R v Boney [2008] ACTSC 30 (19 March 2008)

Last Updated: 7 May 2008

R v BRIAN BONEY

[2008] ACTSC 30 (19 March 2008)

EX TEMPORE JUDGMENT

No. SCC 20 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 19 March 2008

IN THE SUPREME COURT OF THE )

) No. SCC 20 of 2008

AUSTRALIAN CAPITAL TERRITORY )

R

v

BRIAN BONEY

ORDER

Judge: Refshauge J

Date: 19 March 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The application for bail be granted, with the applicant to be released on 4 April 2008 with one surety in the sum of $100 cash, on the following conditions:

(i) That he attend the Supreme Court when notified by the Registrar or on her behalf;

(ii) That he accept the supervision of the Director of ACT Corrective Services or the director's delegate and obey all reasonable directions of the director or the director's delegate;

(iii) That he reside at 9 Sadleir Place Charnwood in the Australian Capital Territory and not leave those premises between 9 pm and 6 am daily;

(iv) That he report to the officer in charge of the Belconnen Police Station every day between 8 am and 8 pm;

(v) That he not contact directly or indirectly, save through his legal representative, or associate with Simon Hogan;

(vi) That upon his release he forthwith attend upon ACT Corrective Services at Eclipse House for the purpose of arranging supervision.

1. Mr Brian Boney appeared before me on 14 March 2008 apparently for directions since he had been committed for trial by the ACT Magistrates' Court on 18 January 2008 on a charge of aggravated robbery. On the hearing it turned out that the usual directions had been made on 7 February 2008. Mr Boney was not present though he was bailed to be present in the Supreme Court on that day.

2. The matter was further listed for directions on 14 February 2008 when Mr Boney did appear. The matter was listed for further directions on 13 March 2008 because of the prosecution's regrettable failure to comply with the directions made on 7 February 2008. It is desirable that while promptitude is important for the dispatch of criminal matters, sensible timetables are set so that the majority of matters can comply with the directions and the so called chain list will be small and reserved for more problematic cases where there is a more understandable need for further time.

3. In any event what emerged at the hearing before me is that Mr Boney had been arrested on 13 March 2008 under s 56A(2) of the Bail Act 1992 for breaching a condition of his bail. This section does not create an offence but a right in the police to arrest. He was however charged under s 211(2)(e) of the Crimes Act 1900 with giving a name that was false in the material particular.

4. That offence carries a maximum penalty of $500 and under s 8 of the Bail Act 1992 Mr Boney is entitled to bail. I take that section to mean what it says, namely that Mr Boney has a right to bail and must be granted bail. There appears no basis on which an authorised officer or court can refuse bail on that charge but it can no doubt be granted on any conditions that can properly be granted under part 5 of that Act, although there could not be such as to amount to a colourable attempt to refuse bail.

5. The circumstances of Mr Boney's arrest were that he had been granted bail on 18 January on his committal to this court, that bail being a continuation of bail granted by the Chief Justice in circumstances I will mention later with an additional condition to notify the Registrar of the Supreme Court of any change of address.

6. The bail was conditional on five obligations, including that he not leave his place of residence in Charnwood between 9 pm and 6 am daily and that he report to the officer in charge of the Belconnen Police Station every day between 8 am and 8 pm.

7. The statement of facts relating to Mr Boney's arrest included in Exhibit 1 stated that Mr Boney had been spoken to by police at 12.10 am on Thursday 6 March 2008 when he was in Wanniassa, clearly in breach of the curfew condition. It is asserted that he gave police a false name and then ran away. It is also asserted that he had not reported as required since 5 March 2008.

8. Ms McLaughlin, who appeared for Mr Boney, stated that the breaches of bail were admitted and Mr Boney is to be given credit for so instructing her, though the proof of the breaches would no doubt not have been too difficult for the prosecution.

