R v Wilkins [2015] ACTSC 8

1. That he accept the supervision of the Director-General, or her delegate, and comply with all reasonable directions of the person supervising him;

2. That he report forthwith to the intake officer of ACT Corrective Services, Eclipse House, London Circuit, Canberra City;

3. That he present himself, immediately after reporting to the intake officer as provided in condition 2, to Arcadia House, Mary Potter Circuit, Bruce ACT for admission by no later than 4:00 pm on 7 January 2015;

4. That he reside at Arcadia House, Mary Potter Circuit, Bruce ACT, and be present at that residence at all times and until completion of the Arcadia House Transition Program on 4 March 2015;

5. That, if he is not admitted to, or leaves, or is discharged from, or otherwise fails to complete the Arcadia House Transition Program at any time before 4 March 2015, he surrender himself immediately to the ACT Supreme Court or the City police station;

6. That he not consume intoxicating liquor or any illicit drugs, including cannabis;

7. That he provide samples of his breath, blood or urine for analysis as directed by the person supervising him;

8. That he provide a sample of his breath or oral fluid as directed by a police officer who has reasonable grounds for making such a direction; and

9. That he attend the ACT Supreme Court, at 9:30 am on 5 March 2015.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - Whether special or exceptional circumstances are present

Bail Act 1992 (ACT), s 9

Crimes (Sentencing) Act 2005 (ACT)

Magistrates Court Act 1930 (ACT), s 90B

Criminal Code Regulations 2005 (ACT), Pt 1.1 of Sch 1, Item 44

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

People v O'Callaghan (1966) IR 501

Saga v Reid [2010] ACTSC 59

1. Pre-trial detention is not a punishment, despite some common views in the community to the contrary. Indeed, the law of human rights makes it clear that deprivation of liberty for persons not convicted of offences could be punishment, as Justice Walsh opined in the People v O'Callaghan (1966) IR 501 at 516-17. Nevertheless, pre-trial detention is permissible if the strict conditions of the law are met. In this Territory, those conditions are set out in the Bail Act 1992 (ACT).

2. Rhys Wilkins has now applied for bail. He has been charged with serious drug offences. These arise from the following circumstances. On 9 December 2013, police searched Mr Wilkins' home under a search warrant and seized a small plastic bag containing about 0.025 grams of substance containing methylamphetamine, a second plastic bag containing 6.323 grams of substance containing methylamphetamine, a glass smoking implement with 0.089 grams of residue analysed to contain methylamphetamine, $7,465 in cash and a set of silver scales. A white shirt was also seized.

3. On 10 October 2014, police searched Mr Wilkins' home again under a search warrant and seized a clear zip lock bag containing about 12 grams of substance, including methylamphetamine from the right hand pocket of his shorts. They also found two other bags with the same drug, one bag in a drawer in the kitchen and the other in a shelf in the kitchen pantry cupboard. Police then found $2,600 in cash in the living room and $400 in cash in a plastic zip lock bag containing a large number of similar bags in a storage shed.

4. As a result of these offences, Mr Wilkins was charged, by summons dated 14 May 2014, with trafficking in methylamphetamine. He was arrested on 10 October 2014 and charged with a further charge of trafficking in methylamphetamine. He was committed for trial to this Court on the first charge on 25 September 2014 and on the second charge on 18 December 2014.

5. There is no explanation as to why Mr Wilkins was summonsed for the first charge, nor why it took so long to prepare and serve the summons.

6. He has also been charged with associated summary offences which have been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT). These are charges of possessing a white shirt, being property reasonably suspected of being stolen, possessing methylamphetamine and possessing proceeds of crime.

7. The drug trafficking charges are offences contrary to s 603(7) of the Criminal Code 2002 (ACT), which provides for a maximum penalty on conviction of 1,000 penalty units (that is, a fine of $140,000) or imprisonment for ten years, or both. They are, accordingly, to be regarded by the courts as serious offences though by no means the most serious in the criminal calendar.

8. Under s 604 of the Criminal Code, if a person possesses a traffickable quantity of methylamphetamine, a person is presumed, unless the contrary is proved, to have the intention or belief about the sale of the drug required for conviction for trafficking in the drug.

