Scott v The Queen - [2020] SASC 182

Supreme Court of South Australia
(Criminal: Application)
SCOTT v THE QUEEN
[2020] SASC 182
Reasons for Ruling of The Honourable Justice Livesey (ex tempore)
22 September 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with three counts of trafficking contrary to s 32(3) of the Controlled Substances Act 1984 (SA). It is alleged that the offending occurred whilst the applicant was subject to home detention bail.
Bail was applied for and refused in the Magistrates Court. Pursuant to s 14 of the Bail Act 1985 (SA) the applicant made an application in the Supreme Court seeking a review of the order of the Magistrate refusing her bail.
Held, dismissing the application; bail is refused because of the risk of re-offending whilst on home detention bail.
Bail Act 1985 (SA) s 14; Controlled Substances Act 1984 s 32; Correctional Services Act 1982 (SA) s 86B; Summary Offences Act 1953 (SA) s 81, referred to.

SCOTT v THE QUEEN
[2020] SASC 182
Criminal: Application
LIVESEY J:
Introduction

This is an application for the review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) dated 10 September 2020 following a Magistrate’s refusal to grant bail on 28 August 2020.
In support of the application, I have been provided with a home detention bail enquiry report, indicating that premises at Mansfield Park are suitable and that the applicant can reside with a friend, Ms Kennedy, and her three children. I am assured that Ms Kennedy has had nothing to do with illicit drugs.
The subject alleged offending
Whilst the applicant was on strict home detention bail for other offending, on 6 June 2020, police attended the premises to which she was bailed and a search was undertaken. That search revealed approximately 500 ml of 1,4‑Butanediol, 1.5 g of methylamphetamine, 45 suboxone strips, $6,590 in cash, a number of plastic resealable bags, electronic scales and, I was told today, four mobile phones. The applicant declined to answer questions, as was her right. She was refused police bail.
She has now been charged on Information dated 9 June 2020 with three counts of trafficking, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). Police bail was refused, an initial review by a Magistrate on 7 June 2020 was refused and, as I have indicated, the application made on 28 August 2020 in the Adelaide Magistrates Court was also refused.
It was emphasised to me today that the illicit drugs were found largely in common areas and that the question of possession will be contested. I was told also that the 1,4‑Butanediol has been claimed by another person who is now the subject of charges.
During the course of this morning’s hearing, I was also provided with an affidavit of Brevet Sergeant Robert Armstrong dated 20 July 2020 which addresses in some detail the circumstances of the search and the way in which the various illicit drugs were discovered. The affidavit also addresses the contents of one of the four phones which was unlocked and on which there were numerous Facebook Messenger messages. My review of those today suggests that they concern, at the least, drug sales of various kinds. I am told that the question of possession of this phone will also be contested.
Finally, I was told that the trial of the subject charges would not likely take place until 2022, given the long delays being experienced in the District Court, not the least reason being what are described as “COVID-19 delays” to the trial list.
The circumstances of the applicant
The applicant is presently 29 years of age. She has previously pleaded to drug possession and unlawful possession on 20 March 2020, for which she was discharged without penalty and she entered into a $1,000 bond to be of good behaviour for 18 months. No convictions were recorded. A little later on 30 March 2020, the applicant was convicted of unlawful possession and driving without due care, for which she was fined.
However, to these relatively minor offences must be added the following further matters, which are the subject of Informations which have not yet been listed for trial.
The first of these concerns a car rollover on 15 February 2019 near Yunta. The prosecution summary that has been provided to me alleges that about 10 kilometres south-west of Yunta, two women discovered the applicant and her car after it had appeared to roll over. It was extensively damaged. The applicant was bleeding. The applicant did not wish to leave the car despite being told that there was a risk that it may blow up. She said that there were things inside of it, such as her glasses, that she needed to retrieve. When one of the women retrieved the glasses case, she noticed an ice pipe in it. The women then saw the applicant, as they described it, “fiddling” with her bags. Ultimately, when ambulance and police officers attended, they located an ice pipe and a black box which was empty, the appellant having earlier told the two women that her grandmother’s ashes were inside that box.
