R v McMahon [2015] ACTSC 14

(2) Jason Andrew McMahon be granted bail to that day on the following conditions:

(a) That he accept supervision of the DirectorGeneral or her delegate and that he obey all reasonable directions of the person supervising him.

(b) That he reside at 31 John Bull Street, Queanbeyan, New South Wales.

(c) That he not absent himself from his place of residence between 8.30 pm and 6:00 am daily, except in an emergency.

(d) That he report to Queanbeyan Police Station each Monday and Thursday between the hours of 8:00 am and 8:00 pm.

(e) That he abstain from the consumption of alcohol or illicit drugs.

(f) That he submit, when reasonably required by the person supervising him, to urinalysis.

(g) That he submit, when reasonably required either by the person supervising him or by any police officer to whom he is required to report under these conditions, for breath analysis.

(h) That he comply with the conditions of his New South Wales parole order.

(i) That he maintain regular contact with Bennelong's Haven and comply with any requirements made by that agency for the purpose of his admission to its drug and alcohol rehabilitation program.

(j) That he report immediately upon his release on bail to ACT Corrective Services, Eclipse House, London Circuit, Canberra City to arrange supervision.

(k) That, if he is offered a place in the program at Bennelong's Haven, he report that fact to his solicitor within one working day with a view to the proceedings being relisted before the Honourable Justice Refshauge in time for a bail variation to permit him to accept that offer.

3. That the DirectorGeneral provide a bail supervision progress report to the Court on 11 March 2015, and a copy of the bail supervision progress report be sent to the lawyers for the parties upon its receipt by the Court.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - Applicant seeking rehabilitation - Stale offences

Dunstan v The Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168

Hogan v Hinch (2011) 234 CLR 506

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303

R v Elphick [2014] ACTSC 372

R v Laipato (No 2) [2014] ACTSC 130

R v McMahon [2014] ACTSC 280

Saga v Reid [2010] ACTSC 59

1. In Saga v Reid [2010] ACTSC 59 I noted that it can be accepted that a drug addiction is such a problem for the addict that it can take a number of failed attempts at rehabilitation before it is successful. While it is said that mandated treatment can be successful, motivation is clearly of importance and so long as the principles of sentencing do not overcome the significance of rehabilitation, the court should support and encourage those committed to reform. Indeed, as French CJ said in Hogan v Hinch (2011) 234 CLR 506, 537 at [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of protection of the community, and is clearly in the public interest.

2. In some cases the road to rehabilitation is long and complicated. The court should not be seen as placing unreasonable obstacles in the way, but at the same time courts have a duty to punish those who breach the criminal laws and by their crimes make victims of ordinary people whose lives, property, personal integrity and safety are compromised or invaded. Jason Andrew McMahon has applied for a rather creative extension of a deferred sentence order in what may be regarded as somewhat unusual circumstances.

3. Mr McMahon appears before this Court to be sentenced for a large number of offences committed many years ago. Mr McMahon has pleaded guilty to an offence of common assault and an offence of damaging property committed on 1 January 2008, as well as four offences of burglary, two offences of damaging property, two offences of theft and one offence of possessing stolen property, all committed in May 1997, together with one offence of failing to appear in accordance with a bail undertaking committed in June 1997.

4. The earliest offence was committed on 14 May 1997 and is now, apart from a few days, four months less than eighteen years ago, with the most recent offences committed over seven years ago. Of course, old offences are still offences and the community is entitled to expect that the criminal law will be upheld by the imposition of a sentence to meet the purposes of sentencing, as set out in the Crime Sentencing Act 2005 (ACT), namely punishment, deterrence, community protection, rehabilitation, accountability, denunciation and victim vindication.

5. Offences as old as this and, indeed, from time to time much older, are not ignored. For example, historical sexual abuse cases come before the courts with regrettable regularity and upon conviction severe penalties, including lengthy terms of imprisonment, are imposed. Nevertheless, the courts have developed an approach to such situations. In R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303 at 306; [16] the New South Wales Court of Criminal Appeal said:

The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left. Secondly, to any demonstrated progress of the offender towards rehabilitation during the intervening period and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach. See also PR v The Queen [2014] ACTCA 40.

