Re Application for Bail By Jang Bir
[2014] VSC 160
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0038 of 2014
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for bail by JANG JAMES BIR
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 APRIL 2014 | |
DATE OF JUDGMENT: | 14 APRIL 2014 | |
CASE MAY BE CITED AS: | Re APPLICATION FOR BAIL BY JANG BIR | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 160 | |
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BAIL – show cause – whether unacceptable risk that applicant would fail to answer bail or reoffend if admitted to bail – bail refused – s 4 Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | The informant was represented by Inspector R Koo | |
| For the Applicant | Ms D Lamovie | Victoria Legal Aid |
HIS HONOUR:
On 14 December 2013, the applicant was seriously injured in a motor vehicle accident. He suffered a traumatic brain injury, fractures of his left leg and abrasions to his face. Initially admitted to the Alfred Hospital, he was discharged to inpatient rehabilitation on 21 December 2013. The applicant was discharged home on 7 January 2014 with TAC approval to undertake a six week multi-disciplinary outpatient rehabilitation program that would include physiotherapy, occupational therapy, neuropsychology and social work. He initially attended that program on 28 January 2014.
There were a number of outstanding warrants for the applicant’s arrest, and on 3 February 2014, he attended by appointment at the Dandenong police station and was remanded into custody.
The applicant faced a number of charges from separate occasions of offending laid on the information of six police officers, as well as proceedings for breach of a community based order. The charges he faced included shop theft of alcohol, failing to appear on bail, drunk in a public place, and assault charges. These offences had been committed between January 2012 and March 2013. The outstanding warrants for his arrest had been issued on occasions when he had failed to answer his summons or his bail.
An application for bail on 3 February 2014, made on his behalf by a lawyer, was refused. After Dr Samantha Kennedy, a specialist in rehabilitation medicine, produced a report regarding the applicant’s inpatient stay at the Victorian Rehabilitation Centre and the continuing treatment required, a further application for bail was made on 21 February 2014. That application was also refused on the grounds that there were no new facts or circumstances. I will return to Dr Kennedy’s report.
At the hearing before me, the applicant had been in custody on remand for 64 days. The applicant proposes to plead guilty to some charges and to contest others. There is a contest mention on 22 April 2014. I was informed that the contest is likely to be heard in early June 2014. If not admitted to bail, the applicant faces a period in custody on remand of a little over four months, provided this timetable is accurate.
Although s 4(1)(b) of the Bail Act 1977 provides a prima facie right to bail for persons awaiting trial, s 4(4) of the Bail Act provides that, in certain circumstances, the court shall refuse bail unless the applicant shows cause why his detention in custody is not justified. In the context of this application, the accused is charged with an indictable offence that is alleged to have been committed while he was at large awaiting trial for another indictable offence. The applicant is also charged with an offence against the Bail Act. He must show cause.
Section 4(2)(d)(i) provides that a court should nevertheless refuse bail if it is satisfied that there is an unacceptable risk that the accused person, if released on bail, would fail to surrender himself into custody in answer to his bail or would commit an offence whilst on bail.
It was not in issue on the application that the applicant was required to show cause. First, the applicant is charged with offences against s 30 of the Bail Act relating to his failure to appear to answer his bail on seven occasions, namely 22 June and 4 October 2012, 21 January, 2 May, 11 September, 8 October and 3 December 2013.
The applicant had been admitted to bail after being charged with indictable offences. The applicant was charged on summons with theft of alcohol from a Duncan’s liquor store, When he failed to appear, he was arrested on a bench warrant and on 21 January 2013, he was admitted to bail by a magistrate. The applicant was also charged with theft of alcohol from a Cellarbrations store in Chelsea. Initially summonsed to appear to answer this charge, he failed to do so and was later arrested on a bench warrant and admitted to bail. The applicant was also charged with theft of a mobile phone. On this charge he was arrested and bailed to appear at court but failed to do so, resulting in the issue of a bench warrant. These various charges were ultimately consolidated on 15 February 2013 and the applicant was then admitted to bail on these consolidated charges, because ‘treatment was available’.
On 1 March 2013, the applicant was arrested at the Dandenong railway station for being drunk in a public place. Having previously been arrested on 26 occasions for being drunk in a public place or drunk and disorderly in a public place and also being in breach of a community based order, the applicant was remanded in custody. On 4 March 2013, the applicant was again admitted to bail by a magistrate. That bail was subject to alcohol treatment conditions.
On 14 March 2013, when the applicant was allegedly involved in an assault in Dandenong Park in Lonsdale Street, Dandenong, the applicant was free on bail in relation to the various charges that he faced, as I have described them. These charges included indictable offences.
The assault in Dandenong Park involved a middle aged female victim who was assaulted by two men and a woman. It is alleged that the applicant was one of those men. The woman pleaded guilty and has been sentenced. There is, I am told, a contest about the nature, and extent, of the applicant’s participation in this assault.
The assault appears serious. The assailants acted in company. The victim was punched and kicked, including while she was lay on the ground. She sustained a broken eye socket, two broken front teeth, other facial injuries, a broken little finger, swelling and bruising to her right shin and multiple bruises and swelling. Forensic analysis of DNA samples suggests that the victim’s blood was identified in a swab from the applicant’s shoe. The applicant admitted to being present at the time of the assault. The applicant was charged on summons with offences arising out of this assault, but he later failed to appear to answer that summons.
In these circumstances, the applicant’s concession that he was required to show cause why his detention in custody is not justified was appropriately made.
The proper approach to resolving questions of bail in these circumstances was addressed by President Maxwell sitting at first instance in Re Asmar.[1] In that case, after referring to an earlier decision of DPP v Harika,[2] the President stated:
[1][2005] VSC 487.
[2][2001] VSC 237.
In my view, the question – the only question – for the Court on an application to which s 4(4) applies is:
“Has the applicant shown cause why his/her detention in custody is not justified?”
Put another way, the question is whether the applicant has satisfied the Court that his/her detention in custody is not justified. That question will be answered either in the affirmative or in the negative. If answered in the affirmative, bail should be granted. If answered in the negative, bail must be refused. There is no second step. This does not mean that the “unacceptable risk” issues identified by s 4(2)(d) are excluded from consideration. On the contrary, those issues must be at the heart of any consideration of whether a person’s pre-trial detention is justified. Parliament has made clear in s 4(2)(d) and in s 5(2) that an assessment of those risks is central to the decision whether or not a person should be released on bail and, if so, on what conditions. To ask (as s 4(4) does) whether the person’s detention is justified is simply to ask the same question in a different way. The same considerations must be relevant.
So, I turn then to that question: has the applicant shown cause why his detention in custody is not justified?
The applicant contended that his detention in custody is not justified because he is a young man, 21 years of age, and is single. He is African and not a native English speaker although little was said of his personal circumstances on the application. He has stable accommodation available to him in Endeavour Hills where he would reside with his mother and siblings. In her report, the rehabilitation consultant, Dr Kennedy, summarised the applicant’s situation as follows:
Mr Bir was an intoxicated pedestrian hit by a car on 14 December 2014. He sustained fractures to his left lower leg, as well as facial and lip lacerations. He did have a low Glasgow coma scale score at the scene of the accident and loss of consciousness, however, a CT brain did not reveal any new cerebral injury. There was not any post-traumatic amnesia on admission to the Victorian Rehabilitation Centre. From the limited neuropsychology testing that has been done to date, it would appear that Mr Bir was significantly cognitively impaired prior to his accident, and the current knock to the head may have made cognition worse. His cognition would also not be aided by his heavy alcohol intake. Given his cognitive and behavioural deficits associated with his previous traumatic brain injuries, as well as the fact that he was not fully physically recovered from the injuries from his most recent accident, being in custody is not ideal, and as mentioned previously in this report he may have considerable difficulty in understanding legal proceedings.
Dr Kennedy reports that neuropsychological assessment that was commenced on 31 January 2014 revealed Mr Bir to be performing within the ‘extremely low’ range on both verbal and non-verbal tasks of general intellect. Speed of information processing was also very impaired. A comparative assessment was required with the aid of an interpreter to clarify these findings, but due to Mr Bir being remanded in custody, no further neuropsychological assessment has been conducted.
I accept that the injury sustained by the applicant in the motor vehicle accident and the preliminary report from consequent neuropsychological investigation are matters to be taken into account in the applicant’s favour in determining whether his detention in custody is justified. The applicant is currently being held in the Melbourne Remand Centre. It was submitted that the applicant’s remand into custody is particularly burdensome for him if compared to a person without his recent medical history. Although there was no evidence as to what, if any, medical or rehabilitative treatment he was receiving in custody, I am prepared to assume that rehabilitation treatment in custody, if any, will be significantly less beneficial to the applicant than the outpatient rehabilitation program to which he can return if released from custody. Further, the nature and source of any intellectual deficits suffered by the applicant may be relevant in future proceedings and the rehabilitation program might clarify whether there are intellectual deficits that are relevant, either in contesting legal responsibility or assessing moral responsibility for the assault charges.
It is not presently realistic to assess the sentence that the applicant might receive, if convicted on all matters, when his charges are ultimately disposed of, but his counsel frankly, and in my view correctly, conceded that the expected period of delay, of approximately two months is not inordinate, stressing that there is no finality about the ultimate date of disposition of the matter. Attention was also drawn to the debt of approximately $20,000 in unpaid infringement notice penalties that may lead to a significant period of detention.
I have noted that the applicant was intoxicated when involved in the motor vehicle incident. He has, it would seem, a very serious alcohol dependency and abuse problem. Since 13 February 2010, the applicant has received 47 infringement notices for being drunk in a public place, 33 of which were issued during 2013. His problems with alcohol are also evident from his prior criminal history. On 12 January 2012 on charges of burglary, shop theft, being drunk in a public place, and failing to answer bail, the applicant was placed on a community based order for 12 months, which included conditions for assessment and treatment for alcohol addiction and medical/psychological/psychiatric assessment and treatment. He was also fined, without conviction, on charges of theft from a shop and being drunk in a public place at the Dandenong Magistrates’ Court on 31 October 2012 and 2 January 2013.
