R v Watson
[2017] ACTSC 311
•13 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Watson |
Citation: | [2017] ACTSC 311 |
Hearing Dates: | 12 October; 13 October 2017 |
DecisionDate: | 13 October 2017 |
Reasons Date: | 31 October 2017 |
Before: | Penfold J |
Decision: | See [48] – [49] below. |
Catchwords: | CRIMINAL LAW – Bail – offender to be sentenced for drug trafficking and drug possession offences – long term cannabis use and recent use of other drugs – desirable for offender to participate in residential rehabilitation – bail granted for participation in residential rehabilitation. STATUTES – Interpretation – scope of “special or exceptional” circumstances – interpretation of Bail Act 1992 (ACT) – operation of Human Rights Act 2004 (ACT) – preference for particular form of rehabilitation not relevant factor, but reasons for preference may be – residential rehabilitation now available in custody for un-sentenced male prisoners but not for un‑sentenced female prisoners – differential interpretation of “special or exceptional circumstances” for male and female prisoners – interpretation of “special or exceptional circumstance favouring grant of bail” to include availability of rehabilitation opportunity in community for female bail applicant while only male prisoners have access to residential rehabilitation in custody. |
Legislation Cited: | Bail Act 1992 (ACT), ss 9D, 9D(2), 22 Human Rights Act 2004 (ACT), ss 8, 8(3), 28, 30, 40C |
Cases Cited: | Application for bail by David Celeski [2016] ACTSC 101 In the matter of an application for bail by Islam [2010] ACTSC 147; 4 ACTLR 235 R v Wilkins [2015] ACTSC 8 |
Parties: | The Queen (Crown) Kristie Lee Watson (Offender) |
Representation: | Counsel Ms S Naidu (Crown) Mr B Shelton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Numbers: | SCC 165 of 2017; SCC 168 of 2017 |
Background
Kristie Lee Watson has pleaded guilty to nine offences involving or associated with drug trafficking. The offences came to light on two separate occasions, first in November 2015 when police executed a search warrant at Ms Watson’s home and second in April 2017 when police observed Ms Watson selling drugs from her car in a car park and subsequently executed a search warrant at her home. She has now pleaded guilty to nine charges.
2015 charges
Five charges arise out of the 2015 incident, and are as follows:
(a)trafficking in a trafficable quantity of cannabis;
(b)being knowingly concerned in the trafficking of a controlled drug, being MDMA (Ecstasy);
(c)being knowingly concerned in the trafficking of a controlled drug, being tetrahydrocannabinol (THC);
(d)being knowingly concerned in the trafficking of a controlled drug, being methylamphetamine;
(e)possessing a drug of dependence (amphetamine).
2017 charges
The four charges arising from the 2017 incident are as follows:
(a)trafficking in a trafficable quantity of cannabis;
(b)trafficking in a controlled drug (Lysergide (LSD, LSD-25));
(c)possessing a prohibited substance (MDMA);
(d)possessing a drug of dependence (cocaine).
Other history
There have been various delays in the proceedings in respect of the 2015 offences, but Ms Watson was finally charged with the cannabis trafficking offence on 20 March 2017, that is, shortly before the 2017 offences came to light.
Before the 2015 incident, Ms Watson had been dealt with in May 2015 for two offences, one each of cultivating eight cannabis plants artificially and possessing cannabis, committed in September 2014. A good behaviour order (GBO) for 18 months had been made in respect of those offences, and on 18 August 2015 Ms Watson was dealt with for a breach of that GBO constituted by failing to submit to supervision. The Magistrate took no further action on the breach, and it seems that Ms Watson complied with her supervision obligations satisfactorily for the remainder of her 12-month probation condition.
The sentencing hearing
Ms Watson’s sentencing hearing began on 12 October 2017. The evidence before me referred to the following matters:
(a)Ms Watson had been in custody since she was arrested in connection with the 2017 offences on 6 April 2017.