6. Details of the offences, the maximum penalties, the personal circumstances of Mr McMahon and some of the relevant principles, in relation to the matters involving him are set out in R v McMahon [2014] ACTSC 280. I do not need to repeat what I there said. In summary I then made a deferred sentence order and granted Mr McMahon bail to attend at a drug rehabilitation agency, Bennelong's Haven, at Kinchela, New South Wales. That was designed to address what I described as Mr McMahon's long and entrenched drug and alcohol history.

7. His currently problematic drug is alcohol. That was the main contribution to his criminal behaviour that he needs to address. When making the deferred sentence order I said (R v McMahon at [35]):

I indicate that if you do not comply with this order and the bail conditions I consider that I should sentence you to a term of immediate imprisonment for a period of approximately four years, with a nonparole period, but which would take into account the time you have already spent in custody. I indicate that if you comply with this order and the bail conditions I consider that you should be sentenced to imprisonment for a period of approximately three years and six months.

The balance, after taking into account the time you have already served, will be either served by way of periodic detention or wholly suspended with a good behaviour order, perhaps including community service conditions.

8. As so often happens with people such as Mr McMahon, things did not go smoothly. I had granted Mr McMahon a period of seven days from his release on 24 July 2014, prior to his entering the rehabilitation program at Bennelong's Haven so that he could deal with some domestic matters, arrange for his partner to be prepared to accompany him and to obtain a prescription for the methadone he was taking and which Bennelong's Haven required to be provided by a medical practitioner registered in New South Wales.

9. Unfortunately, Mr McMahon was arrested on 27 July 2014 in New South Wales. The evidence before me was that the Queanbeyan Police were having a "blitz" in executing warrants that had been dormant for some time. The police had a warrant for Mr McMahon's partner which they intended to execute, but when they found him at her premises in accordance with his bail conditions, they found a warrant for him had also been issued but not executed. It appears to have related to offences in 2013, including an offence of failing to appear after giving a bail undertaking, but which he had committed because he was in custody in the ACT.

10. The offences with which he had been charged were two counts of larceny, two counts of intentionally or recklessly damaging property, assaulting a police officer in the execution of his duty and two counts of breaching an Apprehended Violence Order. I had the statement of facts for some of these offences and it appears that on 17 November 2013 Mr McMahon and his partner had gone to a supermarket from which, however, Mr McMahon had been banned. Mr McMahon was intoxicated at the time. When asked to leave he grabbed an item from the shelves and smashed it on the floor, but did leave the store.

11. In the meantime his partner was in the liquor area of the store and she sought to buy a cask of alcohol. When refused service because it was said she was intoxicated, she took another cask and left the store without paying for either. She then gave both to Mr McMahon who threw one away and secreted the other in his clothes. He was later arrested and, after he had sobered up, he was charged. He behaved aggressively in the custody room of the Queanbeyan Police Station using foul language to the police, and spitting at the officer-in-charge when he was not looking.

12. I did not have the details of the other charges, though one of the larcenies was of a bottle of Kahlua, valued at $30 stolen on 17 May 2013 and the other larceny of a bottle of port valued at $5, stolen on 9 October 2013. The two offences of contravening an Apprehended Violence Order were committed on 26 November 2013. I have no details of those offences. Thus, on 27 July 2014 the police executed the warrant, arrested Mr McMahon and he was detained in custody until he appeared in the local court of Queanbeyan, apparently on 29 July 2014. In any event the breach of bail did not proceed for the obvious reasons, but Mr McMahon pleaded guilty to the other offences and was sentenced to a total of two months imprisonment on 29 July 2014.

13. He immediately instituted an appeal to the District Court of New South Wales and was granted bail pending appeal. Unfortunately in the meantime someone - apparently a case worker for his partner - advised Bennelong's Haven that they would not be attending the facility and their places were given to others. This was done without Mr McMahon's knowledge so that upon his release on bail he was unable to proceed to Bennelong's Haven as required under the deferred sentence order. He then made a big mistake.

14. Instead of returning to this Court to have the deferred sentence order reviewed he remained in Queanbeyan and later Goulburn. I was informed that he was concerned that if he returned to Canberra he would be returned to prison and that would result in further bail breaches in New South Wales. As a condition of his bail pending appeal he was prohibited from contacting his partner, which would have made their admission to Bennelong's Haven problematic in any case. However, I was told that he resided with his father for about four weeks and then moved to Goulburn, where he was arrested for a further offence also committed in a supermarket. I did not have a statement of facts for these offences, but was told of them without challenge from the Crown.

