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[2016] ACTSC 140
Supreme Court of the ACT
2016-06-17
Refshauge J
Original judgment source is linked above.
(b) that he accept supervision by the Director-General or her delegate and obey all reasonable directions of the person supervising him, including as to urinalysis;
(c) that he accept monitoring by the Court Alcohol and Drug Assessment Service (CADAS);
(d) that he attend the SMART Recovery program twice a week and consent to the Officer-In-Charge of the program providing to the person supervising him and to CADAS any information reasonably required in relation to attendance and engagement in the program;
(e) that he submit to urinalysis as and when directed;
(f) that he report to the Officer-in-Charge of Queanbeyan Police Station every Monday, Wednesday and Friday between 8:00am and 8:00pm;
CRIMINAL LAW- JURISDICTION, PRACTICE AND PROCEDURE - BAIL - Accused's circumstances -change in circumstances - special or exceptional circumstances - illness of family member - carer - drug use - rehabilitation
Criminal Procedure Act 1986 (NSW), s 47
Human Rights Act 2004 (ACT)
Magistrates Court Act 1930 (ACT), s 90B
Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)
Supreme Court Act 1933 (ACT), Pt 8
Criminal Code 2002 (ACT), ss 44, 308, 311, 318, 403
Application for bail by Celeski [2016] ACTSC 101
Connors v The Queen [2014] ACTSC 252
Director of Public Prosecutions v Cozzi [2005] VSC 195; (2005) 12 VR 211
DPP v Tang (1995) 83 A Crim R 593
Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168
Groth v Secretary; Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Harvey v Attorney-General for the State of Queensland [2011] QCA 256; (2011) 220 A Crim R 186
In an Application for Bail by Connors [2015] ACTSC 407
In the Application for Bail by Massey [2008] ACTSC 145
In the Application for Bail by Rodriguez [2008] ACTSC 50
In the Matter of an Application for Bail by Seears [2013] ACTSC 187
Re application for bail by Breen [2009] ACTSC 172; (2009) 172 ACTR 21
R v Kelly [1999] UKHL 4; [2000] 1 QB 198
R v McGrail [2016] ACTSC 142
R v Rubino [2012] ACTSC 157
R v Wilkins [2015] ACTSC 145
Sebbens v The Queen [2014] ACTSC 281
1. On 19 November 2015, David Celeski, was arrested by ACT police and charged with damaging property, attempted theft and trespass.
2. He appeared in the Magistrates Court on that day and was granted bail.
3. On 15 January 2016, he was intercepted by NSW police with two other people in a car in which stolen property, firearms and ammunition was found. Later that day, a warrant was executed on his premises in Queanbeyan, NSW, and stolen property, drugs, a firearm and ammunition was seized. As a result, a number of court attendance notices, under s 47 of the Criminal Procedure Act 1986 (NSW), were issued to him. He was, as a consequence, not remanded in custody and has remained at large for those offences, though whether on bail or not, the evidence before me does not enable me to tell.
4. Regrettably, he was then arrested by ACT police again, on 22 January 2016, and charged with burglary, theft and dishonestly riding in a motor vehicle without the owner's consent, as well as some summary offences, all of which offences were alleged to have been committed while he was on bail for the earlier offences. He was refused bail and remanded in custody.
5. On 6 May 2016, he applied for bail but it was refused by Murrell CJ: Application for bail by Celeski [2016] ACTSC 101.
6. He then applied for bail before me. On 17 June 2016, I granted him bail. Given the circumstances, it is appropriate I set out brief reasons for doing so. These are my reasons.
7. It is alleged that on 19 November 2015, Mr Celeski and a co-offender drove a rental truck to some commercial premises in Majura Park, ACT. He is said to have spray painted over the CCTV camera there to prevent detection and then attempted to remove an electric oven from the premises but was interrupted by a manager of the business conducted at the premises, who had arrived at the premises following the activation of a burglar alarm. Mr Celeski and his co-offender drove away in the truck.
8. Police later arrived and pursued the truck until it stopped. Mr Celeski ran from the truck but police chased and arrested him.
9. He was charged with damaging the CCTV camera, an offence against s 403 of the Criminal Code 2002 (ACT), for which the maximum penalty is 1,000 penalty units (a fine of $150,000) and imprisonment for 10 years, and attempted theft of the electric oven, an offence contrary to ss 44 and 308 of the Criminal Code attracting the same maximum penalty.
10. He was also charged with the summary offence of trespass, an offence against s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth).
