R v Po'oi (No 4)
[2022] ACTSC 198
•1 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Po’oi (No 4) |
Citation: | [2022] ACTSC 198 |
Hearing Date: | 29 July 2022 |
DecisionDate: | 1 August 2022 |
Before: | Refshauge AJ |
Decision: | 1. Daniel Ronald Po’oi be granted bail from 3 August 2022 to appear 25 November 2022 on the following conditions: a. That he be released on 3 August 2022 directly into the company of staff from Karralika Therapeutic Programs Inc. and proceed directly to the Karralika Therapeutic Community facility and admit himself into the Nexus and Matrix programs; b. That he undertake the Matrix and Nexus programs until they are completed and that he obey all the directions of the persons in charge of the programs and obey all rules of the facility; c. That if he leaves or is discharged from either program, he present himself to ACT Corrective Services by 4:00pm on the next business day with a view to having his bail reviewed; d. That he not consume alcohol, cannabis or any illicit drugs; e. That he accept supervision of the Commissioner of ACT Corrective Services or his delegates during the period of bail and obey all reasonable directions of the person supervising him, including as to undergo any drug or alcohol testing; f. That he report to Tuggeranong Police Station everyday between 8:00am and 5:00pm for the period of bail and notify the officers there of any change of address; g. That he not contact directly or indirectly, whether in person or via electronic means, Bobbie West and not be within 100 metres of her; h. That he be at his place of residence between the hours of 9:00pm and 7:00am each day. 2. Daniel Ronald Po’oi be remanded in custody until 3 August 2022. 3. The proceedings be adjourned until 25 November 2022 at 2:30pm. 4. Liberty to either party to seek leave to amend the bail if any further information is obtained. |
Catchwords: | CRIMINAL LAW – BAIL – Application for bail – opportunity for rehabilitation – protection of the community – bail granted |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) pt 4.4, ss 12A, 80ZE, 80ZH |
Cases Cited: | Davey (1980) 2 A Crim R 254 Dunstan v Director of Public Prosecutions [1999] FCA 921; 92 FCR 168 Saga v Reid and Collett [2010] ACTSC 59 |
Parties: | The Queen ( Crown) Daniel Ronald Po’oi ( Offender) |
Representation: | Counsel S Whitfield ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) ACT Legal Aid ( Offender) | |
File Numbers: | SCC 276 of 2020 SCC 277 of 2020 SCC 309 of 2021 SCC 310 of 2021 |
REFSHAUGE AJ:
Introduction
Daniel Ronald Po'oi has applied for bail pending sentence. The Crown opposed the application.
Background
Mr Po'oi is now 37 years old. He has a long criminal history in both New South Wales and the Australian Capital Territory. [Redacted for legal reasons].
[Redacted]. As an adult, he has committed 37 offences, ranging from traffic offences to aggravated robbery, aggravated burglary, inflicting grievous bodily harm and other offences of violence. He has been in custody for all but 18 to 20 months since 2001.
Between 25 February 2020 and 2 April 2020, he committed offences of aggravated burglary and burglary, two offences of dishonestly driving a motor vehicle without the owner's consent and an offence of possessing a knife in a public place without a reasonable excuse.
He was arrested on 25 February 2020 for some of these offences, but granted bail. He was re-arrested on 18 April 2020 for others and remanded in custody for all these offences, though part of the time was spent as a sentenced prisoner when his Parole Order for earlier offences of aggravated robbery, aggravated burglary and intentionally inflicting grievous bodily harm was revoked.
Mr Po'oi completed the Solaris Therapeutic Community program, a residential drug rehabilitation program available to incarcerated offenders, during this period. That program is further described in R v JM [2014] ACTSC 380 at [26]. It appears that it may not have been the first time that he undertook the program, though it is not clear how many times or whether he completed it on any such earlier occasions.
