R v JL
[2011] ACTSC 213
•20 December 2011
R v JL
[2011] ACTSC 213 (20 December 2011)
Kickett v Nayler [2010] WASC 70
EX TEMPORE JUDGMENT
No. SCC 253 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 20 December 2011
IN THE SUPREME COURT OF THE )
) No. SCC 253 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
JL
ORDER
Judge: Refshauge J
Date: 20 December 2011
Place: Canberra
THE COURT ORDERS THAT:
JL’s bail be continued, save for the following variations:
(a) the words “intoxicating liquor or” be removed from condition four;
(b) condition three to read, “to present himself to police upon request during those hours specified in condition 2”; and
(c) condition five be deleted.
JL has been charged with serious offences of aggravated robbery and assault occasioning actual bodily harm. He was granted bail and the terms of that bail included, amongst other things, that he not consume intoxicating liquor or any illicit drug including cannabis. This is the second occasion now on which he has breached that condition. He was before the court on 24 October 2011, when he was alleged to have been drinking alcohol. When spoken to by police on 22 October 2011, an alcohol screening test was administered to him and returned a positive reading displaying .058 per 210 litres of breath, thus breaching the condition of his bail.
On this occasion he was at his home in accordance with his bail conditions, which require him to be present at his place of residence from and after 9 pm each day and remain there until 6 am the next morning and to present himself to police upon request during that period of time. The police spoke to him and instructed him to undergo a random breath screening for alcohol. The result was .027. This again breached his bail condition. He said that he had consumed one beer about an hour earlier for his brother’s birthday.
Breaches of bail are serious matters, particularly when the charges are serious, because the court will trust the accused to be at liberty in the community only if in compliance with the conditions imposed which are set to protect the community and achieve the objectives of bail. Those objectives are, of course, to attend to take his trial, not to commit further offences (although that must be limited in a reasonable way that is appropriate to the nature of the charges faced by an accused person) and also to ensure that the interests of the accused person and witnesses are not compromised in any way.
Ordinarily breaches of bail need to be treated seriously and continued breaches of bail may render it necessary for the court to revoke the bail and remand the accused in custody until trial. That is, of course, always a last resort and the court will do whatever it can to avoid that occurring.
There is often, regrettably, an instinctive reaction by the courts to grant bail on extensive conditions. It is important that the court should identify conditions that are relevant to the circumstances of the accused and to the offending to ensure that the objectives of bail, as I have set out at [3] above, are met and that it is not an occasion for increasing the restrictions or limitations on an accused person for reasons that are unrelated to those bail conditions. See, for example, Kickett v Nayler [2010] WASC 70.
When a bail condition is inappropriate then it should be removed and, in this case, it seems to me that, while the breach of bail itself is a serious matter and renders JL liable to revocation of the bail, the response of the Court should be more attuned to the justice of the situation than that.
In these circumstances it seems to me that there is no reason why the bail condition prohibiting him from consuming alcohol should continue and the prosecution accepts that position but I will make it clear to JL that continued breaches of bail bring him closer and closer to the situation where the Court will have no alternative but to revoke his bail and remand him in custody until his trial.
Accordingly I will vary JL’s bail. I will continue the bail save that I will vary it by removing from condition 4 the words, “Intoxicating liquor or” and remove condition 5. I will also vary condition 3 to read, “to present himself to police upon request during those hours specified in condition 2”.
[His Honour then spoke directly to JL as follows]:
JL, I have removed the condition that you cannot drink alcohol. That is not a reward for breaching your bail. Breaching your bail is a serious matter. You have now got two breaches of bail and the fact that the conditions have been removed does not remove those as breaches of bail. Any further breaches of bail bring you closer and closer to being locked up until your trial.
The bail conditions are there because the court says that is the circumstance under which we can trust you to be in the community until you take your trial. If you lose that trust then the court has got no alternative but to say, “I cannot trust you to be in the community anymore, I will lock you up until your trial”. You do not want that. If you do not understand your bail conditions, speak to your lawyers. They will be able to explain them to you so that you understand what your compliance is and what you have got to do. You have been pretty compliant with the other matters so far.
Can I just say to you that just because you are now entitled to drink both as an adult and because there is no restriction on your bail does not mean you should go out and get drunk. One of the sad things in our community is how much crime is committed by young people who think that they can drink massive amounts of alcohol without any consequences and unfortunately that is not so. I am sorry this is a lecture to you but I hope that you might learn something from that and be able to have a social drink and be appropriate in your use of alcohol but it will not be a breach of your bail from now on. There are still other conditions and you need to stick with those and ensure that you do not breach those.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 20 January 2012
Counsel for the Crown: Mr A Doig
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr S Whybrow
Solicitor for the accused: Ben Aulich & Associates
Date of hearing: 20 December 2011
Date of judgment: 20 December 2011
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