9. Mr Boney was arrested some eight days later at an address in Chisholm which Ms McLaughlin pointed out was the address of Mr Boney's mother. The address at Charnwood where the conditions of bail required him to reside was that of his sister. The arrest was described in the statement of facts as follows:

At 11.30 am Thursday, 13 March 2008 police attended at the address in Chisholm. At that location police were invited in to the residence by the defendant's family and subsequently located the defendant hiding behind a door in a bedroom. When questioned in relation to where he had been staying the defendant stated that he had been residing there as the police kept coming to look for him at Charnwood and he knew he was in breach of his bail."

10. The other relevant factual context is that Mr Boney had been charged with and pleaded guilty to a further charge committed on 28 February 2008, namely while Mr Boney was on bail. This is a charge under s 324(1) of the Criminal Code 2002 of being in unlawful possession of stolen property. That offence carries a maximum penalty of a $5,000 fine or 6 months' imprisonment, or both. Mr Boney has pleaded guilty to that charge and needs to be sentenced in the Magistrates' Court for it on 4 April 2008.

11. As Mr Boney has appeared in the Supreme Court on 14 February 2008 in respect of the charge of aggravated robbery, s 20 of the Bail Act 1992 removes any power in the Magistrates' Court to grant, review, enlarge, vary or revoke Mr Boney's bail on that charge.

12. Mr Boney did appear in the Magistrates' Court on 13 March 2008 following his arrest and charged under - his arrest under s 56A of the Bail Act 1992 and charged under 211(2)(e) of the Crimes Act 1900. The learned magistrate refused bail. I was informed that his Honour "simply decided that it was a matter for the Supreme Court only and therefore bail was refused for him to appear in the Supreme Court", before me.

13. As to the arrest under s 56A of the Bail Act 1992, that is undoubtedly true. See s 20 of the Bail Act 1992. As to the charge under s 211(2)(e) of the Crimes Act 1900, that is undoubtedly incorrect. On that charge and on that charge only Mr Boney is entitled to bail and a court does not have power to refuse it. More difficult is the matter of whether Mr Boney having breached his bail for the charge now before this court, I should grant him bail again on that charge.

14. Mr Todd, for the prosecution, opposed a grant of bail. He pointed to the further charges both with elements of dishonesty and both committed while on bail. Having regard to the nature of the offences committed they do not bring the case within s 9D of the Bail Act 1992. Nevertheless, one of them is another offence of dishonesty relating to property, like the charge before this court.

15. The other, the giving of a false name, was clearly designed to evade the inevitable arrest for breach of bail and so undermines the purpose for which bail is granted, especially on conditions such as given in this case. Mr Todd also referred to a suspicion that further offences had been committed by Mr Boney, though that awaited DNA and fingerprint testing. This can only be taken in to account in a very limited way.

16. Ms McLaughlin also frankly advised that Mr Boney had a number of other matters for sentence on 4 April before the Magistrates' Court. She advised that these included a charge of burglary and a charge of theft. As they are then for sentence I assume pleas of guilty have been entered and so the charges are admitted.

17. Ms McLaughlin indicated that these were committed some time ago. They appear to be charge referred to in the transcript of the committal proceedings on 18 January 2008, namely two charges of failing to appear presumably under s 49 of the Bail Act 1992, a charge of burglary and a charge of theft. The latter charge initially had been defended but by the end of the hearing on that day was the subject of a plea of guilty.

18. It was apparently then submitted that those matters were to proceed for circle sentencing before the Ngambra Circle Sentencing Court. I have no information as to whether that occurred or not. Ms McLaughlin simply advised that these matters were for sentence in the Magistrates' Court on 4 April 2008,

19. Mr Boney has a depressingly bad criminal record for his 21 years of age. His record, Exhibit 2, discloses that he has a caution for common assault and a conviction for assault occasioning actual bodily harm. He has convictions for breaking and entering, maliciously destroying property, and of course can now expect them for burglary, theft and unlawful possession of stolen property.

20. He has also a non-conviction order for trespass. He has also a history of non-compliance with court orders. He failed to appear at the Tenterfield Children's Court, requiring his arrest. He contravened a probation order. He failed to appear in court twice in 2005 and has pleaded guilty to two further charges of failing to appear.

21. Ms McLaughlin further properly pointed out that he also failed to appear in the Canberra Magistrates' Court on 16 and 31 October 2007, although I can only find the latter on the Bench sheet for the charge on which he is committed to this court.