(b)Ms Watson is a single mother with three children, aged 12 years, 8 years and 4 years. At some point between the November 2015 execution of the search warrant and the April 2017 arrest, she had tried to arrange to attend residential rehabilitation, including seeking help with childcare from her mother, but her mother had not at that stage been able to reduce her working hours to allow her to care for the three children.
(c)Since Ms Watson was remanded in custody at the Alexander Maconochie Centre (AMC), her mother has managed to reduce her working hours to 12 hours per fortnight and has become the full-time carer for her three grandchildren.
(d)Ms Watson is a long-term user of cannabis. At some point from the middle of 2016, and for reasons that are not apparent, Ms Watson began using cocaine regularly and MDMA and LSD occasionally. Although the recent drug use has not been explained, and it is by no means clear that the long-term cannabis use is directly related to her offending (certainly that was not the impression given by Ms Watson when she spoke to police in June 2017 about the 2015 and the 2017 incidents), I am satisfied that it would be desirable and possibly useful for Ms Watson to participate in an extended residential rehabilitation program at some point.
(e)Ms Watson has been offered a place in what is described as a 12-week residential rehabilitation program conducted by Directions ACT at Arcadia House in Bruce, ACT. The place would be available from 16 October 2017, and the program would run until 15 January 2018.
Defence counsel’s original sentencing submissions were to the effect:
(a)that although a number of the offences required sentences of terms of imprisonment, the roughly 6 months that Ms Watson had already spent in custody would be a sufficient proportion of the ultimate sentence to be served in full-time custody; and
(b)that it would therefore be appropriate to sentence Ms Watson and immediately suspend the remainder of her term of imprisonment subject to a good behaviour order that would require, or at least permit, her to enter the Arcadia House program.
I was, and remain at this stage, by no means convinced that the roughly 6 months that Ms Watson has so far spent in custody would be a sufficient period of full-time custody for the offences with which I am dealing, especially having regard to:
(a)the various aggravating factors of the offending; and
(b)the absence of any convincing evidence for a number of the mitigating factors put to me by Ms Watson’s counsel.
For that reason, I was not inclined to sentence immediately in the manner proposed by defence counsel.
Possibility of granting bail
However, because of the availability of an immediate place in residential rehabilitation, I told the parties that I was prepared to contemplate, either in the context of simply adjourning the sentencing hearing or possibly in the context of making a deferred sentence order, granting bail to Ms Watson to allow her to take up that residential rehabilitation place. I made it clear to the parties that this should not be taken as an indication that Ms Watson had in fact served enough full-time custody to address the needs of the current sentencing exercise.
Operation of Bail Act
The Crown, however, pointed out that any bail application by Ms Watson would be subject to s 9D of the Bail Act 1992 (ACT).
Section 9D
Section 9D is relevantly as follows:
9DBail for serious offence committed while charge for another pending or outstanding
(1)This section applies if—
(a)a person is accused of a serious offence; and
(b)the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.
…
(2)A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3)However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering—
(a)for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or
(b)….
…
(6)In this section:
outstanding—a charge against a person for an offence is outstanding—
(a)until the charge is finally dealt with in any of the following ways:
(i)he charge is withdrawn;
(ii)the charge is dismissed by a court;
(iii)the person is discharged by the Magistrates Court following a committal hearing;
(iv)the person is acquitted or found guilty by a court of the offence; and
(b)if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal—from the date the new trial is ordered until the earliest of the following happens—
(i)the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);
(ii)the order for the new trial is reversed on a further appeal.
NoteFound guilty, of an offence, includes—
· having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders—general)
· having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing)
(see Legislation Act, dict, pt 1).
pending—a charge against a person for an serious offence is pending if the person has not yet been charged with the offence, but the person has—
(a)been arrested for the offence (unless the person is later released without being charged with a serious offence); or
(b)been served with a summons to appear before a court to answer a charge for the offence; or
(c)at the invitation of a police officer, signed an agreement to attend court to answer a charge for the offence.
serious offence means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor’s election).
