R v Perry No. Sccrm-02-127

[2002] SASC 157

R V PERRY

[2002] SASC 157

Criminal

1. LANDER J.           This is an application for a review of a decision of a bail authority refusing the applicant bail.

2. The applicant was born on 13 February 1968. He has a history of attending before the court since 1985. Most of his attendances have been in relation to behavioural offences or motor vehicle offences. However, he has previous convictions for resisting police on a number of occasions, hindering police in the carrying on of their duty, and committing assaults on other persons.

3. On 24 January this year, he was sentenced to be imprisoned for a period of two months in relation to the offences of damaging property, refusing name and address and resisting arrest. That sentence was suspended upon the applicant entering into a bond to be of good behaviour for a period of nine months, which was subject to conditions of supervision. One of the conditions of the bond was that he be under the supervision of a probation officer and, further, to attend and participate in such programs as directed by Kim Schellen, Social Health Community Counsellor at Nunkuwarrin Yunti, and the Aboriginal Sobriety Group.

4. On 13 February this year, about three weeks after entering into the bond to which I have referred, the applicant was charged with driving an unregistered motor vehicle, driving with an inappropriate licence, failing to truly answer questions put to him, resisting police and assaulting police. He was granted bail for those charges on the same day.

5. On 24 March, about six weeks after being granted bail, he was charged with the offence of threatening life. He was granted bail in respect of that charge on 24 March. Thus it was that the applicant was subject to a bond to be of good behaviour and subject to two bail agreements when on 10 April he was charged with driving on an inappropriate licence, assaulting police and carrying an offensive weapon.

6. When he came before the Christies Beach Magistrates Court in respect of those charges, he was refused bail by two different magistrates on two separate occasions. It is from the second of those refusals that this review is sought.

7. When the matter first came on for hearing before me the Crown suggested that I seek a report from Mr Schellen, the Social Health Counsellor who has had the responsibility for counselling the applicant, both before and after he entered into his bond on 24 January 2002.

8. Mr Schellen has been good enough to provide me with a report. It shows that he has known the applicant for a period of about two years and during that time, has provided him with counselling services. It is clear from his report that the applicant has had a very unhappy two years. The applicant has suffered depression and has had difficulties with controlling his anger. As I understand from the report and also the submissions of Mr Bennett, who appeared on behalf of the applicant, his anger is in part directed to the fact that he is one of the stolen generation.

9. Mr Schellen believes that Mr Perry requires further counselling, but at the same time does believe that he has progressed ‘remarkably’ and ‘has a far better view of himself’.  Mr Perry does still seem to have episodes of depression and anger but it is Mr Schellen’s opinion that he is generally better equipped to deal with those episodes.

10. Mr Hinton, counsel for the prosecutor, opposed bail on the ground that the applicant’s recent history has not been satisfactorily explained. He pointed out the applicant’s apparent indifference to his obligations under the bond and bail agreements and the failure of any explanation for that apparent indifference.

11. I think, however, it is reasonably clear from the report which I have received that the applicant has an anger management problem which has manifested itself to a greater degree over the last few months. The question is whether or not his breaches over the last few months now disqualify him from being granted bail in circumstances where the charges would usually allow for the grant of bail.

12. The Bail Act1985 (SA) (the Act) requires me to allow bail unless, having regard to the likelihood the applicant would offend again, bail is inappropriate. There are other grounds of course for refusing bail under the Act, but in my opinion none of those grounds are relevant in relation to the matter presently before the court.

13. It was put to me that the applicant now understands the seriousness of his circumstances. He has been in gaol for some three and a half weeks whilst this application has been pursued. He understands that further breaches will inevitably mean that he will be returned to gaol.

14. It was submitted that in those circumstances, I ought to be confident that in the future he will comply with a bail agreement and the conditions of that agreement.

15. Mr Bennett argued that none of the previous bail agreements had required the applicant to be under the supervision of a community corrections officer.  It has to be said in reply to that submission that a condition of the bond was that he accept the lawful directions of Mr Schellen.

16. Mr Bennett advised the Court that Mr Perry’s partner, Ms Wendy Hart, is prepared to guarantee Mr Perry’s obligations under the bail agreement. She is a lady with a limited income and few assets. However, it should not be the case that simply because a person is without assets their offer of a guarantee should be refused. If it were otherwise some people could never offer guarantees to the court. Some people are not in circumstances where they know of people who are prepared to guarantee their obligations and who have material possessions which could be seized in the event of a breach of a bail agreement.

17. I am persuaded to grant Mr Perry bail in this case only because of Ms Hart’s offer. She is prepared to formally guarantee his obligations under the bail agreement, by being prepared to put at risk the only asset she has in the world.  She is also prepared to supervise Mr Perry during the continuance of any bail agreement.  If it had not been for her offer, I would have dismissed the review and upheld the decision of the bail authority. I have arrived at this decision not without some hesitation, even though I have some confidence that Ms Hart’s supervision and counselling will be of considerable assistance to the applicant.

18. I am therefore prepared to grant bail to the applicant on his own recognisance of $500; upon condition that he report today to and be under the supervision of a community corrections officer and obey the lawful directions of that officer; that he report to the police station at Christies Beach on Monday and Friday of each week commencing next week; that he reside with Wendy Hart at 84 Sullivan Road, O’Sullivan Beach; and upon a further condition that Wendy Hart provide a guarantee in the sum of $2000.