22. What is particularly depressing about this saga is that it appears tolerably clear that the more time passes the more likely it is for Mr Boney to fail to comply. It is disturbing that the charge before this court was alleged to have been committed on 27 February 2007. The Bench sheets show 12 court appearances on that matter alone. It appears that after some appearances, one delayed on 3 March 2007 because Mr Boney was in hospital, Mr Boney failed to appear at the hearing appointed for 31 October 2007.

23. He was arrested and brought before the court on 9 November 2007 and remanded in custody. He appeared before the Chief Justice on 15 November 2007 and then was released on the strict conditions on which he first appeared before this court following committal for trial.

24. I have read the committal transcript, although much of the brief of evidence was simply tendered by consent and I do not have access to it. Accordingly I am unable to form a clear view about the strength of the prosecution case from that material. There is some identification by one of the eye witnesses but identification may well be in issue.

25. Ms McLaughlin submitted that despite these matters bail should be granted. She advised of her instructions that Mr Boney breached his curfew because he was staying with friends and simply, "forgot about time". That is perhaps an explanation though I note that he had spoken to police at 10 minutes past midnight when his curfew ends at 9 pm, some three hours earlier. That is a long time for him to have forgotten about the curfew which he presumably complied with every other night. She also advised that Mr Boney had simply forgotten to report on 5 March 2008. That would be easier to understand if the reporting had been required on only some days of the week but he was required to report every day. Nevertheless, he had reported daily from 15 November 2007 till 5 March 2008, though of course not thereafter until he was arrested on 13 March 2008.

26. She pointed out that the house where he was located by police was that of his mother and the house where the bail condition required him to reside was that of his sister and he had stayed over with his mother just for the one night. It is hard for an accused person when the bail conditions are strict but they are strict because that is the way the court can satisfy itself that bail should be granted in cases where there are concerns about the matters which s 22 of the Bail Act 1992 require it to consider.

27. Ms McLaughlin advised her instructions that Mr Boney had been working approximately three days a week on a casual basis packing fruit and vegetables for the last one to two weeks. That is to his credit and may have contributed to his forgetfulness. It may, however, have encompassed the period when Mr Boney had the stolen goods in his unlawful possession.

28. Ms McLaughlin also advised that Mr Boney had maintained contact with ACT Corrective Services except when in custody. She also advised that Mr Boney's partner, who had been his surety, was 8 months pregnant and was due to give birth in some 4 weeks. Ms McLaughlin submitted that given Mr Boney was in breach of his bail at the time he was spoken to by police it was naturally understandable that he would give a false name and that it was equally understandable that he would thereafter cease reporting as arrest would be inevitable.

29. That is all true, and perhaps makes the breaches somewhat less serious but the court must encourage people on bail to accept their obligations and be honest and forthcoming when they fail. I would have been much more sympathetic if, having forgotten to report on 5 March 2008, he had reported the next day and explained he had forgotten to report and if arrested is likely to have had at least the court excuse such a human breach. It is not to his credit that he had to be found hiding behind the bedroom door of his mother's house having stayed away from the police, and presumably his residence, where he is supposed to be, for about a week.

30. Ms McLaughlin submitted that Mr Boney's last conviction recorded on 20 April 2006 was for an offence committed on 22 February 2005, over three years ago. The principal charges for which he will be sentenced on 4 April 2008 were however committed in February 2007, just over one year ago. She fairly conceded that the most recent charge was a sign that he had relapsed.

31. Ms McLaughlin also pointed out that despite his history of failing to appear he had attended court on her calculation on six occasions prior to 9 November 2007 and four or five times since then. As noted earlier, he failed to answer his bail in the Supreme Court on the first mention although he did attend at the second directions hearing.

32. While that does not show a complete disregard of compliance with court obligations, most people are able to attend court on every occasion they are directed to do so and it is complete and not substantial compliance that is required. On the other hand, it must be said that there seems to have been too many appearances required of Mr Boney for such matters as he is currently facing.