11. He appeared in the Magistrates Court later that day and was granted bail. The proceedings were adjourned and, on 10 December 2015, he entered a plea of not guilty to the charges. On 20 April 2016, he was committed for trial to this Court.
12. On 15 January 2016, however, NSW police arrested Mr Celeski, as noted above (at [3]). He was charged with the following offences following the finding of certain goods in the car in which he was travelling: having money in his possession reasonably suspected of being stolen or otherwise unlawfully obtained, possession of a stolen firearm, possession of a prohibited weapon (being an extendable baton), possession of a prohibited firearm and possession of ammunition without authority.
13. As a result of a subsequent search of his house, he was charged with three offences of possession of a prohibited drug, having possession of various goods reasonably suspected of being stolen or otherwise unlawfully obtained, possession of ammunition without authority, cultivating cannabis and possessing a prohibited weapon without a permit.
14. I did not have details of the NSW proceedings in relation to these offences, save that Mr Celeski was not remanded in custody for them and, apparently, he has pleaded not guilty. The offences are due to be heard in June.
15. On 22 January 2016, however, Mr Celeski was found in the underground car park of some apartments in Harrison, ACT. A number of cars had been broken into and damaged. Mr Celeski was arrested but attempted to resist arrest. He had earlier been seen in a stolen motor vehicle in the car park. Mr Celeski was charged with damaging property (the same offence as mentioned above at [9]), dishonestly riding in a motor vehicle without the owner's consent, an offence contrary to s 318 of the Criminal Code which provides for a maximum penalty of 500 penalty units (a fine of $75,000) and 5 years imprisonment, burglary, an offence against s 311 of the Criminal Code for which the maximum penalty is 1,400 penalty units (that is a fine of $210,00) and imprisonment for 14 years and theft, an offence under s 308 of the Criminal Code attracting a maximum penalty of 1,000 penalty units (a fine of $150,000) and imprisonment for 10 years.
16. He was also charged with summary offences of possessing ammunition and obstructing a Territory official in the execution of his duty.
17. He appeared in the Magistrates Court on 23 January 2016 and was remanded in custody. On 2 February 2016, he pleaded guilty to the charges of burglary and theft.
18. The proceedings were adjourned to 18 February 2016 when he was further charged with summary offences of possession of goods reasonably suspected of being stolen, two offences of possession of drugs, affixing to a motor vehicle registration plates calculated to deceive and a further offence of obstructing a Territory official in the execution of his duty.
19. On 25 February 2016, he pleaded not guilty to the remaining charges. On 20 April 2016, he was committed to this Court for sentence on the charges of burglary and theft and all the summary offences were transferred to the Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
20. On 6 May 2016, he applied for bail. The application was heard by Murrell CJ. The basis of the application was that Mr Celeski had been assessed as suitable for admission to a drug rehabilitation facility conducted by Directions, Arcadia House, for admission to its Transition Program, a program I have described in R v Wilkins [2015] ACTSC 145 at [40]- [41].
21. He had been a drug user for some time and was keen to get help to stop using drugs.
22. As noted (at [5]), the Court dismissed the application because the desire to enter drug rehabilitation was not seen as special or exceptional circumstances, a necessary pre-condition to the grant of bail.
23. The Bail Act 1992 (ACT) is a complex piece of legislation which places certain considerations in the way of Mr Celeski's bail application.
25. The Bail Act provides for four primary approaches to bail by reference to the offence with which an accused person has been charged.
27. Section 9A of the Bail Act entitles an accused to bail, with or without conditions, unless the court is satisfied that a refusal is justified having regard to the considerations set out in s 22 or s 23 as applicable. See R v McGrail [2016] ACTSC 142.
28. These two provisions are said to provide a presumption in favour of bail.
29. Section 9B of the Bail Act provides that there is no presumption in favour of bail for an accused charged with certain other specified offences. I have discussed what that means in Re application for bail by Breen [2009] ACTSC 172; (2009) 172 ACTR 21 at 26; [44]- [52]. I do not need to consider that further here.
31. In this case, the offences with which Mr Celeski has been charged are those to which s 9A of the Bail Act apply. That is to say, he enjoys an entitlement to bail unless, having regard to the matters set out in s 22 of the Bail Act, refusal of bail is justified. Because of the timing of Mr Celeski's charges and bail application, however, he faces two further jurisdictional issues.
32. Where a person, charged with an offence defined in the Bail Act as a serious offence, is granted bail but then is charged with committing another serious offence during a period when granted bail for the earlier serious offence, he or she can only be granted bail for the further offences if there are special or exceptional circumstances found by the court favouring the grant of bail: s 9D of the Bail Act. If applicable, this is a threshold question that must first be determined: In an Application for Bail by Connors [2015] ACTSC 407 at [4].
