R v Johnson [2003] ACTSC 79 (25 September 2003)

Last Updated: 14 October 2003

THE QUEEN v SHANE EDMUND JOHNSON

[2003] ACTSC 79

EX TEMPORE REASONS FOR ORDERS

BAIL - relevance of conviction to application for bail pending sentencing - where relevant legislation does not refer to conviction or impending sentence - where presumption in favour of bail - where sentence may involve term of imprisonment

PRACTICE AND PROCEDURE - form of pre-sentence report

Crimes Act 1900 (ACT) ss 363, 364

Bail Act 1992 (ACT) s 22

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

Clarke v Director of Public Prosecutions [1999] FCA 1498 (2 November 1999 unreported) cited

R v Hilton (1987) 7 NSWLR 745 cited

Peter Daniels Clarke II [2001] ACTSC 39; (2001) 118 A Crim R 585 cited

No. SCC 13 of 2003

Judge: GYLES J

Supreme Court of the ACT

Date: 25 September 2003

IN THE SUPREME COURT OF THE )

) No. SCC 13 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:

THE QUEEN

Plaintiff

AND:

SHANE EDMUND JOHNSON

Defendant

EX TEMPORE REASONS FOR ORDERS

1. In this matter the offender was convicted of theft following a verdict from a jury taken this morning. The question of sentence arises. Counsel for the offender has submitted that time is needed to obtain information relevant to the matters which I must take into account in considering sentence, and he has requested that there be a pre-sentence report ordered pursuant to s 363 of the Crimes Act 1900 (ACT).

2. I indicated to him some reserve as to the necessity for such a report, bearing in mind two matters. First, the offender is now nearly 33 years of age and, having been before the courts on many occasions commencing in 1981, is, no doubt, well known to the relevant authorities, including ACT Corrective Services, the Police and the office of the Director of Public Prosecutions. Most matters which are relevant should be known. I also have in mind that counsel for the offender is instructed by the South Eastern Aboriginal Legal Service, which would have a very good degree of knowledge about available programs and the like. Secondly, there is a pre-sentence report in existence of 4 March 2003, prepared for the Presiding Magistrate of the Magistrates Court, which deals with all of the headings which might be thought to be appropriate up to that date. Counsel for the offender has made clear that he does not suggest that a `first occasion' comprehensive pre-sentence report is required. He submitted, rather, that some of the matters which are relevant, such as the degree to which his client had complied with bail conditions, parole conditions, and the like in the past, cannot be readily obtained from any other source. Whether that is right or not, the obtaining of a pre-sentence report is one way of obtaining that kind of information, and it seems to me that, it being available with no harm done by it apart from a delay, there is a case for ordering it.

3. I indicated during the course of argument my view that, a pre-sentence report in relation to an offender of this kind and age must be very clearly focused upon those matters which may actually affect the sentence. As I have said, the background of this offender and most of the surrounding circumstances are well-known and are covered by the existing pre-sentence report.

4. At my request, counsel for the offender has consulted with the Crown prosecutor and it is agreed that a targeted approach is the appropriate one. I should note that a targeted approach not only assists the court but should very much cut down the practical task and time which might be involved on the part of those responsible for preparing the report.

5. Counsel are agreed that the pre-sentence report in this case would be most useful if limited, as a matter of substance, to those topics identified in s 364 (1) (c), (g), (i) and (j) of the Crimes Act. They have indicated that they would expect that those topics would include medical, mental health, special needs (custody), compliance with previous orders and courses/programs available. I agree with their assessment. I am told that there is a question as to whether the construction of s 364 permits a limited report. In the absence of full argument, I do not propose to deal with that point today, but I can indicate that the matters which Counsel have identified for inclusion in the report are those which appear to me to be relevant to my sentencing of this offender.

6. I order that a pre-sentence report be provided pursuant to s 363 and ask that a copy of these reasons be passed on to ACT Corrective Services.

7. That will involve an adjournment to 7 November 2003 for a sentencing hearing and bail is applied for in the meantime.

8. At common law once a conviction of a serious offence was recorded in circumstances where sentencing was to take place in the future and where a custodial sentence was a real possibility, bail was difficult to obtain, because of the natural tendency to flight to which that prospect gave rise. There was certainly no presumption in favour of bail. This is not surprising, as after conviction there is no presumption of innocence.

9. Counsel for the offender has submitted that the presumption in favour of bail which was explained and outlined in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 (`Dunstan') is applicable in this case, notwithstanding the fact of conviction and the absence of the presumption of innocence. That submission is sound because of the extended definition of "accused person" in s 3(2) of the Bail Act 1992 (ACT), and is in accordance with the decision of the Federal Court in Clarke v Director of Public Prosecutions [1999] FCA 1498 (2 November 1999 unreported), which in turn had applied the New South Wales decision of the R v Hilton (1987) 7 NSWLR 745 (noting however that the presumption in favour of bail did not apply in these circumstances in New South Wales). The submission is also consistent with the approach of the Full Court of this Court in Peter Daniels Clarke II [2001] ACTSC 39; (2001) 118 A Crim R 585.

10. Section 22 of the Bail Act omits any reference to conviction or to impending sentence, and the only way in which those matters have been taken into consideration in the cases to which I have been referred is by the indirect means of saying that the fact of conviction relates to the nature and seriousness of the alleged offence which is referred to in s 22(1)(a)(ii). (There may also be a possible argument that the conviction is part of the criminal record for the purposes of s 22(1)(a)(i).) In my opinion that is an unsatisfactory way of taking the fact of conviction into account and stretches construction of the section in order to achieve a practical result. In my view the legislature should examine s 22, and the Act generally, in relation to the factors to be taken into account in relation to the grant of bail after conviction and before sentence.

11. I appreciate, as counsel has pointed out, that s 9 indicates that the legislature did give attention to the situation which arises after a sentence of imprisonment. That does not mean that there is not an anomaly created by the failure of any provision of the Act to expressly deal with the situation which arises post-conviction and pre-sentence. I do not wish to indicate any particular view as to the policy which should be implemented by the legislature. I simply suggest that it is not satisfactory to have an important topic dealt with by uncertain and unsatisfactory implication.

12. I have asked the Crown whether there are circumstances or facts which should be taken into account by me in assessing the probability of this person appearing in court at the time of the sentence hearing. No such facts and circumstances were put before me, save for the fact of conviction. As I have indicated, that does not answer any description within s 22(1)(a) and has only indirect effect in relation to the enumerated matters. I am required by the Bail Act to give effect to a presumption in favour of the grant of bail notwithstanding conviction and the real possibility of a custodial sentence being imposed.

13. I take into account that, so far as the evidence, including his record and the pre-sentence report, shows, the offender here has had a long and continuing association with the Australian Capital Territory and the surrounding region. As I have indicated, he has had a very long history of involvement with the local law enforcement authorities, and there have been a variety of sentences passed upon him (including custodial sentences and remands), and a variety of bail orders afforded to him over that period. I would have expected that if there were a particular basis for inferring that he would be likely or inclined to flee it would have revealed itself in the past. One cannot of course rule out the possibility, but nothing has been put before me to indicate that it is more than a theoretical possibility in this case. As explained in Dunstan, that is not sufficient to refuse bail in the face of the statutory presumption.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Orders herein of his Honour, Justice Gyles.

Associate:

Date: 30 September 2003

Counsel for the Prosecution: Mr C Todd

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr C Everson

Solicitor for the Defence: South Eastern Aboriginal Legal Service

Date of Ruling: 25 September 2003

Date of Reasons: 25 September 2003