R v Williams [2015] ACTSC 15

(a) That he be released into the company of Lee Stewart;

(b) That he remain in the company of Lee Stewart until he boards the Southern Xplorer train on 29 January 2015;

(c) That he travel, on 29 January 2015, directly to Oolong House, Nowra, New South Wales, by the means arranged by Prisoner Aid, and admit himself to the program of that facility.

(d) That he remain in Oolong House, except for occasions when he is required to appear in Court, until he has completed the program;

(e) That if he is not admitted to Oolong House program, or is discharged from it, or completes the program, he present himself, in person, to the Registrar of the ACT Supreme Court within two business days, for the purposes of reviewing his bail;

(f) That he obey all reasonable directions of the officer in charge of the Oolong House program;

(g) That he report to Nowra Police Station every Monday and Friday between the hours of 8:00 am and 8:00 pm;

(h) Derek Joseph Williams is not to contact directly or indirectly, save through his lawyer, Paul Kelly, Kevin Quilty, Melissa Hando or Gavin Brewer;

(i) That he appear in the District Court at Queanbeyan, New South Wales when he is required to be present to answer the charges preferred against him in that Court;

(j) That, subject to any other court order, he not be required to appear in this Court for any directions hearing or callover if he is represented by a lawyer;

(k) That he not consume illicit drugs or alcohol; and

(l) That he not operate a motor vehicle, be in the possession of the keys of a motor vehicle or be in the driver's seat of a motor vehicle.

CRIMINAL LAW - JURSIDICTION, PRACTICE AND PROCEDURE - Bail - Applicant seeking rehabilitation - Applicant facing charges in another jurisdiction

CRIMINAL LAW - JURSIDICTION, PRACTICE AND PROCEDURE - Bail - Procedure - Evidence in Bail Application - Evidence given from Bar Table

Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)

Human Rights Act 2004 (ACT)

Magistrates Court Act 1930 (ACT), s 90B

Court Procedures Rules 2006 (ACT), rr 4733, 4734

R v Olbrich (1998) 45 NSWLR 538

Re Application for Bail by Merritt (No 2) [2010] ACTSC7

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

1. On 22 May 2014, Derek Williams, the applicant for bail, was arrested after police had chased a red Toyota Corolla sedan in which they say he was driving. He was charged with dishonestly driving the motor vehicle without the owner's consent, an offence against s 318(2) of the Criminal Code 2002 (ACT), which attracts a maximum penalty of 500 penalty units (that is, a fine of $75,000) or imprisonment for five years or both.

2. On inspection of the motor vehicle in which a coaccused was also said to have been riding, police say they found stock items which, after further investigation, were said to have been stolen after a burglary at a nearby sporting goods and clothing store.

3. As a result, Mr Williams and his companion were charged with aggravated burglary and theft. Aggravated burglary is an offence prohibited by s 312 of the Criminal Code, rendering Mr Williams and his coaccused liable to a maximum penalty of 2000 penalty units (that is, a fine of $300,000 or imprisonment for twenty years or both).

4. Theft is an offence against s 308 of the Criminal Code for which the section provides a maximum penalty of 1000 penalty units (that is, a fine of $150,000) or imprisonment for ten years or both.

5. Mr Williams appeared in the Magistrates Court on 22 My 2014 and was refused bail. He has been in custody since then. On 21 August 2014, he was committed to this Court for trial on the three offences with which he has been charged. He now applies for bail for the first time in this Court.

6. So far as the proceedings in this Court are concerned, they have not been proceeding quickly, but all the pretrial documents required under rr 4733 and 4734 of the Court Procedures Rules 2006 (ACT) have been filed. There are noted to be some issues about funding and instructions, but the matter is next before the Registrar on 5 February 2015. It is expected that the trial will take place in the June-July central criminal listing period.

7. It is also relevant to note that there are four summary charges that have been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT). These offences all relate to the circumstances of the alleged driving by Mr Williams of the red Toyota Corolla sedan. They are charges of driving whilst disqualified, exceeding the speed limit, dangerous driving and proceeding when a traffic arrow was red.

8. Mr Williams has applied, and now received approval, for admission to the sixteen week residential rehabilitation program of Oolong House, a facility conducted by the Oolong Aboriginal Corporation at Nowra, New South Wales. Mr Williams identifies as Aboriginal.