Police undertook a search and discovered in the appellant’s handbag 135 g of mixed methylamphetamine, 90.7 g pure, which I was today told, if sold in “points”, had a street value of somewhere between $40,000 and $67,000. Police also located a mobile phone on which there were a number of messages consistent with a course of drug dealing between November 2018 and February 2019.
The applicant told police that she had the methylamphetamine because she was trying to get herself “out of trouble”. She referred to financial difficulties and she told police that she collected the drugs from an agreed location earlier that day.
When police reviewed the mobile phone to which I have already referred, they found on it a message apparently sent by the applicant when she was inside the ambulance. The message referred to the fact that she had rolled her car at 120 km/h and that she was on her way to Peterborough. She said, “I’m done. They found”. When the person with whom the applicant was messaging responded to the effect, “Do you wish to make a sale?”, the applicant responded in terms that I need not go into, but which suggested that she was, as she put it, “Done, with five big ones.”
After this offending, the applicant was granted simple police bail.
The following year, on 29 February 2020, as the applicant and another woman tried to enter the Mobilong Prison, they were detained when they attracted the attention of a drug detection dog. The information available to me suggests that police will allege that, after attracting the attention of the drug detection dog, a search was conducted pursuant to s 86B of the Correctional Services Act 1982 (SA) of the applicant’s vehicle. A witness will apparently say that the applicant was seen to be leaning into her car trying to hide something. She was stopped. Two small balloons and a substance were located inside the car. Also inside the car were located a plastic resealable bag in the glovebox and another in the middle console. These apparently contained 2.8 g of what was suspected to be methylamphetamine. A taser and an axe were found on the rear passenger side of the motor vehicle. The sum of $3000 was found in the applicant’s wallet inside her handbag.
The applicant was detained and awaited police. When police arrived they conducted a search of the applicant pursuant to s 81 of the Summary Offences Act 1953 (SA). They located three mobile phones, a “tick list” and a South Australian driver’s licence that did not belong to the applicant. Police opened the balloons which had earlier been found inside the car and found a total of 40 suboxone strips.
The applicant was refused police bail and this alleged offending was later made the subject of an Information dated 18 August 2020. However, before that, on 16 March 2020, the applicant was granted home detention bail to an address in Paralowie.
At that time the bail enquiry reporters advised that the applicant had the support of her twin sister. The applicant told Corrections that she had been using methylamphetamine for the past seven or eight years and, by the end of 2015, her daily use had increased. By the time of her interview, the applicant described her drug‑taking as “a habit”. Nonetheless, she told Corrections that she had reduced her methylamphetamine use from approximately half a “ball” per day in 2019 to around one half to one gram per day during 2020. She said she had never injected methylamphetamine and she had made enquiries about the Matrix program, as well as about the Seeds of Affinity program, and working in the Hutt Street soup kitchen, if permitted. Corrections were advised that the applicant had previously worked as a travel agent for eight years. Her sister advised Corrections that the applicant had been an award-winning travel agent.
It is important to recognise that the address which was the subject of the search by police on 6 June 2020 is the same home detention bail address to which the applicant was bailed in March of this year.
Disposition of the application
The applicant enjoys a presumption in favour of bail pursuant to s 10 of the Bail Act 1985 (SA).
On the face of it, there appear to be allegations of wrongdoing on 26 February 2020 in breach of police bail granted the previous year and, on 6 June 2020, in breach of home detention bail granted in March this year and in breach of the terms of a good behaviour bond entered in March this year.
I remind myself that the applicant enjoys a presumption of innocence and that it is likely that the various charges will be disputed. Nonetheless, I am concerned about the risk of reoffending if the applicant was to be released on strict home detention bail given the allegations associated with the search of her premises on 6 June this year.
In all of these circumstances, I am not confident that the applicant would, if granted a further period of home detention bail, refrain from reoffending.
Accordingly, the order of the Court on this bail review is that the application is dismissed and bail is refused.