R v Webb - [2019] SASC 8

Supreme Court of South Australia
(Criminal: Application)
R v WEBB
[2019] SASC 8
Judgment of The Honourable Justice Hinton (ex tempore)
1 February 2019
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
Application under s 14 of the Bail Act 1985 (SA) for the review of an order made in the Magistrates Court refusing bail.
On 24 December 2018 Mr Webb was arrested and charged with threatening a person involved in a criminal investigation or judicial proceeding to cause that person to act or not act in a way that might influence the outcome of the investigation or proceeding, contrary to s 248(1)(b) of the Criminal Law Consolidation Act 1935 (SA). Bail was applied for and refused in the Magistrates Court on 27 December 2018. Mr Webb sought a review of that decision.
Mr Webb was a prescribed applicant within the meaning of s 10A(2)(d)(ii) of the Bail Act 1985 (SA). His application was brought on the grounds that special circumstances existed to justify his release on bail these being the delay in his matter reaching trial, his limited antecedents, his primary caregiving responsibilities to his two young sons, his employment to which he could return, his financial obligation to maintain his mortgage payments and the over-representation of Aboriginal persons in custody.
Held, allowing the application:
1. Bail is granted.
2. Special circumstances have been established.
Bail Act 1985 (SA) ss 10A(1), 14; Criminal Law Consolidation Act 1935 (SA) ss 83GA(1)(c), 248(1)(b); Statutes Amendment (Serious and Organised Crime) Act 2015 (SA) sch 1, referred to.
R v Brown [2013] NSWCCA 178; R v Buhlmann [2010] SASC 123; R v Hayes [2018] SASC 114; R v Lombardi (2013) 115 SASR 577, considered.

R v WEBB
[2019] SASC 8
Criminal
HINTON J (ex tempore):

This is an application under s 14 of the Bail Act 1985 (SA) (the Act) for the review of the decision of a Magistrate refusing to grant Mr Webb bail.
On 24 December 2018 Mr Webb was arrested and charged with threatening a person involved in a criminal investigation or judicial proceeding to cause that person to act or not act in a way that might influence the outcome of the investigation or proceeding, contrary to s 248(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). That offence is a major indictable offence punishable by imprisonment for up to 10 years.
The police allegations commence with the arrest and charge of Dylan Garner on 23 December 2018 with the offence of blackmail. Mr Garner is alleged to be a member of the Rebels Outlaw Motor Cycle Gang, an outlaw motorcycle club well known to the criminal courts in this State and one which the Parliament declared in 2015 as a “criminal organisation” for the purposes of s 83GA(1)(c) CLCA.[1] In the course of committing the offence with which he was charged Mr Garner is said to have been wearing his colours and invoked the reputation of the Rebels. The alleged victim of Mr Garner’s offending was NJ. The following day, 24 December 2018, Mr Webb, who is also alleged to be a member of the Rebels, went to NJ’s home. Mr Webb is alleged to have said, “Dylan sent me, he’s in jail locked up, nobody wants that, did you press charges on him? If you drop the charges there will be no repercussions from the club, if you don’t drop them, there will be”. Before leaving Mr Webb is said to have repeated that if NJ dropped the charges there would be no repercussions, but if he did not there would be. A second person, AT, was present when Mr Webb attended NJ’s home and witnessed the interchange. AT took a photograph of Mr Webb and of the Toyota Hilux he left in, the registration number of which was S606 BPK. When Mr Webb was arrested later in the day he was driving the same Toyota Hilux.
[1] See Statutes Amendment (Serious and Organised Crime) Act 2015 (SA), sch 1.
The police subsequently searched Mr Webb’s home address. I am told that it is as a consequence of doing so that they located his Rebels colours. Police also found four cannabis plants being grown hydroponically. Additional charges have been laid against Mr Webb in relation to those plants.
There can be no doubt that Mr Webb has been charged with very serious offending.
As a consequence of being charged with an offence contrary to s 248(1)(b) CLCA Mr Webb is a prescribed applicant within the meaning of s 10A(2)(d)(ii) of the Act. He cannot, therefore, avail himself of the presumption of bail contained in s 10 of the Act but must, if he is to be admitted to bail, establish that special circumstances exist justifying his release on bail.[2]
[2] Bail Act 1985 (SA), s 10A(1).
At the time of his arrest Mr Webb did not apply for police bail. Subsequently, on 27 December 2018, he was unsuccessful in persuading a Magistrate that special circumstances existed justifying his release on bail. He now applies to this Court for the review of the Magistrate’s decision refusing him bail.