Section 9D applied to Ms Watson’s bail application because both the 2015 offences and the 2017 offences included offences that were “serious” offences under that section, and Ms Watson had been accused of the 2017 serious offences while charges for the 2015 serious offences were outstanding.
That is, s 9D(2) prevented me granting bail to Ms Watson unless I was satisfied that special or exceptional circumstances existed favouring the grant of bail. That provision would apply whether or not bail was being considered in the context of a deferred sentence.
Availability of rehabilitation support
After preliminary submissions were made about whether Ms Watson’s circumstances were special or exceptional, the matter was adjourned overnight. In the morning, the Crown was able to provide further information about Ms Watson’s access to drug rehabilitation services in the AMC, as follows:
(a)that female prisoners do not have access to the Solaris Therapeutic Community program (the Solaris program), which is a residential rehabilitation program conducted within the AMC;
(b)that female prisoners have access to the Smart Recovery Program, and to one‑to-one counselling either from Directions ACT or from Alcohol and Drug Services;
(c)that there is currently a waiting list for both kinds of counselling, but that Ms Watson could be offered one-to-one counselling from 18 October (presumably by putting her at the top of the waiting list), and that could continue while she is in the AMC and thereafter.
Special or exceptional circumstances favouring grant of bail
It was not in dispute that “special or exceptional circumstances” may be found in a combination of circumstances none of which is individually special or exceptional (see, for instance, In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 at [30]; In the matter of an Application for Bail by Timothy Noel Allan [2009] ACTSC 64; In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70 (Massey [No. 2]) at [20] and [51]; In the matter of an application for bail by SA [2010] ACTSC 114; In the matter of an application for bail by Islam [2010] ACTSC 147; 4 ACTLR 235 at [329]; In the matter of an application for bail by Schwalm [2011] ACTSC 153 at [49]); R v JM [2011] ACTSC 157 at [16]; R v Elphick [2014] ACTSC 372 at [23]; R v Wilkins [2015] ACTSC 8 (Wilkins) at [16] and [41]; R v Cockburn [2015] ACTSC 297 at [32] and [35]; R v Celeski [2016] ACTSC 140 (Celeski) at [44] and [69]).
Scope of “special or exceptional”
In Celeski, Refshauge J referred to the following authorities on the meaning of “special or exceptional circumstances”:
41.These words ‘special or exceptional circumstances’ are, as Boddice J point out in Harvey v Attorney-General for the State of Queensland (2011) 220 A Crim R 186 at 191; [24], ordinary English words, describing “a circumstance which is such as to form an exception, which is out of the ordinary course or unusual, or special or uncommon”. See also R v Kelly [2000] 1 QB 198 at 208 per Lord Bingham of Cornhill CJ.
42.The words do not mean “unique, or unprecedented or very rare”: Harvey v Attorney-General for the State of Queensland at 197; [42]. It must, however, be “something which distinguishes [the applicant’s] case from others, to take it out of the usual or ordinary case”: Groth v Secretary; Department of Social Security (1995) 40 ALD 541 at 545.
43.In the context of bail applications, it has been given such a meaning. See DPP v Tang (1995) 83 A Crim R 593 at 596. In In the Application for Bail by Massey [2008] ACTSC 145 at [8], I said that an application in such circumstances must “establish that there are some unusual or uncommon circumstances”. Such circumstances must favour the granting of bail.
Defence submissions
Defence counsel submitted as follows:
(a)that although Ms Watson is already receiving counselling, and is taking part in other specific programs in the AMC, her preference would be to attend residential rehabilitation;
(b)that the reason for that preference is her experience that the availability of illicit drugs in the AMC, and the unsupportive attitudes of some other prisoners, make it harder to remain abstinent in the AMC than might be expected in a residential rehabilitation program with a greater proportion of companions who are also committed to abstinence; and
(c)that the fact that the question of bail had arisen during the sentencing hearing (that is, while the matter was part-heard) was itself a special or exceptional circumstance favouring the grant bail, because of the likely delay between the first part of the hearing and the resumption of the hearing and the sentence hand-down.
