In the matter of an application for bail by Green [2011] ACTSC 15 (7 January 2011)

Last Updated: 7 February 2011

IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW GREEN [2011] ACTSC 15 (7 January 2011)

EX TEMPORE JUDGMENT

No. SCC 1 of 2011

Judge: Penfold J

Supreme Court of the ACT

Date: 7 January 2011

IN THE SUPREME COURT OF THE )

) No. SCC 1 of 2011

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW GREEN

ORDER

Judge: Penfold J

Date: 7 January 2011

Place: Canberra

THE COURT ORDERS THAT:

1. Bail is granted on the conditions:

(a) that a surety in the sum of $2,000 is provided by Angela Hanks, being an acceptable person;

(b) that the applicant accept supervision by the Chief Executive or the Chief Executive’s delegate through ACT Corrective Services and obey all reasonable directions;

(c) that the applicant reside at [address omitted], or as directed by Corrective Services;

(d) that the applicant abstain from the use of illicit drugs and alcohol and submit, as and when required, to breath analysis and urinalysis;

(e) that the applicant report to the Officer in Charge of Tuggeranong Police Station every day between 8 am and 8 pm;

(f) that the applicant not operate a motor vehicle, be in possession of the keys to a motor vehicle, or be in the driver’s seat of a motor vehicle;

(g) that the applicant attend the ACT Magistrates Court on 23 February 2011, and each court as and when required; and

(h) that on next Monday, 10 January, the applicant go to Corrective Services at Eclipse House to arrange supervision under these bail conditions.

Background

1. This bail application has raised a number of difficult questions. Mr Green is currently in custody in relation to several driving offences, the most serious being a charge of dangerous driving arising out of a police chase just before Christmas, when police noticed a car being driven by him, recognised Mr Green as a person for whom a warrant had been issued, and sought to pull him over. Instead of complying with the police direction Mr Green took off through the streets of Tuggeranong at excessive speeds and ignoring traffic signals.

2. The warrant had been issued in early November, when Mr Green failed to appear in court in response to a summons arising out of an alleged breach of a good behaviour order imposed in connection with the suspension of a 3-month prison sentence for an earlier offence of failing to appear after a bail undertaking.

3. Yesterday Mr Green appeared before the Chief Magistrate. He pleaded guilty to the current charges and was remanded in custody until 23 February to enable the preparation of a pre-sentence report for use in his sentencing. That sentence will deal with the dangerous driving and associated offences, as well as presumably the suspended sentence of 3 months imprisonment, one option for which is that Mr Green may be required to serve the 3 months in full-time custody. No bail application was made to the Chief Magistrate, although the application to this Court was advised to his Honour.

Supreme Court jurisdiction to grant bail on Magistrates Court matter

4. It may seem odd that this Court should deal with a bail application from a person who is in the process of being sentenced in the Magistrates Court and who has not made an application for bail in that court. However there is nothing in the Bail Act 1992 (ACT) that I am aware of that precludes such an application being made or considered in this Court, as long as the applicant for bail can satisfy the requirements of s 19 or 43 in relation to any prior refusal of bail. In this case, the applicant has put before me material that was not available when he was refused bail in December, being material relating to the pregnancy of his partner and the particular difficulties she is experiencing with that pregnancy, as well as her offer to provide a surety for Mr Green.

Consideration of bail application

5. The most serious offence with which Mr Green is currently charged is dangerous driving, which carries a maximum penalty of one year in prison. This means that he is covered by s 9A of the Bail Act, which provides an entitlement to bail unless the court is satisfied that refusal is justified after considering the matters mentioned in s 22.

6. The s 22 matters raised as possibly justifying a refusal of bail in this case are first, the likelihood that Mr Green, having pleaded guilty to the offences concerned, will be sentenced to a term of imprisonment, and secondly, the fact that Mr Green has several recent failures to appear on his lengthy criminal record.