33. As can be seen from the penalties referred to above (at [9] and [15]), the indictable offences with which Mr Celeski has been charged are serious offences for the purposes of s 9D of the Bail Act, which defines serious offences as those offences punishable by imprisonment for 5 years or longer. Thus, Mr Celeski's application had to address this threshold issue.
(a) that since the last application for bail there has been a change in circumstances relevant to the granting of bail; or
(b) that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.
35. This is also a threshold issue to the hearing of the application. I shall address this matter first.
36. While the change in circumstances is said, in the legislation, to be one which is "relevant to the granting of bail", and not, as for example, under s 9D of the Bail Act, to "favour the grant of bail", it seems to me that it is likely that it should do so. On a consideration of interstate authorities, I so held in R v Rubino [2012] ACTSC 157 at [20]- [22]. That seems to me to make sense of the section also, for, if the change in circumstances was one that was to favour the refusal of bail, there would seem little point in embarking on a further application. On the other hand, the change may be neutral or it may make other matters more significant so I would not wish to say that such a change of circumstances must necessarily favour the grant of bail by itself, though this would seem likely.
37. I held in R v Rubino, however, that the change need not be such that bail must then be granted. Indeed, that would not be consistent with the Bail Act for, having decided this threshold issue, any bail application must then be considered in the light of the matters required to be considered under s 22 (or, where relevant, s 23) of the Act.
38. Further, as I also stated in R v Rubino at [17]-[24], this threshold test for the assumption of jurisdiction to hear a second or subsequent bail application should not be so low as to amount, effectively, to ignoring the statutory restriction but nor so high that the requirement to construe the legislation consistently with the Human Rights Act 2004 (ACT) cannot be met. See Connors v The Queen [2014] ACTSC 252 at [12]; In the Application for Bail by Rodriguez [2008] ACTSC 50 at [20].
39. I also note that the change in circumstances is not limited to, for example, addressing the reason or reasons why the court dismissed any earlier application for bail: Sebbens v The Queen [2014] ACTSC 281 at [23]. The legislation imposes no such restriction; the change can be about any circumstances so long as it is relevant to the granting of bail.
41. These words 'special or exceptional circumstances' are, as Boddice J point out in Harvey v Attorney-General for the State of Queensland [2011] QCA 256; (2011) 220 A Crim R 186 at 191; [24], ordinary English words, describing "a circumstance which is such as to form an exception, which is out of the ordinary course or unusual, or special or uncommon". See also R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at 208 per Lord Bingham of Cornhill CJ.
42. The words do not mean "unique, or unprecedented or very rare": Harvey v Attorney-General for the State of Queensland at 197; [42]. It must, however, be "something which distinguishes [the applicant's] case from others, to take it out of the usual or ordinary case": Groth v Secretary; Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545.
43. In the context of bail applications, it has been given such a meaning. See DPP v Tang (1995) 83 A Crim R 593 at 596. In In the Application for Bail by Massey [2008] ACTSC 145 at [8], I said that an application in such circumstances must "establish that there are some unusual or uncommon circumstances". Such circumstances must favour the granting of bail.
44. I also note that a combination of circumstances may amount to special or exceptional circumstances where one factor alone may not: In the Application for Bail by Massey at [28].
45. The principal matter on which Mr Celeski relied to meet both thresholds was the same matter, namely the illness of his son and need for him to be diagnosed and possibly treated in Sydney.
46. In this case, the change in circumstances is that the eldest child of Mr Celeski and his wife has recently been diagnosed with a life-threatening condition which appears to require urgent diagnosis and treatment, possibly unavailable in Canberra. That is also, in the circumstances, said to be a special or exceptional circumstance favouring the grant of bail.
47. The facts were set out in an affidavit by the wife of Mr Celeski and may be summarised as follows.
48. The child, a son, was born in 2008 and is now 8 years old in Year 3 at a primary school in Queanbeyan. He is the eldest of the four children that Mr and Mrs Celeski have; the others are aged 7, 5 and 3.
49. In late May or early June, this boy collapsed when playing rugby. He was taken to Queanbeyan Hospital where the cause of his collapse was investigated and his condition monitored. His heart beat was found to be irregular, but no other diagnosis was made and he was allowed to leave.