Ms Melissa Doran of the Karralika Therapeutic Programs Inc., which conducts the Solaris program, wrote on 2 August 2021:
My experience in the past of working with Mr Po'oi in the Solaris program and in the community was that he wasn't ready or willing to implement significant change to shift his circumstances. Mr Po'oi participated at a minimal level in order to do what was needed to be done in order to secure his freedom. Mr Po'oi's level of engagement shifted noticeably during his admission in 2020; with his motivation to change becoming significantly different to past experiences. In the time that I have been able to gain deeper insight into Mr Po'oi, I have learnt much about his past experiences and the impact that this has had on the man he is today.
He pleaded guilty to the offences referred to at [4] and two further offences of driving with a prescribed drug in his oral fluid and failing to stop when directed by police which were taken into account on a list of additional offences under Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The facts are set out in R v Po'oi [2021] ACTSC 151 at [10]-[28] and do not need to be set out here, but are taken into account. He was assessed as suitable for a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act.
On 8 February 2021, he was sentenced to a total sentence of three years and three months which was then suspended so as to be served by a Treatment Order for two years, followed by a Good Behaviour Order for the balance of the period of imprisonment.
10.A condition of the Treatment Order was that he admit himself to the residential drug rehabilitation facility, Canberra Recovery Services at Fyshwick ACT, conducted by The Salvation Army. He did so. Initially, he was reported as having participated well in the program, displaying honesty, engaging well in case management and ending a relationship with a drug and alcohol user.
11.He found it very difficult to remain abstinent and on 15 March 2021, he disclosed that he had used drugs and discharged himself from Canberra Recovery Services. As a result, the suspension of the Custodial Part of the Treatment Order was provisionally cancelled and he was remanded in custody initially for three days and then for a further seven days.
12.On 26 March 2021, the Treatment Order was amended so that he could continue under it in the community, as return to Canberra Recovery Services was not available to him: see R v Po’oi (No 2) [2021] ACTSC 340.
13.Regrettably, he found it difficult in the community, it was reported. This is understandable given his history. Thus, for example, he was reported in May 2021, after serving a period in custody for using drugs while in rehabilitation, as having stated that “being at the AMC felt like home to him where he felt safe and secure”. This, of course, does not justify his behaviour, though it is an important factor that must be taken into account. It is a significant problem for Mr Po'oi, but also for the community, which can only be protected if Mr Po'oi can be given the necessary skills to be able to conduct himself as comfortably in the community as he appears to be in custody.
14.Unfortunately, the support under the Treatment Order was not sufficient to help him gain the skills to be abstinent. His behaviour in the community was accompanied by continued use of drugs, for which he was sanctioned on 9 April, 23 April, 7 May, 14 May, 21 May, 28 May, 4 June and 11 June 2021 and for which, in addition to receiving points as a sanction (a process briefly described in R v Charles (No 2) [2020] ACTSC 366 at [33]-[34], R v Mathews [2020] ACTSC 364 at [97] and R v Massey (No 4) [2021] ACTSC 211 at [15]), he was also remanded in custody.
15.This continued drug use by a person with Mr Po'oi's long and extended drug dependence is not unexpected for it is clear that drug dependence “can be pernicious and difficult to manage”: R v Wilkins [2015] ACTSC 145 at [2]. A Treatment Order is, however, abstinence based. Nevertheless, recognition of the need for a sensible approach to the challenges of gaining abstinence for people with entrenched drug dependence does accommodate the realities of human frailties and does not necessarily require cancellation of a Treatment Order for use early in the program, though the need for abstinence is reinforced with sanctions and encouragement to desist.
16.An assessment of Mr Po’oi’s progress in the program was also relevant. Status Reports are provided to the Court each time a participant in the Treatment Order program appears in Court for the regular reviews which constitute the important judicial supervision under the program: s 80ZH of the Sentencing Act. Those Reports, which have been briefly reviewed for this decision, did certainly show periods when he was reported as having participated well from time to time.