It is settled that on a review of the refusal to grant bail under s 14 of the Act the applicant is not required to demonstrate error on the part of the bail authority reviewed and this Court is at liberty to arrive at its own conclusion.
For the purposes of s 10A(1) special circumstances is not defined. In R v Lombardi Kourakis CJ said:[3]
It can be accepted that the term “special circumstances” cannot be comprehensively or exhaustively defined. The particular circumstances which might qualify as special circumstances may vary over a great range. … However, the term “special circumstances” will ultimately take its meaning and content from the context of the provision in which it appears. It connotes circumstances which take the particular case outside the contemplated scope of the statutory provision.
…
As I earlier observed, s 10A of the Bail Act reverses the presumption of bail with respect to certain categories of alleged offenders whose release on bail can reasonably be regarded as creating a relatively greater risk than many other alleged offenders. Although it is not possible to exhaustively define the circumstances denoted by that expression, its rationale is clear enough. The discretion to grant bail to a prescribed applicant applies to those applicants who do not pose the risk which Parliament had in contemplation in reversing the presumption. The discretion exists to allow the release on bail of those applicants on whom the general rule would, in the special circumstances of their cases, result in an unintended or unforeseen consequence.
[3] (2013) 115 SASR 577 at [22], [24].
And:[4]
… The primary consideration must be whether the applicant’s circumstances place him or her outside of the contemplated risk to the community that is generally posed by members of the applicable class of prescribed applicant. …
[4] R v Lombardi (2013) 115 SASR 577 at [25].
R v Buhlmann provides a helpful example of what may amount to special circumstances.[5] In that case Sulan J held:[6]
In my view, the following factors in this case amount to special circumstances. First, the case against the applicant of his alleged breach of bail (if proved) is, to say the least, a trivial breach. Secondly, putting the prosecution case at its highest, the applicant blew his horn, waved and smirked at Ms Squire. The contact between them was by chance, and momentary. Thirdly, the applicant posed no risk to Ms Squire during the time that he was looking at her. Fourthly, the applicant is the sole carer of his two young sons. To incarcerate him, in the circumstances of this case, was unduly harsh. Fifthly, the applicant has no prior history of breaching bail, nor has he any prior history of violence. He has not been convicted of any offence for almost 30 years. Sixthly, there is no suggestion that the applicant posed any risk to Ms Squire or members of her family after he was charged with the offences alleged to have occurred on 4 April 2010. Seventhly, even if the applicant were to be convicted of the offence of breaching bail, a sentence of imprisonment would not result. By the time the matter came before the Magistrate, the applicant had already been in custody for eight days, which is far in excess of any penalty he would have received for the breach of bail.
[5] [2010] SASC 123.
[6] R v Buhlmann [2010] SASC 123 at [24].
Of this passage the Chief Justice in R v Lombardi observed:[7]
It will be observed that the circumstances in combination showed that there was very little risk to the alleged victim of the offending and that a refusal of bail would result in a penalty which would far have exceeded the penalty which would be imposed if the applicant in that case was convicted. In my respectful opinion, Sulan J correctly identified in the passage cited above the nature of the special circumstances which Parliament had in mind in enacting s 10A of the Bail Act.
[7] (2013) 115 SASR 577 at [21].
In this case the relevant risk contemplated by Parliament and imposed by Mr Webb is of further attempts to dissuade NJ from giving evidence against Mr Garner, hence incapacitation in the form of the refusal of bail is appropriate so that neither access to justice by NJ, nor the administration of justice more generally, is impeded. Thus, special circumstances will only exist if Mr Webb can demonstrate that he does not pose the risk that Parliament had in contemplation in reversing the presumption and his circumstances are such that the denial of bail would result in consequences beyond the contemplation of Parliament.
Mr Webb is a Ngarrindjeri man. He will soon turn 24. He has two children, Archie and Izayah, aged five and two respectively. Mr Webb is no longer in a relationship with either of the mothers of his sons. He is, however, the boys’ primary caregiver, although their mothers do continue to play a significant part in the boys’ lives.
In caring for his sons Mr Webb is assisted by his grandparents. I do not know anything about Mr Webb’s mother or father. I assume he has turned to his grandparents for help because, assuming his parents are still with us, they are unable to do so.
