Section 32(7) allows the Court to take into account any other relevant matter.
13 I do not regard the applicant as a flight risk, having regard to his family circumstances, the fact that he has lived in Sydney since the age of 12, and his substantial and generally favourable work history in a highly technical and specialised medical field. A number of testimonials spoke compellingly of the applicant's devotion to his work and his good reputation in his chosen area of expertise. This aspect of the application deserves further explanation, in the light of the applicant's drug addiction and the regime under which he has practiced since mid-2004. I return to it below.
14 He has no prior criminal history and presented himself voluntarily to police when he became aware that they were interested in speaking with him. He did so at a time when he knew that he was implicated in the commission of serious criminal offences, although I accept that murder and manslaughter were not then under consideration. I do not doubt that the applicant has access to large amounts of money and that he retains Malaysian citizenship, but he did not exercise that option when he was first charged in November 2009. Given the terms of the advice he has received from senior counsel about the prospects of his conviction for murder, I doubt whether the applicant's motives for flight have changed since then.
15 The applicant's interests in being released from a custodial environment in which he has been assaulted are self evident. I note that, following the assault, the applicant was placed in protective custody, but he elected to be removed and returned to the general prison population on 20 February 2010. The applicant's circumstances and the nature of the offences have attracted considerable publicity and will, no doubt, continue to do so. It is unfortunate that Corrective Services cannot prevent further assaults without subjecting the applicant to the relatively confining and isolating regime of protective custody. It would appear that the applicant prefers the employment and services available in the general prison population, even if it exposes him to the risk of further assault. That said, I accept that the applicant may be in danger of physical injury.
16 Leaving to one side the applicant's interests in being free to instruct counsel and prepare for his trial, there is one other lawful purpose that militates in favour of a grant of bail. It is not suggested that the applicant can return to his employment, but it is submitted that the applicant should be released to bail in order to undertake further counselling and treatment for his drug addiction. Evidence was adduced from the applicant's treating psychiatrist, Dr Wilcox, to the effect that accommodation is available for the applicant at the Sydney Clinic over the short term (up to 4 weeks) and that arrangements will be made to admit the applicant to a residential rehabilitation programme of longer duration at the end of that period. Dr Wilcox's evidence deserves further consideration on another aspect of the application.
17 At present, the consensus is that a committal will not take place until the latter part of the year. On that basis, the applicant could expect a trial date in the first term of 2011. A period of 18 months imprisonment would not, in my view, represent an adequate aggregate non parole period for a number of counts of supply cocaine, committed in the circumstances attending these offences. For these purposes, I disregard the charges of murder and manslaughter. In short, I do not regard the period that the applicant will remain in custody if bail is refused to be a cogent factor in the determination of the application.
18 The protection and welfare of the community, including those who provide sexual services for payment, looms large in this application. Even if the murder and manslaughter charges are put to one side, the circumstances surrounding the applicant's repeated supply of cocaine elevate these offences to a level of criminality above that encountered in "routine" cases of supply. I regard the supply offences as serious offences in themselves. It could not be suggested that murder and manslaughter are not serious offences, notwithstanding my views on the strength of the Crown case on these charges.
19 The applicant's breach of bail was not technical or constituted by a failure to report or a failure to notify a change of address. The breach consisted of a repetition of the same conduct that gave rise to the offence upon which the applicant was granted bail. That in turn requires a consideration of the likelihood that the applicant will commit a serious offence whilst on bail, having regard to the fact that he has already done so. This factor requires closer examination of the applicant's work history and the evidence of Dr Wilcox.
20 Between the end of June and the beginning of September 2004, the applicant agreed to a number of conditions imposed by the New South Wales Medical Board on his registration. Those conditions included that the applicant not prescribe self medication, that he attend for treatment by a general practitioner, that he not self-administer any illicit drug or narcotic derivatives, or non-prescription compound analgesic or cold medication, that he attend the Doctors in Recovery Group at Northside Clinic on a fortnightly basis at a minimum, that he abstain completely from the consumption of alcohol, that he attend Alcoholics Anonymous or Narcotics Anonymous meetings at least on a weekly basis, that he attend for treatment by a psychiatrist at a frequency to be determined by the treating psychiatrist, that he continue to take any medication prescribed by his treating psychiatrist, that he attend for treatment by a specialist in anxiety disorders, that he attend three times a week for urine drug testing in accordance with the Board's protocol, that he attend for review by Dr Bruce Westmore (the Board nominated psychiatrist) initially on a three monthly basis and that he attend a review interview at the Board after three months.
21 The applicant's registration was suspended on 2 September 2004 for a period of six weeks. From mid October 2004 until mid-March 2005 the applicant voluntarily agreed to a number of conditions imposed on his registration. Those conditions were in general terms, the same as had been previously imposed. The majority of those conditions remained in force until early January 2009, subject to some variations in relation to the frequency of attendance on a psychiatrist and the frequency of the applicant's attendance at the Doctors in Recovery Group and Alcoholics Anonymous or Narcotics Anonymous.