17.Thus, for example, the Reports early on described him as “forthcoming with lots of information” and explained his first use under the program was a result of him engaging in a destructive relationship with a woman who had started drinking and using drugs soon after leaving Canberra Recovery Services. She tried hard to engage with him and he resisted her, ultimately calling the police.
18.Later in April, he was reported to be “gaining confidence slowly… and managing to abstain from any drug use”. Later on, however, matters were less satisfactory, especially while he was in the community.
19.As a result, he was remanded in custody, when accumulating at least seven points from time to time, all for serious breaches of the behavioural requirements of the Treatment Order. This happened at least on 21 May and 11 June 2021.
20.Finally, on 18 June 2021 the Court decided that if Mr Po'oi was going to proceed satisfactorily under the Treatment Order, he could only do so in a residential drug rehabilitation facility and the Treatment Order was again amended to require him to return to and admit himself again into the program at Canberra Recovery Services.
21.He did so but, unfortunately, he was discharged from the facility on 28 June 2021 and when he did not, as required under a condition of the Treatment Order, present himself at ACT Corrective Services by 4:00pm on 29 June 2021, a warrant was issued for his arrest on 30 June 2021.
22.He was arrested on 19 July 2021 and appeared in Court on 20 July 2021, when again the suspension of the Custodial Part of the Treatment Order was provisionally cancelled and he was remanded in custody.
23.The Crown filed an application for cancellation of the Treatment Order, returnable on his next appearance in Court on 30 July 2021. After a further adjournment, the Treatment Order was cancelled on 4 August 2021: see R v Po’oi (No 3) [2021] ACTSC 354.
24.The proceedings were then adjourned to 5 November 2021 so that appropriate preparation could be made for a hearing on whether the cancellation of the Treatment Order should lead to the imposition of the sentence originally imposed or a re-sentence: s 80ZE(2) of the Sentencing Act; R v Tonna (No 2) [2020] ACTSC 362 at [78]-[79].
25.Prior to that date, however, Mr Po'oi made an application for bail so that he could, it was submitted, show to the Court that his periods of rehabilitation had been sufficiently successful, despite the breaches, to justify him being re-sentenced, possibility to a community based order (as a further Treatment Order could not be made: s 80ZE(2)(b) of the Sentencing Act).
26.Bail was granted on 24 September 2021 on the condition that he return to Canberra Recovery Services on 27 September 2021, amongst other conditions.
27.Mr Po'oi did not appear on 5 November 2021, being the adjourned date, and a warrant was issued for his arrest. He was arrested on 6 December 2021 and remanded in custody. He was also charged with fresh offences.
28.The first in time was an offence of minor theft, alleged to have been committed at a service station in Holt, ACT, on 18 October 2021, where Mr Po'oi is said to have filled up a motor vehicle with petrol worth $84.66, walked to the shop there and taken three bottles of oil, valued at $99 total. He then walked out and drove off without paying for either the petrol or the oil.
29.Secondly, in the early hours of 5 December 2021, it is alleged that Mr Po'oi was a passenger in a motor vehicle, which police identified as being driven in Hawker, ACT. The police are said not to have had a clear view of the driver, but initially identified a person who was charged with dishonestly driving a motor vehicle without the owner's consent.
30.Police attempted to intercept the vehicle and, in the course of attempting to do so, were able to have a clear view of Mr Po'oi in the front passenger seat and identify him. As a result, Mr Po'oi has been charged with dishonestly riding in a motor vehicle without the owner's consent.
31.The Prosecution has, however, discontinued the prosecution of the driver based on the inadequacy of the identification, but have continued with the prosecution of Mr Po'oi, which is listed in the ACT Magistrates Court for hearing. Mr Po'oi has pleaded not guilty. He has been refused bail on that charge.
32.Mr Po'oi is alleged to have visited a motor vehicle dealership in Fyshwick in the afternoon on 5 December 2021, where he is said to have indicated that he wanted to purchase a car because “we” are having a baby. He is claimed then to have got into a motor vehicle on show and driven out of the dealership without permission. At the time, the vehicle was unregistered.
