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R v Reeves [2011] ACTSC 140 (11 August 2011)

Last Updated: 12 September 2011

THE QUEEN v ANDREW REEVES

[2011] ACTSC 140 (11 August 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – bail – interpreting the Bail Act 1992 (ACT) consistent with human rights – bail granted.

CRIMINAL LAW – jurisdiction, practice and procedure – bail – weighing up the considerations under the Bail Act 1992 (ACT) when granting bail – bail granted.

Criminal Code 2002 (ACT), s 311

Crimes Act 1900 (ACT), s 60

Human Rights Act 2004 (ACT)

Bail Act 1992 (ACT)

Burton v R (Re an Application for Bail) (1974) 3 ACTR 77

EX TEMPORE JUDGMENT

No. SCC 316 of 2010

Judge: Refshauge J

Supreme Court of the ACT

Date: 11 August 2011

IN THE SUPREME COURT OF THE )

) No. SCC 316 of 2010

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

V

ANDREW REEVES

ORDER

Judge: Refshauge J

Date: 11 August 2011

Place: Canberra

THE COURT ORDERS THAT:

  1. Mr Reeves be granted bail, to attend at his trial on 6 October 2011 on the following conditions:

1. The applicant for bail, Andrew Reeves, has been charged with serious offences of committing burglary with intent to cause harm, an offence under s 311 of the Criminal Code 2002 (ACT) that carries a maximum penalty of 1,400 penalty units (that is a fine of $154,000) or fourteen years imprisonment and committing an act of indecency without consent, an offence under s 60 of the Crimes Act 1900 (ACT) that carries a maximum penalty of seven years imprisonment. These offences are alleged to have occurred on 21 April 2010.

  1. After his arrest in respect of these offences, Mr Reeves was remanded in custody. On 14 September 2010 he was committed for trial to this court. He applied for bail on 23 September 2010 and bail was granted with conditions about attending at a drug rehabilitation centre. He left that centre on 21 November 2010. He then reported to Civic Police Station, in part compliance with the conditions of his bail, noting that he was in breach of bail. On 29 November 2010 he appeared on the breach of bail and was remanded in custody until 2 December 2010. On that day, bail was then refused.
  2. He made a further application on 11 February 2011, but that application was withdrawn. On 4 March 2011 he made a further application and bail was granted with restrictive conditions about his residence, where he may frequent, supervision and contact with the complainant and certain witnesses. On 14 April 2011 he breached that bail by failing to abstain from alcohol. He was found by police attempting to gain entry into a nightclub, even though a condition of the bail was that he not consume alcohol. Bail, however, was continued on that occasion.
  3. On 3 June 2011 he was again before the court on a breach of bail. His solicitor could not then attend and he was remanded in custody until 6 June 2010. On that date he admitted the breach of bail, which was that he was in an area from which his bail conditions prohibited his access. He appeared only to be riding through the area and bail was continued. He was warned about compliance with his bail conditions.
  4. On 7 June 2011 he was arraigned. He pleaded not guilty and a trial date was set for 6 October 2011, now less than two months away. That is a relevant factor in bail considerations.
  5. On 20 July 2011 he appeared again on a breach of bail. He had been directed to attend the pathology laboratory for urinalysis and the results had been positive for cannabis on 20 May 2011 and again on 13 July 2011 and for an increased amount on that second occasion. It was also positive for amphetamines and methyl amphetamines. He admitted the breach and indicated to the court that he was prepared on this occasion to put more effort into the abstention from the use of illicit drugs. His bail was again continued on that basis.
  6. On 1 August 2011 he again appeared for a breach of bail. On this occasion, he had failed to attend for supervision. He had failed to attend on one occasion and was given an alternative occasion on which he should appear, but he failed to appear on that occasion.
  7. I was very concerned at his continuing failure to comply with his bail conditions and I adjourned the matter for one week, with very stringent conditions in relation to residence, supervision and abstention from drugs. He did report in accordance with the conditions on 2 August 2011. He was directed to attend for urinalysis and he did attend for urinalysis.
  8. The results were positive for cannabis, but at a very substantially reduced amount, which shows, in the context where cannabis remains in the bloodstream for a significant period, that he was substantially decreasing his use. Worryingly, however, the test provided a positive result for methamphetamine and methyl amphetamine, although he said to me in the application that he had not used those substances. I had no indication of the level of those, nor any evidence as to how those may have got into his system.
  9. A further appointment had been made on 9 August 2011 and he did not attend on that day when directed. He informed me that the reason he did not do that was that Centrelink had terminated his payments and he had no money to get to the appointment. When I inquired as to why he had not telephoned Corrective Services to indicate that he was unable to attend and make another appointment, he advised me that his phone had been stolen.
  10. He accepted the suggestion that was made by the prosecutor that he could have phoned from the police station where he had reported. I note in that regard that there have been no breaches of his obligation to report to the police every day. He simply said he did not think of that and, in all the circumstances, I do not hold that strongly against him.
  11. This meant that, as Ms M Jones, who appeared on 10 August 2011 for the prosecution, properly submitted, at the present, without Centrelink payments and without a phone, it was virtually impossible for him to comply with a condition as to supervision which seems to me appropriate to be imposed in all the circumstances.
  12. I also asked for details as to the support he was being provided with from an organisation known as The Connections. On the re-hearing of the bail application, he produced a letter from that agency, which said, inter alia:

