R v Karpany - [2005] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v KARPANY
Judgment of The Honourable Justice Gray
5 August 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING - BEFORE TRIAL
Application for review of a decision by a magistrate to refuse bail - applicant charged with aggravated robbery, unlawful detention and theft - refused police bail on grounds that she was likely to abscond if released - magistrate refused bail on grounds of seriousness of offending and likelihood of applicant reoffending - consideration of further numerous outstanding offences - consideration of applicant's history of failing to comply with conditions of bail - consideration of applicant's personal circumstances including drug addiction - consideration of applicant's prospects for rehabilitation - evidence before the court indicating a detailed rehabilitation plan had been arranged - prospects for rehabilitation relevant consideration when detemining whether to grant bail - consideration of section 10 of the Bail Act 1985 (SA) - held: home detention bail with electronic monitoring granted.
Bail Act 1985 (SA) s 10, referred to.
R v Regan BC200304726 (unreported); R v Proom (2003) 85 SASR 120, considered.

R v KARPANY
[2005] SASC 306
Application for Bail Review
GRAY J:

This is an application for review of a decision by a magistrate to refuse bail.
Background
The applicant, Emily May Karpany, is charged with aggravated robbery, unlawful detention and theft. Two other persons were charged with the same offences, alleged to have occurred at the same time and place. The offending is alleged to have occurred at Mansfield Park on 17-18 February 2005. It is alleged that the three defendants together unlawfully detained Philip William Condon and robbed him of $1550, a wallet, credit card, driver’s licence and a mobile phone.
The victim of the alleged offending claimed he had been unlawfully detained and robbed whilst he was involved in the procurement of prostitution services from Ms Karpany and one of the other persons.
On 19 February 2005, Ms Karpany was refused police bail on the grounds that it was likely that she would abscond if released on bail. given her prior breaches of bail, lack of fixed address and lack of social ties. The magistrate noted that Ms Karpany had, in the past, co-offended with her mother. The magistrate also cited Ms Karpany’s history of prior offences, in particular robbery offences and drug matters, and her heroin addiction as grounds for refusing bail.
On 21 February 2005, Ms Karpany appeared before the Port Adelaide Magistrates Court. She was remanded to 2 March 2005 pending the preparation of a bail enquiry report. On 2 March 2005, a magistrate sitting at the Port Adelaide Magistrates Court refused bail to Ms Karpany. The magistrate refused bail on the grounds of the seriousness of the offence and the likelihood that Ms Karpany would, if released, offend again.
The applicant denies committing the offences. Counsel for the applicant submitted that bail ought to be granted on the grounds that an appropriate address for bail exists, namely the home of Ms Karpany’s grandmother. Counsel for the applicant also submitted that Ms Karpany’s grandmother could guarantee her compliance with bail and would be prepared to enter into an agreement in the form of a bail guarantee.
Counsel for the Crown opposed bail. It said that Ms Karpany’s extensive criminal antecedents, as well as her considerable history of failing to comply with terms of bail and chronic non-attendance at court hearings gave rise to a considerable risk that she would re-offend if granted bail. Counsel submitted that the Court should be reluctant to accept Ms Karpany’s assurances that she was ready to address her criminal behaviour and drug problems in light of her previous failure to adhere to such promises.
Further Offences
The applicant has been charged with five further offences of dishonestly manipulate machines alleged to have been committed on 17 and 18 February 2005 at Torrensville. These offences are said to relate to the charges of aggravated robbery, false imprisonment and theft described above. The applicant is further charged with the offences of common assault on a person other than a family member, alleged to have been committed on 12 January 2005 at Salisbury, and dishonestly taking property without the owner’s consent, alleged to have been committed on 15 January 2005 at Kilkenny. The applicant was refused police bail on 25 January 2005 in relation to these further offences. She applied for bail in the Port Adelaide Magistrates Court and bail was granted on 27 January 2005
The appellant has a large number of outstanding charges awaiting hearing in various courts, some of which date back to August 2002. The outstanding charges include numerous counts of failure to comply with bail agreement, damaging property, numerous counts of dishonestly taking property without consent, assault police, resist arrest, unlawful possession, non aggravated serious criminal trespass (place of residence) and larceny. These offences are alleged to have occurred between 2002 and 2005.
