R v Klaasen - [2004] SASC 359

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v KLAASEN
Judgment of The Honourable Justice Gray
12 November 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FOR GRANTING OR REFUSING
Crown application - to review grant of bail - oral application for bail - failure to comply with earlier bail agreements - mental health concerns - electronically monitored home detention bail granted on strict terms.
Bail Act 1984 (SA) s 10, s 14, s 16, referred to.

R v KLAASEN
[2004] SASC 359
Bail Review
GRAY J

On 28 August 2004 Gregory Keith Klaasen was released on bail following a telephone hearing before a magistrate. The Director for Public Prosecutions applied to review this decision.
Applications for review of bail are governed by the provisions of the Bail Act 1984 (SA).   Section 14 relevantly provides:
(2)     A review may be carried out under this section on the application of the Crown
…
(a)     by the Supreme Court; or
…
(3)On a review, the reviewing authority will reconsider the application for release on bail and may make any decision on that application that should, in the opinion of the reviewing authority, have been made in the first instance.
(4)Where an application for review of a decision of a bail authority is made, the bail authority must furnish the reviewing authority with any documentary or other material in its possession that may be relevant to the review.
(5)The reviewing authority must hear and determine an application under this section as expeditiously as possible.
Mr Klaasen was charged with a number of counts of failing to comply with bail agreements. These failures were said to have occurred between 11 and 27 August 2004. The alleged offending involved a failure to report to bail authorities, not being at the required address at the required time, and a failure to comply with police instructions.
Mr Klaasen was also charged with a number of other offences including common assault on 10 November 2003 and 14 January 2004; assault occasioning actual bodily harm on 10 February 2004; failure to comply with a bail agreement between 25 March 2004 and 29 April 2004; assault and carrying an offensive weapon on 5 May 2004; theft, carrying an offensive weapon and breach of bail alleged to have occurred between 23-26 July 2004; and illegal use on 9 August 2004.
At the time of the grant of bail, Mr Klaasen had already entered into two bail agreements. He had also entered into a suspended sentence bond on 28 June 2002, and a good behaviour bond on 29 June 2004.
In accordance with section 16 of the Bail Act the court was required to determine the Director’s application for review within 72 hours, otherwise Mr Klaasen had to be released. When the application for review came before this court only a short time remained before the 72-hour period expired. It was acknowledged by both counsel that all relevant material was not then before the court. Given the apparent history of breaching bail and the allegations of ongoing offending and notwithstanding the lack of relevant material, the Director’s application for review was granted.
With the agreement of counsel for the Director, Mr Klaasen was permitted to make an immediate oral application for bail. This application was adjourned to allow the parties to place further information before the court.
Mr Klaasen’s application for bail is governed by section 10 of the Bail Act:
(1)Where an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to--
(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.
Counsel experienced considerable difficulty in obtaining an adequate medical history of Mr Klaasen. However, the information provided suggests that Mr Klaasen has had mental health concerns for some years and that these concerns may offer an explanation for his behaviour. It appears that Mr Klaasen sustained a brain injury as a teenager. This has left him as a long-term epilepsy sufferer. The material suggests that Mr Klaasen is in need of treatment, counselling and supervision. It appears that his needs are unable to be met within the structures of the remand centre and the limited resources available.
An affidavit of Tanya Bonney, Mr Klaasen’s partner, discloses that she is willing to have Mr Klaasen reside at her home. Ms Bonney’s affidavit confirmed a submission of Mr Klaasen’s counsel. Although Ms Bonney had previously made reports of domestic violence, those reports were directed to the conduct of a previous partner and were not allegations made against Mr Klaasen. Mr Klaasen has been in a relationship with Ms Bonney for two years. Ms Bonney is prepared to act as guarantor.
A home detention report concluded that Mr Klaasen was not a suitable candidate for home detention bail. The reasons included his history of not complying with the terms of bail. The reasons also included what was understood to be a report of domestic violence toward Ms Bonney by Mr Klaasen. It appears that there must have been a misunderstanding having regard to the contents of Ms Bonney’s affidavit.
Another circumstance has developed. Whilst Mr Klaasen has been in custody the child of Ms Bonney and Mr Klaasen has been born. This may prove to have a stabilising effect on Mr Klaasen’s behaviour.
Mr Klaasen has limited financial means. He is reliant on government and community support to address his medical and other needs. It appears to be in the interest of the community for his mental health problems to be addressed. Those problems appear to be closely linked to his behaviour the subject of complaint. Ultimately the protection of the community lies in Mr Klaasen’s successful treatment, supervision and rehabilitation.
A report of 7 September 2004 from a psychologist, Dr White was placed before the court. Dr White conducted a clinical interview with Mr Klaasen and administered psychological testing. He concluded that Mr Klaasen was a person of low average intelligence and that his personality:
… reflected an emotionally unstable individual who had limited trust in others, was generally stubborn and single minded. [Mr Klaasen’s] clinical profile indicated he was elevated on measure of somatic complaints, affective anxiety, psychological anxiety, phobias, traumatic stress, depression, activity level, grandiosity, hypervidulance, thought disorder, borderline features, antisocial behaviour, egocentric behaviour and drug problems. [His] profile reflected elevations on the subscales aggression and indicated a tendency for him to become explosive in situations of conflict.
It was Dr White’s opinion that Mr Klaasen was likely to satisfy the relevant diagnostic criteria for the following conditions:
Cannabis Dependency (in remission)
Amphetamine Dependence (in remission)
Post Traumatic Stress Disorder (chronic)
Adjustment Disorder with Mixed Anxiety and Depressed Mood
Borderline Personality Disorder
Dr White considered that there was a relationship between Mr Klaasen’s offending and his mental health concerns:
The current assessment indicated that [Mr Klaaasen] has significant mental health issues that directly relate to the management of his epileptic condition.