Andrew has been a regular volunteer helper with The Connections Family BBQ and Art Attack, providing invaluable assistance and support to this important community event. He is always been a committed and enthusiastic volunteer and the continued success of this event is reliant on volunteer [sic] such as Andrew and would not be possible without his and others assistance. I have always found him to be pleasant, honest and dedicated, showing a genuine interest and displaying an awareness of the issues affecting clients of the service.

We are grateful for the efforts made by Andrew in his positive contributions to the organisation and are happy to support his continued involvement with providing assistance in future educational activities. We will continue to work with him as a client providing him with ongoing support, advocacy and, where appropriate, referral to treatment agencies as required.

  1. It was clear from the letter that he had been a client of that service for some four years. I then required evidence that he provide me with details of the support that he had been able to access, for a suitable residence and for compliance with his obligations to attend on Corrective Services.
  2. I heard today evidence from Michelle Philips-Freeman, who resides in Macquarie, where she is able to provide him with accommodation and to assist him with compliance with his obligations to attend on Corrective Services.
  3. That residence is not perhaps as acceptable as one would like. It is the site of some attendances by police officers; the last attendance recorded that was brought to my attention occurred on 24 July 2011, when there was an altercation in relation to Mr Reeves and his former partner and the mother of their children, Holly Williams. She was clearly in a distressed state and alleged that a knife had been used in an apparent attack on her. No knife was found and Ms Williams has failed to provide a statement to police and no charges have been laid. Police who attended noted that there were five or six children at the premises.
  4. That is consistent with the evidence of Ms Philips-Freeman, who says that she has children, as has Mr Reeves, in respect of whom he has access. The police officer noted that police formed the view that the domestic situation between Mr Reeves and Ms Williams was not a happy one. Mr Reeves said, in the course of the application before me, that he and Ms Williams have now resolved that they are not in a position to continue with their relationship and have worked out a modus vivendi. The fact that no further attendances at the residence have been required of police officers, although the last attendance is only three or four weeks ago, is some support for that view.
  5. Police also believe that Ms Philips-Freeman has a number of difficult issues, particularly those with her former partner, where they have attended disturbances on various occasions and their attendance has been as a result of violence that appears to have been occurring. The police view was that Ms Philips-Freeman is in fear of her former partner and has made some arrangements for protection for that situation.
  6. The difficulty with non-compliance with bail conditions is that the courts trust the accused person to be in the community, so long as they comply with their bail conditions and those bail conditions should of course, under the bail legislation and the Human Rights Act 2004 (ACT), be no more restrictive than is necessary to entitle the accused to be in the community, having regard to the objectives of the Bail Act 1992 (ACT). Fundamentally, those objectives are that the accused attend to take his or her trial, that the accused does not commit further offences and that the accused does not interfere with witnesses or evidence. There is also a need to ensure that the accused or other persons are not at risk as a result of being in the community.
  7. The difficulty with detailed and numerous bail conditions is that they can have the effect of net widening and the court is, in this jurisdiction, slow to revoke bail where those breaches are not substantial breaches or ones where the risk to the community can be said to have been significantly increased.