9. Oolong House provides residential treatment for Aboriginal and nonAboriginal men who wish to regain their lives and manage problems linked to alcohol and other drugs. The program provides holistic alcohol and other drug programs that endorse Aboriginal culture. There is an initial four week period of clinical interviews and assessment of suitability for acceptance into the program. If the applicant is not assessed as suitable, the agency will facilitate a move to another destination. It is, however, a mandatory reporter and will report to the authorities any client leaving the program where they are under a legal obligation to be there.

10. The program encompasses issues surrounding preventing relapse, psychological health, physical health, independent living skills, work related skills, capacity to function in a social group, and alcohol and other drug offending.

11. Mr Williams has a bed available according to the letter annexed to the affidavit of his lawyer deposed on 27 January 2015. He is required to attend as near to 9:00 am as possible, and, in any event, by 3:00 pm on the day of his admission. A subsequent letter tendered on this application shows that the bed is still available.

12. Regrettably, Mr Williams also has pending charges in the Local Court at Queanbeyan. He has been charged with three counts of supplying a small quantity of a prohibited drug, an offence under s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). The drug was methylamphetamine. The maximum penalty for that offence is 50 penalty units (that is, a fine of $5,500) or imprisonment for two years, or both. As a result of the three occasions of supply, however, he has also been charged with supplying a prohibited drug on an ongoing basis, an offence contrary to s 25A of the Drugs Misuse and Trafficking Act, an indictable only offence punishable by a maximum of 3,500 penalty units (that is, a fine of $385,000 or imprisonment for twenty years or both).

13. It is, therefore, a very serious offence, though the individual and, indeed, aggregate amount of the drug is quite small. I am told that Mr Williams proposes to plead guilty to those offences and it is likely, therefore, that he will be committed for trial or sentence to the Queanbeyan District Court, whose next sittings commence on 16 March 2015. It is said also that there are negotiations between the defence and the prosecution in relation to those matters and an expectation, although it might be a pious one, that he will be given some mandated treatment order or a deferred sentence order of some kind, probably a Griffiths bond, in order to continue with his drug rehabilitation.

14. While it is relevant that Mr Williams has been charged with these New South Wales offences, that cannot, of itself, preclude a successful bail application. Further, it is relevant, despite the nature of the offences and seriousness of the supply charge, that he was granted bail in the Queanbeyan Local Court in circumstances to which I will refer later. Clearly, the intention of the bail application is to give Mr Williams the opportunity to attend a drug rehabilitation program at Oolong House.

15. I had, however, no evidence in the bail application itself that he was a drug addict. Perhaps it was intended I infer that from the charges preferred. He was, however, pleading not guilty to the dishonesty offences and so it was difficult for me to rely on the commission of those offences to draw the inference that he was committing the offence to obtain funds to feed his drug habit.

16. Similarly, I may be asked to infer that his involvement in supplying drugs in New South Wales was for the same purpose, but, of course, drug dealers also engage in that trade for profit and not because of an addiction; see, for example, R v Olbrich (1998) 45 NSWLR 538 at 540.

17. I accept the fact that Mr Williams has been assessed as suitable for admission to Oolong House is some, and significant perhaps, evidence from which I can infer that he is drug addicted. Ms K Bolas, who appears for Mr Williams asserted emphatically, however, that Mr Williams was a drug addict, and that was not controverted by the Crown, although it was indicated that the Crown was not able to accept that position from the mere assertion. It clearly was highly desirable that there be evidence of this, such as in the supporting affidavit.

18. Mr Williams has a long and undistinguished criminal record. He has been found guilty of fifty-three offences heard in twenty-five court appearances. These include thirteen offences of dishonesty, fourteen offences of violence and eleven traffic offences. He has also breached bail undertakings to appear on two occasions and breached bail and reconnaissance condition on six occasions. Those indicate that the ability of the court to trust him and to trust him to obey conditional liberty conditions must be, at least, a question to be answered. These latter matters are of concern and raise a real question of whether the court can trust Mr Williams to behave while on bail and whether he will comply with bail conditions.

19. Mr Williams has not applied for bail earlier as, when arrested, he was on parole for certain traffic matters dealt with in the Magistrates Court on 12 June 2013. It is not entirely clear to me how, in the face of the plea of not guilty entered by Mr Williams for the current offences, his parole was breached. It appears, however, that he was breached for failure to comply with bail conditions and that his bail was revoked in about November 2014, which means that he, nevertheless, remained in custody between May and November 2014 on the offences before this Court.

