R v Ho Hoi [2010] ACTSC 60

(d) that he abstain from the use of alcohol and illicit drugs;

(e) that he submit as and when required to urinalysis and breath analysis;

(f) that he not contact directly or indirectly, approach, assault, threaten, harass or intimidate Jane Ho Hoi, Lisa McDonald or Carina Winter Owusu;

(g) That he not approach within 100 metres of Jane Ho Hoi, Lisa McDonald or Carina Winter Owusu;

(h) That he report to the officer in charge of Woden police station every day between the hours of 8 am and 8 pm;

(i) that he not be in place where alcohol is served or sold whether he is consuming alcohol or not, except the Holder IGA supermarket; and

(j) That he report to ACT Corrective Services at Eclipse House today to arrange supervision.

1. Billy Ho Hoi has been committed to this Court for trial on charges alleged to have been committed on 20 July 2009, namely of aggravated burglary (which attracts a maximum penalty of a $200,000 fine or 20 years imprisonment, or both), two counts of theft (which may render him liable of a fine or $100,000 or 10 years imprisonment or both), and damaging property, (for which the maximum penalty is the same as for theft). They are, therefore, very serious offences for which Mr Ho Hoi, if convicted, may well receive a sentence of imprisonment.

2. He was arrested and when he appeared in the Magistrates Court on 21 July 2009, bail was refused and he remained in custody.

3. The Sentence Administration Board then cancelled his periodic detention, for which he had been sentenced for the very serious offences of aggravated robbery and attempted aggravated robbery. He had been also then sentenced for charges of contravention of a protection order and, more worryingly for this matter, two charges of failing to appear after a bail undertaking had been given.

4. The periodic detention order was cancelled because, less than two months after it had been imposed, he failed to attend for a detention period and subsequently failed to attend three more detention periods thereafter. The balance of the term that he was required to serve was eight months, three weeks and six days. He was released from that term of imprisonment on 7 May 2010, but remained in custody on these charges.

5. He was, however, granted bail on 13 May 2010 which was originally on strict conditions which included, supervision by ACT Corrective Services, a curfew and daily reporting to police. He was also required not to drink alcohol or consume illicit drugs.

6. On 22 June 2010, he was arraigned on all the charges and pleaded guilty to the count of damaging property and not guilty on the other counts. The court set a trial date for 9 August 2010.

7. At the time of the arraignment, Mr Ho Hoi was in custody because he had failed to report to police the previous Sunday. He had reported on Monday and been arrested. His explanation was that he had played football on Sunday and gone home. He had fallen asleep and forgotten to report.

8. I granted him bail on broadly the same conditions, although, at his request, I reduced the reporting requirement to once a week and noted a change of address. I also spoke to him directly, making it clear to him that it was important to comply with his bail conditions, for breaches meant that the Court's trust in his compliance would lead to a revocation of bail so that he would have to await his trail in custody.

9. Just over 24 hours later, he was arrested for being in Civic after the curfew time and obviously having drunk alcohol. Unsurprisingly, the prosecution opposed a further grant of bail and submitted that he should be remanded in custody to await his trial which, after all, was only a few days over six weeks away.

10. The prosecution noted that he had a criminal record which, while not extensive, included charges of damaging property, assault and assault occasioning actual bodily harm, as well as the more serious charges I have referred to above (at [3]).

11. The assault occasioning actual bodily harm was regarded as sufficiently serious to warrant a sentence of four months imprisonment, though only pre-sentence custody was spent in full time imprisonment and the balance suspended. I have already referred to the sentences imposed in relation to the robbery charges.

12. Mr Ho Hoi explained to me that, on the evening in question, he had met some friends and they had gone drinking together. He had no real explanation for his breach. Mr R Davies, who appeared for Mr Ho Hoi, said all that could be said for him. He noted that there were no offences committed, that he was not seriously drunk and that it was not particularly long, about an hour, after the start of the curfew.