15. It was said that Mr McMahon had gone into the supermarket from which he had been banned. He said that he thought the ban was for twelve months and that this period had expired, but it was, in fact, for life. He was told to leave and when doing so he knocked an employee with his forearm. He was arrested and charged with common assault. He said he was also charged with trespass. His criminal record does not show any proceedings for a trespass offence. He was sentenced for the offence of common assault to eight months imprisonment, with a non-parole period of three months to commence on 16 September 2014.

16. On 18 September 2014 he withdrew his appeal against the earlier sentence and the sentence of two months imprisonment was confirmed by the District Court, though to be served concurrently with the three months non-parole period of the sentence for the offence of common assault. On 15 December 2014 he was released on parole and extradited to this Territory, where he has remained in custody. He has, by my calculation, now been in custody for 624 days in respect of the Territory offences. That is nearly twenty-one months.

17. Mr McMahon's counsel, Ms T Warwick, applied on his behalf for an extension of the deferred sentence order to permit Mr McMahon to be in the community to support his partner, and then to go to Bennelong's Haven when a place becomes available. The Crown properly agreed that Mr McMahon should have the opportunity to go to Bennelong's Haven, but submitted that he should remain in custody until a place was assured for him, evidenced by a letter from the facility. The Crown expressed concern that Mr McMahon had breached the conditions of his earlier bail that I granted him while under the deferred sentence order by consuming alcohol and also by committing a further offence.

18. I received some evidence on the application. Mr McMahon wrote a letter that was tendered without objection. He informed me that his partner was pregnant and that she was not coping well. She had no driver licence and was depressed. He wrote that she had been unable to prepare properly for the baby not being able to set up a nursery and the like. Daily tasks were a problem because of the lack of a driver licence. He wrote that she is very stressed, crying every time she telephones him at the Alexander Maconochie Centre.

19. Mr McMahon affirmed that he no longer uses drugs, but admitted that alcohol was a problem. He informed me, however, that a condition of his parole was that he not consume alcohol. He also finally seems to have made the connection, writing:

Alcohol plus jail go together for me. I know that a hundred per cent true now.

20. He also wrote that his former partner's brother had told him that if he manages to secure a job and retain it for twelve months his former partner will allow him to have access to his daughter, that access being in part a motivation for his reform. Mr McMahon's partner also wrote a letter to me, which was also tendered without objection. She wrote of her situation where she has no friends or family to support her. She said she hoped to marry Mr McMahon before the birth of their baby and that she was sure that Mr McMahon would be "a perfect father and husband".

21. Her faith is commendable but Mr McMahon will need to address a few significant issues before that description is likely to be true. Mr McMahon's solicitor also spoke to Bennelong's Haven's staff and it was confirmed that Mr McMahon was on the waiting list for that facility. He had, however, not progressed on the waiting list because of two administrative matters. The first which can and will be attended to, I hope, very shortly is the provision of Mr McMahon's partner's criminal history. The second is the requirement for a prescription for methadone for Mr McMahon from a New South Wales registered medical practitioner.

22. I was informed that the script from the medical practitioner at the Alexander Maconochie Centre was not satisfactory. This would require Mr McMahon to be released so that he could access the clinic where he can obtain a script. Bennelong's Haven is an aboriginal family drug and alcohol rehabilitation facility in New South Wales on the banks of the Macleay River between Kempsey and South West Rocks in the MidNorth Coast. The program it conducts treats all forms of addiction by seeking to re-establish spiritual bonds in human relationships damaged by addiction.

23. It is valuable because it also permits families to be accommodated and participate in the program, and for couples to bring their children, if admitted. It enforces a strict regime of prohibiting possession of mood-changing substances, gambling and non-participation in the program. It also requires participants who consent to the provision of information about their progress to appropriate government agencies. It also usefully permits participants to continue on a methadone maintenance program.

24. The submissions of the Crown show the usual and ordinarily appropriate way to proceed is to detain Mr McMahon until a place is available at Bennelong's Haven and to then release him with conditions that he admit himself to the program. This approach is supported by the following matters.