50. On 14 June 2016, he collapsed again at school and was taken at once to the family doctor who performed an electrocardiograph. His heart beat fell so dangerously low that he was at once taken to The Canberra Hospital by ambulance and admitted for investigation.
51. Although initially required to be in hospital for some weeks, he was, in fact, discharged on 16 June 2016. An outpatient Magnetic Resistance Imaging was performed and an urgent referral was made to a specialist Paediatric Cardiologist at Westmead Hospital in Sydney.
52. On his discharge from The Canberra Hospital, the boy was noted to be able to attend school but it was suggested in the discharge summary that he should not be involved in any vigorous activity, including "running around" during Physical Education lessons or breaks for Lunch or Recess.
53. He was examined by the family general practitioner the next day, who certified that the boy's "medical condition ... needs urgent attention and his mum ... is taking him to Sydney for a further specialist appointment".
54. An email from the Principal of the boy's primary school stated that the staff at the school were concerned and had discussed how to respond if there were to be a further incident. She suggested that he be put in a learning support room and not permitted into the playground, remaining in the learning support room during the breaks, but, if he wishes, with a friend, a rather restrictive environment for a young boy.
55. Ms Celeski supplemented this evidence with oral evidence. She explained that she was an only child and that both her parents lived overseas so she had no family support in Queanbeyan, where they live.
56. She said that Mr Celeski has two sisters; the older one has three children of her own and the younger works full-time. His parents also work in three jobs. Thus, none of them could reasonably provide care for his three younger children if she had to take the eldest to Sydney.
57. Before her eldest son's medical condition became apparent, Mrs Celeski had no difficulties looking after her children. The third child, however, is Autistic and that creates significant challenges for care.
58. While her eldest son was in hospital, she was able to call on the parents of her husband to assist but that could only be for a limited time during each day. Her husband's older sister was also able to provide some support but it, too, was limited.
59. She was waiting for an urgent appointment at the Westmead Hospital with the specialist but was very concerned about how she could cope when she had to go to Sydney for she could not really take the other three children with her and there was no-one with whom she could realistically leave them.
60. Were Mr Celeski to be granted bail, he could care for the other children while she was in Sydney.
61. It was put to Mrs Celeski that the offences committed by Mr Celeski were caused by his drug use which itself had been escalated by the diagnosis of Autism for their third child, which created a risk that, following a serious diagnosis of his son, he might again turn to drug use. She accepted that the earlier diagnosis did have that effect on her husband, but said that the current issue for the family was different and that Mr Celeski's time in custody had also given him a chance to de-toxify and realise how important it was to address his drug use.
62. His commitment could be confirmed, she said, by his acceptance for admission into the Arcadia House program, an approach supported by the family's general practitioner.
Consideration: special or exceptional circumstances
63. This circumstance was not present when the earlier application for bail was made.
64. There is no doubt that the illness of a close family member who requires support or assistance from the applicant for bail can favour the grant of bail: Director of Public Prosecutions v Cozzi [2005] VSC 195; (2005) 12 VR 211 at 215; [22].
65. The circumstances here cannot be described as other than unusual or out of the ordinary.
66. To this matter is to be added the fact that, despite the refusal of bail to attend a residential drug rehabilitation program, Mr Celeski has continued in his wish to address his need for rehabilitation from his drug addiction. He has not shown any drug use while in custody. He has enrolled in the First Steps to Recovery Program while in custody in the Alexander Maconochie Centre.
67. The First Steps to Recovery Program is delivered over nine weeks and aims to support participants with the challenges faced when ceasing or reducing substance abuse. It is an alcohol and other drug awareness, education and relapse prevention program, designed to assist participants to identify risk factors associated with relapse and to develop healthy alternative coping responses to habitual substance misuse and offending behaviour.
68. While I accept that the link between drug use and criminality is common and many drug users do attempt to address their drug problem, including by rehabilitation, sometimes by residential rehabilitation, the attempts Mr Celeski is making do seem to me to support the view that his family situation and his response is special or exceptional.
(a) whether Mr Celeski will attend to take his trial;
(b) whether Mr Celeski will, while on bail, commit further offences, harass or endanger the safety or welfare of anyone or interfere with evidence or intimidate witnesses or otherwise obstruct justice; and
71. Relevant to this consideration are some further matters of fact about Mr Celeski and his background. For this, I had access also to the affidavit filed in support of the earlier bail application. From the material before me, I can make the following findings.
72. Mr Celeski is now 34 years old. He was born in Macedonia, though he came to Australia with his family when he was 5 years old. He witnessed some family violence in his childhood.