20. This position has not been further clarified on the evidence, but it is, perhaps, of no moment. The evidence is that his sentence ended on 21 January 2015, from when he was, if granted, entitled to be released on bail. The application for bail was opposed on the grounds that he was a flight risk and unlikely to appear to take his trial and that he was at risk of further offending. Regrettably not included in the affidavit material before me, but asserted from the Bar Table, as is available in applications for bail (see Re Application for Bail by Merritt (No 2) [2010] ACTSC7 at [6]-[7]), were certain matters relevant to these issues.

21. Mr Williams, I am told, has six children. Prior to being taken into custody, he had care of the youngest, but the others, and presumably the youngest, are in the care of his former partner with whom he has good relations. She lives in the local area. He sees his children regularly. His mother lives in Queanbeyan and is severely disabled by emphysema and arthritis, while Mr Williams' sister provides her with assistance. He has strong ties with his mother and wishes to be able to provide her with assistance when ultimately released into the community. He has no relatives or ties with people outside the Yass Canberra area.

22. He has been in residential rehabilitation recently when, as I indicated earlier, he was bailed from the Local Court in Queanbeyan on the charges that he is facing in that Court to Karralika, a residential drug and alcohol rehabilitation facility in Canberra. He was discharged from there, though there is some explanation for that. He instructed his counsel that he was given a "hard time" by another resident in the facility. He confronted that resident and told him, "If you make it hard for me, I will make it hard for you". That was not unreasonably seen as a threat and he was discharged from the facility.

23. To his substantial credit, he returned to the Local Court in Queanbeyan to explain that he had been discharged from Karralika and it appears that bail was continued until he was arrested for the offences that he faces in this Court. It is also to be noted that while he has failed to appear on two occasions to answer to a bail undertaking in the past, the most recent one is now almost four years old, namely, 24 April 2011. It was Mr M Fernandez, who appeared for the Crown, that pointed out, quite reasonably, that it was at a time when he was in and out of custody fairly frequently.

24. Mr Fernandez also pointed out, as is clear from the above, that he has eleven traffic offences on his record, some of which are quite serious, and Mr Fernandez submitted that it was inevitable that, unless something changed, a member of the community would be likely to suffer serious injury or worse from Mr Williams' driving.

25. Ms Bolas also submitted that it was likely from her discussions with the prosecutors in New South Wales that Mr Williams is likely to be sentenced two mandated treatment or given a Griffiths bond, as I have mentioned earlier.

26. Mr Fernandez had made contact with the prosecutors in Wollongong, who service the Queanbeyan District Court sittings, and he indicated to me that, from the contact, he expected that the New South Wales charges would be heard in Queanbeyan on the sittings commencing on 16 March 2015 and that, at least the prosecutor with whom he spoke, had no information as to the negotiations. It is difficult for me to come to a finding on these matters, although, it is clear that Mr Williams will not necessarily avoid a significant custodial penalty when he ultimately appears in the Queanbeyan District Court.

27. Having considered the principles in relation to sentencing, however, it seems to me that a period of rehabilitation will inevitably go to his benefit and his sentencing and, as I already noted, that the total aggregate of the drugs that he supplied was not great.

28. While Mr Fernandez queried the likelihood of the success of the negotiations that were foreshadowed in relation to the Queanbeyan matters, describing it as "a bold submission", he did not controvert or seek to have otherwise proved any of the other assertions about Mr Williams' situation made by Ms Bolas from the Bar Table.

29. In summary, Mr Williams, at thirty-three, recognises that he now needs to address his drug addiction seriously or he will be inevitably incarcerated many times in the future, and, in particular, lose the opportunity to provide some parental care for his children. He is, by trade, a painter and believes that he will be able to get work when he finally gets on top of his drug addiction and has dealt with the consequences which may include further incarceration of the offences that he now faces. I accept that Mr Williams has a bad record. That is not necessarily enough to prove likelihood of re-offending. As was said in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 at 184; [55]- [56], there must be significant evidence from which the court can find that it is likely that there will be reoffending else bail becomes preventive detention, which is not part of Australian law, especially in the ACT where we are bound by the Human Rights Act 2004 (ACT).