25. In the first place, when Mr McMahon, for reasons I have outlined, was not able to be admitted to Bennelong's Haven he did not return to this court. One of the conditions of his bail was as follows:

That if you are not admitted to the program or you are discharged from the program you report within 48 hours to the registrar of the Supreme Court of the ACT in person for a review of your bail. (R v McMahon at [34])

26. As I usually do, I spoke directly to Mr McMahon when making the deferred sentence order and explained it to him. In the course of doing this, I said to him (R v McMahon at [116]-[117]):

I hope you do not like being in prison because this is a great motivator to avoid that in the future. It's not going to be easy. You've got a lot to work through and to overcome, and I'm well aware that drug addiction and alcohol addiction are not easy to overcome.

A most important thing is that if things fall apart you come back to the Court. If you do not do that then it's not inevitable, but it's almost inevitable that you throw things away and that it will be a revolving door in and out of prison syndrome for the rest of your life. If you do come back to the court I don't say that I will smile at you and ignore what's happened, and it may be that you have to spend some time in jail. But if you come back to the Court there's every opportunity that we can sort out whatever has gone wrong and try and fix it, and move on.

27. Despite this, Mr McMahon did not return to Court and apply to have the deferred sentence order and bail conditions varied to deal with the situation in which he found himself. Secondly, another bail condition was that he not drink alcohol or consume illicit drugs. He admits to me that he did drink alcohol and of course, inevitably, this got him into trouble. Thirdly, he committed a further offence. While the offence was at the lesser end of seriousness, namely common assault, it nevertheless justified a comparatively lengthy period of imprisonment, namely eight months.

28. That is a predictor of future offending: see Dunstan v The Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168. These show not merely a disregard of the orders that I made, but show that Mr McMahon continued to be a risk to the community. The basis on which bail is granted is that, with the relevant conditions, the bailee can be trusted to be in the community. Mr McMahon has breached that trust, not merely by breaching the conditions, but by committing a further offence which justified a period of eight months imprisonment.

29. Having said this, there were some explanations given by Mr McMahon for these matters. As to failing to return to this Court he explained that he wanted first to resolve all the matters outstanding in New South Wales. He was also concerned that were he to return to this Court he would be remanded in custody, which would prevent him from finalising the matters in New South Wales. He further points out that it was an unauthorised intervention that prevented him from proceeding to Bennelong's Haven where, because he obtained bail on lodgement of his appeal, he could have gone in the meantime.

30. He acknowledges that he consumed alcohol and he has no mitigating explanation for that, save that he says he now has a clearer vision that he must not drink and recognises that this lands him almost inevitably in jail. As to the further offence he said it was initially committed because he had an improper understanding of the prohibition imposed and he accepts that he reacted inappropriately. Mr McMahon also relies on the fact that the further offence was of a different kind and less serious than a number of others, of which he has been found guilty in the past.

31. I have explained in R v Elphick [2014] ACTSC 372 that bail supervision can be more problematic interstate, which can be a relevant factor when considering whether bail should be granted. Mr McMahon, however, will, as pointed out by Ms Warwick, be on parole at least until 14 April 2015, which is a significant regime of supervision. Perhaps even more significant than ordinary bail supervision. She added one of the conditions of parole was that Mr McMahon not consume alcohol.

32. The factors that favour releasing Mr McMahon are as follows. He has maintained a commitment to rehabilitation and at Bennelong's Haven. He has managed to get himself back on the waiting list and remained there, though some difficulties have prevented him from progressing on the list. One of those is also a factor in favour of release, namely that he cannot gain the necessary medical prescription unless released and without that it appears he cannot progress further on the waiting list.

33. Secondly, his partner is, it appears, in some distress and would be substantially better off were he to be able to support her at this time when she is going through a difficult time during her pregnancy. She obviously wants Mr McMahon to be released at the time she gives birth. As I pointed out in R v Laipato (No 2) [2014] ACTSC 130, that cannot of itself amount to a justification for bail and cannot overwhelm other factors.

34. Thirdly, the community will benefit substantially if Mr McMahon has managed to learn that he can no longer drink and function appropriately in the community, without committing further offences.

35. His 123 offences are a stark reminder that so far as past behaviour is an accurate predictor of future behaviour, there is much about which I should be concerned in releasing Mr McMahon, and the risk of further offending. But if he really is committed to being the "perfect father and husband" that his partner sees him to be and is prepared to put the work into it, then the community will benefit significantly, as will his partner and their child.

