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[2026] ACTSC 229
Supreme Court of the ACT
2026-07-07
White J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Brown Citation: [2026] ACTSC 229 Hearing Date: 7 July 2026 Decision Date: 7 July 2026 Before: White J Decision: (1) The application for bail is refused. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail application – where the offender has pleaded guilty to one count of arson and is awaiting sentence –– where a family member outside of the ACT is willing to supervise the offender – where the offender has drug and mental health issues – where the s 10 threshold is likely crossed Legislation Cited: Bail Act 1992 (ACT), s 22 Crimes (Sentencing) Act 2005, s 10 Cases Cited: DPP v Kazmar-Hall (No 2) [2025] ACTSC 326 Parties: Director of Public Prosecutions Alexander Peter Brown (Offender) Representation: Counsel H Wagner (DPP) E Wilson (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Number: SCC 68 of 2026 WHITE J: EX TEMPORE REASONS (REVISED)
The applicant for bail, Alexander Peter Brown, has been charged with one count of arson and has already spent 189 days in custody. He pleaded guilty to that offence and a sentencing date in this court has been set for 17 September 2026.
The offence is serious. It might be characterised as a trivial dispute which had extremely serious consequences. The fire that he set caused considerable damage and had devastating effects on other residents of his unit complex who are Housing ACT tenants. He now applies for bail and the bail conditions that are suggested on his behalf essentially involve him staying with an aunt in Moruya. I will come to those conditions in more detail later.
Now, because this is a repeat application for bail, the applicant does have to show exceptional circumstances. However, the prosecution in this case concedes that exceptional circumstances are made out by the availability of this residence in Moruya in New South Wales as a possible route for him to obtain bail. So the issue becomes one under s 22 of the Bail Act 1992 (ACT), which sets out the normal considerations of bail.
The prosecution opposes the grant of bail and places its position particularly on what is said to be the likelihood of the offender committing further offences, but the prosecution also points out that, under s 22(2) of the Bail Act, a court considering a grant of bail must consider the likelihood of a person being given a sentence of imprisonment.
Now, in this case it is very difficult to forecast the likely sentence, but both parties agree and it seems to be highly likely that the s 10 threshold is crossed. In other words, the likely sentence will be a sentence of imprisonment, and the only issue will be whether that is to be served full-time or in the community pursuant to an intensive correction order.
The applicant has applied for an assessment for an intensive correction order. That assessment is not yet available and is likely to be available quite close to his sentencing date of 17 September 2026. The applicant did seek a Drug and Alcohol Sentencing List (DASL) eligibility assessment report, but he was not recommended as suitable for progression to a DASL suitability assessment and I will come back to that.
Essentially there were issues with continuing drug abuse and his attitude to offences, as well as mental health concerns. The applicant has a very minor criminal history. The latest offence was in 2019 but that does not seem to have been particularly serious because it resulted in fines being imposed upon him. He does have one failure to appear in 2013 but, of course, that is a very long time ago and he was certainly quite young at that stage.
The suggested conditions that are put forward on his behalf are contained in an affidavit of Eliza Wilson. There is an aunt who lives in Moruya in New South Wales. The applicant is this aunt’s nephew and the aunt is willing to provide an address for the applicant in Moruya. The aunt is aware of the offence to which the applicant has pleaded guilty and she would be content for curfew checks to occur and the property that she lives in is quite close to the Moruya Police Station so there could be reporting to the police station in Moruya if that were required.
Unfortunately, the aunt is not well. She has a recent diagnosis of Parkinson’s Disease and she is retired from work. She certainly has no plans to travel in the next six months, and I get the impression that she would welcome the assistance of her nephew in her current predicament and it is put on the applicant’s behalf that he, indeed, would be very willing to assist his aunt.
I mentioned before that the prosecution has put its opposition to bail on the basis of concerns about committing further offences. I do not consider the threat of further offending to be a great risk in this case.
However, the matters referred to in the DASL report, which the prosecutor also draws my attention to, are of some concern. The DASL report dated 28 April 2026 records in its recommendation that the applicant was likely experiencing severe substance use disorder at the time of the offences and that, I interpolate, seems to be borne out by the circumstances concerning the allegation of the arson. There is a statement of facts for that matter on the file and it does seem to bear out that description. But the DASL assessment goes on to say: His ongoing and acute risk profile raises serious doubts regarding the feasibility of safely managing him within current community-based treatment frameworks.
It also goes on to say or refer to: The complexity and severity of his mental health presentation alongside the persistent and high-risk nature of his behaviour and the added risk of homelessness.
That was the basis on which the report concluded that he was not recommended for progression to a DASL suitability assessment. But those matters are also relied upon by the prosecution in this case as being relevant to a grant of bail. I have to say, having considered the suggested conditions, they do not provide great confidence to the court that it would be appropriate to grant bail on those conditions. The issue is that the aunt needs care herself. She will not be in a position really to superintend the adherence by the applicant to the various conditions in the bail.
Also, the bail would require him to live out of the ACT. The prosecutor very fairly points out that there are really two aspects to that. First of all, removal from the ACT and removal from social networks that the applicant has in the ACT may be of some assistance to him but it also, on the other hand, does make monitoring his progress and, indeed, his adherence to bail conditions very difficult for ACT authorities. In this regard, the applicant’s representative did advise me that she has been instructed to agree to a condition that the applicant would return to Canberra every 21 days for assessments by ACT Corrections if that were necessary and I think that could also, she suggested, include urine testing for any drug issues. So that is put forward on behalf of the applicant.
However, I have to say that I have difficulties having confidence that that arrangement will really assist in the drug issues and the mental health issues with which the applicant is apparently suffering. As I think I indicated earlier in my remarks, it seems inevitable that a sentence of imprisonment will be imposed upon the applicant for what is a very serious offence and the real issue is whether he will serve that full-time or by way of an intensive correction order. If he does obtain an intensive correction order, which is no doubt his preferred option in terms of sentencing, then that will be served within the ACT community and I am not sure that an excursion for a few weeks into NSW will really assist in that regard.
As well, I do have to consider the issue under s 22(2) of the likelihood of the applicant being given a sentence of imprisonment. I take that criterion to really be a criterion which indicates that the possibility of a term of imprisonment might be a disincentive for a person to comply with bail conditions. But it is also a fact that it is highly likely that, even if he were granted bail, he may well be required to serve a further sentence of full-time custody in this matter. I am not in a position to forecast what the likely sentence will be.
I was provided with one useful sentencing precedent of Christensen AJ in DPP v Kazmar-Hall (No 2) [2025] ACTSC 326 in which a somewhat similar matter, although possibly not as serious, was visited with a term of eight months’ imprisonment. But I have a sense that the present matter may be more serious than that. That does not mean that the sentence of imprisonment will be greater but I do not think I can say with confidence that there will be no further sentence of imprisonment and, indeed, the issue of how that sentence will be served if it is imposed is not something that I can really speculate about. I am left with the likelihood in terms of s 22(2) that the applicant will be given a sentence of imprisonment.
In all the circumstances, I consider that the risk of admitting the applicant to bail is not justified and that although a great deal of work has been put into putting together some conditions for his adherence to bail, I nevertheless find myself in the situation where I do not have confidence that those conditions would, in the circumstances, be adequate. And so, in that situation, I refuse the application for bail.
Order
I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice White. Associate: Date:
DPP
Brown