9. Section 602 of the Criminal Code provides that a person trafficks in methylamphetamine if the person possesses it with the intention of selling it. Under s 601 of the Criminal Code, a traffickable quantity of a drug is that amount which is not less than the quantity prescribed by regulation. In Pt 1.1 of Sch 1 of the Criminal Code Regulations 2005 (ACT), Item 44 provides that the traffickable quantity of methylamphetamine is six grams, the commercial quantity is three kilograms and a large commercial quantity is six kilograms.

10. It appears that the Crown will be relying on these presumptions and meanings to show that Mr Wilkins has trafficked in methylamphetamine, though the possession of the plastic bags, the scales and the money will no doubt be relied on as negativing any attempt he may make to prove that he did not possess the drug for the intention of selling any of it.

11. In bail applications in the Magistrates Court, the transcripts of which were in evidence before me, it was made clear that the basis on which Mr Wilkins was defending the charges is that he proposes to rebut the presumption in s 604 of the Criminal Code. That approach was reiterated before me.

12. So far as the charges of possessing the methylamphetamine are concerned, it seems to me that the Crown has a strong case. So far as the trafficking charges are concerned, the Crown's case is also strong at face value, since the analysis of the drug and its weight will be, presumably, proved by expert evidence on bases not usually easy to challenge successfully.

13. I do not know, however, the strength of the case that Mr Wilkins appears to wish to raise, namely that he did not have the drug in his possession with the intention of selling any of it. As far as I can tell Mr Wilkins was allowed at large in respect of the first charge, as would be appropriate for charge for which he was summonsed. When committed to this Court, he was then, however, granted bail. When he was subsequently arrested for the second charge he was refused bail and has remained in custody since then.

14. He faced a particular hurdle, as far as bail was concerned, by the fact that he was charged with a second charge while on bail for the first charge, which brought into operation s 9D of the Bail Act, as both offences are punishable by imprisonment for five years or longer, namely, ten years. They are, for the purposes of that section, serious offences.

15. In the circumstances, where a person is accused of committing a serious offence while a charge for another serious offence is pending or outstanding, s 9D of the Bail Act requires that a court not grant bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail. This means that Mr Wilkins has to show some unusual or uncommon circumstances which justify or favour the grant of bail as explained in Re an application for bail by Massey [2008] ACTSC 145.

16. As there explained, a combination of circumstances may amount to special or exceptional circumstances even though each circumstance may not, on its own, meet the test. The following matters are relied on for the grant of bail.

17. The principal matter is that Mr Wilkins has, since his arrest, sought drug rehabilitation. He has had contact with Directions ACT, a well-known and respected drug and alcohol rehabilitation provider, with a view to entering into its short-term residential program, known as the Arcadia House Transition Program, a twelve week program with an emphasis on therapeutic community principles.

18. He has maintained contact with that agency since 17 October 2014, when he was assessed as suitable for admission to the Arcadia House program. He was initially given a bed offer on 3 November 2014 and then on 10 November 2014. He was not granted bail to be able to take up either offer. He has been, since then, on the waiting list for a bed and a bed has now become available and I have evidence that such a bed is available from today.

19. I note that Directions ACT states "Arcadia House is not a mandatory reporting program, although if Rhys is bailed to our program and he leaves before his graduation [end of the 12 weeks], staff at Arcadia House will notify the appropriate authorities that he has left the program."

20. Mr Wilkins is thirty-nine years old and lives in rented premises where the search warrants were executed on 9 December 2013 and 10 October 2014. He currently maintains the lease of the premises. He is unmarried.

21. Prior to his arrest, he was employed full-time as an information technology contractor for Objective Corporation in the ACT. His remuneration was, I am told, in the vicinity of $100,000 per annum.

22. That job position is, of course, at risk while he remains in custody. Indeed, it was suggested in one of the bail applications in the Magistrates Court to be almost certain he will lose it unless reformed. It appears, however, that he has now lost the position, but I was told that if he is successful in his rehabilitation then his employer would "look favourably" on re-employing him. In the circumstances, that is a significant sign of confidence in him by his employer.

