The Queen v Petherick - [2020] NTSC 17

CITATION:The Queen v Petherick [2020] NTSC 17
PARTIES:THE QUEEN
v

PETHERICK, Casey

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22005500
DELIVERED:  24 April 2020
HEARING DATE:  9 April 2020
JUDGMENT OF:  Kelly J

CATCHWORDS:
CRIME – Bail – Review of decision of Local Court to refuse bail – Whether there is unacceptable risk of breaching bail – Whether conditions of remand more onerous due to COVID-19 – Likelihood of applicant spending more time on remand than if sentenced – Likelihood of applicant appearing in court – Needs of applicant to be free for any lawful purpose – Presumption against bail – Applicant failed to satisfy onus of satisfying the court that bail should be granted
Bail Act 1982 (NT), s 7A, s 24

REPRESENTATION:
Counsel:
Crown:T Grealy
Applicant:K Bulling
Solicitors:
Crown:Director of Public Prosecution
Applicant:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Kel2002
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Petherick [2020] NTSC 17

22005500

BETWEEN:

THE QUEEN

AND:

CASEY PETHERICK

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 24 April 2020)

The applicant is a 31 year old woman who has been charged with aggravated robbery.
The Crown case is that on the afternoon of 31 January 2020, the applicant was at The Bell Bar and Bistro, Bellamack in company with two others, a 22 year old woman and a 15 year old girl. The applicant was watching the victim, a slightly built 61 year old woman, playing the poker machines. The victim won $1,050. When the victim cashed in her winnings and left the venue, the applicant and her associates followed her. When they were some distance from the venue, the applicant and one of the co-offenders approached the victim. The other co-offender acted as lookout. The applicant pulled a stick from under her shirt and yelled at the victim to hand over her handbag. The victim refused. The applicant hit the victim on the left side of the head four times to overcome her resistance, then snatched the victim’s handbag from her grip so hard that the strap broke. A witness who saw part of the incident asked what they were doing and the co-offender who acted as look-out said, “Stealing.” Then all three ran away.
The applicant was arrested on 10 February 2020.
On 2 April 2020, the applicant applied for bail in the Local Court and bail was refused. She has applied to this Court for a review of that bail decision. Such a review proceeds as a hearing de novo.
Under s 7A(1) and (2) of the Bail Act (“the Act”), there is a presumption against bail. The onus is on the applicant to satisfy the court that bail ought to be granted, taking into account those matters set out in s 24 of the Act.
The Crown opposes bail being granted.
The applicant’s case
The applicant contends that bail should be granted because:
(a)the likelihood that the applicant will appear in court to answer her bail is strong;
(b)if bail is refused, she risks spending more time in prison on remand than she would if found guilty and sentenced;
(c)the conditions in which she will be held on remand are onerous in the current circumstances (the COVID-19 response by Corrections) and her own personal circumstances;
(d)she has an interest in being free for legitimate purposes, in particular to be re-united with her children (or at least one of them) and to engage in face to face drug counselling; and
(e)the risk of her interfering with witnesses, breaching bail or committing an offence is lessened in the present climate (meaning the COVID-19 pandemic and its attendant movement restrictions) and can be addressed by the imposition of appropriate bail conditions.
(a)Asserted strong likelihood of appearing in court
The applicant relies on these factors as supporting a conclusion that she is likely to appear in court to answer her bail.
(a)She has a limited prior criminal history consisting of one minor drug conviction (possession of cannabis) for which she received a fine, and a number of traffic matters; she has no previous warrants for failing to attend court and no prior convictions for breach of bail.
(b)The applicant’s older sister, who is an employee of the Department of Health with a role in policy with regard to prison health services in the NT, has agreed that the applicant can stay with her while she is on bail.
(c)It was contended on the applicant’s behalf that she has found the last two months in custody difficult and distressing; that it has been a “wake up call” and that she is highly motivated not to do anything that would see her returned to prison.
The prosecutor pointed out that this last factor is something of a double edged sword. If found guilty and convicted of aggravated robbery, the applicant faces the possibility of a lengthy prison sentence, and a motivation not to return to prison may translate into a motivation not to appear in court to face trial. The prosecutor submitted that there is an unacceptable risk of non-appearance should the applicant be granted bail.
(b)The likelihood that the applicant will spend more time on remand than she would if sentenced
Counsel for the applicant contended that it is uncertain when the applicant will stand trial and that “if this matter resolves favourably to [the applicant] she risks spending more time in custody than she would on a plea of guilty”. It should be noted that the applicant has, at present, indicated an intention to plead not guilty.
Counsel for the applicant said that the applicant admits that she stole the victim’s handbag but that she denies hitting the victim with a stick.[1] She contended that the Crown case regarding this aspect of the alleged offending is not strong as it is not corroborated by the witness who saw the incident.