33.Police were notified and they stated that police officers came across the vehicle in Mawson, ACT. They attempted to stop the vehicle, including by deploying tyre deflation devices and pursuing the vehicle with emergency lights and sirens activated, but the pursuit was discontinued.
34.It is said that Mr Po'oi was later in a property where the owner directed him to leave. It appears that this is where Mr Po'oi is said to have abandoned the motor vehicle, as it was seen by police. A member of the public saw Mr Po’oi.
35.Mr Po'oi is claimed to have then run to the backyard of the property when told to leave and is said to have jumped onto the fence and onto the roof of a garden shed which broke, with him falling partially through the roof, damaging it.
36.He was arrested by police shortly after and submitted to drug testing, which showed a prohibited drug in his oral fluid.
37.As a result of these events, he was charged with dishonestly taking a motor vehicle without the owner's consent, being an unlicensed driver, failing to stop when directed by police, damaging property and driving with a prohibited drug in his oral fluid. He has pleaded guilty to these charges and has been committed for sentence to this Court with the summary charges having been transferred to be dealt with at the same time.
38.Mr Po'oi has been in custody now since 5 December 2021, when he was arrested on the premises which he had entered before falling through the garden shed roof.
39.He was brought before the Court soon after his arrest and remanded in custody to seek out rehabilitation programs. An email from the team leader of the Alcohol and Drug Treatment Team at the Alexander Maconochie Centre dated 16 December 2021 was tendered without objection and admitted into evidence and no challenge was made to its contents. In it, the author noted that Mr Po'oi had been admitted into the Solaris Therapeutic Community Program on 14 December 2021, but had made initial contact with her on 7 December 2021, shortly after his remand in custody. She commented positively on his commitment and dedication to completing the program.
40.He has now completed the Solaris program again and six certificates of completion of various phases and of completion of certain programs were also tendered without objection and admitted into evidence. No challenge was made to the contents of any of them. A letter from the case manager of the program was also tendered without objection and admitted into evidence. Its contents were not challenged. In it, the author states that “Mr Po'oi has engaged in a positive manner, both with his peers and staff and has been observed to make significant personal progress”. She further states that he “has effectively utilised his time within the program, both addressing past behaviour and identifying new ones that will serve him better moving forward” and that his “observed progress and personal growth while on the Therapeutic Community has been quite significant”. In particular, she said that he showed commitment, honesty and a positive attitude as well as “a great deal of personal drive and motivation towards his recovery”.
41.Ms Doran also provided a further report. She had seen him in 2020 and had been counselling him during the present time he had been in custody. The report was very supportive, identifying that Mr Po'oi had sought “support that is needed to manage his emotions, develop trust in staff and open up about what is going on for him”. She added that he “continues to seek out opportunities that will assist him in approaching the change progress” and also that he “acknowledges that he has struggled to take in all the changes necessary to ensure they are solidified in an ongoing manner”. She expresses the belief “with adequate supports to reintegrate, that he can maintain lasting change”. She further says that he “has learnt from his experiences and continues to challenge himself in regards to what he needs to do in order to build a life where he is able to sustain recovery”.
42.Unfortunately, Ms Doran does not directly address the issue that arises from her earlier assessment of the change that she had then seen when Mr Po’oi had shown similar motivation in 2020, but then performed so badly in Canberra Recovery Services on two admissions and again in the community, despite the ongoing support from agencies and with engagement in the Treatment Order program.
43.Mr Po'oi has now been offered a place in the Matrix program, conducted in the community by Karralika Therapeutic Community. It appears from the evidence to be an intensive outreach program, based on the well-known 12 steps/mutual self-help program and provides individual counselling and case management. The program is a 16 week program.
44.He has also been offered a place in the Nexus program of the same provider which is a residential component of their programs. A condition of his entry is to undertake the Matrix program. He can be admitted on 2 or 3 August 2022.
45.Mr Po'oi's subjective circumstances are described in R v Po'oi at [76]-[90]. It is not necessary to repeat them.
The application
46.Mr Po'oi has applied for bail to enable him to be admitted into the Nexus program of Karralika Therapeutic Programs in order to undertake the Matrix program. The application is opposed by the Crown.
47.Ms C Duffy, counsel for Mr Po'oi, acknowledged the significant criminal history of Mr Po'oi and the substantial failures under the Treatment Order. She submitted, however, that it was important that he actively sought out rehabilitation programs during his most recent period in custody following the cancellation of the Treatment Order. He has been in custody for nearly eight months and has completed the Solaris program.
48.She submitted that, while he had failures during the period he was serving his sentence by a Treatment Order, he also did make efforts. It is clear, however, that, while they were initially promising, they gradually deteriorated. She emphasised his commitment, shown both by the active and early efforts he had made to seek out rehabilitation in custody when the Treatment Order was cancelled and his successful completion, attested to by two of those involved.
49.Ms Duffy acknowledged that, even were he to be granted bail, it is likely that he might have to spend some further time in custody on sentencing for the fresh offences and even re-sentencing for the sentence imposed when the Treatment Order was made, but that the Court could better assess, following his period under this program, whether some community based programs were appropriate to be part of that sentence.
50.Finally, Mr Po'oi wrote me a letter, delivered to Ms Duffy on 19 June 2022. It was tendered without objection and admitted into evidence. No challenge was made to the contents.
51.In it, Mr Po'oi explained why he had left Canberra Recovery Services. It was a well written letter and he did not appear to be making excuses as opposed to explaining the situation. He stated that he intended to stay, but when he tried to call his long term girlfriend, his reaction was that he felt he wanted to be with her and that spiralled out of control. He acknowledged that it was a big error for him and, when in custody, he pondered that and decided that the relationship had to end.
52.He explained that, despite each program conducted by Solaris being ordinarily for 16 weeks, it has been currently running for 6 months because of the consequences of the COVID-19 pandemic. He continued even though it put pressure on him where he did feel a need to leave, though he did not do so. He also applied some of what he had learnt to help him through the process. He sought and gained the support of his counsellor. He recommenced playing sport and engaging in fitness work to help him keep busy and occupy his time.
53.Mr Po’oi relied on the fact, too, that he could have left the Solaris program earlier and returned to the general area of the prison where he would have been in an easier position, but did not do so. It is, of course, possible that such a transfer would have brought him into contact with drugs and, again, this was a mature choice.
54.He has commenced study for a community service certificate and has been approached, if he succeeds in the Matrix program, to provide support as a peer mentor.
55.The Crown, represented by Mr S Whitfield, submitted that bail was not appropriate. Mr Po'oi had continued to use drugs and also committed other breaches of the Treatment Order while subject to it. Further, he had committed further offences after he absconded from Canberra Recovery Services and not returned to Court or reported to ACT Corrective Services as required.
56.The Crown noted that a number of the fresh offences were serious and would likely result in a further prison sentence, especially as they were committed while Mr Po'oi was at conditional liberty. This sentence would be in addition to the prison sentence that would be highly likely to follow the cancellation of the Treatment Order, even were he to succeed in the proposed program of rehabilitation.
57.As Crown counsel submitted, Mr Po'oi had regularly breached the trust placed in him by the Court, initially under the Treatment Order and then on bail. He relied on one of the Status Reports, of 28 May 2021, which showed that Mr Po'oi had access to drugs while in custody and that he had succumbed.
58.To be fair, it is to be noted that the Report states that, “when he arrived, he was placed in an area where he felt safe as he could not access drugs and requested to stay there the entire time. He was later transferred to the cell where the other resident was using drugs which he said annoyed him and then succumb [sic] to using drugs”.
59.The level of trust that a further grant of bail would require was, the Crown submitted, too great, given his history which did not justify it. There were no conditions of bail that could adequately protect the community given his relatively recent offending and fairly consistent drug use.
