R v Lombardi

[2013] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v LOMBARDI

[2013] SASC 61

Judgment of The Honourable Chief Justice Kourakis

16 April 2013

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

Application by the DPP to review an order of a Magistrate granting the respondent bail - respondent charged with firearm and drug related offences.

Whether the respondent's application for bail is governed by s 10A of the Bail Act 1985 (SA) - whether the respondent established the existence of special circumstances justifying his release on bail.

Held: application for review allowed - the respondent's application for bail is governed by s 10A of the Bail Act 1985 (SA) - the respondent failed to establish the existence of special circumstances - bail granted in the Magistrates Court be set aside - respondent's application to make a fresh grant of bail refused.

Bail Act 1985 (SA) s 3A, s 10, s 10A; Criminal Law Consolidation Act 1935 (SA) s 20AA; Criminal Law (Sentencing) Act 1988 (SA) s 20A, S 20AAC; Firearms Act 1977 (SA) , referred to.
R v Buhlmann [2010] SASC 123; Saywell v Yiu (1976) 14 SASR 56, discussed.
R v Barnett [2009] SASC 332, considered.

R v LOMBARDI
[2013] SASC 61

Application for Review of Bail

1. KOURAKIS CJ:    The Director of Public Prosecutions has applied for a review of the decision of the Magistrates Court to grant the respondent, Mr Lombardi, bail.  Mr Lombardi was taken into custody on charges of aggravated possess firearm without licence, non-aggravated possess firearm without licence, traffic in a controlled drug (aggravated), possess prescription drug, possess prescribed equipment, possess declared listening device without consent, fail to keep prescribed firearm secured, fail to keep class A or B firearm secured and fail to store ammunition separately from firearms.

   The circumstances

2. Police discovered evidence of the alleged offending when they searched Mr Lombardi’s residence at Rostrevor on 27 March 2013.  The police found a sawn-off double barrel shotgun hidden in the floor space of an office adjacent to the garage of the residence.  In a kitchen cupboard the police located a jar of a white granular substance which gave a positive indication for amphetamine.  At the rear of the residence the police located a concealed crawl space which led to a number of rooms underneath the residence.  In those rooms police found 380 rounds of 7.62 rifle ammunition.  In the dining area of the house police located two declared listening devices and one GPS tracking device.  They also found two 12 gauge shotgun shells, a mini camera with an HD recorder, and two other micro cameras.  In the bedroom of the residence were another three 12 gauge shotgun shells.

3. Mr Lombardi had applied for a firearms licence in 2008 but his application was refused. 

4. Police made unsuccessful attempts to locate the accused after the search but he was not arrested until Friday 5 April 2013 when he attended the Grenfell Street police station with a solicitor. 

5. Mr Lombardi resides with his de facto partner and their 20 month old son at the residence searched by police.  His partner is six months pregnant.  She and Mr Lombardi have been together for four years.  For two of those years they have resided at the Rostrevor residence.  However, at the time of the search of the home Miss Kay was staying in Mount Gambier and had been there for some two or three months.

6. The home is owned by his mother.  I was informed by Mr Redmond, who appeared for Mr Lombardi, that the value of the home is between $500,000 and $550,000 and that there is about $300,000 in equity in the home. 

7. Mr Lombardi works as a tiler.  He worked in that trade with his father until his father’s death in 2009.  Mr Lombardi’s work engagements have dropped off significantly since the death of his father.  However, at the time of his arrest, he was halfway through a major tiling job.  Apart from that job he only has two small tiling jobs to do in the immediate future. 

8. Mr Lombardi suffers from cardiomyopathy.  He has been fitted with a pacemaker.  He was admitted to the Royal Adelaide Hospital in February 2012 after going some time without a checkup.  It was found that the pacemaker was working at a sub-therapeutic level and that, as a result, Mr Lombardi had developed some health complications.  He was seen regularly thereafter during 2012 and in 2013.  Mr Redmond informed me that Mr Lombardi is suffering from some increased anxiety in custody because he is administered medication for his condition by injection at the prison infirmary.  He is concerned about the risk that he might contract a disease because he is receiving injections in a prison environment.  In the absence of any material showing that there is a significantly increased risk from medically administered injections in the prison infirmary, I can give his concern little weight.  There is no material before me to suggest that his underlying cardiomyopathy has been adversely affected by his detention or his anxiety.

9. I earlier referred to the fact that Mr Lombardi surrendered himself to the police.  I am told that he first contacted a suburban police station on 2 April because he had learnt that police wished to speak to him.  He was referred to another suburban police station but when he attended there on 3 April he was referred to the Adelaide Police Station.  Mr Lombardi contacted a solicitor on 4 April who then arranged for him to attend at the Adelaide Police Station where he was interviewed and arrested on 5 April.  I was not provided with any explanation for the delay between 27 March and Mr Lombardi’s first attendance at a suburban police station on 3 April.

