R v Wright

[2015] NSWSC 2109

Supreme Court

New South Wales

Medium Neutral Citation:	R v Wright [2015] NSWSC 2109
Hearing dates:	7 April 2015
Decision date:	07 April 2015
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Conditional bail granted
Catchwords:	CRIMINAL LAW – bail – Aboriginal offender – circumstances of deprivation taken into account – appropriate to provide alternate culturally sensitive conditions to remand – Royal Commission into Aboriginal Deaths in Custody.
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Kennedy v R [2010] NSWCCA 260 R v Fernando (1992) 76 A Crim R 58 R v Michael John Brown [2013] NSWCCA 178
Category:	Procedural and other rulings
Parties:	Regina (Crown) Luke Charles Wright (Applicant)
File Number(s):	2014/00351122

Judgment

1. HIS HONOUR: The matter before the court is an application for bail in circumstances where there is no requirement as a preliminary for the applicant to show cause as to why bail ought be granted.

2. This is not a matter that the legislature has prescribed is an offence of such seriousness or committed in such circumstances that the ordinary presumptions do not apply. As a consequence I am required to look at the question of unacceptability of risk.

3. It is obvious that there is an unacceptable risk if not ameliorated by conditions. The only real issue is whether conditions can be imposed which ameliorate the risk. The most relevant risk is the one to the victim of the domestic violence offences, each of the other offences having been committed it seems as an ancillary aspect of the desire to perpetrate the domestic violence in question.

4. The applicant is not a person of whom it can be said there is an unacceptable risk of non-appearance but the issue of the risk of serious offence to the victim is one which has given me great concern. The applicant’s lengthy criminal record discloses repeat offending in relation to domestic violence and breaches of domestic violence orders and court orders generally in relation to the issues of his relationships.

5. The applicant says that he does not seek to deal with the victim, that is a commendable attitude in circumstances between now and the trial, but it must be qualified by the fact that most of the offences in question have been perpetrated in circumstances where the applicant was under the influence of either drugs or alcohol thereby qualifying the rational judgment that is displayed by that stated intention.

6. The question was posed that his background, which bespeaks typical circumstances for which the Court of Criminal Appeal in Kennedy v R [2010] NSWCCA 260, the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and this Court in R v Fernando (1992) 76 A Crim R 58, made mention and their relevance in bail.

7. The Court of Criminal Appeal in R v Michael John Brown [2013] NSWCCA 178 said this:

“In the cases of Aboriginal accused, particularly where the applicant for bail is young, alternative culturally appropriate supervision, where appropriate, (with an emphasis on cultural awareness and overcoming the renowned antisocially effects of discrimination and/or an abused or disempowered upbringing), should be explored as a preferred option to a remand in gaol.

Since the Royal Commission into Aboriginal Deaths in Custody (see particularly Recommendations 89-91 and the National Report at 21.4 and following), the incidence of Aboriginal incarceration has increased dramatically, overwhelmingly as a result of the increase in the numbers on remand. In this case, no such culturally appropriate alternative supervision is proposed or available.”

8. What is proposed is a situation where the applicant is to reside with a close relative in Lithgow, and not attend at Parkes, which is the residence of the victim over some period.

9. While I still have some concerns as to the risk associated with the liberty of the applicant, I consider that the injunction of the Court of Criminal Appeal in Brown, together with the conditions that have been imposed, are such that the liberty on bail is not in the circumstances unacceptable and bail will be granted.

10. In the matter of Luke Charles Wright, date of birth xx May 1984, for the charges of breach of bond, damage property said to have been committed on 2 March 2013, and the charges of common assault, two counts of damage property, one count of contravening an apprehended domestic violence order, one count of assault police officer in execution of duty, one count of resist police officer in execution of duty, one count of intimidation, one count of aggravated break and enter to commit serious indictable offence, malicious damage knowing persons are present, bail is granted subject to the following conditions.

FOR BAIL CONDITIONS SEE COURT FILE

**********

Decision last updated: 14 September 2016