22 Between early January 2009 and late February 2009, the applicant was subject to a fresh set of conditions, which included that the applicant was not to prescribe self medication, to attend for treatment by a general practitioner, not to self administer any illicit drug, narcotic derivatives, non-prescription compound analgesic or cold medication, to attend the Doctors in Recovery Group at Northside Clinic on a monthly basis at least, to abstain completely from the consumption of alcohol, to attend Alcoholics Anonymous or Narcotics Anonymous meetings on a monthly basis at least, to attend for treatment at a psychiatrist of his choice and to continue taking any prescribed medication, to attend for review by Dr Bruce Westmore on a three monthly basis and to attend a review interview at the Board on a three monthly basis or as otherwise directed.
23 These conditions remained in force, with some minor variations until 26 November 2009 when the applicant's registration was suspended, as I have already noted. Throughout this period of time, the applicant was also subject to a number of practice conditions, which restricted at various times the maximum number of hours per week that the applicant worked, the nature of the applicant's practice and the extent of the applicant's clinical review, supervision and monitoring by his employer.
24 It is abundantly clear from the terms of the conditions (see Exhibit B) that the applicant has been afflicted by a long-standing addiction to drugs, that he is prone to excessive consumption of alcohol and that there are other features of his mental health that have required the services of a treating psychiatrist. In spite of this history, the applicant seems to enjoy the confidence and support of his peers in neurosurgery. I can only conclude that the applicant is a gifted practitioner whose skills were so much in demand that suspension was a remedy of last resort.
25 More importantly, this history demonstrates that the evidence of Dr Wilcox should be approached with some caution. I intend no criticism of Dr Wilcox, who I accept is a recognized expert in the field of criminal forensic psychiatry. However, it is difficult to reconcile Dr Wilcox's opinion that the applicant is now prepared to address his addiction with the applicant's failure to do so in the past.
26 Dr Wilcox was initially involved in the care of the applicant when he was admitted to the Sydney Clinic private psychiatric hospital from 27 November 2009 until 15 December 2009. Following the applicant's arrest and the refusal of bail on fresh charges, Dr Wilcox interviewed the applicant on 24 May 2010 at Silverwater.
27 According to Dr Wilcox's report of 24 May 2010, the applicant told her that he now believed that the three weeks he spent in the Sydney Clinic were inadequate "for him to develop more functional coping skills or better relapse prevention techniques". The applicant maintained that he had some awareness of the consequences of his actions but that he was in denial in relation to the extent of his addiction. After the applicant's discharge from the clinic, he moved into accommodation in Bondi and had limited family support and no employment. The applicant told Dr Wilcox that "after a week of watching videos he rang an escort agency despite being aware that he would be breaking his bail and organised for them to send a girl and some cocaine to his place. The force of his addiction was such that if he could get away with it he was prepared to risk the loss of his bail." (italics not in original)
28 Dr Wilcox's report goes on to note that following the applicant's assault in custody and his brief time in protection, "he has had a lot of time to think about his prior actions and has experienced significant regret and remorse. … He now readily acknowledges that he was in the grips of a serious addiction and in the past minimised his actions and was in denial about the impact of his behaviour. He said the assault made him more aware of the consequences of his actions, that he had lost his career and his reputation, two people were dead and he had been close to losing his own life."
29 It was as a result of these statements by the applicant that Dr Wilcox concluded that the applicant "has developed more insight and is no longer in denial with respect to his addiction. He is more able to accept that his addiction has had a detrimental and catastrophic impact on every aspect of his life and led to a loss of judgment. Although he may have previously taken his bail for granted, I believe he would not abuse his privilege again, especially as his time in custody has been so traumatic."
30 What emerges from the contents of Dr Wilcox's report, her affidavit and her evidence before the Court is that the applicant's expressions of resolve have been primarily triggered by his experience in custody. Dr Wilcox maintained that the fact that the applicant was able to continue to work throughout the period that he was under the supervision of the Medical Board contributed to the applicant's failure to confront his addiction. However, this evidence overlooks the fact that the applicant had been suspended from practice on at least one prior occasion and that the interruption to his work on that occasion did very little to revise the applicant's behaviour. I cannot accept that the applicant was able to deny the effects of his addiction throughout his working life or that he failed to appreciate the impact of his addiction upon the maintenance of his registration as a practising surgeon.
31 It is not surprisingly the case that entry into custody after a period of liberty upon bail provokes renewed promises and undertakings to comply with bail conditions, should the Court see fit to grant bail. The abuse of bail cannot lightly be disregarded in the assessment of an application such as the present, particularly when the applicant himself acknowledged that he was prepared to risk conditional liberty if he could get away with it.
32 The strength of the applicant's addiction leads me to the conclusion that it is likely that the applicant will commit further serious offences whilst on bail and that the prospect of further offences outweighs the applicant's right to be at liberty. Accordingly bail is refused.
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