[2015] ACTSC 297

Joseph Cockburn be granted bail to appear in court on 14 October 2015 on the following conditions:

(1) that he be released no earlier than 9.30 am on 15 September 2015 into the company of an employee of Karralika Therapeutic Community;

(2) that he admit himself to the Karralika drug rehabilitation program and remain in that program until he attends court;

(3) that he obey all reasonable directions of the officer in charge of the Karralika program;

(4) that, if he is not admitted, is discharged from or leaves the program before 14 October 2015, he is to report of the Registrar of the Supreme Court within one working day with a view to having his bail reviewed;

(5) that he not consume or be in possession of alcohol or illicit drugs.

CRIMINAL LAW - Jurisdiction, practice and procedure -bail - robbery - common assault - dishonestly drive someone else's motor vehicle without consent - dishonestly ride in someone else's motor vehicle without consent - intentionally cause damage to property - dishonestly appropriate property - making a demand with menaces - further offending whilst on bail - s 9D of the Bail Act 1992 (ACT) - bail attaches to a particular offence - offender seeking rehabilitation - special and exceptional circumstances

Bail Act 1992 (ACT), ss 6(1)(a), 9A(1), 9B, 9C, 9D, 22

Crimes (Sentencing) Act 2005 (ACT), s. 57(3), Pt 4.4

Human Rights Act 2004 (ACT), ss 18(1), 30

Magistrates Court Act 1930 (ACT), s 90B

Cooper v Corvisy [2010] ACTSC 165

In re: An Application for Bail by Nona [2014] ACTSC 111

In the matter of an application for Bail by Allen [2009] ACTSC 64

In the matter of an application for Bail by Dalton [2013] ACTSC 253

In the matter of an application for Bail by Marsh [2013] ACTSC 16

In the matter of an application for Bail by Massey [2008] ACTSC 145

R v Campbell [2010] ACTCA 20

R v Elphick [2014] ACTSC 377

R v Kristiansen [2015] ACTSC 159

1. On 13 May 2014, the accused, Joseph Cockburn, was arrested and charged with robbery arising out of dealings he had with the complainant on 12 April 2014 and then bailed to appear in the Magistrates Court on 28 May 2014. He appeared in the Magistrates Court on 28 May 2014 to answer the charge of robbery and was also charged with common assault on the complainant. He was again granted bail. The matters were adjourned on a number of occasions and, on 3 July 2014, Mr Cockburn entered a plea of not guilty to the charges.

2. On 11 September 2014, he was committed to this Court for trial. An indictment was filed, but it contained two counts preferred ex officio, namely, an offence of making a demand on the complainant with a threat to endanger the health, safety or physical wellbeing of the complainant (making a demand with menaces) and of dishonestly taking someone else's motor vehicle without consent. The former offence was clearly intended to replace the offence of robbery on which he was committed to this Court.

3. The charge of common assault on the complainant was transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT). Subsequently, Mr Cockburn was charged with other offences set out below, alleged to have been committed on the following dates:

1 November 2014 dishonestly drive someone else's motor vehicle without consent;

27 November 2014 dishonestly ride in someone else's motor vehicle without consent;

1 January 2015 dishonestly drive someone else's motor vehicle without consent;

1 January 2015 intentionally cause damage to property;

1 January 2015 dishonestly appropriate property;

5 January 2015 dishonestly appropriate property;

6 January 2015 intentionally cause damage to property;

6 January 2015 dishonestly take someone else's motor vehicle without consent

4. Each of these offences and the offence of robbery and of making a demand with menaces are offences for which the legislature has provided a maximum penalty of at least five years imprisonment.

5. On 1 January 2015, Mr Cockburn was also charged with offences which carried lesser penalties. I do not need to detail them at this point in time. These offences are currently before the Magistrates Court and have not been committed to this Court.

6. Mr Cockburn has now pleaded guilty to all of the offences with which he has been charged. He is to be sentenced on 14 October 2014 for the offence for which he has been committed to this Court and for the offences transferred to this Court. I was informed that all of the offences to which he has pleaded guilty in the Magistrates Court and which are not presently before this Court will, however, be included in a list of additional offences to be filed in Court by the prosecution.

