In the matter of an application for bail by Johnson [2011] ACTSC 12 (19 January 2011)

Last Updated: 7 February 2011

IN THE MATTER OF AN APPLICATION FOR BAIL BY

SHANE EDMUND JOHNSON

[2011] ACTSC 12 (19 January 2011)

EX TEMPORE JUDGMENT

No. SCC 102 of 2010

Judge: Refshauge J

Supreme Court of the ACT

Date: 19 January 2011

IN THE SUPREME COURT OF THE )

) No. SCC 102 of 2010

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION FOR BAIL BY SHANE EDMUND JOHNSON

ORDER

Judge: Refshauge J

Date: 19 January 2011

Place: Canberra

THE COURT ORDERS THAT:

1. Shane Edmund Johnson be granted bail to appear in the Supreme Court on a date to be fixed by the Registrar and thereafter as and when required on the following conditions:

a) that he accept supervision by the Chief Executive or the Chief Executive’s delegate through ACT Corrective Services and obey all reasonable directions including those concerning alcohol and drug treatment;

b) that he abstain from the use of illicit drugs;

c) that he abstain from the use of alcohol;

d) that he submit, as and when required, to breath analysis;

e) that he submit, as and when required, to urine analysis;

f) that upon release, he is to go straight to Corrective Services at Eclipse House, London Circuit, Canberra City to arrange supervision;

g) that he accept monitoring by CADAS;

h) that he report today to CADAS after seeing Corrective Services to arrange monitoring;

i) that he consent to his supervising officer at CADAS to release any information reasonably required by the officer supervising him;

j) that he consent to the officer supervising him at Wayback Ltd providing any information in relation to his treatment, reasonably required by the CADAS officer or the Chief Executive’s delegate;

k) that he provide a copy of these bail conditions to the Director of Wayback Ltd;

l) that he reside at Samaritan House on 19 January 2011;

m) that he travel to Wayback Ltd at 65 Marion Street, Harris Park, NSW on 20 January 2011 for admission into that agency’s treatment program;

n) that if, for any reason, he is not admitted to Wayback Ltd, he must report as soon as possible and, in any case, within 24 hours to the Registrar of the ACT Supreme Court in person, with a view to being brought back to court to reconsider his bail;

o) that he remain in the program, except for any absences to attend court, and obey all reasonable directions in respect of that program, and not terminate or absent himself from the program without prior permission of the ACT Supreme Court;

p) that, if discharged from the program for any reason, he must report as soon as possible and in any case within 24 hours to the Registrar of the ACT Supreme Court in person, with a view to being brought back to court to reconsider his bail.

1. Shane Edmund Johnson applied for bail in respect of charges that have been committed to this court for trial and for sentence.

2. In respect of the trial matters from which he has been committed for trial, a draft indictment has been filed in respect of the following matters;

(i) two charges of aggravated burglary contrary to section 312 of the Criminal Code 2002 (ACT) (Criminal Code), offences which each carry a maximum penalty of 20 years imprisonment or 2,000 penalty units;

(ii) attempted robbery, contrary to section 309 of the Criminal Code, an offence which carries 14 years imprisonment, a maximum penalty of 14 years imprisonment or 1,400 penalty units;

(iii) theft, contrary to section 308 of the Criminal Code, an offence which carries 10 years imprisonment or 1,000 penalty units as a maximum penalty; and

(iv) burglary, an offence against section 311 of the Criminal Code, an offence which carries 14 years imprisonment or 1,400 penalty units as a maximum penalty.

3. The robbery occurred with actual violence, after the taking of property, which was alleged to have been committed against the security guard who was attempting to stop Mr Johnson.

4. Indictments and statements, though late, have now been filed in respect of each of these matters. As can be seen, the offences are ones which the legislature has indicated are serious offences, although not the most serious of the criminal calendar, and of course many of such offences can be committed in

various ways, there is a wide range of seriousness in respect of each offence. I was informed, however, that they were strong cases.