…
Based on the current data [Mr Klaasen’s] psychological profile indicated a high level of instability. In my opinion, the combination of stress and drugs were likely to exasperate [Mr Klaasen’s] problems and particularly increase his risk of acting out behaviour.
Dr White addressed the question of what steps could to be taken to reduce the risk of Mr Klaasen’s return to criminal misconduct:
In my opinion, were [Mr Klaasen’s] epilepsy to be better controlled, his risk of offending would likely be reduced. It is outside the writer’s expertise as to whether this is likely, but while his epileptic condition continues, [Mr Klaasen] is likely to continue to have problems both in relation to expressions of his aggression and his ability [sic] adhere to his bail conditions.
A letter from the Baptist Community Services reported that Mr Klaasen’s personal support worker considered that Mr Klaasen required professional help and the involvement of professional assistance programs.
There has been difficulty in obtaining an appropriate medical report concerning Mr Klaasen’s epileptic condition and information about the treatment options that may be available.
A neuropsychological report has recently been submitted to court. The report was not available at the time of the grant of bail. The neuropsychologist reported:
I note that Mr Klaasen has a long offending history many of his offences being associated with poor impulse control and poor anger management.
At the same time I do note a significant medical history that being of quite poorly controlled temporal lobe epilepsy dating back to age 16. I note that his history of temporal lobe epilepsy is well documented and that he is currently receiving significant amounts of antiepileptic medication
…
Mr Klaasen has been reporting epileptic activity of up to 5 seizures since age 16 and even though his current seizure rate is down to about 2 per week with the addition of Lamotrigine in 2002, I am concerned that his long-term seizure rate is quite significant, and this places him at higher risk for the presence of cognitive decline and in particular memory deficit.
On testing there were mild deficits of memory for a young man, and this in connection with his noted quite low premorbid intelligence level gives me reason to suppose that he does not fully understand and cannot fully follow the past bail conditions that have been imposed on him.
Neurological review was recommended to improve management of Mr Klaasen’s epilepsy.
This application for bail highlights the tension between Mr Klaasen’s need for mental health assessment and treatment; the ability of the remand system to meet these needs; and the short and long-term protection of the community. On the one hand Mr Klaasen has a history of repeat offending including a number of offences for assault as well as an apparent inability to comply with the terms of his bail agreements. On the other Mr Klaasen’s behaviour appears to be related to mental health concerns. He has a need for medical review and ongoing treatment. He has been in custody for a period approaching three months. The delays associated with the assessment of his mental state could, if bail is not granted, lead to a lengthy period on remand.
There have been long delays in Mr Klaasen’s outstanding matters being brought to trial or otherwise finalised. Some of his offending occurred almost 12 months ago. The outstanding charges all relate to matters that will be dealt with in a court of summary jurisdiction.
When fixing terms of bail it is common for a bail authority to impose an obligation required an applicant to follow the directions of a Correctional Services officer and be subject to supervision. Frequently, bail agreements include an obligation to follow directions concerning medical assessment and treatment including psychiatric and psychological assessment and treatment. Directions must be followed concerning the attendance at courses designed to address particular problems including those of drug abuse, domestic violence and anger management. As a result applicants granted bail on these terms commence de facto rehabilitation earlier than may otherwise be the case. Bail agreements, in this way can materially assist an applicant’s prospects of rehabilitation. In the event of the accused being found guilty and sentenced, the court may have the advantage of evidence of an accused and progress toward rehabilitation or even in some cases rehabilitation. That is likely to occur in the present case if Mr Klaasen is granted bail.
I do not consider that Mr Klaasen should not be released on bail. It follows that there should be a grant of bail. However there should be strict conditions forming part of the bail agreement.
Mr Klaasen needs close supervision. This should include regular, weekly visits to Mr Klaasen’s place of residence. Mr Klaasen should understand that strict compliance with the conditions of his bail agreement are required. If Mr Klaasen is closely supervised, the prospect of his re-offending should be materially reduced if not eliminated. It is also appropriate that electronically monitored home detention bail be granted on very strict terms.
Bail is granted on the following terms:
Mr Klaasen is to reside with his de facto partner Tanya Bonney, and is not to leave those premises without the written permission of a correctional services officer or for a life threatening emergency.
Mr Klaasen is to obey all lawful instructions of any community corrections officer designated to supervise him on home detention, including directions in relation to medical or associated appointments.
Mr Klaasen is to follow any treatment suggested by medical advisors.
Mr Klaasen is to wear and electronic wristlet and comply with the rules of electronic monitoring.
Mr Klaasen is not to consume alcohol or any drug which is not medically prescribed and then only at the prescribed or recommended dosages and will submit to any breath test or urine analysis as directed by his designated community corrections officer. No alcohol or drugs, other than those medically prescribed, are to be present at Mr Klaasen’s place of residence.
Mr Klaasen will facilitate regular home visits by a Correctional Services Officer at least once a week, if not more frequently.
Mr Klaasen will be of good behavior and in particular of good behavior towards Tanya Bonney and their child Judith Ann Bonney.
Mr Klaasen will forfeit to the Crown the sum of $500.00 for failure to comply with a term or condition of this bail agreement.
There is to be one guarantor in the sum of $500.00. Payment of $200.00 is to be made immediately to the Sheriff as security.
It should be recognised that bail on these terms will severely restrict Mr Klaasen’s liberty and his mode of daily living. It is important that his mental health problems are promptly addressed. It is to be hoped that those in charge of Mr Klaasen’s supervision and treatment will be in a position to provide all reasonable and necessary assistance and support.
At the request of counsel for the Director the terms of bail will be reviewed