The prosecutor disputed that the Crown case was weak in this respect. She said that the eyewitness did not see the whole of the robbery and the fact that she did not see the part where the applicant hit the victim with a stick does not make it less likely that she did so. In any case, the prosecutor pointed out that even without the further aggravating factor of the use of a weapon this is a serious offence brazenly committed in broad daylight, in company, against a vulnerable victim, and involving a degree of planning over an extended period of time. (The CCTV footage from the venue shows the applicant watching the victim for a considerable period of time and leaving just after the victim left.) Given those matters, the prosecutor submitted that the applicant is likely to receive a substantial prison sentence if found guilty regardless of any finding about the use of a weapon.
The prosecutor also submitted that the Crown is ready to proceed to a committal and it is within the applicant’s power to expedite the process of this matter coming to trial. While that is no doubt true, there is still the consideration that jury trials listed to the end of May have been cancelled. Matters are presently being listed for trial from July onwards but that may change. Nevertheless, I accept the Crown submission that given all of those circumstances, it is premature at this stage to say that there is a real risk that the applicant may spend more time on remand than she is likely to be required to spend in prison if found guilty.
(c) Conditions on remand
The applicant submitted that conditions in the Darwin Correction Centre are harsher for remand prisoners than for sentenced prisoners and that the response to the COVID-19 pandemic has made those conditions harsher.
(a)Prison visits have been cancelled.
(b)Some support programs have been cancelled.
(c)Work programs in the prison have been affected. The applicant was employed cleaning Qantas headsets and this work is no longer available. This affects her ability to earn money to pay for phone calls.
The prosecutor pointed out that to compensate for suspending visits, the prison is allowing free phone calls to one number per prisoner. (Counsel for the applicant pointed out that the applicant has two children who live in different places.) The prison is also apparently working on being able to conduct “visits” by AVL but this has not yet occurred.
The prosecutor also advised that support programs are being modified for delivery online, via phone or AVL, and that work in prison is being re-purposed. For example, more cleaning jobs have been created. Nevertheless, it cannot be denied that these measures are having an adverse effect on prison conditions and that not all ameliorative measures are as yet in place.
The prosecutor also pointed out that many of the restrictions imposed on prisoners are common to those now being undergone by the rest of the community in response to the COVID-19 pandemic. However, I accept the applicant’s submission that these measures are harder for those incarcerated in prison, not least because of the lack of open access to substitute means of communicating, such as phones and social media.
(d)The need to be free for legitimate purposes
The applicant has two children. Her daughter is presently staying in Queensland with a relative and will not be able to come to the Territory in the near to medium term. However, her son is living with a grandparent in Darwin and would be able to live with her at her sister’s residence if the applicant is granted bail. I have not been given any details of the children’s past or current care arrangements.
The applicant would also like to do face to face counselling with Anglicare if granted bail. She has done one telephone counselling session with Anglicare from prison and, apparently, one with the Alcohol and Other Drugs service. While face to face counselling may be preferable, she will not be denied access to counselling if bail is refused.
(e)Risk of breach of bail/offending
The principal objection that the Crown has to the grant of bail is that the Crown contends there is an unacceptable risk that the applicant will breach her bail and commit further offences.
Counsel for the applicant characterised this offending as uncharacteristic and opportunistic. However, the prosecutor pointed to evidence that this offence was planned (referred to above); that it was part of a series of drug related offences committed over a number of days; and that the applicant had been actively trying to avoid police and avoid detection for her part in the robbery in the days before she was apprehended.
The applicant’s hair was dyed pink on the ends on the day of the robbery. (This is reported by witnesses and shown on CCTV footage.) At 4:00 am the next morning she was a passenger in a car that was involved in a police chase – and was observed still to have pink hair. During that day (1 February) police put out a media release which included a description of one of the suspects as having pink hair. When the applicant was arrested on 10 February, her hair had been dyed black. The Crown submits that it can be inferred that she dyed her hair in an effort to escape detection.
There is also evidence that police were looking for the applicant without success for a number of days but I do not place any great weight on that.
The Crown tendered statements by the applicant’s aunt to the effect that a great niece who was living with her had told her the applicant had been to her house between 1:30 and 2:00 am on 10 February. At around 6:00 am that day the aunt discovered that a quantity of jewellery belonging to her and other family members was missing, along with her great niece’s mobile phone and a bag.
