R v JM
[2011] ACTSC 157
R v JM
[2011] ACTSC 157 (31 August 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – no trial date set – applicant awaiting an appeal of a fitness to plead finding – time spent in custody – factor in the determination of a bail application – bail granted.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – special and exceptional circumstances – combination of circumstances can amount to special and exceptional – bail granted.
Crimes Act 1900 (ACT), s 315A
Legislation Act 2001 (ACT), s 84
Bail Act 1992 (ACT), s 9D
EX TEMPORE JUDGMENT
No. SCC 26 of 2009
No. SCC 362 of 2009
No. SCC 363 of 2009
No. SCC 128 of 2011
No. SCC 129 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 31 August 2011
IN THE SUPREME COURT OF THE ) No. SCC 26 of 2009
) No. SCC 362 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 363 of 2009
No. SCC 128 of 2011
No. SCC 129 of 2011
R
V
JM
ORDER
Judge: Refshauge J
Date: 31 August 2011
Place: Canberra
THE COURT ORDERS THAT:
JM be granted bail to appear in the Magistrates Court on 6 October 2011 and in this court on a date to be notified to him by the Registrar of the Supreme Court, on the following conditions:
(a)there be a surety in the sum of $200.00, [name provided] being declared a suitable person for that surety;
(b)that he reside at [address provided];
(c)that he accepts the supervision of the Director General or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to participation in cognitive skills programs or alcohol and drug counselling or vocation and employment training, including his attendance at the Canberra Institute of Technology to enrol in and, if accepted, to participate in the Yurana Program;
(d)that he report to the officer in charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 8.00 am and 8.00 pm;
(e)that he not approach within 100 metres of [address provided];
(f)that he not approach or contact, directly or indirectly, [names provided]; and
(g)that he report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City ACT forthwith for the purpose of arranging supervision.
The matter be listed at 9.30 am on 18 October 2011 for a bail review.
AND THE COURT NOTES THAT:
On 18 October 2011, if JM is enrolled in the Yurana Program and is progressing well in that program, a reduction of the reporting requirements will be viewed favourably by the court.
JM was, on 19 January 2009, committed for trial to this court on charges of aggravated robbery, the circumstances of the aggravation being that he was in company, and two counts of dishonestly driving a motor vehicle without consent, which are alleged all to have occurred on 16 October 2008.
On 27 May 2009, I found JM unfit to plead to these charges, see [citation suppressed for legal reasons]. I was, however, not able to find whether JM would be likely to become fit to plead within twelve months, as required by s 315A(4) of the Crimes Act 1900 (ACT).
As a result, a further hearing had to be conducted and, in the course of that further hearing, it became clear that a real question arose as to whether JM was then fit to plead. After hearing evidence and further argument, I held that JM was fit to plead, though I held that special measures had to be taken to ensure that JM would be properly able to follow any proceedings: [citation suppressed for legal reasons].
JM, as he is entitled to do, sought leave to appeal against my decision. It was unclear from the file whether leave had been granted. It would appear that as an interlocutory decision from which the appeal is being taken, leave would be required on that ground, but also that it appears that the application was made out of time and leave would be required on that account as well.
I do not, however, need to consider those matters further except for one reason. The reason is that the appeal will clearly delay finalisation of the matters in which JM is involved. Until the question of his fitness to plead is resolved it is not possible to proceed either with a trial or a special hearing.
As well as these proceedings, JM has been committed to this court on a number of other charges, being:
(a)a burglary and theft from a residential property on 6 September 2006, for which he was committed to this court on 30 March 2011 for trial;
(b)assault occasioning actual bodily harm and damage property on 7 April 2010, for which he was committed to this court also on 30 March 2011 for trial;
(c)a burglary and theft of a residential property on 16 August 2007, for which he was committed to this court on 12 October 2009 for trial;
(d)an aggravated burglary of residential premises, the circumstances of aggravation being that he was in company, and theft of property from those premises on 12 August 2008, for which he was committed to this court also on 12 October 2009 for trial; and
(e)a burglary of residential premises on 11 August 2008, for which he was also committed to this court on 12 October 2009 for trial.
