R v BB [2013] ACTSC 92

3. So as not to overburden [BB], which can be a recipe for failure, especially for those who are likely to have difficulty organising themselves as many offenders have, the bail conditions relied heavily on directions from the person I directed to supervise him.

4. The evidence is that he was given a direction, inter alia, not to consume alcohol. While there are offences for children and young people buying liquor or consuming or possessing liquor in a public place (see Div 14.2 of the Liquor Act 2010 (ACT)), it is not an offence for a young person, as is [BB], to consume liquor.

5. There was no evidence that [BB] had committed any of these offences, though he may have done so. I should not speculate, however, even on a consideration of bail.

6. The evidence was that he and a fellow resident were picked up by a staff member of the accommodation where he was residing as he had been directed to reside, and the staff member found that both were intoxicated. When questioned, [BB] said that he had, "just been having a good time, and had not had any alcohol". That was not only untrue, it was stupid, because he displayed obvious signs of intoxication. He smelt of alcohol, his eyes were glazy, and he was hyperactive, loud and inappropriate.

7. About an hour later, after he had presumably sobered a little and one of his companions had been taken to hospital for intoxication, he confessed that he, the other resident and the other companion had drunk two bottles of rum, a considerable quantity of alcohol. He was said to appear to be careless of the outcome.

8. He was advised that his breach of directions would be reported. I was advised that he was told that breach action would be initiated, though the evidence about that was somewhat thin. In any event, he presented himself to the Court late yesterday afternoon to have the breach of bail reported to the Court.

9. Despite the breach application being brought on so quickly, neither party sought an adjournment to obtain further instructions or other information. [BB] admitted that he had been given a direction not to drink alcohol, that the direction was reasonable, and that he had breached it.

10. Despite my concern about the content and number of bail conditions when I granted [BB] bail, I note that the officer appointed to supervise him had given him eleven directions. I am not critical of that; it is a matter for [BB] and the supervisor.

11. I heard evidence from Ms Ashlee Brewer, the case manager for [BB]. She told me that [BB] had been attending drug and alcohol counselling once a week and that he participated in a program of the Richmond Fellowship where he was engaged in various volunteer work activities.

12. Ms Brewer met [BB] once a week to complete what she described as the CHART program, of which he had completed two modules. He was also involved in motivational interviewing to reduce the risk of reoffending.

13. She told me that [BB] was, from time to time, staying with his sister, and that this was not problematic. He was complying with the curfew that had been imposed.

14. She told me that there were no other breaches. In particular, there was no evidence of drug use.

15. She confirmed that the submissions about [BB]'s progress, made by his counsel, Ms T Warwick, were accurate. These were that [BB] had obtained employment as a bricklayer and that this required him to work six days a week between 6:30 am and 3:30 pm. He had found this too onerous, and had ceased that employment, but was actively looking for alternative work.

16. He had complied with the requirements made by the Richmond Fellowship, whose program he was attending. He was actively pursuing his Year 10 Certificate and expected to complete that, but not until after he was sentenced. He was engaged in two episodes of tutoring a week.

17. [BB] could offer no explanation as to why he became intoxicated. He did return to his residence in accordance with the curfew and to face the consequences.

18. Mr A Williamson, who appeared for the Crown, sought that I revoke [BB]'s bail. He said that [BB] had had many chances and was a serial offender so far as breaches while on conditional liberty were concerned. He also submitted that I should be sceptical of his surrender to the Court, as he asked me to accept that this was to avoid arrest and detention in police cells before being brought to the Court.

19. There is no doubt that [BB] has a long history of offending, and that he has breached obligations of conditional liberty. I note, further, that I am presently to sentence him on 22 May 2013, a little more than a week from today. The proximity of that is a relevant matter to be considered in a bail application (Burton v The Queen (1974) 3 ACTR 77 at 79).

20. I adjourned the proceedings overnight to consider my decision and remanded [BB] in custody in the meantime. I have given very careful thought to what the just disposition of this matter is.

21. I take into account that [BB] has complied with all other conditions of bail and directions given under the power of his supervisor to do so.

22. I take into account that what he did was not a crime and that there are no present allegations of further offending, apart, of course, from the further matters for which I am sentencing him.

23. I take into account the progress he has made, the employment he did undertake, the voluntary work he is doing, the study he is engaged in, the counselling and the drug and alcohol counselling in which he is involved.

24. I take into account that he did comply with the curfew, even though there would be inevitable consequences.

25. I take into account that he has a history of breaches with conditions of conditional liberty.

26. I also take into account that he lied about being drunk, though he must have been quite intoxicated at the time, and that this was more stupid than malicious. He did shortly later admit that he had been drinking.

27. While Mr Williamson's scepticism as to [BB]'s motivation for surrendering may be correct, the fact is he did so and saved police from having to arrest him. Like a plea of guilty, it has facilitated the administration of justice.

28. Part of my motivation for earlier granting [BB] bail was that, as he had shown that he could behave in custody, with some difficulties, there was a risk that if he was released into the community that would not translate.

29. It seemed to me, and still seems to me, that he will at some stage be released into the community, and the sooner he starts to deal with that effectively, the better for the community and its protection.

30. Ordinarily a breach such as this would not justify the revocation of bail. It is, of course, not an isolated situation, but it remains a matter of less seriousness than many breaches that the courts find do not justify revocation of bail.

I am not making a deferred sentence order. I am also not deciding that further incarceration is not appropriate. I am, however, giving BB an opportunity to show that the steps he has made in Bimberi are not merely show in order to be released, but are a genuine sign of his growing maturity and realising that he needs strenuously to address these issues as he will otherwise spend much of his future in custody.

32. It seems to me that [BB] has not forfeited the opportunity to show that he can address the issues that he needs to do so in order to avoid continuing offending and therefore inevitable incarceration.

33. Were the sentencing to be able to be brought forward to today, I would probably have proceeded immediately. Mr Williamson has a hearing today which prevents that. There may be other reasons.

34. I consider that I have made the point to [BB] that there are consequences for breaching the rules under which he is now required to operate, having placed himself under the regime by his offending.

35. Accordingly, I continue his bail on the same terms and conditions as before, save that the sentencing date needs to be varied because of the ceremonial sitting to farewell Master Harper and welcome Master Mossop.

36. I shall hear the parties on the date for sentence.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Kim Bolas Criminal Law