Consideration
60.At one level the application for bail is not a difficult one. Mr Po'oi is clearly someone who is severely dependent on drugs and has shown that, even when granted the relative leniency of an order to serve a lengthy sentence of imprisonment under a Treatment Order, he cannot abstain and, when in the community, after nearly six months of treatment and relative leniency granted to him for breaches, was still committing offences.
61.Nevertheless, there are some factors that require a further a more complicated response. In the first place, it is clear that the overriding purpose of the criminal law is the protection of the community: Davey (1980) 2 A Crim R 254 at 261. French CJ, in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]; 536-7, made the point that “rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. See what was also said in R v Hebditch [1999] FCA 1087 at [18], which reported and relied on what had been said by Sir Anthony Mason extra-curially to the same effect. See, also, R v Blaskovic [1999] FCA 1306 at [26]. Added to this is what the Court said in Saga v Reid and Collett [2010] ACTSC 59 at [89] as follows:
[I]t can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it. That may be merely the nature of the offence. For example, sentencing on a drug offence may allow further attempts to be made, whereas, in the absence of some other factors, continuing burglaries or robberies would make a sentencing court much more hesitant about further attempts after multiple failures.
62.There are, however, other important considerations. It is not possible to ignore Mr Po'oi's history. Thus, his further offending, continuing use and failure to translate what he clearly manages to achieve while in custody into the community when he is released.
63.Thus, he successfully completed the Solaris program in 2020, but then, when the Treatment Order was made, he did not manage to maintain his abstinence. It must be accepted that, so far as the records available to the Court show, he committed no further offences after that until he committed the offences to which he has now pleaded guilty and is awaiting sentence, except for any offences comprised in the possession and self-administration of drugs.
64.Thus, the success in that program did reduce, though not eliminate, his criminality.
65.Regrettably, there is no evidence about his use of drugs while in custody now. Despite all this, the ordinary considerations relating to bail must apply. Thus, for example, there is “a long history of courts refusing to grant bail where a gaol term is inevitable or almost inevitable because of the risks that that imposed”: In the matter of an application for bail by Rowland [2016] ACTSC 6 at [20]. That case, however, involved a more serious crime, namely aggravated robbery where Mr Rowland used a shortened rifle, while Mr Po'oi's crimes include an aggravated burglary which did not involve a weapon and the site was a construction site. It is, nevertheless, a serious offence, but not as serious.
66.There were, however, also additional serious offences including burglary and an offence of dishonestly taking and dishonestly driving a motor vehicle without consent, and possessing a knife in a public place without a reasonable excuse, as well as the current offences. Nevertheless, a Treatment Order, an Order of significant rehabilitation, can be made for sentences up to the four years imprisonment. While that is no yardstick, it does give an indication of how serious the legislature has taken the need for rehabilitation of those whose drug dependence substantially contributed to crime and which, if it is not addressed, puts the community at further risk.
67.It is also very significant that in the case of In the matter of an application for bail by Rowland, there had been a sentence date set which, while some three months away, was relatively close and, perhaps, unlikely to provide a level of rehabilitation that might be considered appropriate. That also meant that the Court noted (at [13]) that it may be appropriate on sentence to permit Mr Rowland to proceed to a rehabilitation facility under a Deferred Sentence Order. Such an Order is, indeed, akin to the grant of bail to permit a period of rehabilitation to be undertaken so as to inform the court better as to an approach to sentence.
68.On the other hand, there are limits to the lengths a court can and should go to promote an offender's rehabilitation: see R v GD [2015] ACTSC 174 at [29]. In that case, despite the risk of a lengthy term of imprisonment, bail was granted to allow the defendant to enter a drug rehabilitation facility. He was, of course, a young man and the youth justice principles played a significant role in the decision. Mr Po'oi is not in that situation.