There is a discrepancy between the court’s records and those attached to the affidavit of JM’s lawyer, Mr John C Baker, made 10 August 2011. In the affidavit he refers to a charge of aiding and abetting a burglary at commercial premises on 29 November 2009 as part of file No SCC 129 of 2011. It is suggested that this charge was committed to this court on 30 March 2011. I have carefully perused the court file and no such documents are on it. It appears, however, that this charge may, in fact, be on a different court file, No. SCC 128 of 2011.
There are other matters which are relevant. JM is facing the following three charges in the Magistrates Court:
(a)unlawful possession of a stolen bicycle on 11 August 2009;
(b)resisting a Commonwealth public official, namely a police officer on 30 September 2009; and
(c) an assault on 14 April 2010.
A recent charge of driving whilst unlicensed was apparently dealt with in the Magistrates Court on 11 May 2011. I do not know what the result was. I also do not know the stage at which the other proceedings in the Magistrates Court have reached.
On 21 April 2010, JM appeared before Magistrate Doogan, and bail was refused. JM then applied for bail, or made an application for review to this court; it is not entirely clear which. That came before the court on 18 August 2010 and was adjourned generally.
The application before me, it was agreed, was for further hearing of that application. This is important, because, since that date, there have been changes to the Bail Act 1992 (ACT) which would require JM to have made at least two further bail applications in the Magistrates Court before making a fresh application here. Those amendments came into effect on 16 May 2011. The pending application is, it seems to me, preserved, so far as I can deal with it, by s 84(1)(c) and (2) of the Legislation Act 2001 (ACT).
JM has, I am told, now been in custody in respect of these matters for more than 21 months. He was remanded in custody from 26 October 2008 to 25 March 2009, when he was granted bail by this court. He did breach his bail on seven occasions thereafter, though on each occasion bail was continued, but the terms were varied from time to time. It appears that on 21 April 2010, he was arrested for the assault on 14 April 2010 and bail was refused. He has been in custody since then, more than 16 months. Together with the five months in 2008 and 2009 that adds up to the 21 months.
There will now be substantial delay in any trial or special hearing. His appeal is unlikely to be heard before the sittings in February 2012, and, as the court is presently listing trials for the first sittings in 2013, there will be an extensive delay thereafter. Thus, by the time the appeal is heard and judgment delivered, it is likely that any trial date or date for a special hearing will be well into 2013.
It was put to me that JM was subject to s 9D of the Bail Act, as it was alleged that JM was on bail for an offence punishable by imprisonment for five years or longer, a serious offence, when he is alleged to have committed a further serious offence.
There is no doubt that on 21 April 2010, JM was on bail for a number of serious offences. The charge of assault, however, which was the matter apparently principally before the Magistrates Court on that occasion, is only punishable by two years imprisonment, and so is not a serious offence within the meaning of the Bail Act.
On the other hand, the charge of damage property and assault occasioning actual bodily harm on 7 April 2010 are each serious offences, which were clearly alleged to have been committed while on bail for the other serious offence.
The consequence of this is that it is necessary to find special and exceptional circumstances justifying bail before I may grant it. The special and exceptional circumstances were said to be, in combination:
(a)the delay between now and when JM’s trial or special hearing can be conducted;
(b)his performance in custody. JM has obtained a white card, he is currently in employment which earns him some small remuneration while in custody, he has been subject to no charges and has lost no privileges, and therefore has behaved himself in an exemplary manner while in custody;
(c)there is a surety available. Although his mother is not able to deposit cash for a surety, and would only be amenable to a moderate level of surety, that surety is available; and
(d)he intends to undertake a course at the Canberra Institute of Technology (CIT) to complete his Year 10. That CIT course is specially designed for indigenous people.
