably mandatory, infection control procedures and protocols or that and such policies and protocols would be so carelessly ignored. This is especially the case when infection would, of course, not only risk the detainees’ health but also their own health.
65. It may also be accepted, as submitted by the Crown, that the Alexander Maconochie Centre does have statutory obligations to provide proper care and treatment for detainees in custody. The Court cannot, however, guarantee that these obligations will always be discharged. See, for example, Philip Moss AM et al, “So Much Sadness in our Lives”: Independent Inquiry into the Treatment in Custody of Steven Freeman (Report, Canberra, ACT; 7 November 2016) at 2.1.13, 2.2.1. It is to be accepted that the failings there identified have now been rectified and more confidence can be placed in the administration of the failure to comply with the statutory obligations, which requires all detainees to be treated with respect for their rights: Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 at [438].
66. If, however, there is any evidence of a problem in this area, an urgent application could be made to the Court which, if satisfied of a real risk, could revisit the request for bail. It also appears that specific reference in the Prisoner at Risk form may be sufficient to deal with that.
67. There is no doubt that Mr Hancock has made much progress under the Treatment Order. He spoke meaningfully of his experience of Restorative Justice. On the other hand, more recently, he has failed to comply with obligations by using illicit drugs and then falling to attend for urinalysis, which always creates suspicion of use that is to be hidden.
68. While it is likely that, were appropriate facilities to have been available, the Treatment Order may not have been cancelled, it has, nevertheless, been cancelled. It may be that further treatment may be available, but that has not yet been confirmed. If it is not, the likelihood is that the sentence originally imposed will be re-imposed.
69. Having regard to all these matters, the Court is not satisfied that refusal of the application for bail is justified.
Orders
70. Accordingly, the orders of the Court are as follows:
(1) The application for bail be dismissed;
(2) The listing on 29 July 2022 at 2:30pm be vacated;
(3) The proceedings be listed for mention on 5 August 2022 at 2:30pm;
(4) Daniel Thomas Hancock be remanded in custody until that time;
(5) Daniel Thomas Hancock be permitted to appear in Court by audio visual means at that time; and
(6) That Daniel Thomas Hancock be marked as a Prisoner at Risk and that the Alexander Maconochie Centre be notified that he is at risk of possible physical injury from other detainees upon his vulnerability from his surgery and that his surgical procedures would render him of particular risk of detrimental health effects should he become infected with COVID-19.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 9 August 2022 |
3
5
6