R v Pye

[2012] ACTSC 79

HUMAN RIGHTS ACT

THE QUEEN v DONNA MARGARET PYE
[2012] ACTSC 79 (11 May 2012)

CRIMINAL LAW – jurisdiction, practice and procedure – bail – risk of re-offending – materials establishing risk not formally tendered – Bail Act 1992 (ACT) s 19(2) – materials considered.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – purposes of bail – bail not to be used as punishment – non-compliance with Care and Protection directions – avoidance of CADAS assessment – risk of further offending – application to withdraw plea – bail revoked.

Bail Act 1992 (ACT), s 19(2)
Crimes (Sentencing) Act 2005 (ACT), pt 4.2, s 45
Criminal Code 2002 (ACT), s 603(7)
Human Rights Act 2004 (ACT)

Dunstan v Director of Public Prosecutions (1999) 92 FCR 168
Re an Application for Bail byKim [2009] ACTSC 129

EX TEMPORE JUDGMENT

No. SCC 45 of 2012                 

Judge:             Refshauge J
Supreme Court of the ACT

Date:              11 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 45 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

R

v

DONNA MARGARET PYE

ORDER

Judge:  Refshauge J
Date:  11 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Donna Margaret Pye be remanded in custody.

1. The application for Donna Margaret Pye to withdraw her plea of guilty be filed on or before 24 May 2012.

1. The application for Donna Margaret Pye to withdraw her plea of guilty be listed for hearing on 30 May 2012.

1. As a result of a police surveillance operation, police arrested Donna Margaret Pye on 1 November 2011 and charged her with trafficking in a controlled drug other than cannabis, an offence prohibited by s 603(7) of the Criminal Code 2002 (ACT), that attracts a maximum penalty of 1 000 penalty units (that is a fine of $110 000) or

   
   

   10 years imprisonment or both.  It is a serious offence; not the most serious in the criminal calendar, but in the higher level of seriousness and for which a term of imprisonment is a real likelihood.

1. Ms Pye appeared in the Magistrates Court and was granted bail despite opposition from the prosecution.  She was legally represented then and subsequently. After five adjournments she pleaded guilty but did not consent to the exercise of jurisdiction by the Magistrates Court and was committed for sentence to this Court on 1 March 2012.

1. She first appeared in this Court on 15 March 2012, and the proceedings were listed for sentence on 10 May 2012. A Pre-Sentence Report under pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) was directed to be prepared.

1. On 19 April 2012, Ms Pye appeared before Penfold J on an allegation that she had breached her bail.  One of the conditions of her bail was that she was “to attend each and every appointment with Corrective Services or CADAS as directed”.  The facts shortly were that she had failed to attend appointments that Corrective Services had directed her to attend on 19 and 22 March 2012, on the latter occasion providing an untrue explanation as to why she was not attending, and on 12 April 2012.

1. Her Honour took no action on the breach of bail but added a further bail condition requiring Ms Pye to attend an appointment with Corrective Services on 20 April 2012 so that the Pre-Sentence Report could be completed. It appears Ms Pye did attend that appointment. In any event, a Pre-Sentence Report was prepared in writing and, as required under s 45 of the Crimes (Sentencing) Act, provided to the court.  I had access to it prior to the sentence hearing. In that report Ms Pye is recorded as having made statements about the offence to which she had pleaded guilty that could reasonably be said to have traversed her plea. 

1. The matter came before me on 10 May 2012 for sentence. At the start of the proceedings, however, Ms Pye’s legal representative, Ms J Agius, drew the Court’s attention to these statements and explained that after taking instructions she found herself in a position of conflict and that Ms Pye now wished to withdraw her plea of guilty to the charge.  In the circumstances, she could not continue to act for Ms Pye in the proceedings and sought leave to withdraw as her lawyer.  I granted that leave.

1. There was no opposition expressed by the prosecutor to the adjournment that would be necessary to permit Ms Pye to apply for leave to withdraw her plea of guilty. 

   
   

   However, Mr T Hickey, who appeared to prosecute, applied for Ms Pye’s bail to be reviewed with a view to it being revoked. I considered that Ms Pye should not, in the circumstances, face such an application unrepresented if legal representation could be obtained. Accordingly, I stood the matter down to later in the day to see if Legal Aid ACT could provide a duty lawyer to appear.