73. Mr and Mrs Celeski are married and have been together for 15 years.
74. They have, as noted, 4 children, the third having been diagnosed with Autism. This has been a significant stressor for him and led to him "self-medicating" with illicit substances.
75. The family own a house in Queanbeyan. Mrs Celeski is prepared to use it for collateral to provide a substantial surety for Mr Celeski's bail.
76. Mr Celeski had worked in the construction industry until he was remanded in custody.
77. He has some mental health concerns. He has been diagnosed with Bi-Polar Disorder and has experienced visual hallucinations. He currently experiences anxiety and depression. He has been involved with Forensic Mental Health while in custody.
78. He has a relatively short criminal history, though there are some serious charges on his record.
79. In particular, in 2001 he was convicted of affray and malicious wounding for which he was sentenced to a suspended prison sentence of 9 months. In 2003, he was convicted of unlawfully confining a person for which he was sentenced to a suspended prison sentence of 8 months. For an offence of assault occasioning actual bodily harm at the same time he was merely fined $600.
80. Other than these offences, he has only been convicted of traffic offences. They are, of course, still criminal offences. There are, however, 9 traffic offences on his record, including serious matters such as 4 offences of driving whilst disqualified from holding or obtaining a licence and 2 offences of driving whilst his licence was suspended. The most recent offence was committed on 22 September 2011.
81. He has, however, had no convictions recorded for four and a half years and no convictions for serious offences for thirteen years.
82. Mr Celeski's depression, especially over his third child's Autism, escalated his use of illicit drugs, specifically his drug of choice being methylamphetamine, from about 2008.
83. In 2012, he and his wife went to Macedonia where they lived and worked in the family business of Mrs Celeski until they returned to Australia in 2014.
84. Mrs Celeski said that, while in Macedonia, Mr Celeski did not use illicit drugs, although he frankly told the author of a report from the Court Alcohol and Drug Assessment Service (CADAS) that he was prescribed Dexamphetamine and Xanax but, when the supplies of these drugs ran out, he occasionally used cocaine which developed into regular use of methamphetamine and MDMA.
85. His recent offending was, he said, related to his drug use. Since being in the Alexander Maconochie Centre, he has been assessed as suitable to be admitted to the Arcadia House Transition Program, to which program he has shown commitment, and has undertaken the First Steps to Recovery Program.
86. He is said to have been subject to regular urinalysis while in custody where he has remained drug free. This was substantially confirmed in an email from his Case Manager at the Alexander Maconochie Centre.
87. Despite some apparent breaches of court orders in the past, he is not shown as ever having failed to attend court when required. In addition to that, the risk to his property by the grant of a surety, where the evidence shows he is committed to the welfare of his family, satisfies me that he is not likely to fail to appear to take his trial in due course. His stable family situation supports this.
88. As to the second group of matters that require consideration, they are a mix of concerns required to be addressed.
89. The first is the risk of re-offending. This is always a concern for a person addicted to illicit drugs. However, as held in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 at 184; [55]- [56], a court must be satisfied from evidence that there is "a real likelihood of the applicant committing an offence while released on bail".
90. I have considered this issue in some detail in In the Matter of an Application for Bail by Seears [2013] ACTSC 187 at [24]- [29], where I pointed out, after reviewing the authorities, that merely on the basis of an applicant's antecedents, the court should not find there is a risk of re-offending. A court should also have regard to how appropriate (and appropriately enforceable) bail conditions might manage that risk.
91. In this case, Mr Celeski's drug use is obviously of concern; it precipitated this bout of alleged offending. On the other hand, Mr Celeski seems to have been drug free while in custody, which is now nearly six months. He has also expressed a strong wish to rehabilitate, taking some positive steps, even in the face of the setback of the earlier refusal of bail.
92. Other than the current offences with which he has been charged, and which cannot be dismissed as irrelevant, Mr Celeski has no recent criminal history and his history is, for the most part, relatively less serious.
93. With specific bail conditions to undertake some intensive rehabilitation, I am satisfied that the risk of re-offending does not justify refusal of a grant of bail.
94. There is no suggestion of any of the other relevant matters, such as interfering with witnesses, obstructing justice or endangering anyone's safety or welfare.
95. Finally, his interests are clearly to be granted bail, though this may not be precisely what the factor means. I do not need to consider that here.
96. Thus, I considered that it was appropriate to grant bail and I did so. These are my reasons.
I certify that the preceding nine-six [96] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Celeski [2016] ACTSC 140
(2005) 12 VR 211
(1999) 92 FCR 168