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1. Following the entry of pleas of guilty to a number of serious offences, Kyle Hiscox was committed to this court for sentence. His matters were first before the court on 30 October 2024. He wished to be assessed for suitability for participation in the Drug and Alcohol Sentencing List. Places are available in that list. However, given the allocation of resources to the staff that support the operation of that list, there is a backlog of assessments of eligibility and suitability for entry into that list. This backlog prevents people from being assessed in a timely way for suitability for entry into that program. That meant that, on 30 October 2024, his matter was listed in the Drug and Alcohol Sentencing List only on 21 March 2025, four months and three weeks later. Unless granted bail, he is required to spend that period in custody before any part of the Drug and Alcohol Sentencing List process even commences.

2. He also faces an impediment in being granted bail. That arises from the operation of s 9D of the Bail Act 1992 (ACT). That applies because, after he was charged with burglary in January 2024, he committed further offences including assault occasioning actual bodily harm, recklessly threatening to kill a person, and contravention of a s 3LA order. Section 9D precludes the court granting bail “unless satisfied that special or exceptional circumstances exist favouring the grant of bail”.

3. These two factors, the waiting time for assessment for the Drug and Alcohol Sentencing List and the requirements of s 9D of the Bail Act 1992, increase the number of persons required to be held in custody on remand.

4. In the present case, Mr Hiscox contends that the requirement of special or exceptional circumstances is satisfied because, in the period between being remanded in custody on 14 August 2024 and a change in the custody arrangements within the Alexander Maconochie Centre (“AMC”) from 30 October 2024, he was an accused person detained along with sentenced prisoners. He submitted, consistently with the decision in DPP v Alexander (a pseudonym) [2024] ACTSC 161, that this involved a breach of his human rights. He submitted that this past breach of his human rights was sufficient to establish special or exceptional circumstances. If that hurdle was overcome, he submitted that it would be appropriate to grant him bail on conditions that included him participating in a residential rehabilitation program.

5. Notice was given to the Human Rights Commissioner and the Attorney-General of the applicant’s argument on 30 January 2025. Consideration

6. It is first necessary to consider whether the s 9D threshold is satisfied. The evidence discloses the following chronology: (a) 20 January 2024: the offence of burglary was committed and the applicant was subsequently granted bail. (b) 12 August 2024: the applicant was remanded in custody following offences committed on 6 August 2024. (c) 12 August 2024 to 1 September 2024: the applicant served a sentence of three weeks as a result of a backdated sentence on a charge of common assault, imposed in December 2024. (d) 12 September 2024: the applicant commenced the Solaris Therapeutic Community program at the AMC run by Karralika Programs Inc. (e) 18 September 2024: amendments to s 44 of the Corrections Management Act 2007 (ACT), as a result of the Justice and Community Safety Legislation Amendment Act 2024 (ACT), came into effect. (f) 14 October 2024: the applicant pled guilty to the outstanding charges and was committed for sentence to the Supreme Court on seven charges and a related charge transferred to the Supreme Court. (g) 30 October 2024: there was a change in AMC policy so as to routinely separate remanded and sentenced detainees. (h) 30 October 2024: the proceedings were listed in the Drug and Alcohol Sentencing List on 21 March 2025. (i) 19 November 2024: a decision was made under s 44(4) of the Corrections Management Act 2007 permitting the applicant to be accommodated with sentenced prisoners in order to participate in the Solaris Therapeutic Community program. (j) 25 January 2025: the applicant completed the Solaris Therapeutic Community program but remained in the same accommodation as a peer mentor.

7. The submissions made by the parties did not identify with precision the period during which there was a breach of the applicant’s right under s 19(2) of the Human Rights Act 2004 (ACT). The chronology would indicate that any breach occurred in the period 12 August 2024 to 19 November 2024. That a backdated sentence was imposed between 12 August 2024 and 1 September 2024 would not appear to affect the characterisation of his detention at the time when it occurred. It appears that, notwithstanding the fact that there was a general change in arrangements at the AMC from 30 October 2024, the applicant remained in unsegregated accommodation as a result of his desire to participate in the Solaris Therapeutic Community program. Although the evidence was not detailed enough to disclose what was occurring in the period from 18 September 2024 until 19 November 2024, I infer that, between the amendments to s 44 of the Corrections Management Act 2007 taking effect and the making of a statutory direction that he not be accommodated separately from convicted detainees, administrative arrangements were being put in place to address the circumstances of individual detainees following the amendment of the law.

8. I will deal with the matter on the basis most favourable to Mr Hiscox, namely that there was a breach of s 19(2) from 12 August 2024 until 19 November 2024.

9. There is no evidence of any harm or adverse circumstances that arose for Mr Hiscox during that period and, in particular, no evidence of any harm or adverse circumstances that arose from his being detained along with sentenced prisoners. From 12 September 2024 he was voluntarily participating in the Solaris Therapeutic Community program which involved a mix of sentenced and unsentenced prisoners.

10. The position is that there has been a past breach of his right under s 19(2) but that is not identified as having given rise to any harm, there is no continuing breach and there will be no breach in the future if bail is refused.

11. Section 9D looks to the circumstances that exist at the time that the court is considering the application for bail. That does not preclude consideration of things that have occurred in the past so long as they are circumstances which would favour the grant of bail at the time when the court is considering it. The decision in Re Ngata [2015] ACTSC 139 was directed to a somewhat different point, and I do not consider that it precludes consideration of matters that have occurred in the past so long as they are relevant to whether special or exceptional circumstances exist favouring the grant of bail at the time when the court is considering the issue.

12. In the present circumstances, what has been established is a past and non-continuing breach of the Human Rights Act 2004 which is not demonstrated to have had any particular adverse consequences for the applicant. The bare existence of a breach of the law is not, in my view, sufficient to be a factor which presently favours the grant of bail. Further, even if it was a factor that favoured the grant of bail, it is not one which satisfies the requirement of there being special or exceptional circumstances favouring the grant of bail.

13. Having not satisfied the threshold in s 9D(2), it is not open to the court to grant bail.

14. Had s 9D been satisfied, then I would have granted bail on condition that the applicant attend the residential rehabilitation program. Having regard to his interest in being out of detention, I would have made such an order notwithstanding that being out of custody prior to sentencing may not assist him in his submissions that a Drug and Alcohol Treatment Order is an appropriate disposition in the circumstances of the case.

Order

15. The order of the Court is: (1) The application for bail is dismissed.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: