Re PZX
[2024] QSC 186
•16 August 2024, ex tempore
SUPREME COURT OF QUEENSLAND
CITATION:
Re PZX [2024] QSC 186
PARTIES:
PZX
(applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS (QLD) (respondent)
FILE NO:
BS No 9292 of 2024
DIVISION:
Trial Division
PROCEEDING:
Bail Application
DELIVERED ON:
16 August 2024, ex tempore
DELIVERED AT:
Brisbane
HEARING DATES:
30 July 2024, 16 August 2024
JUDGE:
Bowskill CJ
ORDER:
Application for bail granted.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – BAIL – where the applicant was charged with unlawful use of a motor vehicle, trafficking in dangerous drugs, possession of various drugs, possession of tainted property and possessing property suspected of having been used in connection with committing a drug offence – where the applicant was on bail at the time the alleged offences were committed – where each of the offences for which the applicant is already on bail are required to be decided summarily pursuant to s 552BA of the Criminal Code – where the Crown contends that the applicant is in a show cause position under s 16(3) of the Bail Act 1980 (Qld) and opposes the grant of bail on the basis that he poses an unacceptable risk of failing to appear and committing further offences – where the applicant submits that s 16(3)(a) does not apply due to the nature of the offences for which he has bail and that he is therefore entitled to the benefit of s 9, which provides that the court shall grant bail “subject to this Act” – whether the applicant is in a show cause position under s 16(3) – whether there is an unacceptable risk of the relevant kind
Bail Act 1980 (Qld), s 6, s 9, s 16(3), s 16(3)(a)
Criminal Code 1899 (Qld), s 3, s 421, s 552BA, s 552BA(2),
s 55BA(4)(b), s 552BB, s 552DCOUNSEL: J Bell (solicitor) for the applicant
A Thomas (legal officer) for the respondent
SOLICITORS: Bell Dore Lawyers for the applicant
Director of Public Prosecutions (Qld) for the respondent
The applicant applies for bail in relation to a number of offences alleged to have been committed on 21 May 2024. Those alleged offences include unlawful use of a motor vehicle, trafficking in dangerous drugs, possession of various drugs, possession of tainted property and possessing property suspected of having been used in connection with committing a drug offence.
A legal issue was raised at the start of the hearing as to whether or not the applicant is in a show cause position under section 16(3) of the Bail Act. The Crown contended that he was, relying on section 16(3)(a), namely that the applicant:
“…is charged … with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence.”
If that provision applies, the Court is obliged to refuse to grant bail unless the applicant shows cause why his continued detention in custody is not justified. The onus is on him to persuade the Court that the risk of, for example, failing to appear or committing further offences if released on bail, is not unacceptable.
On the other hand, whilst the applicant accepts he was on bail at the time of the alleged offences, he submits that section 16(3)(a) does not apply, having regard to the nature of the offences for which he was on bail. If that is correct, then he has the benefit of section 9 of the Bail Act, which provides that the Court shall grant bail “subject to this Act,” which of course directs attention to, among other things, section 16(1), which obliges the Court to refuse bail if satisfied there is an unacceptable risk of, for example, failing to appear or committing an offence. It can be seen that the considerations are the same in either case. However, where section 9 applies as opposed to section 16(3), the onus is on the respondent to persuade the Court the relevant risk is unacceptable.
In both cases, the same considerations arise as to the relevant risk or risks and whether they are unacceptable or can be ameliorated to an acceptable level by conditions.
The earlier charges for which the applicant was on bail at the time of the offences for which he seeks bail are entering premises with intent under section 421(1) of the Criminal Code; entering premises and committing an indictable offence by a break, under section 421(2) and (3) of the Code; stealing, and contravening a direction or requirement of a police officer. In some cases, there was more than one charge of that description.
The applicant’s solicitor submits that each of these offences are to proceed summarily and, indeed, must do so by operation of section 552BA of the Criminal Code. That section applies to charges before a Magistrates Court of any indictable offence against the Code if the offence is a “relevant offence” as defined in subsection (4). By section 552BA(2) “a charge to which this section applies must be heard and decided summarily”.
I accept that each of the offences for which the applicant already has bail are “relevant offences” as defined in subsection 552BA(4)(b). It is not necessary, for present purposes, to go through a detailed explanation of why that is so, but it follows from both the nature of the offence and, in some cases, the factual circumstances – for example, in the case of a stealing charge, it depends on the total value of what was stolen.
The consequence is that those charges must proceed summarily.
There is the potential, which is left open by section 552D of the Code, that a Magistrate may abstain from dealing summarily with a charge if they form the view that it is not appropriate to do so. If that happens, the proceeding is conducted as a committal proceeding instead. I note also that the grounds on which an accused person or the Attorney-General may appeal against a summary conviction include that the Magistrates Court erred in proceeding summarily. So although there is mandatory language used in 552BA, there is a remaining possibility that the applicant may proceed to committal for trial or sentence, if the Magistrate acts under section 552D. But, of course, that is only something that would eventuate at a much later stage in the process.
Section 16(3)(a) of the Bail Act applies where a defendant is charged with an indictable offence that is alleged to have been committed while the defendant was at large, with or without bail, between the date of the defendant’s apprehension [for another indictable offence] and the date of the defendant’s committal for trial or while awaiting trial for [that other] indictable offence.
The phrase “committal for trial”, as defined in section 6 of the Bail Act, includes committal for sentence. The word “trial” is defined in section 6 to mean:
“A proceeding wherein a person is charged with an offence on indictment and includes a proceeding wherein a person is to be sentenced.”
Indictment is not defined in the Bail Act, but it is defined in s 1 of the Criminal Code to mean:
“…a written charge preferred against an accused person in order to [bring] the person’s trial before some court other than justices exercising summary jurisdiction.”
In this case, given that the offences for which the applicant already had bail must proceed summarily under section 552BA of the Code, the applicant’s submission is that section 16(3)(a) of the Bail Act does not apply because, at the time he allegedly committed the later offences, he was not at large awaiting committal for trial or trial, defined as that is by reference to a charge on indictment for those other, earlier offences.
As a matter of the proper construction of that section, this poses a complex legal question to which there is not an easy answer. On balance, I form the view that the applicant’s submission should be accepted, because of the use of the word “awaiting” in section 16(3)(a). That is, it cannot be said that, at the time he allegedly committed the offences for which he now seeks bail, he was awaiting committal for trial or trial in the sense of a charge on indictment. The only thing he is awaiting at present is summary proceedings, as mandated by section 552BA, in respect of those earlier charges.
The alternative argument might be that having regard to the time when section 16(3) was enacted – as it happens, in 1980 when the Bail Act was enacted – the intention may have been to place the onus on an applicant for bail when charged with later indictable offences whilst at large with or without bail following their apprehension for earlier indictable offences which have not been dealt with yet, regardless of how they might have proceeded.
However, the language that is used in section 16(3)(a) is quite specific, referring to “awaiting committal for trial or trial”, having regard to the definition of those phrases in section 6 of the Bail Act. When one has regard to that language as so defined and the mandatory provision in section 552BA of the Code, which I have found applies to those earlier charges, it does seem correct to contend that section 16(3)(a) does not apply to this applicant.
What that means is that I proceed on the basis that he is not in a show cause situation. He is therefore entitled to the benefit of section 9, which obliges the Court to grant his application unless satisfied there is an unacceptable risk of a relevant kind.
As to that, the Crown opposes the grant of his application on the basis that he does pose an unacceptable risk of failing to appear and committing further offences, particularly drug and/or property offences, if granted bail.
I do not accept the submission insofar as failing to appear is concerned. Whilst the respondent does have some prior entries from 2018 and 2019 for failure to appear and breach of bail, that seems to have arisen from failing to report and being absent from his residence on one occasion. Notwithstanding that, it does not appear to be a significant factor for present purposes.
What is a more significant factor is the risk of further offending. As to that, the applicant is a man of 36 years of age. He has a serious criminal history insofar as offending relating to drugs is concerned, which includes a conviction in this Court for trafficking from October 2019, for which he was sentenced to three and a-half years’ imprisonment. He has other entries for possession of drugs since then, as well as some property offences, stealing and receiving tainted property.
He did not do well when previously given parole. The report from the Probation and Parole office reflects that his engagement was limited and he continued to use drugs and ultimately served the whole of his sentence.
Against that background, one might think that his application was doomed to fail on this occasion, given that he is once again charged with drug offences, it seems about six months after the previous sentence came to an end.
What has ultimately persuaded me to grant his application, though, is that it is clear that what drives this particular applicant’s offending is drug addiction. There is evidence before the Court that he is motivated to try to address his addiction. That began when he was referred to the Caxton Legal Centre’s Court Plus for Men program in late 2023. He engaged with that program to some extent, including by participating in some 20 sessions, but then “falling off the wagon”, to put it colloquially. The provider of that program has provided a letter which is before the Court, indicating that if the applicant were granted bail, she would be willing to reengage him in that program. The relevance of this is twofold. One is that it would be some additional support on his release on bail, but also it shows him taking some steps late last year and into the first part of this year to address his addiction.
Perhaps more significantly, prior to committing, let alone being charged with, these offences, the evidence is that the applicant took out a policy of private health insurance – on 9 April 2024 – with the express purpose of being able to take advantage of that in order to enter into a residential drug rehabilitation facility. He had to wait for a waiting period before it would be covered, but there is evidence that that has passed and he is eligible for cover. He has not been able to put before the Court a confirmed place in the particular clinic, because the private health insurer will not make those arrangements other than with him personally. However, there is sufficient material before the Court from the applicant’s solicitor that I am persuaded there is both clarity and certainty about those arrangements sufficient to be relied upon by the Court.
The timing is of some importance because, as emphasised by the applicant’s solicitor, taking those steps in April, before the applicant was charged with the offences for which he already has bail (which he was not charged with until 10 May), let alone the later offences for which he now seeks bail, does show some level of motivation to address the underlying issue leading to him offending.
In addition, he has now been on remand for three months, during which I am prepared to infer, based on the submissions made, he has been drug free, which might assist as he embarks on a residential rehabilitation program.
I also factor into account the nature of the current alleged offences. Although it is a continuation of drug offending, and one of the charges is of trafficking, as currently particularised, that relates to activity on one day only. So there is some force to the applicant’s submission as to the weakness of the Crown’s case in respect of that charge, which may ultimately resolve to one of possession. That is not to suggest that, if the applicant is convicted of offending on that basis, the matters would not see him sentenced to a further period of imprisonment beyond what he has already served prior to this application. But given the inevitable delay before the matters are finalised, there is the risk of the applicant serving longer in custody than he might ultimately be sentenced to, if convicted; although I emphasise that at three months, that is not an overwhelming factor.
Taking all of those things into account, I have ultimately been persuaded that with the imposition of fairly stringent conditions which will include that he immediately take all the necessary steps to put in place his having a place in a residential rehabilitation facility, about which there is evidence before the Court; that he report to police every day until he does that, and then participate in that program, with the program providers being able to inform the DPP if he fails to do so; and further that even after that, he engage with Lives Lived Well, on balance, the Court is persuaded that the risk of him committing further drug or property offences whilst released on bail is reduced to an acceptable level, and I will grant the application.
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