7. Such a list is to be dealt with under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The Court of Appeal has set out in R v Campbell [2010] ACTCA 20 at [50], the way in which such offences are to be taken into account:

When section 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation. What is clear, of course, is that the offender is not to be sentenced for the additional offences. There may be occasions when it is appropriate for a judge to refer to the effect which he gives to additional offences taken into account in that way, but it is not obligatory for him to do so.

8. It is to be noted that s 57(3) of the Sentencing Act makes it clear that the court, even when taking the offences into account as set out, must not impose a penalty for the offences for which Mr Cockburn is actually being sentenced that exceeds the maximum penalty for those offences.

9. It appears that, when arrested for the further offences in January 2015, Mr Cockburn was remanded in custody. That is unsurprising because he would only have been granted bail if he had been able to show special or exceptional circumstances favouring the grant of bail. This is because s 9D of the Bail Act 1992 (ACT) applied to any bail decision made in the Magistrates Court. That section provides as follows:

9D Bail for serious offence committed while charge for another pending or outstanding

(1) This section applies if -

(a) a person is accused of a serious offence; and

(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.

Example

Claude is served with a summons to attend the Magistrates Court to answer a charge that he has committed the offence of taking a motor vehicle without consent (punishable by 5 years imprisonment under the Criminal Code, section 318 (1), and so a serious offence for this section). Before the court date, Claude is arrested and charged with having committed an aggravated robbery the day after being served with the summons (punishable by 25 years imprisonment under the Criminal Code, section 310, and so also a serious offence for this section). At the time of the alleged aggravated robbery, the charge of taking a motor vehicle without consent was still pending. This section will apply to any decision about the grant of bail to Claude in relation to the aggravated robbery charge.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -

(a) for an adult - the matters mentioned in section 22 (Criteria for granting bail to adults); or

(b) for a child - the matters mentioned in section 23 (Criteria for granting bail to children).

(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence - bail by authorised officer).

(5) This section does not affect the application of section 9F (4) and (5) to the accused person if -

(a) the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence; and

(b) an authorised person grants bail to the accused person.

(6) In this section:

outstanding - a charge against a person for an offence is outstanding -

(a) until the charge is finally dealt with in any of the following ways:

(i) the charge is withdrawn;

(ii) the charge is dismissed by a court;

(iii) the person is discharged by the Magistrates Court following a committal hearing;

(iv) the person is acquitted or found guilty by a court of the offence; and

(b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal - from the date the new trial is ordered until the earliest of the following happens -

(i) the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);

(ii) the order for the new trial is reversed on a further appeal.

Note: Found guilty, of an offence, includes -

• having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders - general)
• having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing)

(see Legislation Act, dict, pt 1).

pending - a charge against a person for an serious offence is pending if the person has not yet been charged with the offence, but the person has -

(a) been arrested for the offence (unless the person is later released without being charged with a serious offence); or

(b) been served with a summons to appear before a court to answer a charge for the offence; or

(c) at the invitation of a police officer, signed an agreement to attend court to answer a charge for the offence.

serious offence means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor's election).

10. In brief terms, the offence of robbery and the offences for which he has pleaded guilty in the Magistrates Court, listed above at [3], are serious offences within the meaning of the section. Mr Cockburn is alleged to have committed the latter offences while on bail for the former offence. Mr Cockburn has now applied for bail in respect of the offences before this Court, namely, making a demand with menaces and common assault. He has been admitted into the drug rehabilitation program at Karralika Programs Inc (Karralika) from 15 September 2015. I have described the program conducted by Karralika in R v Kristiansen [2015] ACTSC 159 at [12]- [14].

Section 9D of the Bail Act

11. A question has arisen as to the proper approach to this application. That is because there may be a doubt as to whether s 9D of the Bail Act applies. The offences for which Mr Cockburn seeks bail are not, however, the offences that are alleged to have been committed while he was on bail for a serious offence. The serious offence, namely the robbery, is the offence on which he had been granted bail in those circumstances.