Crown submissions
The Crown submitted that:
(a)neither the current availability of a place in a community-based program for a person who could be offered one-to-one counselling in the AMC as well as the Smart Recovery program;
(b)nor Ms Watson’s preference for a residential rehabilitation program;
(c)nor the combination of those factors;
would in general amount to special or exceptional circumstances.
Consideration
I agree that the factors as identified by the Crown, including those factors in combination, do not as such amount to special or exceptional circumstances.
Factors identified by the parties
I consider that a bail applicant’s “preference” for a particular form of rehabilitation would be unlikely to amount to special or exceptional circumstances, and might often be entirely irrelevant, but I accept that the expressed reason for the preference in this case may be a factor that could contribute to a finding of special or exceptional circumstances.
I cannot see a basis on which the fact that a bail application is made in the course of a sentencing hearing is as such a special or exceptional circumstance. The making of such an application at a time at which such applications are not ordinarily made could not of itself amount to a special or exceptional circumstance at all, let alone a special exceptional circumstance favouring the grant of bail.
Nor, as far as I can see, could a judge’s canvassing of the possibility of bail (as happened in this case) be a special or exceptional circumstance favouring the grant of bail; s 9D is clearly intended to impose a constraint on the grant of bail irrespective of the inclinations of the judge concerned, and could not of itself be satisfied by a judge’s view that bail would, absent the operation of s 9D, be appropriate in the particular case.
Availability of residential rehabilitation to female prisoners
For reasons set out below, I consider that the availability of a place for Ms Watson in a local residential rehabilitation program may in the current case amount to special or exceptional circumstances.
For some years after the AMC began receiving prisoners in 2009, access to the Solaris program in the AMC was available only to sentenced prisoners.
Prisoners awaiting sentence did not have access to the Solaris program, but they were able to apply for places in various residential rehabilitation programs operating in the community, and it has been not uncommon for prisoners without any particular obstacle to the grant of bail to be released on bail to take up the offer of such a place in advance of their sentencing. That is, there is generally nothing special or exceptional about an un-sentenced prisoner having been offered a place in a residential rehabilitation program, and in the normal course of events, the offer of a place in a residential rehabilitation program for an offender subject to s 9D would, of itself, rarely be found to be special or exceptional circumstances (see for instance, Application for bail by David Celeski [2016] ACTSC 101 at [22]-[25]; and Wilkins at [39]).
At some point, however, the AMC arrangements changed, and the Solaris program now seems to be available to some un-sentenced prisoners.
The problem is that the un-sentenced prisoners to whom the Solaris program is available do not include Ms Watson, for the reason only that Ms Watson is a woman and the program is only available to men. That is, in relation to access to the Solaris program, previously all un-sentenced prisoners were equally disadvantaged, and presumably there was no distinction between female and male un-sentenced prisoners in assessing whether an offer of a residential rehabilitation place could be a factor in establishing special or exceptional circumstances, but now female un-sentenced prisoners are relatively disadvantaged by comparison with male un-sentenced prisoners.
The availability of a residential rehabilitation program within the AMC may generally make it slightly less likely that a male un-sentenced prisoner will be granted bail to attend community‑based residential rehabilitation, because a man is not necessarily deprived of access to residential rehabilitation by virtue of being refused bail.
In contrast, a female un-sentenced prisoner who is refused bail is still, necessarily, deprived of access to residential rehabilitation. I accept that there are other forms of drug rehabilitation support available to female prisoners. However, I can only assume, given the resources devoted to it and the demand for it, that residential rehabilitation is seen by those with experience in the area of drug rehabilitation as generally more effective than less intensive forms of rehabilitation support.
