R v KOOYMAN

[2016] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v KOOYMAN

[2016] SASC 200

Reasons for Decision of The Honourable Justice Stanley

22 December 2016

CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL

CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION - SPECIAL OR EXCEPTIONAL CIRCUMSTANCES - GENERALLY

This is an application for review of a bail decision. 

The applicant is charged with the following offences: traffic in a commercial quantity of a commercial drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA); possess a class H firearm without a licence (aggravated) contrary to s 11(1) and s 11(7b) of the Firearms Act 1977 (SA); possess an unregistered firearm contrary to s 23(1) of the Firearms Act 1977 (SA); fail to store ammunition separately from a firearm contrary to regulation 41(1) and regulation 61 of the Firearms Regulations 2008 (SA); theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA); breach of bail contrary to s 17 of the Bail Act 1985 (SA) (three counts); and breach of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

The applicant was arrested on 24 September 2016 after a vehicle driven by him and registered in his name was searched by police.  Located in the vehicle was a re-sealable plastic bag containing 229 grams of methamphetamine.  Police also located a loaded .22 calibre handgun, a laptop, numerous mobile phones, $300 in cash, scales, camera accessories and USB devices.  Those items were seized.  The applicant allegedly breached bail by being in possession of a firearm.  The applicant allegedly breached an intervention order by being in the presence of Christie Halls and in possession of a firearm.  She is a protected person and also the co-accused.  The applicant denied knowledge of the methamphetamine found in the vehicle.  He told police he believed the intervention order had been modified so as to allow him to contact Ms Halls, who was his partner.

The applicant was refused bail on 26 September 2016.  On 28 October 2016, he made a further application for bail.  The Magistrate refused to grant bail, given the seriousness of the allegations and because he was not satisfied there had been a relevant or sufficient change in the circumstances since the previous refusal of bail. 

The Director opposes any grant of bail. 

Held, per Stanley J:

1.  The applicant has failed to establish the existence of special circumstances justifying his release on bail (at [24]).

2.  Dismiss the application for review of the decision of the bail authority (at [25]).

Controlled Substances Act 1984 (SA) s 32(2); Firearms Act 1977 (SA) s 11(1), s 11(7b), s 23(1); Firearms Regulations 2008 (SA) reg 41(1), reg 61; Criminal Law Consolidation Act 1935 (SA) s 134(1); Bail Act 1985 (SA) s 10A, s 17; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2), referred to.
R v Lombardi (2013) 115 SASR 577; R v S, D Unreported, Supreme Court of South Australia, Nicholson J delivered 3 May 2013, considered.

R v KOOYMAN
[2016] SASC 200

Criminal:  Application

1. STANLEY J:  This is an application for review of a bail decision. 

2. The applicant is charged with the following offences:

   1.Traffic in a commercial quantity of a commercial drug contrary to s 32(2) of the Controlled Substances Act 1984 (SA);

   2.Possess a class H firearm without a licence (aggravated) contrary to s 11(1) and s 11(7b) of the Firearms Act 1977 (SA);

   3.Possess an unregistered firearm contrary to s 23(1) of the Firearms Act 1977 (SA);

   4.Fail to store ammunition separately from a firearm contrary to regulation 41(1) and regulation 61 of the Firearms Regulations 2008 (SA);

   5.Theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA);

   6.Breach of bail contrary to s 17 of the Bail Act 1985 (SA) (“Bail Act”) (three counts); and

   7.Breach of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

3. The applicant was arrested on 24 September 2016 after a vehicle driven by him and registered in his name was searched by police.  Located in the vehicle was a re-sealable plastic bag containing 229 grams of methamphetamine.  Police also located a loaded .22 calibre handgun, a laptop, numerous mobile phones, $300 in cash, scales, camera accessories and USB devices.  Those items were seized.  The applicant allegedly breached bail by being in possession of a firearm.  The applicant allegedly breached an intervention order by being in the presence of Christie Halls and in possession of a firearm.  She is a protected person and also the co-accused.  The applicant denied knowledge of the methamphetamine found in the vehicle.  He told police he believed the intervention order had been modified so as to allow him to contact Ms Halls, who was his partner.

4. The applicant was refused bail on 26 September 2016.  On 28 October 2016, he made a further application for bail.  The Magistrate refused to grant bail, given the seriousness of the allegations and because he was not satisfied there had been a relevant or sufficient change in the circumstances since the previous refusal of bail. 

