R v Monfries (No 4)
[2011] ACTSC 212
•December 14, 2011
R v JUSTIN MONFRIES (No 4)
[2011] ACTSC 212 (14 December 2011)
R v Monfries [2011] ACTSC 203
Burton v The Queen (1974) 3 ACTR 77
EX TEMPORE JUDGMENT
No. SCC 435 of 2008
No. SCC 201 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 14 December 2011
IN THE SUPREME COURT OF THE )
) No. SCC 435 of 2008
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 201 of 2011
R
v
JUSTIN MONFRIES
ORDER
Judge: Refshauge J
Date: 14 December 2011
Place: Canberra
THE COURT ORDERS THAT:
Mr Monfries be granted bail to appear before the Supreme Court on 21 December 2011 at 9.30 am on the following conditions:
(a) that he reside at 2 Lomman Place, Kambah ACT;
(b) that he not absent himself from that place of residence between 8 pm and 8 am daily and present himself to police during those hours;
(c) that he not use illicit drugs or alcohol; and
(d) that he submit to breath analysis if required by a member of the Australian Federal Police.
On Monday 12 December 2011, I revoked bail that had been granted to Justin Monfries earlier, in respect of a number of charges of dishonesty and breaching his bail undertakings and obligations, because he had admitted to breaching a curfew that was imposed as a condition of that bail, notwithstanding that he had not had his bail revoked despite breaching an associated condition, namely that which required him to present himself to a police officer upon request during the times when he was required under the bail curfew condition to be present in his place of residence.
This matter has a long history and I do need to repeat it. That history is briefly set out in my reasons for granting him bail on Friday 9 December 2011. See R v Monfries [2011] ACTSC 203. Mr Monfries has now been in custody since I revoked bail and an application has now been made to me for bail.
The long history does no credit to the Court and myself, but needs to be brought to a head, and I am able now to deliver judgment in respect of the fitness to plead matter next Wednesday 21 December 2011 at 9.30 am. The question is whether I should grant bail to Mr Monfries between now and then. Ordinarily, on the authority of cases such as Burton v The Queen (1974) 3 ACTR 77, bail for a short period of time is not regularly granted unless there are special circumstances.
In this case, the history of the matter needs to be taken into account. Although, as recounted in my earlier decision, there have been a number of occasions when Mr Monfries has breached his bail, Mr Lalor, who appears for Mr Monfries, rightly points out that given the time involved and the other circumstances which I will mention in a moment, the matter really has become an issue of bail for its own sake rather than the need to ensure Mr Monfries’s attendance to take his trial or his sentence, and also, insofar as those matters of consideration under the Bail Act, the need to protect the community from the commission of further offences.
In this case, since Mr Monfries has been on bail in respect of these charges which go back to 2007, he having been on bail from time to time since 2008 and more continuously since 2009, he has been charged with a further significant offence alleged to have been committed in April 2011. That offence is a serious one, but nevertheless, it is the only allegation of him committing offences since he was on bail substantially since 2009.
It is also a matter of concern that the issue still outstanding is the question of Mr Monfries’ fitness to plead. That is based on cognitive deficits and intellectual disability that he suffers which, in particular, make him suggestible, and that is one of the issues that would be relevant in relation to the alleged offence committed in 2011. It has also led to him being at particular risk when he is in custody and, indeed, that risk eventuated in a significant way when he alleges that he was assaulted in the Alexander Maconochie Centre and that those assaults were reported to the Australian Federal Police. I have no information about what progress, if any, has been made in respect of the investigation of those assaults.
It is clear that Mr Monfries has challenges, not only because of his mental situation, but also because of his addiction to cannabis, which no doubt is a contributor to some of the difficulties he faces, and which may well lead to some form of offending. Nevertheless, addiction to cannabis is, I think I can safely say, on the whole, a significantly lesser problem for the community than the problems that are inevitably associated with the use of drugs such as heroin, ice, namely amphetamines, and methamphetamines, cocaine and indeed alcohol.
In those circumstances, and having regard to the particular matters that I have referred to, it is, despite the appropriate submissions that Mr A Williamson, who has appeared for the prosecution, has made, suggesting that, really, bail should not be granted in all the circumstances for a period, I do consider that bail is appropriate.
I have given anxious consideration to the conditions under which bail should be granted, and in a way that seems to me appropriate, although to the observer, it may be curious. It seems to me that I should make some greater restrictions on Mr Monfries than perhaps would be appropriate, were the bail to be now for a somewhat longer period.
Accordingly, I will grant Mr Monfries bail to appear before me at 9.30 am on
21 December 2011 on the following conditions:
(e) that he reside at 2 Lomman Place, Kambah ACT;
(f) that he not absent himself from that place of residence between 8 pm and 8 am daily and present himself to police during those hours;
(g) that he not use illicit drugs or alcohol; and
(h) that he submit to breath analysis if required by a member of the Australian Federal Police.
[His Honour then spoke directly to Mr Monfries as follows]:
Mr Monfries, I have granted you bail. We are going to bring this matter to a head. We are going to see if we can knock it over next, well, starting from next week, but really bringing it to a head. But you have got to play your part in this, you understand? I do not know what happened last Saturday. I am prepared to accept that you were in a state of emotion because Ms Warrack had taken off on you. I do not know why she did that, whether that was because of the stress that we put her under on Friday, and that may be something to do with it. I could be suspicious, but I do not need to be.
You need to understand that, rightly or wrongly, you are in the criminal justice system, and the system is designed to protect the community from things that you have done, and you admitted doing, which interfere with other people’s property and are unacceptable in our community. We need to deal with those in due course, and we will.
I am giving you bail on reasonably strict conditions, but there are not a lot of them. There are four of them. And you need to understand, first of all, to reside in Kambah. Well, that is not a difficulty. The second is to be there between 8 pm and 8 am for a week. I do not care what it is, but you really need to be there. You know now that if you do not comply with that condition, then you will be back in custody. You really need to understand that and bear that in mind. Then thirdly, you are not to consume alcohol or use drugs. Now, that is for a week. That is not a huge impost on you, but you need to do that. And then, finally, if any police officer asks you to blow into a breathalyser, then you have got to do that.
Other than that, I am not making a condition that you report to a police station. You can go about your business at this stage, as long as you are home by 8 o’clock and you stay there until 8 o’clock the next morning. Mr Lalor will emphasise that to you also, but then we need to get on and sort these things out.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 3 January 2012
Counsel for the Crown: Mr A Williamson
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr M Lalor
Solicitor for the accused: Aboriginal Legal Service (ACT/NSW)
Date of hearing: 12 and 14 December 2011
Date of judgment: 14 December 2011
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