In the matter of an application for bail by Sutherland [2008] ACTSC 136 (21 November 2008)

Last Updated: 23 December 2008

IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW JAMES SUTHERLAND

[2008] ACTSC 136 (21 November 2008)

Bail Act 1992 (ACT), ss 9D(2), 9G, 22

Tang (1995) 83 A Crim R 593

EX TEMPORE JUDGMENT

No. SCC 198 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 21 November 2008

IN THE SUPREME COURT OF THE )

) No. SCC 198 of 2008

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW JAMES SUTHERLAND

ORDER

Judge: Refshauge J

Date: 21 November 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The application is dismissed.
2. A copy of the report of Ms Cravino be referred to the Director of Corrections Health and the executive director of ACT Corrective Services for such action as they are able to take.

1. Matthew James Sutherland has applied for a review of a decision made by Mrs L Campbell, Magistrate, on 22 October 2008 in which her Honour refused a bail application he had made.
2. Mr Sutherland was, on 23 May 2008, committed for trial on charges of arson and burglary with intent to steal. The charges arose out of damage alleged to have been occasioned to the Blue Gum Community Centre on 10 March, 2008. These charges are serious offences within the meaning of s 9D of the Bail Act 1992 (ACT).
3. Mr Sutherland was granted bail on these charges with strict conditions about supervision, residence, a curfew, reporting to police, non-contact with witnesses and restriction on the places where he could be.
4. On 1 October 2008, Mr Sutherland was arrested and charged with two counts of common assault and two counts of assault occasioning actual bodily harm. The latter charges are also serious offences within the meaning of s 9D of the Bail Act 1992 (ACT).
5. These further charges arose out of incidents alleged to have occurred on or about 4 and 15 September 2008. The first allegation is that Mr Sutherland assaulted his partner, Ms Bonnie Anderson and their two month old baby on 4 September 2008. It is said that Mr Sutherland struck Ms Anderson on the forehead and the stomach and threw the baby, Tyson Anderson, from one end of a mattress on the floor to the other end; the baby landing partly on the mattress and partly on the floor.
6. Medical examination of Tyson is said to have revealed eight metaphyseal fractures of his legs of various ages of infliction, though not caused by the incident on 4 September 2008. They are, however, said to be, “highly indicative of abuse”.

7. When spoken to by police Ms Anderson is said to have told them that Mr Sutherland assaulted her and her child. Later Ms Anderson is said to have retracted that and stated that she and her child had been assaulted by an ex-boyfriend, but refused to make a formal statement about this. That allegation was investigated and found to be clearly untrue. Later she is said to have confirmed in a formal taped interview that it was, in fact, Mr Sutherland who had assaulted her and Tyson.
8. She is alleged to have also confirmed in that interview an assault by Mr Sutherland on 15 September 2008 when she received a large bruise on the left side of her face, which had been earlier noticed by police.
9. As a result of these charges s 9D of the Bail Act 1992 (ACT) provides that Mr Sutherland can only be granted bail if the court is, “satisfied that special or exceptional circumstances exist favouring the grant of bail.” Even then, the court must consider the criteria mentioned in s 22 of the Bail Act 1992 (ACT). The finding of the special or exceptional circumstances, therefore, does not automatically entitle the applicant to bail.
10. I also note that s 9G of the Bail Act 1992 (ACT) also provides that:

A circumstance that would be an applicable bail criteria for the person is not a special or exceptional circumstance only because it is an applicable bail criteria.

11. There is no definition in the Act of, “special or exceptional circumstances”. It is a phrase used in other legislation, both here and in other jurisdictions. It is not uncommon to find it in other bail legislation. In this connection, Beach J said in Tang (1995) 83 A Crim R 593 at 596:

‘Exceptional’ is a word commonly used in legislation. One definition of it in the New Shorter Oxford English Dictionary is: ‘Of the nature of or forming an exception, unusual, out of the ordinary, special’ (see vol 1, p 872). Webster’s Dictionary contains the following definition: ‘Relating to or forming an exception out of the ordinary course, unusual, uncommon, extraordinary.’

In my opinion it does not matter which of those definitions one chooses to adopt. I consider it was the clear intention of the legislature that any person charged with an offence falling within the provisions of section 4(2)(aa) bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail.

