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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Karpany

Details

AGLC: R v Karpany [2005] SASC 306
Case: [2005] SASC 306
Decision Date: 5 August 2005

CaseChat Overview and Summary

In this case, Emily May Karpany sought judicial review of a decision by a magistrate to refuse her bail, despite having been refused police bail previously. Karpany was charged with aggravated robbery, unlawful detention and theft, with allegations that she and two others unlawfully detained and robbed Philip William Condon of $1550 and personal items. The application for bail was opposed by the Crown on the basis of Karpany's criminal history, propensity to breach bail conditions, and heroin addiction. The Crown argued that Karpany was likely to reoffend if released on bail. Karpany submitted that she had an appropriate address and that her grandmother could guarantee her compliance with bail conditions. The court considered the seriousness of the alleged offence, Karpany's criminal history, her likelihood of reoffending, and her prospects for rehabilitation.

The court noted that Karpany had an extensive criminal history and a significant propensity to breach bail conditions. However, the court also considered Karpany's personal circumstances, including her young age, history of substance abuse, mental illness, and criminal behaviour. The court noted that Karpany had been participating in a methadone program and had been referred to an organisation providing health services to Indigenous Australians. The court also noted that Karpany had expressed a willingness to make use of support services upon release. The court considered the prospects for Karpany's rehabilitation to be relevant when determining whether to grant bail.

The court granted home detention bail with electronic monitoring. The court noted that Karpany's extensive criminal antecedents, in particular her apparent propensity to breach conditions of bail, was of serious concern. However, the court also considered Karpany's personal circumstances, including her young age, history of substance abuse, mental illness, and criminal behaviour. The court noted that Karpany had been participating in a methadone program and had been referred to an organisation providing health services to Indigenous Australians. The court also noted that Karpany had expressed a willingness to make use of support services upon release. The court considered the prospects for Karpany's rehabilitation to be relevant when determining whether to grant bail. The court held that the prospects for rehabilitation were a relevant consideration when determining whether to grant bail.

The court ordered that Karpany be granted home detention bail with electronic monitoring. The court ordered that Karpany reside at her grandmother's address, subject to electronic monitoring. The court ordered that Karpany attend a rehabilitation program and comply with all conditions of bail. The court ordered that Karpany not possess any items that could be used as weapons, and that she not use any illegal drugs. The court ordered that Karpany not leave her residence except for specified purposes, and that she report to the police as required.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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