Mr Webb’s grandfather, Mulla Sumner, gave evidence on the hearing of the review. Mr Sumner is 69 years old. He also is a Ngarrindjeri man and an elder of the Ngarrindjeri people. He lives with his wife, who is about the same age as him, on a 10-acre property in the Gawler area.
Mr Sumner was the Chief Executive Officer of the Aboriginal Sobriety Group for in excess of 30 years. He retired in 2014.
Mr Sumner and his wife have two children, a daughter Wendy and a son Paul. Wendy is Mr Webb’s mother.
Over the years Mr Sumner and his wife have been closely involved in the lives of their grandchildren and now their great-grandchildren. Currently Mr Sumner and his wife have two grandchildren living with them in addition to a 38-year-old man with Downs syndrome to whom they have been foster parents since he was two weeks old. Mr Sumner and his wife have fostered numerous children over many years.
At the time of his giving evidence Archie and Izayah were with their mothers but it was expected that they would be returned to Mr Sumner and his wife’s care in the coming days.
Mr Sumner expressed concern at Archie’s mother’s ability to look after Archie for any length of time. It appears that Archie’s mother faces a number of challenges. Mr Sumner thought it better that Archie stay with him. Family Court proceedings are either in train or soon to be.
In the past Mr Sumner was involved in a motorbike accident the consequences of which continue to plague him. He walks with a stick and, I noticed, is a bit shakey. He told me that he has been prescribed Cerebrax which he takes in the morning for pain and at night if the pain becomes too much. He has also been prescribed Zoloft to assist with his mental health.
Mr Sumner described his wife’s health as worse than his own. He said she had a bad limp and an ulcer on her leg which is being treated.
In addition to providing for Izayah and Archie when they are with him, Mr Sumner has taken over responsibility for Mr Webb’s mortgage. He told me that the financial burden is significant and he does not think he will be able to continue.
Archie started school this week. In the absence of his father, and even with his father at liberty, his great-grandparents play a central role in getting him to and from school and ensuring that he has what he needs.
Mr McDonough, counsel for Mr Webb, submitted that special circumstances were made out. He contended that those special circumstances were the combined effect of the following:
·The delay in Mr Webb’s matter reaching trial — it was agreed at the Bar table that a trial could not be expected to occur for approximately 18 months;
·Mr Webb’s limited antecedents and the fact that he has never previously been imprisoned — in May 2017 he was dealt with without conviction for common assault, otherwise his offending history is comprised of driving-related offences.
·The fact that he is the primary caregiver of Archie and Izayah and the importance of the boys having access to their father when their mothers, for whatever reasons, appear unable to assume greater responsibility in Mr Webb’s absence;
·The burden that caring for the boys places upon Mr Sumner and his wife in view of their age, ill-health and the responsibility they already have for three others;
·That Mr Webb has employment to which he can return with McMahons Building Services as a sub-contractor carpenter through the Indigenous employment agency Intract. He has been employed through Intract for in excess of three years and is considered a first-rate performer.
·That Mr Webb stands to lose his home if he is not able to work to pay the mortgage. Related to this is the financial burden that Mr Sumner and his wife are currently carrying in an effort to maintain mortgage payments on Mr Webb’s behalf.
·The observations made in R v Hayes by Kelly J regarding the over-representation of Aboriginal people in custody.[8]
[8] [2018] SASC 114.
In R v Hayes Kelly J said:[9]
[9] [2018] SASC 114 at [10].
I bear in mind that the recent Australian Law Reform Commission Report Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander People has reported that Aboriginal and Torres Strait Islander people have continued to be over-represented in the remand population by a factor of 11. In the same report, the opening chapter, which deals with bail applications, records as follows:
The impact on Aboriginal and Torres Strait Islander people
5.19Stakeholders to this Inquiry raised concerns about the effect that remand rates had on Aboriginal and Torres Strait Islander incarceration rates. For example, the Australian Lawyers for Human Rights (ALHR) observed that ‘bail and remand processes significantly contribute to the unnecessary imprisonment of Aboriginal and Torres Strait Islander people’, while the NSW Bar Association considered bail law reform to be one of the most ‘important areas requiring attention in order to reduce the incarceration rates of Aboriginal and Torres Strait Islander people’.
5.20There has been a general upsurge in remand populations nationwide, and this has been especially pronounced for the Aboriginal and Torres Strait Islander prisoner population.
5.21In 2016, the national Aboriginal and Torres Strait Islander remand prisoner population accounted for 30% (3,221) of Aboriginal and Torres Strait Islander prisoners, which amounted to 27% of all prisoners held on remand. By June 2017, 33% (3735) of the national Aboriginal and Torres Strait Islander prisoner population were in prison held on remand.