33. When the Chief Justice granted Mr Boney bail he did so on very strict conditions. It is important for the court to make it clear that such conditions are to be obeyed and that the consequences of breaching them is that the bailed person will once again be deprived of his or her liberty. While I do not consider that the breaches here to be the most serious, they are fairly brazen. Strict conditions of bail are designed to prevent any offending and to enable the person bailed to be located if they fail to comply with the conditions or fail to attend court when required. In this case that has not been achieved. Mr Boney has offended and he made it difficult to find him after he had breached certain of the conditions.

34. I have given this matter careful consideration. It seems to me that the significant part of Mr Boney's problem is the number of cases he is facing and the obligations to attend court frequently as well as to comply with the bail conditions. Until he has had the present matters before the Magistrates' Court finalised I am not at all confident that Mr Boney will comply with the bail conditions, including attending court.

35. Thus I would be minded to refuse bail at this stage. Once he has finalised those matters, however, I would have much more confidence that he would be able to comply with the conditions imposed in connection with his bail in this court.

36. Accordingly, my proposal is to grant bail with one surety in the sum of $500 cash to be deposited in court to be released on 4 April 2008 on the following conditions: (1) That he attend the Supreme Court when notified by the registrar or on her behalf; (2) That he accept the supervision of the Director of ACT Corrective Services or the director's delegate and obey all reasonable directions of the director or the director's delegate; (3) That he reside at 9 Sadleir Place Charnwood in the Australian Capital Territory and not leave those premises between 9 pm and 6 pm daily; (4) That he report to the officer in charge of the Belconnen Police Station every day between 8 am and 8pm; (5) That he not contact directly or indirectly, save through his legal representative, or associate with Simon Hogan; (6) That upon his release he forthwith attend upon ACT Corrective Services at Eclipse House for the purpose of arranging supervision.

37. The other matters mentioned, namely the charge of unlawful possession of stolen goods and giving a false name are not before me and can be dealt with in the Magistrates' Court in the way that court considers appropriate.

38. Those are the proposals I have and I now invite submissions on whether that is appropriate.

[Counsel for Mr Boney and the Director of Public Prosecutions made further submissions].

39. At the moment I am prepared to take the risk that the matters in the Magistrates Court are not ultimately resolved on 4 April 2008. That is a risk for me in the sense that if something happens on the 4th and all his Magistrates' Court matters are not resolved then my expectation that that pressure will assist him to comply with the strict conditions will not be entirely released.

40. I think it is better for everyone to know what is going to happen and for Mr Boney to have some expectation and he can make, no doubt with your assistance, Ms McLaughlin, some preparations for sorting himself out after the 4 April.

41. In relation to the submission that a deferred release is only available if associated with a rehabilitation condition, it seems to me that the proposed release is separate from the rehabilitation condition. In any event I am aware of circumstances where, for example, police have been concerned about the possibility of tampering with evidence and that bail has been delayed for 24 hours or more in order for that kind of situation, or where there is a witness that might be at risk or something. So it is not solely as part of a rehabilitation condition that release on bail can be deferred although that is an example of the circumstances.

42. In the circumstances I will make the orders releasing Mr Boney on bail.

43. I grant Mr Boney bail with one surety in the sum of $100 cash to be deposited in court to be released on 4 April 2008 on the following conditions; (1) That he attend the Supreme Court when notified by the Registrar or on her behalf; (2) That he accept the supervision of the Director of ACT Corrective Services or the director's delegate and obey all reasonable directions of the director or the director's delegate; (3) That he reside at 9 Sadleir Place Charnwood in the Australian Capital Territory and not leave those premises between 9 pm and 6 am daily; (4) That he report to the officer in charge of the Belconnen Police Station every day between 8 am and 8 pm; (5) That he not contact directly or indirectly, save through his legal representative, or associate with Simon Hogan; 6) That upon his release he forthwith attend upon ACT Corrective Services at Eclipse House for the purpose of arranging supervision.

I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 19 March 2008

Counsel for the defendant: Ms Elizabeth McLaughlin

Solicitor for the defendant: Legal Aid Office (ACT)

Counsel for the Crown: Mr Chris Todd

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Date of hearing: 14 and 19 March 2008

Date of judgment: 19 March 2008