10. Mr Lombardi was granted bail in the Magistrates Court on 8 April 2013 on the following conditions:

    1.I will not leave the State for any reason without lawful permission under the Bail Act, 1985.

    2.I will forfeit to the Crown the sum of $1,000.00 if I fail to comply with a term or condition of this Bail Agreement.

    3.I will remain at 12 FAIRLEYS ROAD, ROSTREVOR throughout the period of home detention bail and must not leave that address at any time (except for the purposes of undertaking employment) unless I have prior permission of an assigned Community Corrections Officer to be absent for a particular purpose, or to avert the risk of injury or death to myself or others, or to obtain urgent essential medical treatment.

    4.I will not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and I will submit to any breath test or urine analysis as directed by a Community Corrections Officer and sign all required forms and comply with the requirements of the testing procedures.

    5.I authorise an assigned Community Corrections Officer or delegate to reveal that I am subject to a home detention condition of bail to any person, where that is reasonably necessary, for the purpose of confirming employment or compliance with any condition of this agreement.

    6.If I obtain permission from an assigned Community Corrections Officer to reside at a new address, I can reside at that address until my next court appearance on this matter and the conditions of this Bail Agreement will apply as if the new address was specified in them.

    7.I will present myself at the front door of my nominated address at the request of an assigned Community Corrections Officer or delegate, and respond to any call at a telephone at that address at any time, unless absent in accordance with these conditions.

    8.Immediately upon release I will travel to the Nominated Address 12 FAIRLEYS ROAD, ROSTREVOR and upon arrival I will contact the Home Detention Unit of the Department for Correctional Services by telephoning 8411 4125.

    9.I will not possess a firearm, ammunition or any part of a firearm.

    10.I will submit to tests (including testing without notice) for gunshot residue.

    11.I will obtain a guarantee in the sum of $2,000.00. To be defendant’s mother, Andrina Lombardi.

    12.I will obtain a further guarantee in the sum of $2,000.00.  To be one of the defendant’s sisters, either Anna Lombardi or Angelo Maio.

    Presumption of Bail Reversed

11. Section 10 of the Bail Act 1985 (SA) (“the Bail Act”) provides that a person taken into custody with respect to an offence should be released on bail unless the bail authority reaches a contrary conclusion having regard to the circumstances prescribed by that section including the gravity of the offence and the likelihood that the applicant would, if released, abscond or offend again.

12. Section 10A, however, establishes a presumption against bail in particular cases enumerated in that section. It provides:

    10A—Presumption against bail in certain cases

    (1)Despite section 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.

    (1a)An applicant who is a serious and organised crime suspect will not be taken to have established that special circumstances exist for the purposes of subsection (1) unless the applicant also establishes, by evidence verified on oath or by affidavit, that he or she has not previously been convicted of—

    (a)     a serious and organised crime offence; or

    (b)     an offence committed in another jurisdiction that would, if committed in this jurisdiction, have been a serious and organised crime offence.

    (2)In this section—

    prescribed applicant means—

    (a)     an applicant taken into custody in relation to any of the following offences if committed, or allegedly committed, by the applicant in the course of attempting to escape pursuit by a police officer or attempting to entice a police officer to engage in a pursuit:

    (i)an offence against section 13 of the Criminal Law Consolidation Act 1935 in which the victim’s death was caused by the applicant’s use of a motor vehicle;

    (ii)an offence against section 19A of the Criminal Law Consolidation Act 1935;

    (iii)an offence against section 29 of the Criminal Law Consolidation Act 1935 if the act or omission constituting the offence was done or made by the applicant in the course of the applicant's use of a motor vehicle; or

    (b)     an applicant taken into custody in relation to an offence against section 17 where there is alleged to have been a contravention of, or failure to comply with, a condition of a bail agreement imposed under section 11(2)(a)(ii); or

    (ba) an applicant taken into custody in relation to an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 if the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence; or

    (bb)   an applicant who is a serious and organised crime suspect;

    (c)     an applicant taken into custody in relation to an offence of contravening or failing to comply with a control order or public safety order issued under the Serious and Organised Crime (Control) Act 2008; or

    (d)     an applicant taken into custody in relation to an offence against any of the following provisions of the Criminal Law Consolidation Act 1935:

    (i)section 172;

    (ii)section 248;

    (iii)section 250;

    (iv)section 85B; or

    (e) an applicant taken into custody in relation to a serious firearm offence (within the meaning of Part 2 Division 2AA of the Criminal Law (Sentencing) Act 1988).