5. The application for review of the bail decision is supported by an affidavit of James Adam Richards, sworn 22 November 2016.  A home detection enquiry report was obtained in relation to a proposed address at 74 Rankine Street, Hindmarsh Island, which is the residence of the applicant’s mother, Audrey Kooyman.  She is prepared to go guarantor.  The nominated address is located one hour and 38 minutes’ drive from the protected person’s home.  It is suitable for electronic monitoring.  The report concludes that home detention bail is at the discretion of the Court.

6. The Director opposes any grant of bail. 

   Submissions

7. Mrs Shaw QC, counsel for the applicant, accepts that the applicant is a prescribed applicant within the meaning of s 10A of the Bail Act 1985 (SA).

8. She submits that special circumstances exist justifying a grant of home detention bail in this matter. She submits that there are a combination of circumstances that constitute special circumstances for the purposes of s 10A. They are first that, since bail was originally refused, a rape charge that the applicant faced, which was the basis of the intervention order made in respect of Ms Halls, has been withdrawn; second, Ms Halls, the co-accused, has been released on bail which gives rise to a question of parity; and, third, the applicant has a six-year-old son from a former relationship. For some years he has been the primary care-giver for the child whose mother suffers from depression and a bipolar condition and is in a relationship where she is the victim of domestic violence. The child lives during the week with his mother and on the weekend with his grandmother, the applicant’s mother. It is submitted that the child’s mother is incapable of taking him to school, and the separation from his father is having a deleterious effect on the child. The child’s grandmother is 75 years of age, and caring for the child is a strain.

9. Mrs Shaw submits that the accused is likely to be waiting for a lengthy period of time for these charges to come to trial.  The applicant intends to defend the charges.  He denies knowledge of the methamphetamine and the firearm which were found in his vehicle.

10. Mrs Shaw submits that Ms Halls has given a statement to police in which she says that the firearm looks similar to a firearm that belongs to her cousin.  The breach of bail and intervention order charges relate to a misunderstanding when the applicant and Ms Halls resumed their relationship.  He believed that the terms of his bail and intervention order had been varied to permit him to have contact with Ms Halls following the withdrawal of the rape charge.

11. Ms Schell, counsel for the Director, submits that special circumstances do not exist.  In any event, she submits bail should be refused given the inherent seriousness of the charges the applicant faces and that he is not a suitable candidate for bail given prior contraventions of bail conditions. 

    Applicant’s personal circumstances

12. The applicant is 39 years of age.  He left school at 14 but found employment and was continuously employed until he commenced his own business at the age of 23.  In 2011, he was convicted of an offence of intentionally causing harm and sentenced to two-and-a-half years’ imprisonment with a non-parole period of 18 months.  I am informed that, as a result, he lost everything.  After his release, he gained employment at the Royal Adelaide Hospital construction site, but ceased work due to ill-health when it was discovered he was suffering from an enlarged heart.  He is now a disability pensioner.

13. He has a lengthy history of offending dating back to 1995.  His offending ranges from driving offences, assaults and other offences of violence, possession of amphetamines, firearms offences and failure to comply with bail agreements in 2001, 2010 and 2011. 

14. His firearm offences occurred in 2000 and 2011.  Mrs Shaw submits that the offending in 2011 concerned a rifle butt without a trigger that was a prop in a play. 

15. In relation to the breach of bail offending, Mrs Shaw originally submitted that each occasion involved a failure to report.  In the circumstances, she submitted there was no reason to doubt the applicant’s preparedness to comply with the conditions of home detention bail. 

16. Subsequently, during Ms Schell’s submissions, it transpired that in 2001 the applicant failed to comply with the condition of his bail by not reporting on some 18 occasions.  In 2010, the failure to comply with bail conditions arose from the applicant driving a motor vehicle while unlicensed in breach of bail.  In 2011, the failure to comply with bail conditions arose from the applicant’s possession of a firearm and a failure to reside at the address to which he had been bailed.

17. Mrs Shaw then indicated that her instructions were that the firearm was the rifle butt she had referred to earlier, and the failure to reside at the bail address arose because there were two files in respect of which the applicant had been bailed, one in the Magistrates Court and one in the District Court, and his bail address had changed without notification to the District Court, although the change in the bail address had been recorded in the Magistrates Court.