7. In response to these matters Mr Green’s counsel Mr O’Keefe says first, that while Mr Green is likely to be sentenced to a term of imprisonment, he is optimistic, or possibly even confident, that the Chief Magistrate will be persuaded to require the sentence to be served only by way of periodic detention, and secondly, that a combination of a surety to be provided by Mr Green’s partner, the supervision and structure that she will provide to him as a result of the surety, and a regular reporting condition, will guarantee that Mr Green will not fail to appear in the future.

8. I am not particularly comfortable at being put in the position of appearing to second-guess the Chief Magistrate in relation to the sentence that he might in due course impose, especially since I have no idea what might emerge in the pre-sentence report that his Honour has ordered. I cannot rule out, however, that his Honour would see this as a suitable case for periodic detention.

9. What I can say is that I have already raised the possibility that his Honour might have had in mind the option of structuring the sentence so that when he came to sentence Mr Green exactly 2 months after he was taken into custody, the 2 months time served would be the only time to be served in full-time custody.

10. Not only did I raise this possibility, but I gave Mr O’Keefe an opportunity to take further instructions about whether the bail application should be pressed. Of course, if bail is now granted, after Mr Green has spent only 2 weeks in custody, his Honour would be far less likely to structure the sentence around time served. Mr Green is, to put it bluntly, gambling that whatever sentence his Honour does now impose will be less onerous than 2 months in full-time custody.

11. As to the risk that Mr Green will fail to appear for sentencing, I can see no reason why, if he manages to comply with the daily reporting condition that I would impose in granting bail, he should not also manage to appear in the Magistrates Court in six weeks time. On the other hand, it is not at all impossible, given his record, that releasing him on bail at this stage on strict conditions is simply giving him another opportunity to put himself in breach of bail, with the result that after a brief period of conditional liberty he will find himself back in custody and possibly facing further charges. If it were not for the fact that Mr Green’s current charges do relate to relatively minor offences, and that the presumption is in favour of granting him bail, I would be inclined to wonder whether the s 22 reference to Mr Green’s own interests would also be a basis for refusing bail.

Consequences of grant of bail

12. As it is, both Mr Green and his partner, Ms Hanks, are taking a risk in this case.

13. Ms Hanks, if you are not able to keep Mr Green organised, ensure that he complies with all his reporting requirements, and in due course turns up in court for his sentencing, you stand to lose your $2,000, which I suspect you can ill afford.

14. Mr Green, if you don’t make a serious commitment to turning up at the police station every day, and an equally serious commitment to not driving at all in any circumstances, you will be back in custody very quickly, and I doubt you will get bail again before you come before the Chief Magistrate in February.

15. The other thing I want to say to you is that you should not assume for a moment that me granting you bail makes it any more likely that you will avoid full-time custody when you do come to be sentenced in February. You may have done nothing more, by having bail granted, than re-scheduling your period of full-time custody. Just in case there is any confusion over that issue, I propose to publish these reasons to ensure that a copy of them will be available to the Chief Magistrate, if necessary.

Conditions of bail

16. Mr Green, I will go through the conditions with you, if you would please stand.

17. Bail will be granted on the conditions:

(a) that a surety in the sum of $2,000 will be provided by Angela Hanks, being an acceptable person;

(b) that you will accept supervision by the Chief Executive or the Chief Executive’s delegate through ACT Corrective Services and obey all reasonable directions;

(c) that you will reside at [address omitted], or as directed by Corrective Services;

(d) that you will abstain from the use of illicit drugs and alcohol and you will submit, as and when required, to breath analysis and urinalysis;

(e) that you are to report to the Officer in Charge of Tuggeranong Police Station every day between 8 am and 8 pm;

(f) that you are not to operate a motor vehicle, be in possession of the keys to a motor vehicle, or be in the driver’s seat of a motor vehicle;

(g) that you are to attend the ACT Magistrates Court on 23 February 2011, and each court as and when required; and

(h) that on next Monday, 10 January, you are to go to Corrective Services at Eclipse House to arrange supervision under these bail conditions.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 2 February 2011

Solicitor for the appellant: Mr J O’Keefe

Counsel for the respondent: Mr A Doig

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 7 January 2011

Date of judgment: 7 January 2011