12. The Crown submits that a plain reading of the section requires that special or exceptional circumstances apply to the grant of bail now that the conditions of s 9D(1) of the Bail Act have been made out. That is to say if a person is on bail for a serious offence and then is alleged to have committed another serious offence, no bail at all can be granted unless special or exceptional circumstances are made out.

13. The Crown referred me to In the matter of an application for Bail by Dalton [2013] ACTSC 253. In that case, Mr Dalton committed a burglary and attempted theft offences on 28 October 2012. I refer to these as the 2012 offences. They were, for the purposes of s 9D of the Bail Act, serious offences. He was then alleged to have committed offences, including robbery in company and lawful confinement, on 18 and 19 June 2013. I refer to these as the 2013 offences. They were also serious offences for the purposes of s 9D of the Bail Act.

14. He was, on 26 September 2013, convicted of and sentenced for the 2012 offences by the Magistrates Court. After that he applied for bail. The question arose as to whether, at that time, he was subject to s 9D of the Bail Act, as the 2012 offences were then no longer pending. The Court, rather unsurprisingly, held that he was still so subject, since it was the time of the alleged commission of the 2013 offences that was the relevant time to consider that issue and at that time the 2012 offences were still pending. That conclusion is unsurprising because it is consistent with the policy and the plain terms of the section.

15. That, however, does not assist the determination of the question at issue in this case; that is a very different situation. Nevertheless, I accept that the plain reading of the section may suggest that the Crown's interpretation is correct. If the conditions set out in s 9D(1) of the Bail Act apply, then bail cannot be granted at all, on any offence, unless special and exceptional circumstances exist favouring the grant of bail.

16. The difficulty with that construction is that it would mean that there was no time limit or offence limit on the application of the section. For example, one could conceive a situation where a person is charged with a serious offence, the first offence, and granted bail and then alleged to have, while on that bail, committed a further serious offence, the second offence. That person may then be granted bail on the further charge, but only if he or she shows special or exceptional circumstances favouring the grant of bail.

17. If that person then commits another offence, the third offence, whilst still on bail, a question would arise as to any operation of s 9D of the Bail Act. If the third offence was a serious offence, then clearly s 9D of the Bail Act would apply, as it would directly apply in its terms because, at least, of the relationship between the bail for the second offence, and, probably, for the first offence, and the allegation of committing the third offence. If, however, the third offence was not a serious offence or, more significantly, was an offence in respect of which there was, under s 8 of the Bail Act, an entitlement to bail, the situation seems to me quite different, and not requiring proof of special or exceptional circumstances.

18. While the commission of such an offence shows an apparent continuing disobedience to the law, it has to be remembered that an allegation of committing an offence is not to be accepted as proof that the offence has, in fact, been committed. Further, it would be a construction of the section that did not comply with s 30 of the Human Rights Act 2004 (ACT), which requires legislation "so far as it is possible to be so consistent with its purpose" to interpret Territory law "in a way that is compatible with human rights". Under s 18(1) of that Act the right to liberty is one such right.

19. I can see no purpose in the Bail Act that would require a person charged with a non-serious offence, or equally with an offence in respect of which the person was entitled to bail, as posited above, to be denied the human right to liberty, especially if the third offence was quite unrelated to the first and second offences and, for example, the nature of them. My construction of the section requires the grant of bail to be related to a specific offence or offences. In the case of Mr Cockburn, this requires me to consider bail for the offence of making demands with menaces and common assault.

20. This, it seems to me, is consistent with the construction of the Bail Act as a whole. See s 6(1)(a), 9A(1), 9B and 9C of the Bail Act. These refer to or can only be properly construed as referring to bail "in relation to an offence". I see no reason not to construe s 9D accordingly. Thus, in s 9D(2) of the Bail Act the words "in relation to the serious offence", meaning the offence referred to in s 9D(1)(a), must be assumed to be read into the section, for that is the whole context of the grant of bail in the context of the Bail Act.

