In the matter of an application for bail by Kim [2009] ACTSC 129 (4 September 2009)

Last Updated: 26 October 2009

IN THE MATTER OF AN APPLICATION FOR BAIL BY SUN HUK KIM
[2009] ACTSC 129 (4 September 2009)

BAILMENTS – purpose of bail – protection of community – supervision of drug use likely to prevent commission of offences alleged – desirability of community drug management.

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

EX TEMPORE JUDGMENT

No. SCC 322 of 2009

Judge: Refshauge J
Supreme Court of the ACT
Date: 4 September 2009

IN THE SUPREME COURT OF THE )

) No. SCC 322 of 2009

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION FOR BAIL BY SUN HUK KIM

ORDER

Judge: Refshauge J

Date: 4 September 2009

Place: Canberra

THE COURT ORDERS THAT:

1. Sun Huk Kim be granted bail with one surety in the sum of $1000 to attend at the ACT Magistrates Court on 24 September 2009 at 10 am and thereafter as required;
2. He reside at 8 Hartog Street, Griffith ACT;
3. He not absent himself from that place of residence between the hours of 8 pm and 7 am;
4. He accept supervision of the Chief Executive or the Chief Executive’s delegate and obey all reasonable directions of the person delegated to supervise him, especially directions in relation to drug rehabilitation and treatment;
5. He abstain from the use of illicit drugs and submit as and when required to urinalysis;
6. He report to the officer in charge of City Police Station each Monday, Wednesday and Friday between the hours of 8 am and 8 pm;
7. He report to the Court Alcohol and Drug Assessment Service within seven days for assessment and consent to a copy of the assessment being made available to the person delegated by the Chief Executive to supervise him and to Directions ACT;
8. He continue taking methadone, so long as ACT Health considers it appropriate;
9. He report within 24 hours to Directions ACT and accept such treatment and counselling as may be recommended and continue with that treatment and counselling until discharged by Directions ACT;
10. He not to seek the return of his passport or apply for another passport and not approach within 100 metres of a place of departure; and
11. He upon release attend forthwith upon Corrective Services at Eclipse House for the purpose of arranging supervision.
1. This is a difficult case. It is a hard case because the factors favouring the grant of bail are significant, but the factors that suggest that bail should not be granted are also significant. If this were a case merely of drug possession, or of minor sharing of drugs or a mutual interaction amongst drug users the matter would be easy. The allegation by the police is of a relatively sophisticated and significant drug operation, having regard to the amount of money involved and the amount of drugs found, even if the analysis of those drugs proves to be such that the prosecution will not have the advantage of the deeming provision to assist it in its case.
2. Having said that, it is notorious that drug dealing is often associated with drug use and if one can manage the drug use then often that will address both the need for and the interest in continued drug dealing.
3. Bail is primarily to be granted for three reasons. One is when the court is satisfied that the applicant for bail will appear to answer his or her, in this case his, bail and to take his trial as the criminal justice system requires. I must say that I share the view taken by Magistrate Burns when dealing with this in the Magistrates Court, that the appropriate conditions such as those proposed can be made to permit the court to be satisfied that that will be met adequately.
4. The second is to ensure that the interests of the applicant and of any witnesses are appropriately protected. While there are some provisions in the Alexander Maconochie Centre for drug rehabilitation, hopefully those will be advanced so that the proposed therapeutic community will be established in the shorter, rather than longer term.

