Thompson v The Queen - [2020] SASC 193

Supreme Court of South Australia
(Criminal: Application)
THOMPSON v THE QUEEN
[2020] SASC 193
Reasons for Ruling of The Honourable Justice Livesey (ex tempore)
1 October 2020
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
The applicant was arrested and charged with trafficking in a controlled drug, namely GHB or “fantasy”, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). Bail was applied for and refused in the Magistrates Court for the reasons that there was a risk that the applicant would reoffend and breach the terms of any bail agreement. Pursuant to s 14(2)(a) of the Bail Act 1985 (SA), the applicant sought a review of the order of the Magistrate refusing the applicant bail.
Held:
1. The applicant is on parole and has absconded while on home detention bail following the subject alleged offending. He has 25 convictions for breaching bail agreements.
2. The alleged offending is serious and there is a history of failing to comply with bail agreements.
3. The applicant’s application for bail is dismissed. Bail is refused.
Bail Act 1985 (SA) s 14(2)(a); Controlled Substances Act 1984 (SA) s 32(3), referred to.
R v Richards [2019] SADC 124, considered.

THOMPSON v THE QUEEN
[2020] SASC 193
Criminal: Application
LIVESEY J:
Introduction

This is an application for review of bail pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Act) following a Magistrate’s refusal to grant bail on 23 September 2020.
The Magistrate found that there was a risk that the applicant will reoffend and breach the terms of any bail agreement. The applicant contends that he is a proper candidate for bail on strict home detention conditions.
The subject alleged offending
By Information dated 27 April 2020 the applicant has been charged with trafficking in a controlled drug, contrary to s 32(3) of the Control Substances Act 1984 (SA) (the Controlled Substances Act). The drug involved is GHB, also known as “fantasy”.
The prosecution alleges that during the afternoon of Sunday, 26 April 2020 a silver BMW was stopped after an earlier attempt to stop the vehicle was unsuccessful because the driver evaded police. It is alleged that police observed the applicant leave the vehicle and run away. Nonetheless the applicant was stopped some metres from the vehicle and searched.
It is alleged that $8,000 was found in the pants of the applicant, together with another $780 in his wallet. The applicant was arrested and taken to a nearby police station. There, a further bundle of cash was found in the applicant’s underpants, being the sum of $4,950. It is also alleged that police found a bundle of cash in the amount of $17,200 in the top of the female co-accused.
The prosecution alleges that a search of the motor vehicle revealed a water bottle containing 280 millilitres of what was suspected to be 1.4 Butanediol. I was today told that that may have a value of up to $1,400. The search also unearthed several press seal bags containing a small amount of what was suspected to be methylamphetamine (two grams), together with a number of other empty press seal bags and “tick lists”. Mobile phones were seized, together with a tablet and a laptop.
Later at the police station the applicant was observed to be uncomfortable, fidgety and displaying unusual behaviour. It was suspected that he may have consumed a substance. As a result he was taken to a nearby hospital. Today I was told that blood and toxicology tests are still awaited.
It appears that the applicant did not initially apply for bail. However, had he done so the prosecution would have opposed bail because:
1the applicant is on parole and alleged to have committed serious offences whilst on parole;
2the applicant has served a term of imprisonment for serious drug trafficking;
3a parole breach notification has been delivered and the Parole Board is considering seeking incarceration; and
4the applicant’s admission to hospital appears to have been necessitated by the consumption of a very large quantity of what was suspected to be methylamphetamine prior to arrest. If proved, this would entail a breach of condition 12 of the applicant’s parole.
The matter initially came before the Magistrates Court on 27 April 2020 when a home detention bail enquiry report was ordered. When the matter next came before the Court on 1 May 2020 home detention bail was granted with a number of strict conditions. This was ordered notwithstanding opposition from the prosecution.
During the next three months, I was told, the applicant was fully compliant with the terms of his strict home detention bail. There were, amongst other matters, clean drug tests. However, on 31 July 2020 the applicant removed his electronic monitoring bracelet. I was told today that this was done because of concerns the applicant held about the female co-accused with whom he has been in a committed relationship. I was told that the applicant was concerned for her welfare.
When the matter next came before the Court on 5 August 2020 the applicant did not appear and a warrant was issued. The applicant was eventually arrested on 16 August 2020 at the Marion Hotel. When the matter next came before the Court on 17 August 2020 bail was not sought; however, a plea of guilty was entered in respect of the breach of the bail agreement and the Magistrate was prepared to convict the applicant without further penalty. Today I was told that that was likely because the applicant had spent one day in custody.