On 18 June 2012, a community corrections officer reported that the applicant had been referred to the South East Alcohol and Drug Service (SEADS) following a drug and alcohol treatment assessment but he failed to satisfactorily attend the program and was discharged form it. The report noted that the applicant’s attitude and motivation towards performance of the conditions of his community based order were substantially poor, accruing unacceptable absences from both reporting and program conditions. He allegedly committed a further offence within the operational period of the order. At that time, he was assessed as not suitable for further community based disposition.
When the applicant was admitted to bail on 4 March 2013, as noted above, the magistrate imposed conditions that the applicant attend the Salvation Army and commence a positive lifestyle program. Although the applicant complied with his obligations for about a month, he then failed to attend for appointments and did not complete the program.
The applicant has been unable to take advantage of prior opportunities for treatment and rehabilitation for alcohol abuse and his past conduct indicates ongoing substantial alcohol use up to the time of his accident. I am satisfied that his alcohol abuse problems continued during 2013 until he was admitted to the Alfred Hospital. Presently, the proposition that the applicant has any commitment to abstain from alcohol must be questionable. There is no evidence that the applicant has availed himself of any program at the Metropolitan Remand Centre but having regard to the applicant’s language difficulties, intellectual deficits and the availability of programs within an overcrowded prison system, I draw no inference adverse to the applicant from that circumstance.
The applicant’s counsel accepted that the applicant’s attitude to alcohol and rehabilitation from his alcohol dependency was central to whether the applicant might reoffend if admitted to bail. In seeking to show that his detention in custody was no longer justified, the applicant’s counsel first submitted that the applicant has not offended since the alleged assault on 14 March 2013. This submission is technically correct although I see no reason to overlook the infringement notices for drunkenness that the applicant has received since that time, particularly given the apparent relationship between drunkenness and offending conduct. The applicant has since March 2013 been charged with offences under the Bail Act. The significant inference, in counsel’s submission, was that the applicant was consuming alcohol but not reoffending, other than by failing to answer his bail. However, the applicant appears to have remained in fairly constant contact with the police through alcohol related incidents.
Second, the applicant was seen by an assessment officer for the CISP remand outreach pilot at the MRC on 21 March 2014. It is proposed that the applicant’s bail could be supervised through the CREDIT/bail support program by a worker based at the Dandenong Magistrates’ Court. A person has been nominated to fulfil that supervisory role. The applicant could be required to attend upon his supervisor forthwith upon being admitted to bail and could be required to comply with lawful directions within that program. The supporting supervisor would supervise the applicant completing a drug and alcohol assessment at the Salvation Army Positive Lifestyle Centre and his attendance at an appointment with Dr Kennedy to reinstate his outpatient rehabilitation program.
The applicant conceded that any bail should be strictly conditioned, and such conditions could include residence, reporting and curfew conditions, which would add to the supervision of the applicant in the community.
I entertain real concerns about the applicant’s capacity to submit to supervision and to commit to rehabilitation programs. This approach has not been successful with the applicant in the past. Although accommodation with his family can be described as stable, there is no evidence of the support and supervision that he requires coming from that quarter. Further, during the periods of the applicant’s offending, he was residing with his family. The applicant’s counsel submitted that the applicant has, for the first time in his life, experienced a significant period of incarceration. It could be presumed that a taste of gaol may have a significant rehabilitative effect on a young offender. However, his record shows that he was no stranger to a police station gaol cell when remanded on 3 February 2014. The applicant has a poor record of responding to supervision by appointment and has been unwilling to complete alcohol assessment programs either through the Salvation Army or through SEADS on prior occasions. Dr Kennedy reported there were no behavioural issues when then applicant was an inpatient in rehabilitation, but I have no confidence that occasional community based supervision, even if regular and onerous, would be sufficient for this man.
Thirdly, counsel submitted that the applicant voluntarily surrendered himself to police on 3 February 2014 to clear up his outstanding warrants and that demonstrates a developing understanding of the gravity of his circumstances and the need to comply with court and police directives.
Fourthly, the applicant’s counsel contended that my concerns that the applicant presents an unacceptable risk of failing to answer his bail or of committing further offences whilst on bail, might be alleviated by strictly conditioned bail. A significant number of restrictive conditions were proposed and debated in submissions. I have referred to a number of them already. I inquired whether the was any surety available, however, the applicant is not in a position to provide a surety in any sum.
Balancing all of these considerations as best I can, and bearing in mind particularly the personal hardship for the applicant from his continued detention, the applicant has not persuaded me that his detention in custody is not justified. On all of the material that is presently before the court, I am satisfied that the risk that the applicant will reoffend if released on bail and that he may fail to answer his bail, is presently unacceptable. Being satisfied that the continued detention of the applicant in custody is warranted, bail is refused.
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