5. It is clearly desirable that people who are addicted to drugs have the opportunity, where possible, to manage their addiction in the community so that they can become able to deal with the stresses and involvements of being in the community and managing their drug addiction at the same time. There is no suggestion here that any interests of any witnesses are at risk and so I do not need to consider that any further.
6. The final matter is that the community is entitled to be protected from the commission of further offences by people who are shown to have been likely to or have committed offences. Here such commission is only likely because there is a plea of not guilty to the charges and while the prosecution case is a relatively strong case on the material before me, it is always difficult to make a careful assessment of such material at the time of a bail application.
7. The Full Court of the Federal Court of Australia in a number of decisions, the most significant of which is Dunstan v Director of Public Prosecutions (1999) 92 FCR 168, has said clearly that the determination by a court considering bail as to whether there are likely to be further offences committed is not a speculative exercise and must be grounded in more than mere supposition and guesswork. The simple identification of a particular offence or type of offence is unlikely to be sufficient in the ordinary course to justify a refusal of bail on the basis of that ground.
8. Here there is, as Ms Taylor, who appeared for the Crown, has cogently and accurately submitted, matters of concern in relation to the circumstances of the applicant were he to be granted bail. The nature of the enterprise was relatively sophisticated leading a court to accept that it is more likely than not that the involvement in distribution is not simply, as courts often find, for the purposes of feeding one’s own addiction. It seems that the nature of this exercise goes somewhere beyond that. It is in the nature of what might be called a quasi-commercial enterprise. Having said that, it is undoubted that the addiction of the applicant and his involvement in using heroin and ice will facilitate and presuppose that he is more likely to be involved in drug taking.
9. Ms Taylor also astutely observed that, if I were to grant the applicant bail, there is something of a dilemma in that he is engaged in employment in circumstances where there must be at least a suggestion that he will come into contact with drug users. Although I have got no evidence one way or another about that, no doubt there are brothel businesses where the participants in that legal enterprise are not drug users and are involved for economic and other reasons, rather than simply to feed or maintain a drug habit or to use drugs in order to enable them to get through what sometimes is regarded as a difficult occupation.
10. Further in this line of argument, Ms Taylor observed that the other horn of the dilemma was that if the applicant, Mr Kim, were to terminate his employment whether because of the contact with possible drug users or whether because a curfew as proposed would mean that the employment was not available to him, then he runs the risk of finding that he has nothing much to do during the day and he has the problem of risking contact with his previous associates and running back into drug using. My task is somewhat more difficult because none of these matters were put to Mr Kim and so I did not have an opportunity to learn what his answers – if he had any answers – would have been to them or to assess how he would deal with those issues. Ms Taylor did not cross-examine at all and Mr Whybrow for the applicant did not canvass any of those issues.
11. Mr Whybrow further relied upon an important matter which is that, given that Mr Kim has pleaded not guilty, the state of the lists are such that he is unlikely to be tried and, if tried and found guilty, sentenced before at least 2010. The period of incarceration, he says, is one that in the circumstances, having regard to his history, is unlikely to be exceeded by any such sentence. Indeed, he submitted that it was quite possible that the sentence imposed on him in those circumstances would be exceeded by the period he would serve in custody if bail were to be refused. That is an important matter, although it cannot always be determinative, and regrettable though it may be, the court lists are long. Unless the difference between the likely sentence and the period on remand is grossly disproportionate, it cannot be the determinant of whether bail is granted, especially in circumstances where those assessments might be relatively speculative.
11. I also note that while Magistrate Burns refused to grant bail it did seem in the report that I have in Ms Avery’s affidavit, filed on behalf of the applicant, and which has not been challenged, to imply that were there a proper regime in place for drug rehabilitation for Mr Kim, then his Honour may well have granted bail. His Honour is, of course, an experienced magistrate and the magistrates have the task, at first instance, to deal with bail and despite the number of bail applications that are made to this Court, often on review from a decision of a magistrate, the vast majority of bail applications are made and determined and completed in the Magistrates Court, and it is appropriate for this court to pay due respect to the experience of magistrates in those circumstances.
12. As was probably clear from the time that I took before commencing these reasons, I find this a difficult matter because I think it is finely balanced. But I think, in all the circumstances and at the end of the day, the court can put in place some conditions that will allow it to be satisfied that all the interests can best be met. Insofar as the court has to be speculative about what might happen I think it is appropriate that bail be granted and I am prepared to do so.
13. I grant Sun Huk Kim bail with one surety in the sum of $1000 to attend the ACT Magistrates Court on 24 September 2009 at 10 am and thereafter as required on the following conditions:

(1) That he reside at 8 Hartog Street, Griffith ACT;

(2) That he not absent himself from that place of residence between the hours of 8 pm and 7 am;

(3) That he accept supervision of the Chief Executive or the Chief Executive’s delegate and obey all reasonable directions of the person delegated to supervise him, especially directions in relation to drug rehabilitation and treatment;

(4) That he abstain from the use of illicit drugs and submit as and when required to urinalysis;

(5) That he report to the officer in charge of City Police Station each Monday, Wednesday and Friday between the hours of 8 am and 8 pm;

(6) That he report to the Court Alcohol and Drug Assessment Service within seven days for assessment and consent to a copy of the assessment being made available to the person delegated by the Chief Executive to supervise him and to Directions ACT;

(7) That he continue taking methadone, so long as ACT Health considers it appropriate;

(8) That he report within 24 hours to Directions ACT and accept such treatment and counselling as may be recommended and continue with that treatment and counselling until discharged by Directions ACT;

(9) That he not to seek the return of his passport or apply for another passport and not to approach within 100 metres of a place of departure; and

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

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

Associate:

Date: 2 October 2009

Counsel for the Crown: Ms L Taylor

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

Counsel for the Applicant: Mr S Whybrow

Solicitor for the Applicant: Ms S Avery, Ben Aulich & Associates

Date of hearing: 4 September 2009

Date of judgment: 4 September 2009