5. I have had an opportunity to read the case statements and they do seem to be cases where there is good evidence in a number of them. Nevertheless, Mr Johnson is entitled to plead not guilty and this cannot be held against him, though I have to assume for the purposes of the bail proceedings that the prosecution would have reasonable prospects of securing a conviction.

6. He has also been committed for sentence in respect of similar offences; two counts of burglary and three counts of theft. These matters have been directed to “travel with” the trial matters; that is to say, there is the expectation that once the trials are completed, the sentencing will be conducted for those matters in respect of which he has been committed for sentence, as well as any other matters set for trial of which he is convicted.

7. I am advised, however, that there is to be an application to have the matters listed for sentence brought forward and to proceed with sentencing as soon as possible. Whilst this is a matter that I note, I cannot take it that highly into account.

8. There is, presumably, at the moment a decision of the court that the sentence matters “travel with” the trial matters and until that is set aside that is the position.

9. Mr Johnson has a depressingly long history of offending for many, many years. Most of the offences have been property offences, though there are traffic offences and, worryingly, a number of violence offences. The majority

of the offences have, however, judging by penalty, been in the low to mid level of offending. He has been in prison before for dishonesty offences.

10. The violence offences include resist arresting officers, which suggests that he does not readily accept being arrested, although it may be, in the circumstances, that he was drunk or otherwise affected by drugs at that time.

11. In connection with this, he tells me that he was mostly troubled by alcohol and alcohol abuse but only started to be affected by drugs and have a drug problem in about 2000. Clearly he is now a drug addict, and that is a large part of the basis on which he now applies for bail.

12. Some of the offences for which he stands for trial and sentence, were said to have been committed while he was on bail for other offences of a particular nature that brings into play section 9(D) of the Bail Act 1992 (ACT) (the Bail Act). Section 9(D) of the Bail Act provides in subsection (2) that:

A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

13. In this case, he is required to prove special or exceptional circumstances, to the satisfaction of the court, before bail can be granted.

14. He was granted bail by Gray J on 26 May 2010 to attend Koolamon Restoration, a rehabilitation facility for drug affected people. He was terminated from that program apparently for the possession of heroin. Bail was again granted on 2 July 2010, but he breached that bail by apparently failing to report, and has since been in custody.

15. He made a bail application before me on 15 December 2010. At that stage I was concerned that the material available to me may not have satisfied the test

of special or exceptional circumstances. In particular, I had no evidence before me about his rehabilitation options and circumstances and, on that basis, I was not prepared to grant bail at that time. However, in order to preserve his position I adjourned the application generally and it has now been re-listed for the purpose of hearing further.

16. The last bail application really was before Gray J on 26 May 2010 and it is necessary for Mr Johnson to provide a change in circumstances in relation to that. The change in circumstances on which he relies is largely also what he relies on to show that there are special and exceptional circumstances.

17. In that regard, Mr Johnson asked me to take into account that he now had a bed available at the Wayback Ltd facility, which is a drug rehabilitation agency in Sydney. The Wayback Ltd facility is used from time to time by this court as a place for the rehabilitation of offenders, or persons charged with offences, so that they can address their drug and alcohol problems either post-sentence or pre-sentence.

18. In this regard, I heard oral evidence from Ms Gabriel Sledge who is the ACT Aboriginal Health Liaison Officer at the Alexander Maconochie Centre (AMC). She has a degree in mental health, three years experience, and has worked with detainees for that period. I am prepared to accept that she has an opinion which I should respect and on which I can rely.

19. Ms Sledge explained to me that Mr Johnson had been on the methadone program since he had been in the AMC. I note, in that regard, that when he went to Koolamon Restoration, that agency did not accept people who use methadone. I also note, that I was told that Gray J relied on the fact that Mr Johnson was prepared to end his methadone program in order to enter that program.

20. Ms Sledge put that into a useful context when she pointed out that immediate reduction from methadone almost always ends in failure and lack of success and that, really, in the case of Mr Johnson, the only place for rehabilitation was in a place where he could continue with his methadone program. There are not many of those facilities available; Wayback Ltd is one of those facilities.