That is, where a bail application is made by a female un-sentenced prisoner, acceptance of the proposition that the offer of a residential rehabilitation place is of itself very unlikely to amount to special or exceptional circumstances, disadvantages that female prisoner compared with a male prisoner in an equivalent situation.
Crown submissions
The Crown argued that this distinction was not sufficient to amount to special or exceptional circumstances, because Ms Watson was in the same position as all other female un-sentenced prisoners (and indeed all female sentenced prisoners). That is, her position was not unusual, special, uncommon, or “out of the usual or ordinary case”.
In my view, however, such an approach to “special or exceptional circumstances” would overlook the significance of the Human Rights Act 2004 (ACT).
Operation of Human Rights Act
Section 8
The distinction between male and female un-sentenced prisoners in the availability of residential rehabilitation programs seems on its face to be inconsistent with s 8 of the Human Rights Act 2004 (ACT), which is as follows:
8Recognition and equality before the law
(1)Everyone has the right to recognition as a person before the law.
(2)Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3)Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
Examples of discrimination
Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
For the reasons already set out, s 9D of the Bail Act, combined with the availability of a residential rehabilitation program for male but not female un-sentenced prisoners, seems to operate to disadvantage female prisoners seeking drug rehabilitation options as against male prisoners. It does not in these particular circumstances operate equally in relation to male and female prisoners.
Section 8 of the Human Rights Act does not provide any direct remedy for the discrimination it refers to, or for the “breach” of the s 8(3) guarantee of the equal protection of the law.
Human Rights Act remedies
However, the Human Rights Act provides several possible remedies for breaches of the human rights recognised in the Act. For instance, s 40C of the Act permits a person to commence action against a public authority that has “acted in a way incompatible with a human right”, or to rely on that human right in other legal proceedings. There is no such action before me at this stage.
Relevantly for the current case, however, s 30 of the Human Rights Act is as follows:
30Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
In Massey [No. 2], I said:
36.Section 18 of the Human Rights Act does not replace the Bail Act. Rather, s 30 of the Human Rights Act requires the Bail Act to be interpreted in a way that is compatible with human rights. This requires the provisions of the Bail Act to be tested against s 18 of the Human Rights Act, in the context of s 28 of that Act which permits human rights being subject to “reasonable limits ... that can be demonstrably justified in a free and democratic society”. That exercise might in fact produce interpretations of particular provisions of the Bail Act that differ from pre-Human Rights Act interpretations, but there is no basis for assuming that the Human Rights Act will necessarily require a new and different interpretation of any or all provisions of the Bail Act. It is not an inevitable consequence of the passage of a Human Rights Act that earlier interpretations of “special or exceptional circumstances”, including those from jurisdictions without a Human Rights Act, will have little ongoing significance—rather, the suggestion that pre-Human Rights Act interpretations must be abandoned in favour of new ones would need to be made out, case by case, by substantive arguments demonstrating that those earlier interpretations are incompatible with human rights and cannot be “demonstrably justified in a free and democratic society”. No such substantive argument has been offered. As it happens, that has made no difference to the decision in this case.
Interpretation of s 9D
Section 30 of the Human Rights Act, in my view, provides a basis for interpreting s 9D(2) so as to recognise, and possibly address, the breach of a female prisoner’s right to “the equal protection of the law without discrimination … based on … sex” that results from the availability of residential rehabilitation within the AMC for men only.
The interpretation of s 9D(2) that is compatible with human rights in permitting that breach to be addressed is that a court may in some circumstances be satisfied that “special and exceptional circumstances favouring the grant of bail” exist in the case of a female bail applicant seeking bail in order to access a particular form of rehabilitation support that is available within the AMC to male un-sentenced prisoners but not to female un-sentenced prisoners, even if the offer of a residential rehabilitation place is the only basis for the bail application.