    Special circumstances

18. Section 10A of the Bail Act provides that, despite the presumption in favour of bail created by s 10, bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant’s release on bail.

19. In R v Lombardi,[1] Kourakis CJ considered the meaning of the expression “special circumstances” in s 10A. He said:[2]

    It can be accepted that the term “special circumstances” cannot be comprehensively or exhaustively defined. The particular circumstances which might qualify as special circumstances may vary over a great range. In my view, that is the point made by Mitchell J in Saywell. However, the term “special circumstances” will ultimately take its meaning and content from the context of the provision in which it appears. It connotes circumstances which take the particular case outside of the contemplated scope of the statutory provision.

    In R v Barnett, I surveyed the use of the expressions “special reasons” and “special circumstances” in South Australian statutory provisions. The survey showed that special reasons or circumstances are those reasons or circumstances that were beyond the contemplation of Parliament.

    As I earlier observed, s 10A of the Bail Act reverses the presumption of bail with respect to certain categories of alleged offenders whose release on bail can reasonably be regarded as creating a relatively greater risk than many other alleged offenders. Although it is not possible to exhaustively define the circumstances denoted by that expression, its rationale is clear enough. The discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption. The discretion exists to allow the release on bail of those applicants on whom the general rule would, in the special circumstances of their cases, result in an unintended or unforeseen hardship or injustice.

    [Footnotes omitted.]

    [1] (2013) 115 SASR 577.

    [2] (2013) 115 SASR 577 at 583 - 584.

    Consideration

20. In my view the applicant has failed to establish the existence of special circumstances in this case. The critical consideration must be whether the applicant’s circumstances place him outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicants. The circumstances of the alleged offending will therefore be very important. In this case the alleged circumstance of the offending are typical of the class of serious firearm offenders prescribed by s 10A(2)(e) of the Bail Act. The firearm was a loaded handgun concealed in a compartment under the armrest. Located in the same place was 229 grams of methylamphetamine.

21. Generally speaking the applicant’s personal circumstances weigh against a finding that special circumstances exist.  As I have noted, his criminal offending history is lengthy and fairly extensive.  It includes a drug offence involving methylamphetamine, albeit from 2000, but a more recent driving offence this year for driving a motor vehicle with methylamphetamine in fluid or blood.  There are also firearms offences and, significantly, a number of offences of failing to comply with bail conditions.  In this regard I note that the charges the applicant now faces must be viewed against a background where at the time of his apprehension he was subject to two bail agreements that he not possess a firearm, ammunition or any part of a firearm. 

22. While I acknowledge that the application is for home detention bail under conditions of GPS monitoring, the possibility of such bail must have clearly been in the contemplation of Parliament and does not go very far in establishing special circumstances. 

23. I accept that the remand of the applicant in custody will result in some hardship for the applicant’s son and for his mother who will be burdened with partial responsibility for his care.  However, it is evident that she has been able to care for him on that basis during the period since the applicant’s arrest in September.  In addition, while the child’s mother’s circumstances appear problematic, there is no evidence before me that the child has suffered any adverse consequences of being in the care of his mother.  Finally, in this regard, not only is it not uncommon for the dependents of persons held on remand to suffer some adverse consequences as a result, such circumstances do not place the applicant outside of the contemplated risk to the community which is generally posed by members of the applicable class of prescribed applicants.

24. I have considered the submission of the applicant based on the reasons in R v S, D[3] that there would be a lack of parity in refusing the applicant bail where his co-accused has been granted bail. I am not persuaded that this is a matter which establishes special circumstances. In any event, the premise for the submission depends upon true parity existing between the applicant and his co-accused. Given the applicant’s extensive criminal antecedents including, in particular, previous breaches of bail, it is not clear that there would be a lack of parity in refusing the applicant bail. No material has been put before me to establish the relevant facts concerning the co-accused and, in particular, her antecedents and previous compliance with bail conditions, if relevant. It is to be remembered that this is a matter to be decided in accordance with s 10A. There is no presumption in favour of bail. It is the applicant who must persuade the court that special circumstances exist justifying his release on bail. He has not done so.

    [3]    Unreported, Supreme Court of South Australia, Nicholson J delivered 3 May 2013.

    Conclusion

25. I would dismiss the application for review of the decision of the bail authority.