1. When the matter resumed, Ms Agius indicated that she was able to appear on this application.  That was clearly to ensure that Ms Pye was not unrepresented and to provide her with the kind of representation that her knowledge of Ms Pye’s case and circumstances could provide.  This was an example of the finer traditions of the legal profession, which contributes to a fair and civilised society despite the uninformed criticisms that are sometimes so unfairly levelled at legal practitioners.

The Contentions.

1. Mr Hickey submitted that bail should be revoked because Ms Pye had breached bail conditions and that there was a real risk of reoffending.  These allegations were based on the Pre-Sentence Report, a report from the Court Alcohol and Drug Assessment Service (CADAS) and inferences that, he submitted, I could draw from that material.

1. These reports, however, had not formally been tendered; no consideration had been given to any objections to them and no direct allegations had been put to Ms Pye for her to answer and to see what her answer may be. It appears, however that s 19(2) of the Bail Act 1992 (ACT) would permit me to have regard to these reports and I have done so.

1. The report from CADAS shows that, on three occasions, CADAS wrote to Ms Pye asking her to make an appointment without receiving any response from her.  A voicemail message was left on two occasions without reply.  CADAS then contacted Corrective Services which provided another telephone number. Contact was then made with Ms Pye using that number and an appointment was scheduled which she did not keep.

1. This, it must be said, was in the light of CADAS reports that had been tendered in the Magistrates Court showing a similar pattern of failure to attend appointments with that service or failure to reply to communications from CADAS on a number of occasions.  This, it would appear, was the reason that one of the bail conditions was added on 13 December 2011, namely, that she was required to attend such appointments as noted above (at [4]).

1. These failures were, Mr Hickey submitted, a breach of that bail condition which would, by itself or in combination with the matters referred to below, justify the revocation of Ms Pye’s bail.

1. The second matter was that the Pre-Sentence Report recorded that she had failed to comply with directions to undertake urinalysis drug screening. It was said that attempts had been made to contact Ms Pye weekly for urinalysis since January 2012 generally without success, though on the 14 occasions that she was contacted she failed to attend for urinalysis.

1. Ms Agius pointed out that these directions had not been given by Corrective Services which, under the bail condition, was authorised to give such directions.  The failures did thus not constitute a breach of the bail conditions.  The directions were given by Care and Protection Services, which had arranged for Ms Pye’s five year old daughter to be placed in care, though with Ms Pye’s mother, and permitting Ms Pye access, though not overnight.   It was in this context that Ms Pye was required to be tested by urinalysis by direction of Care and Protection Services.

1. Mr Hickey accepted this and that therefore there was no evidence that Ms Pye had breached her bail condition “[t]o submit to urinalysis when directed by the officer delegated [by the Director General of Justice and Community Services] to supervise her”. He submitted, however, that the failure to present for urinalysis meant that I could draw the inference that Ms Pye had still been using illicit drugs, that is, breaching the bail condition that she “abstain from the use of illicit drugs” and committing further offences.  There was a risk of similar offending as she would need to find funds to obtain the drugs.

1. He also referred to comments reported in the material as having been made by Ms Pye which turned out to be or to be likely to be false.  For example, she told Corrective Services that she was unable to report as directed on one occasions because “Police were raiding her house” when, in fact, no search warrant had been executed on her house for many months. Again, in the Pre-Sentence Report, it was recorded that, despite expressing an interest in attending residential drug rehabilitation and stating that she had contacted “The Peppers” rehabilitation program in Wagga, inquiries by the author of the Pre-Sentence Report showed that there was no record of any such contact.  I had further information about that this morning.  It now appears to be inaccurate.  Ms Agius has had contact with that facility and I note that an assessment has, in fact, been undertaken and the result will be known next week.

1. Ms Agius made a strong submission in favour of bail.  She noted that Ms Pye had always attended court when required in respect of these proceedings.  That appears, from the material to which I have had access, to be so.

1. She said that the breach of bail dealt with by Penfold J was a relatively minor one, as was to be seen by the response the Court made to it.  While that is in itself true, I do note that in the Magistrates Court Ms Pye was dealt with for a breach of bail in respect of these proceedings on 13 December 2011; a breach that is recorded as having been admitted, though I note that there was no opposition to her bail being continued.  There were, thus, two breaches of bail in respect of these proceedings.