13. In Charnock v Cody & Ors [2010] ACTSC 26, I held (at [85], [88]) that breaching bail by failing to appear in accordance with a bail undertaking is a serious offence, and offenders can expect that a sentence of imprisonment is a realistic and appropriate sentencing option.

14. This must guide the court when considering a breach of bail. It is, however, true that many breaches, such as the failure to report to police as Mr Ho Hoi did on 20 June 2010, are often excused, though after the court makes it clear that breaches render the accused very liable to revocation.

15. I also note that Mr Ho Hoi has, in his criminal record, a failure to appear after giving a bail undertaking and a breach of good behaviour order, both matters that reduce the trust that the court can have about his likelihood of further complying with his bail obligations, including to take his trial.

16. As I said in In the matter of an application for bail by Rebecca Massey (No 3) [2010] ACTSC 52 (at [23]-[24]):

A breach of a condition of bail will ordinarily result in the arrest and immediate incarceration of the bailee. The trust that the court places in the accused to be permitted at liberty on the conditions imposed is breached by the failure to comply with the conditions and it is only by compliance with the conditions imposed that the accused is to be at liberty.

Certainly, many breaches do not result in continued detention. It is not infrequent that an accused person has on one or two occasions failed though forgetfulness to report to police as required. There are often minor breaches occasioned by the understandable frailty of human memory.

17. This breach was, however, more than trivial. It amounted to the breach of two conditions, it was just about 24 hours after Mr Ho Hoi had been released, and it was of conditions that were, it appears to me, specifically designed to prevent Mr Ho Hoi from committing further offences. Offences such as burglary and theft are often committed after dark and while offenders are using alcohol or drugs.

18. Mr Ho Hoi did say to me that he had tried to get his life together after his period of incarceration. He had got a job and he was playing football. These breaches are somewhat more serious for he has only been out of custody for a little over one month and now has two breaches of bail conditions in that short time.

19. I have given careful and anxious thought to whether I should grant bail to Mr Ho Hoi despite these breaches. In the end, I have decided, I will do so. In doing so, however, I will indicate that some additional conditions are now required and that Mr Ho Hoi must realise that any further breaches will almost inevitably lead to him being detained in custody until his trial.

20. Accordingly, I grant him bail to attend the ACT Supreme Court on 9 August 2010 to take his trial and on 6 July 2010 at the Pre-Trial Direction.

(a) that he accept supervision of an officer of ACT Corrective Services delegated by the Chief Executive to supervise him;

(b) that he reside with his father at [an address already provided to the Court];

(c) that he not absent himself from his place of residence between 9 pm and 6 am daily;

(d) that he abstain from the use of alcohol and illicit drugs;

(e) that he submit as and when required to urinalysis and breath analysis;

(f) that he not contact directly or indirectly, approach, assault, threaten, harass or intimidate Jane Ho Hoi, Lisa McDonald or Carina Winter Owusu;

(g) that he not approach within 100 meters of Jane Ho Hoi, Lisa McDonald or Carina Winter Owusu;

(h) that he report to the officer in charge of Woden police station every day between the hours of 8 am and 8 pm;

(i) that he not be in place where alcohol is served or sold whether he is consuming alcohol or not, except the Holder IGA supermarket; and

(j) That he report to ACT Corrective Services at Eclipse House today to arrange supervision.

22. I then obtained express acknowledgement from Mr Ho Hoi that he understood each of these bail conditions and I then addressed him directly as follows:

Mr Ho Hoi, you really are getting into hot water with this bail business. If you breach one of those conditions again, no matter how trivially, it is almost certain that you will be in custody. Do you understand? I do not want to put you in custody. It is not a good thing for anyone in these circumstances, although you may have to serve a term of imprisonment if you are convicted of the offences. Do you understand? I have allowed you to go to the Holder IGA supermarket. However, if you buy the smallest bit of alcohol from that IGA, and I find out, you will most certainly spend your time in the Alexander Maconochie Centre.

I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Prosecution: Director of Public Prosecutions ACT

Solicitor for the Defendant: Legal Aid ACT