69.That decision is also of some assistance in the next significant issue, namely the risk of re-offending. Of course, a significant history of offending is a matter to be considered. It is an indicator of that risk, see R v GD at [21], when it was pointed out that a criminal record is not an unreasonable basis for that suspicion which, as noted in Dunstan v Director of Public Prosecutions [1999] FCA 921; 92 FCR 168 at 184; [56], must be soundly based.
70.While the offences of which a defendant has not been found guilty are not to be counted as further offences, Mr Po’oi has, nevertheless, pleaded guilty to those which are now to be dealt with in this Court and, while a conviction has not been entered and may not be entered, he has clearly committed them as his plea accepts.
71.Further, it is relevant that he has been charged with further offences: R v O'Brien [2012] ACTSC 199 at [19]-[20]. This also allows, if available, an assessment of the seriousness of the offending.
72.Of course, Mr Po'oi's offending seems to be closely related to his drug use and that is a significant matter. He had applied himself to efforts to address that cause: see R v GD at [22], [30].
73.Further, Mr Po’oi’s earlier bail breaches are relevant, as it shows the breach of trust which the grant of bail has reposed in the offender: see In the matter of an application for bail by Massey (No 3) [2010] ACTSC 52 at [22]-[23]. Mr Po'oi has done that in this case. There, of course, the offence committed by Ms Massey, who was ultimately convicted, was a much more serious offence, probably one of the most serious offences in the criminal calendar, namely murder.
74.It is also necessary to consider the conditions that might minimise the risk that the bail will put the community in jeopardy, were Mr Po'oi to continue as he had been under the Treatment Order.
75.So far, the conditions suggested are relatively standard ones. Mr Po'oi risks a term of imprisonment more certainly should he breach the bail and not succeed in his rehabilitation. There is no other pressure, however. That is not to say that this is not significant, but it is the experience of the courts that a more certain consequence such, as the loss of a cash surety (particularly if provided by a family member or other supporter), can be a substantially effective additional motivator for a bailee to comply with the terms of bail and, indeed, to encourage such a surety who is not the bailee to apply pressure, if not specific action, to ensure this. Mr Po'oi was not able to provide a cash security, either deposited by himself or someone else. He did, however, offer to report daily to Tuggeranong police station, the nearest police station to the Karralika Therapeutic Programs facility.
76.Ms Duffy tendered without objection an email from Karralika which confirmed that the facility would be able to facilitate any reporting requirements. No challenge was made to that assertion.
77.Mr Po'oi has in the past, so far as the Court is aware, been arrested fairly soon after absconding or committing further offences. Nevertheless, this does not ameliorate the harm done to victims of his offences and the protection of the community in the short term. That is also an important matter for the Court to take into account.
78.This is a difficult decision balancing competing factors.
79.On the one hand, Mr Po'oi's rehabilitation is to be promoted. It will better protect the community in the long run. If the Court could be certain that this option available to him will do that, there is much to be said for supporting it.
80.While his continued commitment is laudable, he has a very poor history of compliance, even recently. The latest two periods in the Solaris program give some confidence but, in the first case, he did then continue using drugs when released. This re-affirms the risk that he cannot exert sufficient self-control while in the community to put into practice what he had learnt in the program in custody, where he substantially showed success.
81.At some stage, Mr Po'oi needs to be released into the community. Even with the offences with which he has been charged, together with the response to the cancellation of the Treatment Order, he will be released into the community at some point in the future. This opportunity could provide the sentencing court with some form of important information as to whether the current rehabilitation has given him sufficient strength to continue being drug and crime free in the community and so allow some moderation of the inevitable sentence.
82.On the other hand, there are significant risks. Mr Po'oi has not been able to resist offending or taking drugs, even after a successful period of rehabilitation in the Solaris program before. This raises a real question as to how that might be tested in the future. The obligation of the Court, as noted above (at [61]), is to protect the community. This includes the immediate future, as well as the longer term future. The conundrum is how to balance that out in this circumstance. Had Mr Po'oi returned to Court after absconding from rehabilitation the second time, had he not committed further offences, had he not continued to use drugs so continuously, the question may be easier; though still not certain.