5.22Aboriginal and Torres Strait Islander peoples have continued to be overrepresented on remand by a factor of over 11 compared to non-to appear to answer bail.
5.23In 2016, Aboriginal and Torres Strait Islander people were most likely to be held on remand when accused of offences categorised as ‘acts intended to cause injury’ (42% of the Aboriginal and Torres Strait Islander remand population); ‘unlawful entry with intent’ (13%); and sexual assault (7%). The category of ‘acts intended to cause injury’ is broadly defined and can include low-level instances of offending. For example, 33% of Aboriginal and Torres Strait Islander peoples held on remand for ‘acts intended to cause injury’ were charged with a serious assault not resulting in injury and 12% for common assault. This is not to say that all Aboriginal and Torres Strait Islander people held on remand for ‘acts intended to cause injury’ were held for low-level offending: 54% in this category were held on remand for charges of serious assault resulting in injury.
[footnote omitted] [emphasis in original]
I agree with Kelly J that the criminal courts should bear the concerns and conclusions expressed in the Australian Law Reform Commission Report in mind. Amongst other things, they serve as an important reminder to ensure that cultural bias is avoided. In this regard, the observations of the Court of Criminal Appeal in New South Wales in R v Brown are also worthy of note:[10]
… the respondent is a person of Aboriginal background whose extended family and kinship, and other traditional ties, warrant significant consideration in the determination of whether or not to grant bail.
In the cases of Aboriginal accused, particularly where the applicant for bail is young, alternative culturally appropriate supervision, where available, (with an emphasis on cultural awareness and overcoming the renowned anti-social effects of discrimination and/or an abused or disempowered upbringing), should be explored as a preferred option to a remand in gaol.
[10] [2013] NSWCCA 178 at [34]-[35].
As mentioned Mr Sumner is an elder with Ngarrindjeri people. He told me that his grandson, Mr Webb, embraces their traditional culture. As an example, he told me how Mr Webb had travelled to Hawaii with his uncle, Moogie Sumner, as part of a group of traditional Ngarrindjeri dancers. Mr Sumner considered that Mr Webb would listen to him. During the course of his giving evidence I asked Mr Sumner about his view of outlaw motorcycle gangs. He did not support his grandson’s membership of the Rebels and, in Court, told his grandson directly “to get out”. Mr Webb became emotional when confronted by his grandfather.
Returning momentarily to generalities, even if being cautious to avoid cultural bias and being culturally sensitive and understanding, nonetheless in all the circumstances it is appropriate that an Aboriginal person be denied bail, then it is the duty of the court to make such order. Where the question is finely balanced, however, the statistics regarding the overrepresentation of Aboriginal people in custody will likely tip the scales in favour of granting bail.
I consider this a finely balanced case. In the end I am persuaded that the combination of circumstances to which Mr McDonough referred amount to special circumstances. I am particularly influenced by the fact that Mr Webb is the primary caregiver of his two young sons, the importance to them of their father being around, the inability of their mothers to assume greater responsibility for their care, and the hardship that would be caused to Mr Sumner and his wife if they were left to shoulder the burden for the children. I am also influenced by the likely period of time that Mr Webb would spend in custody awaiting trial, by the affect his absence will likely have on his young sons, by the fact that he has never been in custody and by his relatively meagre antecedents.

I do not consider Mr Webb a flight risk. I consider that any risk he poses to NJ can be relatively easily and effectively controlled, if not eliminated. I have not overlooked the gravity of the charge, nor Mr Webb’s association with the Rebels. His membership of an outlaw motorcycle gang that subscribes to the 1 per cent ethos troubles me, but I am, nonetheless, influenced by his reaction to his grandfather’s admonition. I am satisfied that Mr Webb’s cultural ties are strong and that cultural influences in the person of his grandfather and his uncle will provide added reason for him to comply with the terms of any bail agreement he enters into in addition to providing an added level of comfort and protection for the community. Lastly, Mr Webb’s age, he is only 23, and the presumption of innocence should not be overlooked. Accordingly, for these reasons I am satisfied that special circumstances exist justifying Mr Webb’s release on bail.
I propose to grant Mr Webb bail on conditions including that he be subject to home detention with electronic monitoring, that his grandfather act as his guarantor and that Mr Webb not associate with, nor communicate with, any member or associate of the Rebels Outlaw Motor Cycle Gang in any way howsoever.