R v P, Be
[2007] SASC 338
•6 September 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, BE
[2007] SASC 338
Judgment of The Honourable Justice Gray (ex tempore)
6 September 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL
Application to review a decision by a District Court Judge to refuse bail - applicant charged with one count of serious criminal trespass in a place of residence and two counts of theft - alleged offences committed on parole - refused police bail - Magistrate granted home detention bail - applicant twice breached home detention bail - applicant at large for six months - District Court Judge refused home detention bail on grounds of likelihood of applicant absconding - de novo review - consideration of applicant's personal circumstances - applicant in stable de facto relationship - applicant's partner dependent on applicant for personal care and domestic duties - applicant's partner prepared to act as guarantor - suitable residence for home detention bail available - consideration of gravity of offending - victims present when alleged offence occurred - consideration of applicant's antecedents - prior offences of building breaking and felony, larceny, unlawful possession of property - prior offences of estreatment of bail and failure to comply with bail conditions - real risk of re-offending - real risk of bail not being answered - consideration of strength of Crown case - applicant apprehended near victims' home - applicant wearing distinctive clothing of male victim - trial of applicant to commence in near future - Held: Bail refused.
Bail Act 1985 (SA) s 10, s 10A, s 14(3); Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) s 13, referred to.
Lavers v Fauser (1986) 41 SASR 593, considered.
R v P, BE
[2007] SASC 338Application for Bail Review
GRAY J
This is an application to review a decision of a District Court judge refusing bail.
Background
The applicant is charged with one count of aggravated serious criminal trespass in a place of residence and two counts of theft. The offending is alleged to have occurred at Holden Hill on 3 March 2006. It is alleged that the applicant entered the victims’ place of residence at about 4.20 am as a trespasser and committed theft by taking a handbag, a purse, car keys and a pair of underwear belonging to the female victim, and two shirts and a pair of socks belonging to the male victim.
A magistrate sitting at the Holden Hill Magistrates Court granted the applicant home detention bail on 6 April 2006. On 13 and 19 June 2006 the applicant failed to appear for arraignment in the District Court as required. A warrant was issued on 28 June 2006.
On 19 December 2006 the warrant was executed when the applicant was arrested at a vehicle stop. On 22 June 2007 a District Court judge refused home detention bail and in doing so accepted the Crown submissions that the applicant was a flight risk.
The trial of the applicant in relation to the offences allegedly committed on 3 March 2006 will commence on 29 October 2007.
The Bail Act 1985 (SA)
Pursuant to section 14(3) of the Bail Act 1985 (SA), a bail review is a hearing de novo. This section provides that:
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.
In Lavers,[1] O’Loughlin J observed that under the Bail Act reviews do not proceed upon a consideration of the information that was before the bail authority and upon the manner in which the discretion of the bail authority was or was not exercised; on the contrary, such reviews are in the nature of appeals de novo and, as such, they are to be determined upon the basis of the information that is placed before this Court. That is the approach I propose to adopt.
[1] Lavers v Fauser (1986) 41 SASR 593 at 595-596.
When determining whether to grant bail, the Court should have regard both to the presumption in favour of bail for persons yet to be tried for the offences with which they have been charged, as well as the factors set out in section 10(1) of the Act:
(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.
The Bail Act was recently amended[2] by the insertion of a new section 10A which provides a presumption against bail in certain circumstances. Section 10A is in the following terms:
[2] Section 10A was introduced by section 13 of the Statutes Amendment (Vehicle and Vessel Offences) Act 2005 (SA) which commenced on 30 July 2006.
(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.
(2) In this section—
prescribed applicant means 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:
(a) 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; or
(b) an offence against section 19A of the Criminal Law Consolidation Act 1935; or
(c) 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.
It is clear that section 10A does not apply to the offences to which the applicant is charged.
Applicant’s Submissions
Counsel for the applicant submitted that the applicant is a good candidate for bail. It was said that the applicant is in a stable, committed relationship with his de facto partner. There are no children of this union, however the applicant has developed a good relationship with his partner’s 14-year-old nephew. The applicant has overcome a history of alcohol and prescription drug abuse. It was said that the applicant’s partner has had, and continues to have, a positive influence on his behaviour. It was said that the applicant would like to obtain employment and has registered with Workskil, a Job Network Agency. It was submitted that the applicant has a forklift licence and is skilled in the operation of machine parts.
Emphasis was placed on the applicant’s partner’s need for the applicant’s assistance with personal care and domestic duties as a result of poor health. A medical report tendered to this Court confirmed the partner’s serious health problems.
The applicant’s partner is prepared to act as guarantor and has offered her residence for the purposes of home detention bail. A Bail Enquiry (Home Detention) Report suggests that this residence is suitable for home detention bail.
The applicant has acknowledged a prior breach of home detention bail and has accepted that this course of action was a serious mistake. The applicant justified his having breached home detention bail in order to visit his children from his relationship with his ex-wife. The applicant’s ex-wife is said to be a drug addict and the applicant expressed his concern over the health and welfare of his children. This explanation, however, carries little weight when one considers the applicant’s subsequent conduct. Following his breach of home detention bail, the applicant failed to report to the authorities and remained at large for over six months until he was arrested fortuitously. During this period, the applicant twice failed to attend court for his arraignment.
Crown Submissions
The Crown opposed bail. It was said that the applicant is likely to abscond and offend again.
Emphasis was placed on the gravity of the charges of aggravated serious criminal trespass in a place of residence, and theft. Both are serious offences which attract, as a maximum penalty, significant periods of incarceration.
There are, on the Crown’s allegations, aggravating features to the alleged conduct. The victims were present in the place of residence when the alleged break-in and theft occurred. Further, the applicant’s alleged conduct occurred three days after his release on parole.
The applicant’s antecedent report reveals an offending history going back to 1980. These antecedents relevantly include offences for building breaking and felony, larceny, and unlawful possession of personal property. Orders for imprisonment have been imposed on a number of occasions.
The applicant’s antecedent report also reveals a number of offences for estreatment of bail and failure to comply with bail conditions. When questioned at the vehicle stop on 19 December 2006, the applicant ran from the police. Following the applicant’s arrest, he was granted home detention bail on 6 April 2006. As observed above, on 24 May 2006 and 31 May 2006 the applicant twice breached his home detention bail conditions. He pleaded guilty to this offence on 31 January 2007.
Given the applicant’s antecedent history, I accept the Crown’s submissions that there is a real risk of the applicant re-offending if on bail, and of the applicant not answering his bail.
It also appears on the face of the papers before this Court that the Crown case is strong. The applicant was located in the vicinity of the victims’ home within a few minutes of the alleged break-in. He was apprehended near a rubbish bin in which the female victim’s handbag was located, and was seen to be wearing distinctive clothing belonging to the male victim.
It is also relevant that the applicant’s trial is listed to commence, in the near future, during October 2007.
Conclusion
In all of the circumstances and having regard in particular to the seriousness of the Crown’s allegations, the strength of the Crown case and the applicant’s antecedents, this is an inappropriate case for a grant of bail.
For these reasons the application is refused.