83.Given that, apart from his efforts to reach out for rehabilitation, which is commendable but also consistent with his wish to be back in the community and avoid imprisonment, and his success in the Solaris program, there is not much on which the Court can place significance reliance. On the other hand, to assume that he is not genuinely seeking rehabilitation dilutes the fact that proper engagement, in which he appears to have at least done in the Solaris program, is not easy. It is hard, especially to be honest and to open up about matters such as his mental health and the trauma he suffered as a youth.
84.The inference, which some may describe as cynical, as to his motivation for such rehabilitation and now his application for bail is inconsistent with his long and perhaps institutionalised relationship with custody, as referred to earlier (at [13]).
Orders
85.As evident by the above considerations, the decision is not an easy one and there are significant countervailing factors supporting a decision to refuse or to grant bail. They are not completely balanced, but both pull in opposite directions with considerable and, at the worst, nearly equal force.
86.Doing the best possible in all the circumstances, bail will granted to Mr Po'oi to attend the Karralika Nexus program as follows:
(1)Daniel Ronald Po'oi be granted bail from 3 August 2022 until 25 November 2022 on the following conditions:
a. That he be released on 3 August 2022 directly into the company of staff from Karralika Therapeutic Programs Inc. and proceed directly to the Karralika Therapeutic Community Facility and admit himself into the Nexus and Matrix programs;
b. That he undertake the Matrix and Nexus programs until they are completed and that he obey all the directions of the person in charge of the programs and obey all rules of the facility;
c. That if he leaves or is discharged from either program, he present himself to ACT Corrective Services by 4:00pm the following day with a view to having his bail reviewed;
d. That he not consume alcohol, cannabis, or any illicit drugs;
e. That he accept supervision of the Commissioner of ACT Corrective Services or his delegate during the period of bail and obey all reasonable directions of the person supervising him, including as to undergoing any drug or alcohol testing;
f. That he report to Tuggeranong Police Station every day between 8:00am and 5:00pm for the period of the bail and notify the officers there of any change of his address;
g. That he not contact directly or indirectly, whether in person or by electronic means, Bobbie West and not be within 100 metres of her; and
h. That he be at his place of residence between the hours of 9:00pm and 7:00am each day.
(2)Daniel Ronald Po’oi be remanded in custody until 3 August 2022.
(3)The proceedings be adjourned until 25 November 2022 at 2:30pm.
(4)Liberty is given to the parties to seek to amend the bail if they are instructed to do so.
87.Mr Po'oi, I do not usually say “this is your last chance”, but it probably is your last chance to show that you are really committed and that you are not just a blowhard and a fine man with words who cannot deliver that into action.
88.Your bail conditions are very strict and you need to understand, firstly, that any breach of that bail, given your history, will likely leave you back in custody. It is highly unlikely that you will be granted bail again in these cases.
89.Secondly, I have to tell you that, even if you do very well on the Nexus program, it is quite possible that you will have to serve some further custodial time given the circumstances: you have a 3 year sentence from the Treatment Order and need to be sentenced for further offences, all of which are likely to add up to a sentence of more than 12 months.
90.Whether you can justify a community based order for all or part of the time of the final sentence imposed will, in part, depend very substantially on how you do under this program. Nothing, however, is guaranteed.
91.You are required to sign a copy of these bail conditions. Make sure you read them and you understand them. It is unlikely that the Court will grant bail again if you fail to comply with them and say, “I did not realise this is what I had to do”. If you have any questions about what you have to do, do not guess, but ask Ms Duffy. She can help you to be compliant with these bail conditions.
92.You are on a very tight rope and if you fall off the tight rope, it is a long abyss below.
93.This was a very finely balanced consideration. Lots of people would say that I should not have granted you bail. Hopefully, some people will understand why I did, but at the end of the day you need to do the right thing at last.
| I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 17 August 2022 |
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