CRIMINAL LAW - BAIL - Bail Act 1992 (ACT) s 9D - special or exceptional circumstances - whether acceptance to drug rehabilitation and stable family constitute special or exceptional circumstances - bail refused

Bail Act 1992 (ACT) s 9D

SCC 78 of 2016; SCC 79 of 2016;

SCC 80 of 2016; SCC 81 of 2016

1. The applicant applies for bail in relation to two sets of offences allegedly committed in the ACT on 19 November 2015 and 22 January 2016.

2. The facts in relation to the offences are set out in Exhibits 1 and 3.

3. It is alleged that, in the early hours of 19 November 2015, the applicant and a co-offender went to commercial premises. They were in possession of a rental truck and a pallet jack.

4. They entered the premises and caused damage to CCTV cameras. A witness arrived and followed the offenders, who left the premises. The police became involved. The applicant was arrested and charged with offences including theft, trespass and damage to property.

5. The applicant was granted bail. Although the precise terms of the bail are not known, the bail conditions included curfew and non-association conditions.

6. The applicant pleaded guilty to most if not all charges.

7. The second group of offences allegedly occurred on or about 22 January 2016.

8. The applicant has been charged with theft, burglary and driving a stolen motor vehicle. The applicant pleaded guilty to the theft and burglary charges and not guilty to the charge of driving a stolen motor vehicle.

9. At the time of his arrest, a small amount of drugs was located, as well as ammunition.

10. It was discovered that the applicant had breached a curfew condition attaching to the first set of ACT offences.

11. Police executed a search warrant at the applicant's home in Queanbeyan and located material which resulted in further charges, including a charge of cultivating cannabis. A cannabis cultivation setup was located at the premises. There were no plants, but residue was located and the allegation is that plants had grown and harvested.

12. In relation to the offences on 22 January 2016, the applicant was refused bail in the Magistrates Court. Bail was revoked in respect of the offences of 19 November 2015. It is in relation to these matters that the current application is made.

13. Meanwhile, on 15 January 2016, the applicant allegedly committed offences in New South Wales. He was apprehended with a co-offender in a vehicle that contained stolen property, including firearms and ammunition. The applicant was seated in the passenger seat and it is alleged that some of the ammunition was located adjacent to the passenger seat.

14. The applicant was charged with a number of serious firearms offences. He pleaded not guilty and is awaiting the service of a brief of evidence. The matter will come before a New South Wales court in early June.

Application of s 9D of the Bail Act 1992 (ACT)

15. The Crown opposes bail, among other things, on the basis that s 9D of the Bail Act 1992 (ACT) (Bail Act) applies to the "serious offences" of 22 January 2016. It is alleged that the applicant committed these "serious offences" while the 19 November 2015 "serious offence" charges were pending. In such circumstances, bail must not be granted unless "special or exceptional circumstances" are established: s 9D(2).

16. A "serious offence" is defined as one which carries a maximum penalty of imprisonment for five years or longer. Many of the offences with which the applicant has been charged carry such a penalty, including the offences of theft and burglary. There is an issue about whether offences committed in New South Wales are "serious offences" for the purposes of the ACT Bail Act, but as "serious" ACT offences have been charged in relation to both November 2015 and 22 January 2016, it is not necessary to determine that matter. In any event, the NSW charges are matters to be taken into account on the bail application.

17. The applicant is now 34 years of age. He is as married man. He has been in a relationship for 15 years. There are four young children of the relationship, who are aged between three and eight years. The applicant and his wife own a property in Queanbeyan. The applicant's wife is prepared to offer the equity in the house as security in relation to bail.

18. The applicant has suffered from depression. He has a background of drug abuse, having used methamphetamine since 2008. He returned to Macedonia in 2012 to 2014 and, according to his wife's affidavit, he was drug free at that time. However, on closer examination, it appears that he was not entirely drug free. He was using dexamphetamine while in Macedonia and, by his own admission, he was using Xanax to excess. After he returned to Australia in 2014, he obtained employment and, according to his wife, was living a crime free and drug free lifestyle but he relapsed into methamphetamine abuse some months before his arrest in November 2015.

19. The applicant has a fairly unremarkable criminal history. It consists mainly of driving matters. There is nothing on the record concerning drugs or dishonesty. There are a couple of relatively minor violence matters, but looked at overall his criminal history does not tell against him.

20. The questions are whether, as s 9D of the Bail Act applies, the applicant has established special or exceptional circumstances relating to the grant of bail and, in the event that he has established such circumstances, whether the Court should grant bail considering the criteria under s 22 of the Act.

21. The applicant has not established special or exceptional circumstances favouring the grant of bail.

22. The applicant relies on the following "special or exceptional circumstances". He is now in his thirties. He has a stable family situation and responsibility for young children. He has a supportive wife and the couple own their own home. Further, the applicant has been accepted for residential rehabilitation treatment at Arcadia House. It is obvious that the applicant needs treatment for drug abuse; drug abuse has been closely connected with his criminal conduct. He is willing to undertake the treatment. As his legal representative submits, it is not always easy to obtain appropriate drug treatment, particularly a residential rehabilitation placement, and it will be unfortunate if the applicant misses out on that opportunity.

23. I accept the submission of the respondent that the link between drug abuse and criminality is very common and the applicant's circumstances in that regard are extremely common.

24. Similarly, while the applicant's domestic circumstances are considerably more stable than those of many accused, they hardly place him in a special position.

25. Nor does the combination of the applicant's personal circumstances, the availability of drug rehabilitation and the applicant's willingness to undertake treatment advance his position to one that amounts to "special or exceptional circumstances".

26. The threshold test under s 9D of the Bail Act has not been satisfied. Bail is refused.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.