1. Mr Hickey referred me to the fact that Ms Pye’s criminal record discloses that on three occasions she had failed to attend court in compliance with her bail undertaking: on 31 October 2006, on 3 December 2001 and what seems to be between 2 December 2000 and 3 December 2001.

1. Ms Agius pointed out, however, that Ms Pye only has family in Canberra.  Her mother has the care of her five year old daughter and Ms Pye visits nearly every day.  This shows commitment to her daughter, a significant motivator for Ms Pye to remain in Canberra and therefore to attend Court, for she would be relatively easily found and apprehended if she did not do so.

1. One concern, however, is that the Pre-Sentence Report records that Care and Protection Services have reported that she has failed to engage adequately with that service since her daughter was removed from her care and “it is not foreseen that her daughter would be returned to her care in the near future”.

1. Bail is not to be used as a punishment, especially for matters that are not offences and particularly if a matter causing the revocation of bail is not proved beyond reasonable doubt. No doubt there is a populist view that bail should be used as such a punishment, and that somehow persons charged but not convicted for offences should be deprived of their liberty.  That is neither the law nor in accordance with the Human Rights Act 2004 (ACT). It is hardly the mark of a civilised society. It is not a view that should be accepted by the courts either expressly or by inference from decisions on bail.

1. Nevertheless, and without in any way suggesting that Ms Pye should be punished for her failure to engage with Care and Protection Services, the fact that this is a pre-condition for her to regain custody of her daughter must in my view be taken into account in assessing the strength and motivation that her commitment to her daughter can contribute to her compliance with bail obligations and, in particular, committing no further offences.

1. Ms Agius did point out that Ms Pye had contact with her mother every day and that her mother drives her to wherever she has to go.  That does reinforce the likelihood that Ms Pye will attend Court but it does not help to show that Ms Pye will comply with other obligations.  Her mother has not, it appears, been able to ensure compliance with the bail obligations to attend at Corrective Services and at CADAS.

1. Ms Agius submitted that it was not unusual for persons in Ms Pye’s situation to be disorganised, to forget appointments and to be resistant to the interventions of government agencies. That is able readily to be accepted.  She noted that Ms Pye did attend Corrective Services sufficiently for the usual comprehensive Pre-Sentence Report to be prepared.  That is so, but I must remark that it was only the intervention of the Court, the breach action, and the additional bail condition that led to this being achieved.

1. In Re an Application for Bail byKim [2009] ACTSC 129 at [3], [4], [5]–[6], I summarised the purposes of bail as follows:

Bail is primary to be granted for three reasons. One is when the Court is satisfied that the applicant for bail will appear to answer ... [her] bail and to take [her] trial as the criminal justice system requires. 

...

The second is to ensure that the interests of the applicant and of any witnesses are appropriately protected.

...

It is clearly desirable that people who are addicted to drugs have the opportunity, where possible, to manage their addiction in the community so that they can become able to deal with the stresses and involvements of being in the community and managing their drug addiction at the same time.  There is no suggestion here that any interests of any witnesses are at risk and so I do not need to consider that any further.

The final matter is that the community is entitled to be protected from the commission of further offences by people who are shown to have been likely to or have committed offences.

1. My comment about interference with witnesses is also applicable here.  There is no suggestion of that.

1. So far as the other purposes are concerned, I accept that Ms Pye is unlikely to fail to attend for her trial or sentencing.  The previous failures are quite some time ago.  They amount to a very small percentage of her obvious court appearances (in the context of her record) and it does not appear that she was at large as a result of any lengthy period or that it was difficult to apprehend her. I accept that any such failure is unacceptable and that it does add to the inconvenience of the courts and the workload of Police.  These latter matters, however, do not add strength, in my view, to any suggestion that she will not attend and I do not accept that she is unlikely to attend.

1. As to the other matters, protection of herself and protection of the community from the commission of offences, the situation is more problematic. 

1. I note that the professional drug and alcohol workers at CADAS have not been able to assess Ms Pye’s drug and alcohol situation.  Indeed, her long avoidance of attendance at that service, despite express bail conditions, allows the inference to be drawn that her drug situation is problematic.  She seems to be avoiding at least discussing strategies that might bring it under control; she is avoiding an assessment of what the current situation is.