30. The case against Mr Williams is said to be overwhelming. I have not been favoured with any idea of what the defence is, and that cannot be required, but its absence leaves me with the conclusion that the Crown is likely to prove the allegations against Mr Williams at the trial in due course. I take that matter into account. On the other hand, Mr Williams does understand that his future in the criminal justice system as well as his family relations and opportunity to be a father to his children is very much in the balance.

31. If he takes this opportunity, there is a real chance that he will be able to avoid being caught up in the criminal justice system in the future and be able to reconnect with his children. The matter is finely balanced and the fact is that his trial cannot take place in the ACT until June, and that gives him a real opportunity to take part in the Oolong House program, which lasts for about four months. That, however, may be interrupted by what happens in Queanbeyan where he faces serious charges and charges which may come before the courts as early as March.

32. That is really something of an estimate and it is difficult for me to make a finding on the evidence before me. He has been in Karralika and that shows some commitment to rehabilitation. He left Karralika in circumstances which, unfortunately, this Court finds not uncommon in those circumstances but, most importantly, it was not because of relapse into drug use. He also did the right thing when he was discharged from Karralika and returned to the Local Court to face the consequences and, as it happened, to be granted further bail.

33. He has, I am told, applied for the Solaris Program while he was incarcerated in the Alexander Maconochie Centre, but been unable to complete it. I am aware that this program is highly sought after by those in the Alexander Maconochie Centre and, with his relatively short period of incarceration on sentence, it was unlikely that he would access it. Nevertheless, it is some further evidence of his commitment to rehabilitation. I am satisfied in all the circumstances that he is genuinely committed to attempt to rehabilitate himself.

34. I am not satisfied that his record means that he is likely to fail to answer his bail undertaking. I accept that there is some risk. I am also not satisfied that his criminal record means that he is likely to reoffend in the circumstances of the bail that I am able to grant. He recognises, however, that, if he does not take this opportunity and does not commit himself to the drug rehabilitation that is offered, that this will mean he is unlikely to get the outcome that he seeks from the District Court in New South Wales and will spend significant periods in custody in the future.

35. It will also mean that he will lose the opportunity to connect with his children during their formative years and the opportunity to provide assistance to his mother. In all the circumstances, with some hesitation, I am prepared to grant him bail on this occasion, but with very strict conditions. I will hear the parties as to the conditions that they wish to be imposed.

36. [After making the orders, His Honour then spoke directly to Mr Williams]

37. Many people would think that I am silly and a bit weak giving you bail. Your record does not justify it, the charges you are now facing do not justify it, but ultimately it is better for the community if you can manage your drug addiction. It is obviously better for your children and for your mother if you can manage your drug addiction. I do not know whether you will be able to do that; it is tough out there, it is not going to be easy. A drug addiction is something that grabs you by the guts and does not let you go for a long time.

38. I am impressed by what you did in Karralika, that you came back to the court. I think you are growing to understand that you do need to take responsibility for yourself and look after yourself and your attempts to rehabilitate yourself. I do not say that you will not go to gaol. The offences that you are charged with are very serious offences and they deserve gaol, and that is what the community says should happen, but, if you can take this opportunity a court may recognise that and may not require you to spend fulltime in gaol, or something else, but you need to work on it and work hard and not play silly games like what happens when someone gets up your nose and so on, and you have got to put real effort into this.

39. If things go wrong, come back to the Court. You have seen what happens in Queanbeyan, it is the same here. I do not say necessarily that you will not go back into gaol, but certainly you will go back into gaol if you do not come back to Court. If you are not in Oolong or if you are chucked out of Oolong, or when you are finished you have to come back in two days. Speak to Ms Bolas, but come to the court and say to the Registrar, "I need to get back before a judge to sort this out".

40. It is a terrible thing to be a drug addict, it takes over your whole life. If you want your life back put some effort into this, take the opportunity I have given you and prove all those people who say I should not give you this chance wrong.

41. There are lots of bail conditions. They are strict bail conditions and Ms Bolas will explain them to you. You will have a piece of paper that you have to sign for the bail. Make sure you comply with all of them and read every one of them. No cars, no drugs, no alcohol, Oolong House, four months, hard labour.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Judgment of his Honour Acting Chief Justice Refshauge.