  8. I also accept that addiction cannot always be resolved overnight. I accept that, in particular in relation to cannabis, the use of cannabis was not said to be part of the circumstances of this offence and that it stays in the system for a long time. In any event, as I noted earlier, the amount of cannabis in Mr Reeves’s system has fallen very substantially, to a point where I cannot be satisfied that it was necessarily caused by his continued use.
  9. It is inevitable that people in the position of Mr Reeves face very substantial personal challenges and this makes it difficult to meet their many obligations. The court can, and does, recognise that disorganisation, poverty, addiction and other matters render strict compliance with detailed bail conditions a challenge. It is clear that this is so for Mr Reeves, in the history as I have set out.
  10. The court has already made it clear to Mr Reeves that the continued breach of bail conditions will not be tolerated and has extended to him what some would describe as significant, perhaps unreasonable, leniency.
  11. It is also clear that, at some stage, unless the court visits continued breaches of bail with the ultimate sanction of revoking bail, the whole notion of bail becomes undermined and the need for compliance with conditions is also undermined. In this case, it is true that Mr Reeves has had what might be regarded as a severe and perhaps final warning.
  12. In the circumstances, however, the breaches of bail that have occurred in the last occasion are not such as to require me to consider that the community is placed at greater risk. I have considerable hesitation about determining that the premises of Ms Philips-Freeman are what one might describe as perfect for Mr Reeves. He indicated to me that he understood the risk of that circumstance and that he was nevertheless prepared to take that risk. It is not for the court to set pre-conditions as to the state of premises where people reside unless they materially increase the risk to the community, so far as the obligations under the Bail Act are concerned.
  13. The matter is finely balanced. The trial date is rapidly approaching and as this court has said in Burton v R (Re an Application for Bail) (1974) 3 ACTR 77, the imminence of a trial date is a factor favouring the revocation of bail and the detention of an accused who is unable to comply with bail conditions when the trial is imminent.
  14. Nevertheless, the breaches of bail that Mr Reeves has made are those that are not unexpected of someone in his circumstances and I do not accept that they materially increase the risk to the community. Nevertheless, Mr D Sahu-Khan, who appeared on 11 August 2011 for the prosecution, has suggested that I should defer consideration on the bail application to allow an officer of Corrective Services to inspect the premises. In my view, that is not appropriate in these circumstances.
  15. I have extended a detailed analysis of the situation so that there will be a record on the file and I say to Mr Reeves that, on this occasion, he really has reached the last occasion for his bail compliance. The conditions that I will impose are reasonable conditions in all the circumstances and they are now, I am satisfied, capable of being complied with by him so that if he does not comply with his bail conditions, or it would have to almost be insuperable odds for him to achieve compliance, then the court will have no alternative but to revoke his bail and remand him in custody.
  16. Accordingly, I grant Mr Reeves bail to appear at his trial on 6 October 2011 on the following conditions:

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: 29 August 2011

Solicitor for the applicant: In person

Counsel for the respondent: Mr J Hiscox (1 August 2011)

Ms M Jones (10 August 2011)

Mr D Sahu-Khan (11 August 2011)

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 1, 10, 11 August 2011

Date of judgment: 11 August 2011

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