R v Walmsley

[2012] ACTSC 152

THE QUEEN v JOHN CHRISTOPHER WALMSLEY
[2012] ACTSC 152 (4 July 2012)

Burton v The Queen (1974) 3 ACTR 77

EX TEMPORE JUDGMENT

No. SCC 313 of 2011

Judge:             Refshauge J
Supreme Court of the ACT

Date:              4 July 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 313 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN

v

JOHN CHRISTOPHER WALMSLEY

ORDER

Judge:  Refshauge J
Date:  4 July 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Mr Walmsley’s bail is continued.

1. On 29 June 2012, Christopher John Walmsley appeared in the Supreme Court before Chief Justice Higgins after he had been informed that a sample of his urine that he provided, as directed, proved positive for cannabis.  At that stage, no breach of bail had been preferred against Mr Walmsley. 

1. His Honour, noting that I had been closely involved with what might be regarded as the supervision of Mr Walmsley following bail that I granted to him, adjourned the matter to my list today and directed that no further action be taken, in respect of his bail, if he attends today.

1. Albeit late, Mr Walmsley did attend today and the prosecution, represented ably by Ms M Moss, has tendered a statement of facts relating to an alleged breach of bail.  That is, that on 25 June 2012, Mr Walmsley attended for urinalysis, as directed by ACT Corrective Services.  The result of that urinalysis confirmed cannabis use at 42 ug/L.  As agreed in debate with Ms Moss, that level of cannabis is a very low level.  Normally it will show at a much greater level.  Nevertheless, Mr Walmsley has, through his counsel, frankly admitted that he had consumed a significant quantity of cannabis and it only came to light when he presented himself for detoxification some time later, by which time, of course, it had reduced as it was excreted by the body.

1. His detoxification was required by concerns from his supervisor that he was drinking at the time, excessively, and that he needed to spend some time getting that position in order. 

1. As Ms Moss has properly pointed out, this is the third breach of bail in respect of drugs by Mr Walmsley.  On 8 December 2011, a breach was preferred, as a result of a urinalysis that showed a positive result for amphetamine and methamphetamine use. 

At that time Mr Walmsley was assessed as a moderate risk offender.  He appeared again following a breach report dated 5 March 2012, which referred to a further random drug screening test, which showed that morphine was detected and Mr Walmsley admitted that he had recently lapsed and used heroin.

1. On this occasion the usage is cannabis, not heroin, nor amphetamine nor methamphetamine.  Cannabis is, nevertheless, an illegal drug and, as Ms Moss properly pointed out, the use of cannabis is the commission of an offence. One of the reasons why bail is refused is to prevent the commission of further offences.  I will not analyse that obligation in detail, but it is an important one. 

1. I note that, by the time of the second breach, Mr Walmsley was being regarded as a high risk offender and that assessment has been maintained on this occasion.

1. Mr Walmsley has been charged with aiding and abetting a suicide;  it is a serious offence and it is an offence which, if he is convicted, may well result in a term of imprisonment.  I note that the matter has now been listed for trial to commence on 30 July 2012.  That is not a long period before that trial commences and I am reminded of what Fox J said in Burtonv The Queen (1974) 3 ACTR 77 that the close proximity of the trial can be a relevant factor to justify the refusal of bail.

   
   

   Mr R Davies, who has represented Mr Walmsley well, has pointed out that, as the trial approaches, the other side of that matter is that he needs access to his lawyers to ensure that he prepares and prepares properly.

1. This is a difficult matter because on the occasion when Mr Walmsley was before me for the breach of bail in April this year, I did urge him to take responsibility for himself and I said:

You have had an opportunity now to stabilise yourself. There are a whole host of people who are out there available to support you and assist you.  Make sure you use them to your benefit and work hard at it. 

If things go wrong, the most important thing is to come back and see us.  As I say all the time, that does not guarantee you will not go back into custody.  You have seen that I will do that if it is appropriate.  But there is no chance of working it out unless you come back when things go wrong.

1. I made it clear, to my mind, that Mr Walmsley had to take some responsibility for himself and deal with these issues and not leave it to others, but that he should draw on the supports that were available to ensure that he was able to comply with his bail and justify, in all the circumstances, his continued permission to be in the community in these circumstances.  It is not an easy situation because the law needs to be respected and continued breaches of bail run the risk, if action is not taken in respect of them, of encouraging people not to comply with their bail conditions, and not to comply with the law. The courts cannot be party to any such encouragement.

1. In this case it is a fine line.  I take into account the fact that Mr Walmsley voluntarily came to the Court and has come back today, albeit late, knowing that there is a real prospect that he will be detained in custody until his trial.  I take into account also that the drug on this occasion was cannabis, which has not been associated with his original offending and, in the circumstances, is unlikely to contribute to other offending, as is common with other drugs, including in many cases dishonesty offences or offences of violence.

1. Nevertheless, I do think that the time has come when Mr Walmsley must understand that the responsibility he has to himself means that he has, in his own hands, the capacity to determine whether he should return to custody until his trial or remain in the community.  It seems to me that if I give him this opportunity to remain in the community, that is the last opportunity that he will have, should he breach his bail. 

1. I note that Mr Walmsley remains on 75 millilitres of methadone and that he is engaging with mental health, as was directed.  He has received some case management and counselling from Directions ACT, although on the material before me it is not entirely clear the extent to which that has occurred.

1. I am aware that he has attended on seven occasions, and a further five sessions over the telephone, and has been working through some of the issues.  But I note that one of the issues that has been discussed is starting counselling at Directions ACT, so I am not sure there has been much by way of direct counselling at this stage.  That is a matter between Mr Walmsley and his counsellor. 

1. In all the circumstances, I will continue Mr Walmsley’s bail, but he must understand that any further breaches will, unless the circumstances are quite extraordinary, result, inevitably, in him being detained in custody pending his trial. 

1. [His Honour then spoke directly to Mr Walmsley as follows:]

Mr Walmsley, I cannot emphasise too much that the matter is now in your own hands.  This is a fine line. I have decided to allow you back into the community and your honesty and the positive steps that you have taken to bring the matter to the Court have encouraged me to do that.  I hope you continue that because if you are committed to your rehabilitation it is more likely to be successful. However, there does come a time and, if you cannot take responsibility for yourself, then the courts will have to intervene and ensure that you do so by taking the appropriate action. 

This is, in every realistic way, your last chance. 

1. I cannot and I do not shut the gate completely because it always depends on the circumstances.  There are always circumstances that need to be taken into account,

but they would have to be, as I have said, quite extraordinary for you to survive a further breach of bail. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date:  2012

Counsel for the Crown:  Ms M Moss
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr R Davies
Solicitor for the accused: Legal Aid ACT
Date of hearing:  4 July 2012
Date of judgment:  4 July 2012