While none of these matters would, by themselves, amount to special and exceptional circumstances, it seems to me that in combination, particularly the substantial delay, they are sufficient to permit me to consider bail.
I am concerned that JM had been breaching his bail when he was on bail earlier, although I note that the breaches were such that the court on no occasion revoked bail; on some occasions it did change the conditions that were applicable.
I note also that when the bail application was made, I had little information about the course at the CIT, what it required and whether JM was likely to be amenable to that course and admitted to it. I have now had some further information about the course in a letter that JM’s solicitor wrote to his counsel.
It appears that the course at the CIT aims to develop literacy, numeracy, introductory science skills, computing, vocational and sociology skills to a recognised level of education, from which Aboriginal and Torres Strait Islander students can enter post Year 10 level programs, employment, and/or other educational pathways. The delivery of the course is Tuesdays, Wednesdays and Thursdays between 9.30 am and 3.00 pm.
There is, I am informed from that letter, no formal enrolment process, but the applicant is required to attend on a Monday or a Friday to speak to one of the persons responsible for admitting students, and the admission process appears to be based on the person’s educational needs, so that a program to fit those needs can be proposed. It was suggested that there was no other requirement than the applicant’s commitment to improving his educational attainments. It does appear that if a student is enrolled and does not turn up, then they are reminded of their obligation to turn up for each of the three days, and if they fail to do so, after three absences, then they are excluded from the course.
At this stage it is not clear, other than the express commitment of JM, whether he would be accepted into the course, but it would certainly be an appropriate course for him to attend. To this end it has been agreed, in effect, by counsel that there should be a bail review some weeks hence, to see how things are progressing and, in particular, whether JM has been able to access the course. That bail review, it seems to me, is a very sensible idea and I will build it into the arrangements that are made for this matter.
It is also suggested that I should not burden JM with a range of excessive conditions, for instance, about the CIT course. In general terms I agree with that. While it is very attractive often for a court to list a whole range of conditions for bail because they are supportive of the intention of the court to assist in rehabilitation and reintegration of the applicant and to prevent, as best the court might, the reoccurrence of offending behaviour, it seems to me there is a real risk that the court sets up to fail inevitably those, particularly in the circumstances of JM, who are quite vulnerable to being unable to comply with many conditions that are imposed on them.
It does seem to me that a general supervision condition is probably sufficient in those circumstances to ensure that JM is under some discretionary supervision that can be matched to his particular circumstances at the time, and I will take that course.
Accordingly, I will grant JM bail. I will direct that there be a surety in the sum of $200.00, and I will declare that [name provided] is a suitable person for that surety.
JM is to appear in the Magistrates Court on 6 October 2011 and in this court on a date notified to him by the Registrar.
I will make the following conditions to the bail:
(a)that he reside at [address provided];
(b)that he accepts supervision of the Director-General or a delegate of the Director-General and obey all reasonable directions of the person delegated to supervise him, including as to participation in cognitive skills programs, or alcohol and drug counselling, or vocation and employment training, and to include his attendance at the Canberra Institute of Technology to enrol in and, if accepted, to participate in the Yurana Program;
(c)that he report to the officer in charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 8.00 am and 8.00 pm;
(d)that he not approach within 100 metres of [address provided];
(e)that he not approach or contact, directly or indirectly,[names provided]; and
(f)that he report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City, ACT forthwith upon him entering into his bail, for the purpose of arranging supervision.
I will list the matter at 9.30 am on 18 October 2011, for a bail review and I note on that occasion that if JM is enrolled in the Yurana Program and is progressing well in that program I will favourably consider a reduction of the reporting requirements.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 14 September 2011
Counsel for the applicant: Ms T Warwick
Solicitor for the applicant: JCKB Legal Services
Counsel for the respondent: Mr C Todd
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 31 August 2011
Date of judgment: 31 August 2011
0
0