13. The following two matters should be noticed about s 10A(2) of the Bail Act. First, persons who are alleged to have committed offences of a kind to which makes them a prescribed applicant can, generally, be considered to pose a relatively higher risk to the public if released on bail than many other categories of offenders. The reversal of bail for applicants alleged to have committed offences of those kinds shows that Parliament intended to provide the public with a high level of protection from the risk inherent in releasing prescribed applicants into the community.

14. Secondly, leaving aside s 10A(2)(e) which is contended by the Director to enliven the reversal of the presumption in this case, all of the other subparagraphs condition the presumption against bail on the making of an allegation that the offending was committed in the circumstances set out in each subparagraph. For example, s 10A(2)(bb) of the Bail Act, in its reference to a person who is a serious and organised crime suspect, picks up the definition of serious and organised crime suspect in s 3A of the Bail Act which defines a suspect by reference to a charge of a serious and organised crime offence. A serious and organised crime offence is in turn defined by the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) to mean offences against particular provisions of the CLCA and other Acts “if it is alleged that offence was committed” in circumstances connected with a criminal organisation. If a person is so charged, a bail authority may, pursuant to s 3A of the Bail Act, declare that person to be a serious and organised crime suspect. In relation to other subparagraphs the presumption against bail is enlivened simply on an applicant having been taken into custody in relation to an alleged offence of a kind prescribed by those subparagraphs. 

15. However, s 10A(2)(e) refers to a person taken into custody in relation to a serious firearm offence as defined by Part 2 Division 2A of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”). Relevantly to this application, s 20A of the CLSA defines a serious firearm offence as an offence committed against the Firearms Act 1977 (SA) (“the Firearms Act”) “involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence”. It is accepted here that the respondent has been charged with a serious drug offence as a result of the possession of amphetamine on the same day and in the same house as the offence against the Firearms Act.

16. However, it will be noticed that a serious firearm offence for the purpose of s 20AA CLCA is not defined as an offence alleged to have been committed in the course of, or for a purpose related to, the commission of a serious drug offence. The reason for that is found in s 20AAC of the CLSA. That section provides that, save in an exceptional case, a sentencing court must not suspend a sentence of imprisonment imposed on a serious firearm offender. The section contemplates that a sentencing court will make a finding as to whether or not a defendant is a serious firearm offender as part of the sentencing process. Indeed it might even be that the allegation will have been included in the particulars of the offence as a matter of practice or that alternatively a jury has determined both the firearm offence and drug offence in the same trial.

17. Counsel for the Director of Public Prosecutions invited me to find that s 10A(2)(e) of the Bail Act is enlivened by making a factual finding on the basis of the affidavit material that the respondent is a person who has committed a serious firearm offence. I reject that submission. A court is not in a position in a bail hearing to reach a conclusion as to the guilt of the respondent on the charges on which he seeks bail.

18. However in my view, consistently with the other subparagraphs of s 10A(2) of the Bail Act, subparagraph (e) should be construed to refer to an applicant who has been taken into custody in relation to a firearm offence which is alleged to be a serious firearm offence as defined by s 20AA of the CLSA. The charge that the respondent possessed in his home a sawn off shot gun allegedly at the same time that there was present in that home amphetamine brings the respondent within the terms of s 10A(2)(e) of the Bail Act.

19. I find therefore that the respondent’s application for bail is governed by s 10A of the Bail Act and it falls for the respondent to establish the existence of special circumstances justifying his release on bail. 

    Special Circumstances

20. In R v Buhlmann,[1] Sulan J explained that:

    Section 10A is aimed at persons who create a threat to the police, to public officials, to the community, or to a particular victim.

    Sulan J found guidance as to the meaning of “special circumstances” in a decision of Mitchell J.  His Honour explained:[2]

    The meaning of “special circumstances” was discussed by Mitchell J in Saywell v Yiu.[3]  In that case, the Local and District Criminal Courts Act 1926 provided that an appellant may appeal against a decision of a Special Magistrate upon obtaining the leave of a  judge of the Supreme Court, which leave may be granted in special circumstances as the judge thinks fit.  Mitchell J considered the meaning of the words “special circumstances” in the context of that legislation.  She said:[4]

    … Where the legislature has left it to the discretion of the Judge hearing the application for leave to appeal to decide whether there are special circumstances justifying him in giving leave, the words “special circumstances” should be given their natural and ordinary meaning and not read in a restricted manner.  They are “wide, comprehensive, and flexible words, … and no Court can or ought to lay down an exhaustive definition of them” (per Lopes L.J. in In re Norman).  (Citations omitted)

    In his application of the principle found in Saywell v Yiu,[5] Sulan J held that s 10A should be interpreted having regard to the principle that a person charged with an offence is presumed innocent.