21. The Crown, however, submitted that it is not necessary for the serious offence referred to in s 9D(1)(a) of the Bail Act, which must be "the offence" referred to in s 9D(1)(b), to be the offence for which the application is being made for bail to the court. The Crown further submitted that it was not necessary that the serious offence referred to in s 9D(1)(a) of the Bail Act must be the offence before the court considering the application of bail.

22. That seems to me to be inconsistent with In re: An Application for Bail by Nona [2014] ACTSC 111 at [6], which makes it clear that bail attaches to a particular offence. In my view, for the reasons set out above, the interpretation proposed by the Crown leads to an absurdity, is not an interpretation consistent with the Human Rights Act, and perhaps, more importantly, is not consistent with the Bail Act taken as a whole. Nevertheless, in the event that I am wrong, I shall consider whether there are special or exceptional circumstances favouring the grant of bail in this case.

23. These terms have been subject to interpretation in this Court on a number of occasions. Thus, In the matter of an application for Bail by Massey [2008] ACTSC 145 at [7]- [8] and In the matter of an application for Bail by Allen [2009] ACTSC 64 at [9]- [10], this Court held that it requires some circumstances which by themselves or in combination are in some way unusual or uncommon.

24. Two matters, however, need to be made about this. In the first place, neither authority suggests, nor subsequently has it been suggested, that the circumstances should be unique. That interpretation would not be consistent with authority more broadly or, in this jurisdiction, also with the Human Rights Act. Secondly, that cannot be the complete meaning of "special or exceptional circumstances". That is not a legislative remit; it is a common law approach to the legislation and must be read in that context.

25. There is, for example, high authority that, in the context of an appeal, it has been held that special or exceptional circumstances include the not uncommon situation where the hearing of the appeal cannot be heard before the whole or most of the custodial portion of the sentence will have been served. See Cooper v Corvisy [2010] ACTSC 165 at [21]- [23]. Further, as I observed in In the matter of an application for Bail by Marsh [2013] ACTSC 16 at [27]- [28], the notion of "special or exceptional circumstances" in the Bail Act must be construed in a way that is consistent with human rights so far as consistent with the purpose of the Bail Act. In this case, Mr P Bevan, who appeared for Mr Cockburn, submitted that there were special or exceptional circumstances in this case and these arose out of the facts of the case.

26. I received an affidavit of Mr Cockburn's father and I heard oral evidence from Mr Cockburn. From this evidence I make the following findings. Mr Cockburn is 27 years old. He has been in custody since January 2015. He is a floor and wall tiler and had his own successful business for some years. In November 2011 he was injured in a motor vehicle collision. As a result, he was unable to continue working in his business, which was then closed. It was as a result of the injuries that he became depressed, started using drugs and engaging in criminal activity.

27. Prior to the offences to which he has now pleaded guilty he had a short and not particularly serious criminal record. In New South Wales, it consisted of two offences of possessing cannabis and three offences of driving with the prescribed concentration of alcohol. The most recent of these offences, however, was committed in early 2007. In this Territory he was convicted of a further drink driving offence in 2014 and at the same time, of driving while suspended. He also failed to appear to answer his bail on two occasions in August 2014.

28. Despite these latter offences I note that his bail was not revoked, suggestive of some reasonable explanation for the failures. In both cases, in fact, a nonconviction order was made. That shows that the offences were not regarded by the Court as particularly serious. I had, annexed to the affidavit, a detailed psychiatric report dated 20 March 2013, obviously prepared for Mr Cockburn's civil proceedings relating to the motor vehicle collision. It reported that Mr Cockburn was diagnosed as suffering a major depressive disorder. At that stage, he had not had any treatment for it. He also had an adjustment disorder as a result of the chronicity and severity of his pain.

29. Dr Matias, the psychiatrist, noted that "[t]he longer the condition is not addressed the problem usually becomes more recalcitrant." When he was refused bail Mr Cockburn gave thought to his situation and, in about April 2015, sought out rehabilitative options. He was assessed in May 2015 for admission to Karralika. He was assessed as suitable for admission and has been offered a place as from 15 September 2015.