Later that day, police apprehended the applicant walking along McMillans Road carrying a bag containing the stolen jewellery, the cousin’s mobile phone and several other mobile phones. The bag also contained several “deal bags” containing small amounts of a white crystalline substance.
When police seized the applicant’s mobile phone – which kept ringing - there was a message on the screen which had been sent to a person known to police as a drug dealer (and at whose address they believe the applicant was living) saying, “I am walking up the highway to Palmerston. I have got big mob of gold and phones.” Counsel for the applicant said on the bail application that her instructions from the applicant were that someone else (whom she named) had stolen her great aunt’s jewellery and that she was in the process of returning it. She also denied that she had sent the text message on her phone. The implausibility of those instructions casts doubt on the applicant’s believability in relation to other matters her counsel was instructed to put to the Court – for example the applicant’s desire to deal with her drug problem and her intention to comply with any bail conditions.
The prosecution submitted that the applicant was a methamphetamine user; that she had not dealt with that problem; that she had demonstrated a willingness to steal from family members and strangers to support her drug use; and that there was an unacceptable risk that, if she were given bail, she would continue to engage in those activities.
The applicant admitted that she had been taking methamphetamine in the period before the alleged robbery. However, her counsel contended that she had been “clean” for two months while in prison on remand; that she was keen to deal with the problem; and that she had taken steps to seek counselling. (A letter from Anglicare confirmed that she had engaged in one session of telephone counselling from prison.)
Counsel for the applicant contended that appropriate bail conditions including a curfew, movement restrictions, and electronic monitoring would appropriately mitigate any risk of breach of bail or offending while on bail, particularly given the current travel restrictions in place to deal with the COVID-19 pandemic.
The prosecutor countered that a curfew would not have prevented the current offending which was committed in the middle of the afternoon.
Conclusion
The onus is on the applicant to show that bail should be granted taking into account those matters in s 24 of the Act.
The matters for consideration under s 24(1)(a) are finely balanced. I accept that the applicant has family ties in Darwin: her sister lives here and is willing to have the applicant live with her. Her son also lives in Darwin and the sister is willing for him to live there too. On the other hand her daughter is in Queensland and unable to join her in the Territory.
I accept that the COVID-19 travel restrictions would make it more difficult for the applicant to abscond interstate – but not impossible - and it is still possible to abscond within the Territory.
The applicant has no history of breaching bail or failing to appear in court. On the other hand this is the first time she will be facing court on a serious charge which may result in substantial prison time. The fact that she says she feels strongly motivated not to return to prison cuts both ways. It is at least as big an incentive not to face court as it is an incentive not to breach bail.
The most important factor in relation to this application is that in s 24(1)(d) - the likelihood that, if released on bail, the applicant may commit further offences or breach the conditions of her bail. I agree with the prosecutor that, in the circumstances, there is a real risk that the applicant may resume her drug use and commit further offences in order to obtain drugs.
I do not agree with counsel for the applicant that this risk can be safely managed by appropriate bail conditions. An electronic monitoring device is only effective if the person wears it and complies with the rules. In any case, an exclusion zone may stop the applicant from going to places where her drug using/supplying associates live, but it can’t stop them going to her. A curfew will not prevent offending during the daytime.
Another condition suggested was a ban on attending licensed premises. (These are closed at the moment in any event.) However, opportunities for stealing from family members and others abound outside licensed premises.
I do not think the other factors in s 24 outweigh this unacceptable risk. As mentioned above, conditions on remand [s 24(1)(b)(i)] have become more onerous since the COVID-19 , but not so onerous as to outweigh the risks already mentioned. Further, it is premature at this stage to say that there is a real risk that the applicant may spend more time on remand than she is likely to be required to spend in prison if found guilty.
As for the consideration in s 24(1)(b)(iii), her need to be at liberty for any lawful purpose, no doubt it would be desirable for the applicant to have face to face counselling but she will not be deprived of all counselling if not granted bail. She has already begun to make use of the telephone counselling service. So far as the desirability of her being at liberty to resume care of her son, I have not been given enough information to form a view about that. (For example, I have not been given evidence of his present living and care arrangements, or of what they were before the applicant’s arrest.)
I agree with the prosecutor that the applicant has not satisfied the onus of establishing that bail should be granted.
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[1] On the bail application in the Local Court, identity was said to be in issue.