On 4 September 2020 a charge determination was made and committal proceedings were commenced, though negotiations had not commenced. Pleas of “not guilty” were intimated and bail was not sought. When the matter came before the Magistrates Court on 15 September 2020 bail enquiry and bail enquiry (home detention) reports were requested. Bail was finally sought on 23 September 2020 when, as I have indicated, it was refused.
The circumstances of the applicant
The applicant is nearly 25 years of age. His criminal antecedents report extends across five pages, commencing in 2004 with convictions for possessing housebreaking implements, carrying an offensive weapon and driving an unregistered motor vehicle.
In 2006 there was an estreatment of bail and in 2007 various drug possession offences. Thereafter the applicant has been before the Courts most years, including for drug offending and failing to comply with bail agreements.
In 2014 the applicant was convicted of driving with methylamphetamine in his blood and with breaching the conditions of his learner’s permit. In 2015 he was again convicted of failing to comply with a bail agreement and there was another estreatment of bail.
In 2016 the applicant was imprisoned for seven months in connection with numerous driving offences. In 2017 he was again imprisoned for dishonestly taking property without consent.
In 2018 the applicant was convicted of trafficking in a controlled drug and sentenced to two years, five months, one week and five days’ imprisonment with a non-parole period of one year and six months. In October 2018 the applicant was convicted of hindering police, for which he was discharged without penalty.
There have been a number of warrants issued including during 2012, 2013, 2015 (on five occasions), 2016, 2017 and 2020 (on two occasions).
According to a home detention enquiry report dated 1 May 2020 the proposed residence was suitable but it was recorded that during 2015 the applicant returned a positive drug test for methylamphetamine and amphetamine and was absent from his home detention bail address without permission. He had removed the electronic monitoring equipment. The applicant attended drug counselling between August and December 2019.
A bail enquiry report dated 1 May 2020 also revealed:
1the applicant’s mother is prepared to provide a guarantee;
2there were suspicions that the applicant may have tampered with drug tests in the past and he has been reluctant to fully engage with supervision;
3notwithstanding a nominated parole address, inquiries at that nominated address suggested that the applicant was unknown to the occupants; and
4the Parole Board issued a warrant for the applicant’s arrest on 27 April 2020 and requested a s 74 report which was due later the following month. Apparently the Parole Board is considering cancelling parole.
The application for review of bail
The applicant says that there is likely to be an extensive delay before this matter will come before the Court. The prosecution concedes that it may well be not until early 2022 before this matter is listed for trial.
The applicant emphasises that his mother is prepared to provide a guarantee and she is also prepared to provide a cash surety in the sum of $500.
The applicant maintains that there is a question about the search on which the prosecution relies. The applicant says that the search may be unlawful. In support of his challenge to the search in this case the applicant relies upon R v Richards.[1] That case involved a charge of trafficking in a controlled drug, based upon a search of a backpack which was located next to the accused who was travelling as a passenger in a taxi. During the course of her reasons, Judge McIntyre found that police in that case undertook a search based upon a “fundamental misconception” of their power to stop vehicles. She held that there was no proper basis for stopping the taxi in that case on the basis of a “traffic stop”. Judge McIntyre exercised her discretion to exclude the evidence obtained during the course of the search.
[1] R v Richards [2019] SADC 124 (McIntyre DCJ).
It is undesirable for me on the hearing of this application for review to express any opinion regarding the search in this case. On the face of it, the applicant is confronted with serious allegations and a lengthy period before trial.
The disposition of the application for review of bail
The applicant enjoys a presumption in favour of bail under s 10 of the Act.
However, the Crown today has emphasised that there have been 25 convictions for breaches of bail agreements. The allegations of offending, if proved, represent a serious breach of the conditions of the applicant’s parole and, as mentioned, he has only recently breached a bail agreement with strict home detention conditions.
In my opinion, the presumption in favour of bail is rebutted by the history of failure to comply with bail agreements, notwithstanding strict home detention conditions.
Accordingly, the order of the Court is that the application for review is dismissed and bail is refused.