Counsel for the Crown submitted that the delay surrounding these outstanding matters has been caused by Ms Karpany’s non-attendance at court and warrants being issued for her arrest. Counsel for the Crown submitted that this was indicative of Ms Karpany’s negative attitude towards compliance with conditions of bail and court orders.
Criminal Antecedents
Ms Karpany began offending at the age of thirteen. Her early offending was characterised by dishonesty offences including shoplifting and car theft. She has spent numerous periods in juvenile detention including one period of twelve months’ duration. The longest period Ms Karpany has spent in custody as an adult is three months.
It is reported that the applicant has a poor overall response to supervision and has breached supervised bail on numerous occasions. In addition to the further charges described above, she has also twice breached good behaviour bonds and home detention orders.
Personal Circumstances
Ms Karpany is 21 years old. She has a history of substance abuse, including methyl-amphetamine, heroin, cocaine and cannabis use. Ms Karpany described using heroin regularly between the ages of fourteen and sixteen, spending approximately $100 per day to support her habit. Counsel for Ms Karpany informed the Court that she has had a drug addition for ten years and began illicit drug use at the age of 12. She has participated in a methadone program in the past. She also suffers from epilepsy, which is presently being treated by medication. Ms Karpany left high school midway through year ten. She was an average student.
In a psychiatric report compiled in 2002, Ms Karpany’s relationship with her mother was described as “close and supportive”. However, counsel for the Crown submitted that Ms Karpany’s mother has been a co-offender in some of Ms Karpany’s past criminal conduct.
Ms Karpany’s has informed the court that if she were to be released on bail she would seek to reside with her grandmother, with whom she regards with great respect. She is of the view that her grandmother can provide her with the support and positive family environment that she needs to make changes in her life.
The psychiatric report indicates that Ms Karpany has a personality disorder and has a history of chronic depression. It is said that she has been a victim of child sexual abuse. It was reported that Ms Karpany regularly suffered mood instability, anxiety, impulsivity and difficultly controlling her anger and that her substance abuse contributed to these symptoms.
The report suggests that as at 2002, Ms Karpany had demonstrated a personal commitment and capacity to comply with bail conditions and a desire to become drug-free. As made clear by Ms Karpany’s criminal antecedents, this optimism proved to be misplaced.
Counsel for Ms Karpany conceded that Ms Karpany had experienced “setbacks” in her attempts at rehabilitation. However, counsel for the applicant suggested that these setbacks have been contributed to by her difficult personal circumstances and her lack of support. Counsel was confident that the programs described in the material now before the Court, which include health care, personal and financial counselling and indigenous cultural support, would provide Ms Karpany with the type of support she needs to ensure her successful rehabilitation.
Rehabilitation
At the request of the Court, the applicant provided extensive material concerning Ms Karpany’s future rehabilitative program. The Court received material from Offenders Aid and Rehabilitation Services of S.A. Inc (OARS) and Aboriginal Prisoners and Offenders Services (APOS). OARS provided a detailed proposal for Ms Karpany’s rehabilitation addressing drug issues, medical issues, accommodation issues and financial issues. It is anticipated that OARS will co-ordinate its program with other service providers such as the Women’s Accommodation Support Service, private doctors and Centrelink.
OARS reported that Ms Karpany is currently successfully participating in a methadone program administrated by the Adelaide Women’s Prison. This program would be continued by the Parks Community Health Service should she be released on bail. Ms Karpany would also be referred to Nunkuwarrin Yunti of South Australia, an organisation providing health services to Indigenous Australians. OARS further hoped that Ms Karpany would be eligible to participate in an intensive therapeutic resident program, “Kuitpo Community”, upon her release. OARS concluded:
Throughout the duration of my work with Emily at the AWP she has remained both determined and motivated in her quest to finally deal with her drug issues and address many of the factors and circumstances which she now acknowledges have contributed to her past offending behaviour. Emily acknowledges that she needs a large amount of support, not just that from her grandmother, and has clearly indicated a willingness to make use of this support upon release. I am in strong support of a bail application being approved for Emily at her grandmother’s residence as she is a bright young woman of only 21 years, which if given the opportunity now displays a real chance to break her drug dependence and prior offending behaviour and turn her life around.