12. Thus, in my view there must be some unusual or uncommon circumstance which justifies the grant of bail and those unusual or uncommon circumstances must relate to the granting of bail.
13. In this application, I received a bail progress report (Exhibit D). It disclosed that Mr Sutherland had attended all scheduled supervision appointments and, where he was unable to attend, contacted ACT Corrective Services. He informed the agency of changes of address and “demonstrated a willingness to comply with his bail conditions and to comply with the directions of” the supervising agency.
14. He was unable to attend the Belconnen Community Services Anger Management Program because of his curfew, but he did not take any steps to have the curfew condition of his bail varied.
15. I also received a mental health report (Exhibit 3), that showed that Mr Sutherland displayed, “mild symptoms of adjustment disorder”. He qualified for a diagnosis of Mild Mental Retardation as set out in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (2000) Washington DC: American Psychiatric Association

(“DSM-IV”). In addition, he displayed some antisocial attitudes, but not sufficient to warrant a formal diagnosis in the terms of DSM-IV.

16. His profile was described on p7, as:

...reasonably complicated with some sub-clinical signs of depression and difficulties with adjustment superimposed on congenital cognitive deficit. It is the opinion of this Service that Mr Sutherland qualifies for a diagnosis of mental impairment (dysfunction) due to mild mental retardation, as defined by the Mental Health Treatment and Care Act 1994.

The Report continued:

With regard to anger and interpersonal challenges, Mr Sutherland provided evidence suggesting that he experiences some difficulties in emotional regulation, particularly in regard to his response to volatile relationships with his family. Although not statistically significant, Forensic Services understand that difficult relationships with Mr Sutherland’s family may heighten his risk for future impulsive acts. Mr Sutherland has poor impulse control and low frustration tolerance levels.

17. The Report made six recommendations for future treatment and support. Mr Perkins, who appeared for Mr Sutherland, submitted that only one of those recommendations could be accommodated within the current custodial arrangements for Mr Sutherland.
18. That may or may not be true. There was little evidence of this. It also has to be said that there was no guarantee that he would be able to access all the facilities that were recommended, even if he were granted bail.
19. Nevertheless, I accept that Mr Sutherland would have access to some of the support and treatment services, which were recommended in a very helpful and professional report by Ms Jolene Cravino, were Mr Sutherland granted bail.
20. Mr Sutherland also has a criminal history dating back to the Children’s Court in 2001. Many of the offences are property related, including three relating to the misuse of fire. Until the most recent charges there appears to be no allegation of personal

violence. In a sense, the fact of this allegation, insofar as on a bail application, I must take it into account is a worrying development.

21. So far as the misuse of fire offences are concerned the report of Ms Cravino stated:

Research suggests that people who experience mild intellectual difficulties are often prone to engage in impulsive acts including fire-lighting behaviour (Fineman, K PhD (2005) Juvenile Arson/Firesetting) and that it is often not a premeditated act. During assessment Mr Sutherland denied having any specific feelings about fire setting behaviours.

22. Mr Perkins relied, for the special and exceptional circumstances, on the intellectual and related deficit suffered by Mr Sutherland, the fact that many of the recommended treatments and supports could not be provided to him while he was in custody and that he has a proven ability to address these issues.
23. As I pointed out to him, it is a regrettable fact of life that our prisons are full of detainees with mental and intellectual challenges and deficits. No doubt many are keen to address those issues and perhaps have a record of doing so.
24. It does not seem to me that this is a special or exceptional circumstance in this case. I would need more for the circumstances of this case to fall within that category. I find that s 9D(2) of the Bail Act 1992 (ACT) requires that I do not grant bail.
25. I have to say, too, that the nature of the further charges leads me to believe, though I do not have to decide, that even were I to find special and exceptional circumstances I am unlikely to have been persuaded that bail should be granted in this case.
26. While Mr Sutherland’s partner expressed a willingness to have him reside with her this is a matter that is greatly problematic. The fact that she alleges that she was assaulted by him and then retracted that statement is worrying “victim behaviour”. It means that she should not be put in the position of having to be the one who is in any way seen to be responsible for his incarceration or continued incarceration.
27. Her relationship with him, the fact that they have a son and that she is pregnant with another child by him, obviously bonds them to each other and puts pressure on her to do all she can to assist him. The allegations of violence to her and the suspicions of earlier abuse to their son, however, are extremely worrying and need to be addressed by the community and not left to her in such a conflicted state.
28. While Mr Sutherland will remain in custody for some time, it is not, in my judgment, so long that bail would be justified in these particular circumstances.
29. The application is dismissed. I do, however, direct that a copy of the report of Ms Cravino be referred to the director of Corrections Health and the executive director of ACT Corrective Services for such action as they are able to take.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 11 December 2008

Counsel for the applicant: Dr B Boss

Solicitor for the applicant: Darryl Perkins Solicitor

Counsel for the respondent: Mr J Kellaway

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 19 November 2008

Date of judgment: 21 November 2008