23. Mr Wilkins has a criminal record. Apart from two breaches of Good Behaviour Orders found proved against him, the twelve convictions recorded against him are all traffic offences, though some are serious traffic offences. Nevertheless, traffic offences are criminal offences. However, apart from a drink driving conviction in 1999, and a racing and speeding offence committed in 2007, the other offences were all committed between May 2008 and April 2010. He has no further offences recorded against him since then.

24. He has spent a period in imprisonment, but has committed no further offences of which he has been convicted since April 2010, and the only charges outstanding are the charges that I have earlier mentioned. In particular, he has no drug convictions or drug-related offences apart, of course, from the one 1999 drink driving conviction which is not, of course, for an illegal drug matter.

25. It is accepted that by both Mr Wilkins and the Crown that he is a drug user and has a drug problem. He is probably a drug addict. He is also said to have a gambling problem.

26. So far as the charges are concerned, it was submitted on behalf of Mr Wilkins that the case is not strong on the trafficking charges. It is also said that Mr Wilkins will plead guilty to the charges of possessing methylamphetamine, the summary charges.

27. The three matters relied on by Mr Wilkins are his drug addiction, the quantity of the drug found and the evidence of the source of the money found. The evidence of his drug addiction is an assertion at this stage, though it is accepted by the Crown. I can also rely on the fact that Mr Wilkins has been accepted into the Arcadia House program. I can accept that scarce resources such as are available to that agency are not made available to persons whom the agency is not satisfied are persons with a relevant drug habit.

28. On the other hand, it is well-known, to the extent that I can take judicial notice of the fact, that drug addicted persons do sell drugs in order to finance their own habit. That is to say, the inference of trafficking would, in the circumstances, be harder to rebut were Mr Wilkins not to be a drug user or addict. It does not seem to me that the inference is much weakened by the fact that he is addicted to the drug. On the other hand, the fact that he has very a substantial personal income suggests that he did not need to sell the drug in order to finance his habit.

29. It appears to be accepted that the amount of drugs found on 9 December 2013 was only slightly above the traffickable quantity, namely, a total of 6.437 grams. Again, the presumption would be harder to rebut were the quantity much greater but I am not sure that the small amount weakens the Crown case to any substantial degree. Further, the amount of drug found on 10 October 2014 was about 12 grams. While double the traffickable quantity, it is still much less than the commercial quantity and is not necessarily inconsistent with personal use, though the finding of that amount does not provide much of a basis for the challenge to the Crown case.

30. Finally, photographs taken from closed circuit television footage at the Canberra Southern Cross Club show Mr Wilkins receiving what appears to be quite significant amounts of cash from the Club on 8 and 9 October 2014. This clearly strengthens his assertion that the money found by police was not the proceeds of the sale of drugs and reduces, at least for the second charge, the strength of any inference that could be drawn from the presence of cash when police executed the search warrant.

31. It also strengthens the credibility of Mr Wilkins, who told police on 10 October 2014, when interviewed by them, that the money had come from the Southern Cross Club.

32. While some of this evidence is equivocal, taken together it certainly provides a ground for Mr Wilkins's assertion that he has a reasonable basis to challenge the Crown case and, no doubt, with his own evidence denying the intention to sell, a more arguable defence to the charges.

33. Mr A Doig, who appeared ably for Mr Wilkins, also pointed to the likely progress of the proceedings. The first charge is, as I have said, listed for callover on 2 March 2015 for listing in the June Central Criminal Listing period. That means Mr Wilkins will have been in custody for about eight months prior to trial. While that is not an excessive amount of time, it is not insignificant. If he is acquitted of the drugs trafficking charges but, on his plea of guilty, sentenced for the drugs possession charges alone, he is likely to have been in custody longer than the sentence that would be imposed, having regard to his history and the quantity involved, particularly, if he shows rehabilitation.

34. The question for me is whether these circumstances, in combination, constitute special or exceptional circumstances favouring bail. The lengths that Mr Wilkins has gone to, through his lawyers, to prove, with arguably some success, that the money found on his premises on 10 October 2014 was legitimately obtained from the Canberra Southern Cross Club is, in my experience, unusual. It is also unusual for a person charged with trafficking offences to have steady and demanding employment. It does happen. It is not impossible. It is not common.