    [1] [2010] SASC 123 at [15].

    [2] [2010] SASC 123 at [21].

    [3] (1976) 14 SASR 56.

    [4]    Saywell v Yiu (1976) 14 SASR 56 at 58.

    [5] (1976) 14 SASR 56.

21. Sulan J went on to identify the following circumstances in Buhlmann as circumstances which, in combination, established special circumstances:[6]

    In my view, the following factors in this case amount to special circumstances.  First, the case against the applicant of his alleged breach of bail (if proved) is, to say the least, a trivial breach.  Secondly, putting the prosecution case at its highest, the applicant blew his horn, waved and smirked at Ms Squire.  The contact between them was by chance, and momentary.  Thirdly, the applicant posed no risk to Ms Squire during the time that he was looking at her.  Fourthly, the applicant is the sole carer of his two young sons.  To incarcerate him, in the circumstances of this case, was unduly harsh.  Fifthly, the applicant has no prior history of breaching bail, nor has he any prior history of violence.  He has not been convicted of any offence for almost 30 years. Sixthly, there is no suggestion that the applicant posed any risk to Ms Squire or members of her family after he was charged with the offences alleged to have occurred on 4 April 2010.  Seventhly, even if the applicant were to be convicted of the offence of breaching bail, a sentence of imprisonment would not result.  By the time the matter came before the Magistrate, the applicant had already been in custody for eight days, which is far in excess of any penalty he would have received for the breach of bail.

    It will be observed that the circumstances in combination showed that there was very little risk to the alleged victim of the offending and that a refusal of bail would result in a penalty which would far have exceeded the penalty which would be imposed if the applicant in that case was convicted. In my respectful opinion, Sulan J correctly identified in the passage cited above the nature of the special circumstances which Parliament had in mind in enacting s 10A of the Bail Act.

    [6] [2010] SASC 123 at [24].

1. 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. 

2. In R v Barnett,[7] 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.[8]

   [7] [2009] SASC 332.

   [8] [2009] SASC 332 at [75]-[85].

3. 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.

   Conclusion

4. In my view, the respondent has failed to establish the existence of special circumstances in this case. The primary consideration must be whether the applicant’s circumstances place him or her outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicant. The circumstances of the alleged offending will therefore be very important. In this case, the alleged circumstances 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 sawn-off shotgun hidden in a house in which it is alleged there was a significant quantity of the drug amphetamine. The possession of the listening devices, having been left unexplained, raises an inference of sophisticated involvement in organised crime. Ammunition was scattered around the house.

5. I accept that the circumstances which should be considered for the purposes of s 10A(1) also extend to the respondent’s personal circumstances. In this case the respondent’s criminal offending history is not as bad as some of the offending histories of persons charged with offences of this kind. However, it is not a good record. The respondent’s relatively poor health is important. It would make it difficult for him to stay on the run for a protracted period of time but his need for medical attention is periodic and not constant. Moreover, his condition has not prevented him from working in the relatively arduous occupation of tiler. As I earlier observed there is no material to suggest that his condition cannot be suitably managed in prison.

6. The remand of the appellant in custody will result in some hardship for his de facto partner but there is no reason to think that she and her child will not be supported by her family and friends, including the respondent’s mother.  Indeed, the appellant’s partner had been residing in Mount Gambier for three months before the appellant’s home was searched by police.

7. The respondent’s capacity to abscond and commit any further offences would be severely limited by home detention bail.  However, the possibility of home detention bail must have clearly been in the contemplation of Parliament and in itself, therefore, does not go very far in establishing special circumstances in a particular case.

8. The respondent is in a position to offer substantial guarantees of bail.  The ability to offer by way of security amounts as substantial as that which the respondent’s mother could provide is not commonplace.  However, a circumstance is not special simply because it is rare.  Some care must be exercised in the weight which is accorded to the capacity to offer a substantial guarantee.  If it is accorded too much weight it may serve to advantage prescribed applicants who are higher up in an organised crime hierarchy. 

9. But for the reversal of the presumption of bail effected by s 10A, I would have granted the respondent bail on restrictive home detention conditions and with substantial guarantors. However, for the reasons I have given, the respondent has not established the existence of special circumstances.

10. On the review sought by the Director, I set aside the bail granted in the Magistrates Court.  I refuse the respondent’s application to make a fresh grant of bail on stricter conditions.