36. Finally, Mr McMahon, as I have noted above, has been in custody on these charges for nearly 21 months. The offences are now stale. Indeed, some are very stale and he has had them hanging over his head for many years, some of them because of his fault. Nevertheless, as Wood CJ at CL said in R v Blanco at 306; [17]: "where the applicant has been arrested and has spent a long time awaiting sentence" the court must recognise that in sentencing.

37. This means that some reduction in sentence is warranted, though, as I said in R v McMahon, this can only be taken into account to a limited degree. Nevertheless, the period of incarceration of Mr McMahon if he does not take advantage of the opportunity to reform is likely to have been reached in the near future. I indicated in R v McMahon that a period of four years, with imprisonment and a non-parole period, would be appropriate.

38. If, as I was told, it is likely that he will not be admitted into Bennelong's Haven for about another four months he will have been in custody on these offences, without taking into account the other periods of custody that he has served as a matter of totality - see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 - for over two years. A period of fulltime custody in his sentence, namely the non-parole period, would be either at an end or so small that there would be little inducement for Mr McMahon to reform.

39. Given the substantial period of custody he has served, it seems to me that the value to the community for encouragement of him to become a proper father and husband and to rehabilitate himself outweighs the need to keep him in custody, despite the concerns that I have. This will also be a test for him. He claims commitment to abstinence. He claims commitment to his partner and their baby. He claims commitment to his elder daughter. Bail into the community will give him a chance to show that these commitments are not only genuinely made now and not merely an attempt to get out of custody, but are a sustainable commitment that he can deliver.

40. The matter is finely balanced, but in the end I am satisfied that I can release Mr McMahon, but on strict conditions. A deferred sentence order was made by me on 24 July 2014 and has now ended. It ended on 2 December 2014. See R v McMahon. I see no need to vary it to extend it at this stage. It seems to me that I should make a further order when it is clear both that Mr McMahon has a place at Bennelong's Haven and when I am able to assess his compliance with the bail conditions. I consider also that I should monitor this process, and so I will take the process in stages.

41. [His Honour then spoke directly to Mr McMahon]

42. Mr McMahon, I'm going out on a limb for you. Ordinary principles would say that you have had enough opportunities and the time has come when you need to face up to the realities of life. I might be wrong. I do not know how you behave out of court. You behave politely in court and that is a good start, but obviously when you get out of court things might change. I do not know, but I am going to give you this opportunity. I would like to say it is the last chance you have. That is never true, but it is very, very, very close to that.

43. You spat at police officers and that is not a nice thing to do. You spat in my eye by not doing the right thing when I spoke to you expressly and told you what to do. Even my patience has an end at some stage, and you now need to show me that what you say in your letters and what you say to your solicitor is what you genuinely want.

44. Now, I recognise it is going to be hard and that is why I am giving you the opportunity. However, you really have to put your heart into it now and if things go wrong, then you have to face the consequences and that means coming back and sorting it out, and that might mean going back to gaol.

45. We have to have no secrets from each other. I hope you really are committed to being a father and a husband. It will not be easy to get a job out there, but I hope you do because that will keep you out of mischief. But drugs and alcohol are out of bounds completely because that will lead you back to where you are now, i.e. into the AMC all right. So I hope this works out. Four months is a long time. I think it is still worthwhile going to Bennelong's Haven at the end of that because you need to really be there for your daughter, and you will not do that unless you get yourself sorted out and you really need to be there for your baby and you will not be there unless you get it sorted out.

46. A lot of people do not. I am working on a matter at the moment where a baby has been taken away from the parents because the parents are druggies and they just cannot cope. It is very hard, very hard, but for the baby's sake sometimes that has to be done. So just because you have a baby and just because you want to look after the baby, and just because you are committed to being a good father is no guarantee of success. You need to put the runs on the board. So far there are few halting steps.

47. You need to get going and start running and that means, when you get out there you need to commit yourself to working to create a family and a home, not mucking around with alcohol and pinching stuff and going into other people's homes and using drugs. I do not think I can put it any more clearly, can I? There is still some time for you to go to gaol. You have not quite reached the point where you are gaol-free, but if you really put your arm to the wheel, if you really do the right thing, then there is every chance that you will not need to go back to gaol at all.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Judgment of his Honour Acting Chief Justice Refshauge