21. Ms Sledge also expressed her professional view that Mr Johnson is committed to rehabilitation. She had seen him for eight sessions, of up to 45 minutes each session, since 16 November 2010, although she did say to me that she had also seen him prior to the grant of bail, to go to Koolamon Restoration. She does, therefore, have some understanding and knowledge of him and his drug and offending situations.

22. Mr Johnson acknowledged to me that he understands that he is almost certain to be sentenced to imprisonment when dealt with in this court for the matters for which he will stand for sentence. Even assuming that all the trial matters end in acquittals, the sentencing of the continued offending, and to some extent the escalation of offending for which he will be sentenced in this court, leads almost inevitably to that conclusion.

23. However, despite all that, Ms Sledge was of the view that this was a time when Mr Johnson was ready and ripe for rehabilitation. I have to say, and it needs to be taken into account, that, no doubt, that was said to Gray J when he agreed to send Mr Johnson to Koolamon Restoration.

24. I have to take into account that Gray J made a decision when section 9(D) of the Bail Act was also relevant and that no further offences, other than those that I will mention, have been committed by Mr Johnson. The situation from that perspective then is not dissimilar to that before Gray J, save that, of course, Mr Johnson has had an opportunity to attend at drug rehabilitation and he failed to live up to the expectations of that.

25. He also asked me to take into account that he has an 18 year old daughter whom he no longer sees, and will not see, while he is in custody. That, of course, is an important motivating factor for someone in Mr Johnson’s position to keep an eye on the rehabilitation that he so obviously, and desperately, needs, in order that he can live a pro-social life in our community.

26. Thirdly, he pointed out that although he has been assessed as suitable for the “First Steps Program”, operational and staffing reasons means that he has been unable to access the “First Steps Program” in the AMC.

27. That is a matter of real concern. The fact is that a large number of the detainees at the AMC are troubled by drug and alcohol issues, and one of the expectations of the centre when it opened was that it would assist people in that direction. Indeed, such reliance does this court place on that expectation that, ordinarily, bail will not be granted to people to go to rehabilitation agencies before they have completed the “First Steps Program”. If it now becomes difficult to enter that program and complete it, notwithstanding willingness and a commitment to do so, then that is a troubling matter.

28. Finally, he asked me to take into account that when he left

Koolamon Restoration he did not offend. Although he did not do what his bail conditions required him to do (which was to return to court forthwith), there are no charges pending, nor was I told of any investigations that were pending, in relation to offences committed.

29. Technically, while that is absolutely true, he apparently did possess heroin and that is an offence and he breached his bail by failing to return to court. And so those are offences, but they do not reduce the significance of the fact that he did not re-offend by continuing to commit dishonesty or even violent offences while he was at large, having left the Kooloman Restoration program.

30. None of those matters by themselves would amount to special and exceptional circumstances. It has been said in this court on a number of occasions that although individual matters by themselves may not amount to special and exceptional circumstances, it is possible, when all those matters are taken together and combined, that they can amount to special and exceptional circumstances.

31. The community, of course, needs protection and the courts need to be part of that. While the offences, as I have said, are not in the most serious category or at least the circumstances of the commission or alleged commission of the offences are not particularly serious, they do deprive people of the property that they have earned or to which they are entitled. Often they are deprived of that property which not only leaves them in the sense of deprivation and loss of the property to which they are entitled and in many cases for which they have worked hard and whose ownership ought to be respected, but which also causes other difficulties and problems with claiming insurance and all those other difficulties that are inevitable when people have property stolen from them.

32. Mr Johnson also has on his record a number of failings to appear in response to bail and breaches of bail. I have examined the meaning of special and exceptional circumstances in In the matter of an application for bail by Massey [2008] ACTSC 145 and also in In the matter of an application for bail by Skeen [2009] 3 ACTLR 53. As I said in those cases, an applicant must show some unusual or uncommon circumstances which justify the grant of bail, and so of course, they must relate to the granting of bail.