In other words, I consider that the expression “special or exceptional circumstances” in s 9D of the Bail Act may, under s 30 of the Human Rights Act, be interpreted differently in relation to female prisoners and male prisoners, to the extent that the facilities provided in the AMC for female prisoners are different, and not relevantly equivalent, to the facilities provided for male prisoners.
The effect of this differential interpretation is that a matter that may not as such be seen as a special or exceptional circumstance for a male prisoner may be accepted as a special or exceptional circumstance for a female prisoner if that matter is the availability in the community for that female prisoner of a relevant opportunity that in custody is available only to male prisoners.
Conclusion – special or exceptional circumstances shown
Accordingly, I found that special or exceptional circumstances for the purposes of s 9D had been shown in this case, and that Ms Watson’s bail application could be further considered.
Criteria for grant of bail
In relation to the criteria for the grant of bail set out in s 22 of the Bail Act, the Crown submitted only that there was a risk of Ms Watson re-offending. Ms Watson’s risk of re‑offending may well be higher than that of many bail applicants, given the history set out at [1] to [5] above.
However, it seemed fairly unlikely to me that Ms Watson would try, or succeed, in setting up a further drug-trafficking operation within the three months for which I would grant her bail, and while she is residing in a full-time residential facility. While it is true that Ms Watson’s earlier experiences in being brought before the courts in 2015 and early 2017 for her dealings with illicit substances did not deter her from reviving her trafficking activities by April 2017, I suspected that her recent period in custody might have had more of a deterrent impact than those earlier, and relatively benign, interactions with police and the courts.
Grant of bail
For these reasons, I granted bail to Ms Watson, limited to the period during which she is undertaking the Arcadia House program, on the following conditions:
a. To be released on at 10am on Monday 16 October 2017 into the custody of a staff member from Arcadia House or Directions ACT and to accompany that staff member to Arcadia House for the purpose of undergoing treatment in the residential rehabilitation program (the Program) scheduled to conclude on 15 January 2018 that is referred to in the email at Exhibit 5 (attached).
b. To remain in the Program except for any absences to attend court, and to obey all reasonable directions in respect of the Program, and not to terminate or absent herself from the Program without the prior permission of the Supreme Court (which would involve an application for variation of bail).
c. On completing the Program, or on being refused admission to or being discharged from the Program, or on terminating or absenting herself from the Program, to:
i.notify her solicitor as soon as possible; and
ii.present herself at the AMC for re-admission as soon as possible but in any case within 24 hours.[1]
d. To abstain from the use of illicit drugs and submit to urinalysis as and when reasonably required.
e. To reside at Arcadia House while remaining in the Program.
In granting bail, I also ordered that bail be revoked, and that Ms Watson be remanded in custody, if she finished the program at Arcadia House, was refused admission to or was discharged from the program, or terminated or absented herself from the program.[2]
Other matters
There is of course a larger issue arising by reference to s 8(3) of the Human Rights Act, which is the general unavailability of the Solaris program to female prisoners in the AMC. Should that question arise in a situation in which a remedy of some kind seemed to be available under the Human Rights Act, other questions would also arise, including questions of whether the lesser access for female prisoners to rehabilitation programs was reasonable (s 28 of the Human Rights Act) in the context of the necessarily limited public resources available to the corrections system. My conclusion that the reference to “special or exceptional circumstances favouring the grant of bail” in s 9D of the Bail Act can be interpreted so as to promote the human rights of female un‑sentenced prisoners by providing in one specific context something approaching equality with their male counterparts has nothing to say about the general defensibility or otherwise of offering residential rehabilitation programs only to male prisoners.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 31 October 2017 |
[1] Bail condition (c) is set out as amended in chambers on 16 October 2017 to address practical concerns raised by Corrections officers.
[2] The order to remand Ms Watson in custody at the end of the period for which bail was granted was also made in chambers on 16 October 2017 to address practical concerns raised by Corrections officers.
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