1. Her expression of interest in residential rehabilitation is also problematic, though I do note that she apparently has been assessed by “The Peppers” but that no decision has yet been made.

1. I note also that she has a long and depressing history of engagement with the criminal justice system.  When this is added to her failure to comply with directions and undertake urinalysis the picture is fraught.  I accept that these directions were not given under the bail arrangements, but I take them into account and they do allow an inference to be drawn that Ms Pye is avoiding urinalysis because of continued drug use.

1. The issue of being likely to reoffend has been carefully dealt with by the Federal Court, on appeal from this Court, in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at 184; [55]–[56], where Gyles J, with whom Whitlam J agreed, said:

In my view it is wrong to approach the issue under s 8(2) and s 22(1)(c) [of the Bail Act] on the basis of the elimination of risk.  The correct question is to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not: see the explanation by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346–348; 27 ALR 367 at 380–382. If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.

It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention.  In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation.   Discussion of the matter in terms of risk is calculated to encourage that basis.

1. I take into account Ms Pye’s failures to attend at CADAS and to comply with directions to submit to urinalysis.  I take into account her prior record. I note the assessment of the author of the Pre-Sentence Report:

She has a significant history of offending behaviour, predating her commencement of heroin use at age 28, and as noted above, has previous convictions for drug supply offences.  Despite her attempts to minimise the current offence as purchasing drugs for the personal use of her and her friends, it is clear that she had returned to dealing in illicit drugs, and it is suspected that this was for the purpose of supporting her own drug use.

1. While I must be careful about what might be thought to be making findings about offending with which Ms Pye has not been charged I do, for bail purposes, have to assess the situation as comprehensively as I can.

1. Her criminal record, referred to by me and also in that extract from the Pre-Sentence Report, and expressly acknowledged by Ms Pye, does show a long history of offending including offences of supplying a prohibited drug and possessing prohibited drugs as well as dishonesty offences often associated with a drug habit.

1. An assessment of her likelihood of reoffending by the author of the Pre‑Sentence Report was as follows:

Ms Pye is assessed as a high risk of offending.  It is considered that this risk will not be significantly reduced until she adequately addresses her substance abuse issues.  While undertaking a residential rehabilitation program would appear to be of benefit in this regard, her failure to comply with supervision requirements with either CADAS or this Service gives little confidence of her ability or willingness to do so at this time.

1. Such assessments have to be approached cautiously; they are not always correct, as with any opinion.  Nevertheless, the assessment has been made by a competent officer and offered to the Court in compliance with a statutory obligation to do so.

1. I do note that Ms Agius, in her careful submissions, did not address Ms Pye’s drug habit at all.  There was no comment on what steps she had taken to manage the habit that, from the Pre-Sentence Report, is said to have started when she was 28.  She is now 44, so it is a longstanding habit.

1. That Ms Pye now wants to withdraw her plea of guilty on the basis that she was not supplying drugs but sharing them with fellow drug users reinforces the concern that she remains a user.

1. It is always a difficult decision to revoke bail, especially when no further offences have actually been charged. Ms Pye’s prior compliance and especially her avoidance of those conditions that may expose her ongoing drug use make the decision somewhat less difficult.

1. In my view, a case has been made out for revocation of Ms Pye’s bail and I remand her in custody.

1. Of course, should Ms Pye show a genuine desire and take steps to address her addiction, the risks of further offending may be such that bail could later be granted.  For example, if she is admitted to “The Peppers”, that may be an appropriate basis for a grant of bail.

1. Ms Agius, in a very proper and appreciated offer, has indicated that she will arrange transfer of Ms Pye’s file to Legal Aid ACT as soon as possible so that she may be represented without prejudice to her legal position.

1. I note that Ms Pye’s application to withdraw her plea of guilty can be heard on

   
   

   30 May 2012.  I will list it for that day and direct that any application to withdraw her plea of guilty be filed and served no later than 24 May 2012.

I certify that the preceding forty six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date:     25 May 2012

Counsel for the Crown:  Mr T Hickey
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:  Ms J Agius
Solicitor for the accused:  Darryl Perkins Solicitors
Date of hearing:  11 May 2012
Date of judgment:  11 May 2012