35. The factors that favour a refusal of bail include the fact that Mr Wilkins is an alleged repeat offender. He was charged with the same offence while on bail for the earlier offence. The two charges, however, were nearly twelve months apart.

36. Mr Wilkins pointed out that, as a drug addict, it was likely that he would be in possession of the drug. As I pointed in Saga v Reid [2010] ACTSC 59 at [89], drug addiction can take a number of attempts at rehabilitation before it is successful. It is a pernicious addiction, which can be complex and difficult to manage. These matters are not exculpatory but are, to some extent, explanatory.

37. Indeed, and further, it appears that the first charges did not encourage Mr Wilkins to seek rehabilitation. He apparently only approached Directions ACT after his arrest, though relatively promptly. The offences are serious and those who traffic in illegal drugs can expect severe punishment, ordinarily including a significant period of a full time custody. There is no doubt, however, that rehabilitation is a relevant factor in such cases. The Deferred Sentence Order, under the Crimes (Sentencing) Act 2005 (ACT) is, in part, designed to allow for mitigation of punishment where an offender successfully undertakes rehabilitation which, of course, leads towards the objective of the criminal law which, as Brennan J pointed out in Channon v The Queen (1978) 33 FLR 433, is the protection of society and this can be achieved by such rehabilitation.

38. It is a matter of regret, though entirely understandable, that opportunities are slim in the Alexander Maconochie Centre for drug rehabilitation while an accused person is on remand. Where an offence is denied, rehabilitation may be resisted because it may be read as some kind of admission of the alleged offending behaviour. That is not often so in drug cases where the drug addiction is not denied but the exact offence as here, is defended.

39. Ms K Mackenzie, who appeared helpfully for the Crown, submitted that, while in some cases rehabilitation opportunities embraced by an accused person can be a special or exceptional circumstance, this was not one of those cases. I agree that, on its own, the expected rehabilitation is not a special and exceptional circumstance. She submitted that the Crown case was a strong one, though accepted that it was not overwhelming, and will depend to a significant extent on any evidence that Mr Wilkins gives and its credibility, not something, apart from the one comment I have made above at [31], to which either she or I were privy.

40. She indicated that the main concerns of the Crown were the risk of re-offending, which it must be said is well-based, given the history of the pre-custody activities of Mr Wilkins. Two serious charges laid in less than twelve months is not something to inspire confidence that there will be no such risk. Nevertheless, she candidly and properly accepted that it was open for me to find special and exceptional circumstances favouring the grant of bail.

41. I have carefully considered the matters that I have set out above. There is, in the matters to which I have referred, no one circumstance that is so special or exceptional that it would justify the grant of bail. A number of circumstances do, however, favour the grant of bail and they would not be overwhelmed by those matters that favour a refusal of bail were this to be decided simply by balancing those matters. Without the complication of s 9D of the Bail Act, the presumption in favour of bail in s 9A of that Bail Act would mean that bail would certainly be granted on the offences with which Mr Wilkins has been charged.

42. I have given anxious thought to the matters raised. It seems to me that the combination of matters raised on behalf of Mr Wilkins in response to his arrest, in seeking rehabilitation opportunities and the continued commitment to rehabilitation, the lack of drug offending record, his employment and his employer's view which is expressed in the reasonable possibility of continued employment if he is successful in his rehabilitation, the prospects of successfully defending the charges assisted by the evidence secured by his lawyers and the delay before he will be brought to trial, in particular, without rehabilitation opportunities in custody, do amount, in my view, to special and exceptional circumstances.

43. Accordingly, I will grant the application for bail. The parties have agreed to the conditions under which bail is to be granted.

44. [His Honour then spoke directly to Mr Wilkins]

45. Mr Wilkins, I have given you bail. If you are genuine about your attempt to address and manage your drug addiction, then the Court ought to support that and I have done so, but you are on a thin tightrope.

46. The most important thing is to complete the program. The second most important thing - and I usually say the most important thing - is that if things go wrong you do not run away; you come back. I do not guarantee that you will not go to gaol. You may. That may be the only option I have, but you will go to gaol if you do not come back.

47. You are smart enough. You ought not to be in this position, but you are. You have the 'smarts' to know what you need to do. I have every confidence that you will do that, whatever the outcome of the case, and I do not know what it is going to be.

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