Conclusion
When determining whether to grant bail, the Court must have regard to the presumption in favour of bail for persons yet to be tried for the offences with which they have been charged and the factors set out in section 10(1) of the Bail Act 1985 (SA):
(a)the gravity of the offence in respect of which the applicant has been taken into custody;
(b)     the likelihood (if any) that the applicant would, if released--
(i)    abscond;
(ii)    offend again;
(iii)     interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;
(d)     any need that the applicant may have for physical protection;
(e)     any medical or other care that the applicant may require;
(f)any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;
(g)any other relevant matter,
the bail authority considers that the applicant should not be released on bail.
In the present case, Ms Karpany’s extensive criminal antecedents, in particular her apparent propensity to breach conditions of bail, is of serious concern. Although, when considered in isolation her offending can be described as relatively minor, her history of dishonesty offences, poor anger management, incidents of violence and general disregard for the orders of the Court are material matters to consider when determining whether to grant bail. Counsel for the Crown emphasised that despite Ms Karpany’s and others’ assurances in the past that she would comply with bail conditions in the future, Ms Karpany’s behaviour suggests a poor attitude towards her obligations.
However, when considering whether to grant bail it is also appropriate to have regard to Ms Karpany’s personal circumstances. Ms Karpany is a young woman whose life has been punctuated with substance abuse, mental illness and criminal behaviour. Although she has been heavily involved in the criminal justice system since she was an early teenager, it appears she has been offered little in the way of comprehensive support services or treatment for her drug addiction, mental health problems and financial needs. Whilst there is a clear public interest in ensuring that persons adhere to their obligations to the court, there is a competing public interest in the successful rehabilitation of offenders, particularly young offenders.
Ms Karpany’s personal antecedents, together with the material before the Court regarding her attitude towards rehabilitation, suggest that she is a young woman at the crossroads. There are positive indicators, such as her effective participation in the methadone program, that she may be on the path to rehabilitation. However, a structured and strictly enforced rehabilitation plan is necessary to ensure her positive progress continues.[1]
[1] R v Regan BC200304726 (unreported) at [17], [24].
In the circumstances it is appropriate to grant home detention bail with electronic monitoring. The conditions of bail are as follows:
Ms Karpany is to:
-not leave the State for any reason except as allowed under the Bail Act 1985^3;
-reside at 12 Plymouth Avenue DEVON PARK SA 5008 and not absent herself from that address except for remunerated employment, for any necessary medical or dental treatment, to minimise risk of serious injury or death, whether to herself or some other person, without the written permission of my supervising community corrections officer of the Department for Correctional Services;
-remain in the company of either Ms May Karpany or Ms Mary Buckskin at all times when absent from the above address;
-obey all the lawful instructions of any community corrections officer designated to supervise her on home detention;
-wear an electronic wristlet and comply with the rules of electronic monitoring;
-not consume alcohol or any drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosages and submit to any breath test or urine analysis as directed by her community corrections officer; and
-immediately upon release, travel to the address described above and upon arrival contact the Home Detention Unit of the Department for Correctional Services at Customs House, 220 Commercial Road Port Adelaide by telephoning 8447 5477.
As the Court has made clear to Ms Karpany, strict compliance with the above conditions of bail and the directions of the correctional services officer is expected. Failure to comply with these terms of bail, in light of Ms Karpany’s considerable criminal antecedents, is likely to prevent bail being granted in the future.
I strongly urge that the Department of Correctional Services, in particular Ms Karpany’s supervising correctional officer, work in conjunction with OARS and APOS to ensure that she complies strictly with the rehabilitation program described above. If this does not occur, it would be appropriate for either party to apply for a variation of the terms of bail.