33. This is a difficult situation. If sentence were to be imposed, and Mr Johnson were to be remanded in custody on sentence, then the fact of a period of pre-sentence rehabilitation of the kind that he is now seeking is likely to have some effect, but perhaps a minimal one, on the term of the imprisonment. Indeed were he to be imprisoned in the near future, he would be in a better position to take advantage of the opportunities in prison, including participation in the “Solaris Program”, which is a residential rehabilitation program operated within the AMC. That is not the position that I have to consider at the moment.

34. I am troubled by Mr Johnson’s long and sad record, but I am also affected by the fact that Gray J was prepared to identify special or exceptional circumstances before sending him to the Koolamon Restoration. The position for me is different. He has tried residential rehabilitation and has failed and, indeed, he has shown that his ability to comply with the strictures of bail and recognise his failure and hand himself in immediately, have not been entirely adequate. Nevertheless, he did, ultimately, hand himself in, although after a warrant had been issued for his arrest, and in those circumstances the criticism that I have made is somewhat blunted.

35. In my view it is a finely balanced circumstance. Mr Johnson really has no right to expect that the courts would be sympathetic to his situation. He has had many opportunities, not only the ones that I have referred to, but also on his record there have been occasions where he has been subject to supervision including supervision that would direct him to enter into programs whether residential or not addressing his behaviour and in particular matters that contribute to his behaviour such as his drug and alcohol addiction.

36. Nevertheless it seems to me at this stage that there are particular circumstances that warrant some careful consideration and the coincidence of all the issues that I have outlined, namely the opportunity for him to go to a facility where his chances of success are greater because of the recognition that he can continue on his methadone program, the fact that he is beginning to realise that he will lose his family as well as his liberty and that is not an insignificant motivation, the fact that the AMC, for whatever reason, does not seem to have programs that are available in the immediate or foreseeable future and indeed on the evidence that I heard there was no expectation of any short term answer to that problem, and the fact that he has shown some efforts at rehabilitation by at least not committing any further offences in the relatively short, but nevertheless significant, period after he left the Koolamon Restoration and was then further granted bail means that this is probably an opportunity to build upon the opportunities for rehabilitation and the commitment and motivation that he has. I will however ensure that there are strict conditions in relation to the grant of bail.

37. Accordingly I propose to grant Mr Johnson bail to appear in the ACT Supreme Court on a date to be fixed by the Registrar with the following conditions:

a) that he reside at Samaritan House on 19 January 2011;

b) that he travel to Wayback Limited at 65 Marion Street, Harris Park, New South Wales on 20 January 2011 and admit himself to the program at that facility for the purpose of undergoing treatment;

c) if for any reason Mr Johnson is not admitted to Wayback Limited or he is terminated from that program he must report as soon as possible, and in any case within 24 hours, to the Registrar of the ACT Supreme Court with a view to being brought back to court for reconsideration of his bail;

d) that he remain in the program except for any absences to attend court and obey all reasonable directions in relation to that program and of the officer in charge of that program or his or her delegate and not terminate or absent himself from the program without prior permission of the ACT Supreme Court;

e) that he abstain from the use of illicit drugs and alcohol;

f) that he submit as and when required to breath analysis and urinalysis;

g) that he accept supervision of an officer of ACT Corrective Services delegated by the Chief Executive or her delegate and obey all reasonable directions including those concerning alcohol and drug treatment;

h) that he accept monitoring by CADAS and consent to the officer delegated to supervise him to receive any reasonable information that they require from the supervising officer at CADAS;

i) that he also to consent to the officer in charge of Wayback Limited providing any information about his treatment and attendance at the program reasonably required by the officer of CADAS authorised to monitor him or the officer delegated by the Chief Executive to supervise him;

j) on his release he go straight to Corrective Services at Eclipse House to arrange supervision and thereafter and, in any case, today go to CADAS at Level 1, ACT Health Building, Moore Street, Canberra City to arrange for monitoring by CADAS.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 31 January 2011

Counsel for the Crown: Mr A Williamson

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the applicant: Self Represented

Solicitor for the applicant: Self Represented

Date of hearing: 19 January 2011

Date of judgment: 19 January 2011