30. He has been in a relationship with a young woman and, on 20 April 2015, she gave birth to their daughter. Care and Protection Services have taken the child into care and have indicated that, in accordance apparently with the current regime, they are proposing to have the child adopted. Mr Cockburn, however, has been advised that his rehabilitation may result in the adoption not proceeding and his gaining custody of his daughter.

31. He is still in the relationship with his partner, who has visited him in the Alexander Maconochie Centre. She also has drug issues, which is, no doubt, one of the reasons why the child was taken into care. She has been in Melbourne and has spent about two months in drug rehabilitation. It is proposed that they should both enter the Karralika family program, one of the few family programs now currently available for drug rehabilitation.

32. Mr Bevan submitted that, while no one consideration may amount to a special or exceptional circumstance, the combination of Mr Cockburn's situation did reach that threshold. He emphasised the commitment to rehabilitation shown in the approach to Karralika he made in April 2015 and his continuing commitment. The opportunity to enter a family program, which is not easily achievable, is also relevant. Mr Bevan pointed to the risk of the child of Mr Cockburn and his partner being adopted were rehabilitation not achieved as also relevant.

33. To this he added that the circumstances of Mr Cockburn's drug addiction, namely through the consequences of the motor vehicle collision and the result for his business and his injuries and then sequelae, were also important factors. He pointed to Mr Cockburn's lack of prior serious criminal record to show that the relatively closed period of his criminality, namely, April 2014 to January 2015, was suggestive of an uncharacteristic criminality which addressing his drug addiction could well resolve, obviously to the benefit of the community.

34. Ms E Beljic, who appeared for the Crown, opposed bail. She submitted that these matters were neither uncommon nor unusual. Indeed, she pointed out the drug addiction and a desire for rehabilitation is very common. She submitted that Mr Cockburn had waited quite a long time before making an application for rehabilitation. She also pointed to the fact that he had continued to offend over the months after April 2014 and only ceased when remanded in custody. She also referred to the two breaches of bail undertaking, though I have put those in context above. She further relied on the fact that the sentencing proceedings are listed to commence on 14 October 2014, only a month away.

35. Even if the threshold of special or exceptional circumstances is overcome, I must consider the requirements of s 22 of the Bail Act. I have given the matter anxious thought. In my view, the combination of circumstances pointed to by Mr Bevan do amount to special and exceptional circumstances. They are relatively unusual, especially to have such a final decision as to the adoption of a child rather than just fostering.

36. In any event, the circumstances of Mr Cockburn's criminal offending, the genesis of his depression and drug addiction and the motor vehicle collision and the relative closed period of his offending are also important and relevant. They, in my view, mean that he has a greater chance of reform at this time and that is significant. I accept that the opportunity for a family program is not common and is more difficult to access now.

37. I accept that the date for sentencing is close. That is a relevant factor. See R v Elphick [2014] ACTSC 372 at [38]. Here, however, there is an intention to rehabilitate, not simply to be at large. The opportunity for rehabilitation in the program will be a good basis for an assessment of the appropriate sentence to be imposed in October. I am satisfied that, with the appropriate bail conditions, Mr Cockburn is unlikely to abscond or to commit further offences.

38. Accordingly, subject to counsel's submissions, I propose to grant Mr Cockburn bail to appear to take his sentence on 14 October 2015, on the following conditions:

(1) that he be released no earlier than 9.30 am on 15 September 2015 into the company of an employee of Karralika Therapeutic Community;

(2) that he admit himself to the Karralika drug rehabilitation program and remain in that program until he attends court;

(3) that he obey all reasonable directions of the officer in charge of the Karralika program;

(4) that, if he is not admitted, is discharged from or leaves the program before 14 October 2015, he is to report of the Registrar of the Supreme Court within one working day with a view to having his bail reviewed;

(5) that he not consume or be in possession of alcohol or illicit drugs;

(6) that he consent to the officer in charge of the Karralika program advising his solicitor and the author of the Pre-Sentence Report of the details of his progress and participation in the rehabilitation program.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.