Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 Hearing dates: 29 June 2015 Decision date: 29 June 2015 Before: Hoeben CJ at CL at [1]; R A Hulme J at [2]; Campbell J at [27] Decision: Bail refused Catchwords: BAIL – detention application – show cause offence – where respondent committed present offences whilst on parole – respondent accepted into residential rehabilitation program – respondent has appalling criminal record and history of poor compliance with bail and parole – failure to establish why detention not justified – application granted – bail refused Legislation Cited: Bail Act 2013 (NSW) ss 16A, 16B, 32(1), 50, 67(1)(e) Crimes Act 1900 (NSW) 22 59, 97, 112. 154A Crimes (Sentencing Procedure) Act 1999 (NSW) s 11 Cases Cited: R v Kugor [2015] NSWCCA 14 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Applicant) Kenneth James Campbell (Respondent) Representation: Counsel: Ms M Cinque (Applicant) Mr E Ozen (Respondent) Solicitors: Solicitor for Public Prosecutions Aboriginal Legal Service File Number(s): 2015/184979 Judgment 1. HOEBEN CJ at CL: I agree with R A Hulme J. 2. R A HULME J: The Crown has made a detention application pursuant to s 50 of the Bail Act 2013 (NSW) in respect of Kenneth James Campbell ("the respondent"). 3. The respondent was arrested on 24 January 2015 and charged with a number of serious offences. He remained in custody having been refused bail. In the Batemans Bay Local Court on 27 April 2015 he entered pleas of guilty whereupon he was committed for sentence to the District Court at Bega on 10 August 2015. 4. Conditional bail was granted by Garling J in the Bails List of the Common Law Division of the Supreme Court on 22 June 2015. This is not a review of his Honour's decision; it is a de novo (or fresh) consideration of the question of bail: s 67 (1)(e) of the Bail Act; see also R v Kugor [2015] NSWCCA 14 at [4] (Hoeben CJ at CL). The offences 1. Details of the offences for which the respondent is to be sentenced are as follows. The charges are identified by the sequence number within the police reference H109871501. All of the offences are contrary to the Crimes Act 1900 (NSW). Seq 9 –Robbery whilst armed (s 97(1) – maximum penalty 20 years) and Seq 4 – Assault occasioning actual bodily harm (s 59(1) – 5 years) 1. These offences occurred at around 5am on 22 January 2015 in Narooma. The victim awoke to the sound of banging at the front door of his home. He went to the door where he was confronted by the respondent who was brandishing two large knives. The respondent forced his way into the home and slashed the victim to the chin with one of the knives, causing a small incision. He did this in front of one of the victim's children. He then demanded that the victim get down on the floor. He directed the victim and his wife to hand over items of property (cash, an iPod and a television) which he took and then fled. Seq 10 – Robbery whilst armed (s 97(1) – 20 years) and Seq 5 – Assault occasioning actual bodily harm (s 59(1) – 5 years) 1. A short time later another victim who lived a short distance away was woken by the sound of banging at his door. When he answered it he was confronted by the respondent who was still armed with two knives but now wearing socks over his hands. The respondent asked for cigarettes before forcing his way inside. He demanded that property be handed over and he took a backpack, $30 in coins, a laptop computer with cables, a mobile phone and a pair of running shoes. Throughout the incident he jabbed the victim a number of times with a knife causing minor incisions to his scalp. Seq 7 - Take and drive conveyance without the consent of its owner (s 154A(1)(a) – 5 years) 1. The following night at Wallaga Lake (between Narooma and Bermagui) the respondent took a Commodore sedan and drove it with two passengers to Bermagui where it ran out of fuel and was abandoned. Seq3 – break, enter and commit serious indictable offence, namely assault occasioning actual bodily harm, in circumstances of aggravation, namely being armed with a knife (s 112(2) – 20 years – standard non-parole period 5 years) and Seq 6 – Assault occasioning actual bodily harm (s 59(1) – 5 years) 1. After abandoning the Commodore the respondent went with his two passengers to a nearby home which they entered by a closed but unlocked door and began to search for property to steal. The victim awoke and confronted the respondent who produced a knife and used it to cut the victim's left cheek, ear and forehead. The respondent then demanded that the victim access his laptop computer but the victim could not remember his password. There was then a physical struggle before the respondent and his companions left. Arrest 1. The respondent was arrested the following day (24 January 2015) when he handed himself in to police following what is said to have been "community pressure" to do so. He was interviewed and made partial admissions (he denied inflicting any injury with a knife upon any of the victims). 2. A letter under the hand of the police officer in charge of the case includes that the respondent said that he was under the influence of the drug known as "ice" at the time of the offences and had also being drinking alcohol heavily. Criminal history 1. The respondent is 21 years of age. His criminal history commenced in the Children's Court with offences committed when he was 13 and there has been frequent offending ever since. His offences include stealing; being in cars taken without the owners' consent; having property in his possession suspected of being stolen; breaking and entering, sometimes in aggravating circumstances; resisting and intimidating police; assault with intent to rob; stalking or intimidation; affray; failing to appear in court; escaping police custody; and being armed with intent to commit an offence. There are multiple instances of many of these. Periods in juvenile detention or adult gaols have not deterred him. He has had very short non-parole periods imposed for some of his sentences with parole conditions directed towards rehabilitation but they have been unsuccessful. 2. The respondent has been brought before courts for breaching bail on at least eight occasions. He has also failed to appear in court and been convicted in his absence on two occasions (28 April and 8 May 2014 whilst he was on parole for other offences). 3. On 10 July 2014 he was sentenced for a variety of offences including aggravated enter dwelling with intent and aggravated break, enter and commit serious indictable offence. The sentence had a non-parole period that amounted to time served (7 weeks) and he was immediately released on parole until 21 May 2015. He was subject to this parole at the time of committing the offences for which he is awaiting sentence. 4. Parole was revoked by the State Parole Authority on 12 February 2015 and the respondent was required to serve the balance in gaol. That period expired on 23 May 2015. He has had a previous experience of having parole revoked following a breach (on 8 May 2014). Rehabilitation issues 1. There is evidence before the Court concerning the respondent's rehabilitation issues and needs. 2. A letter dated 18 June 2015 under the hand of Ms Akeshia McKay, described as a Co-ordinator of CJP Armidale, says that the respondent "has been diagnosed with a mild intellectual disability" and so his "decision making process and emotional regulation is somewhat impaired". His "primary area of risk is his alcohol dependency". Ms McKay says that the respondent "would benefit greatly from participating in a drug and alcohol rehabilitation program". Her organisation, New Horizons, would support him in this respect. 3. There is also a letter from the Chief Executive Officer, Ivern Ardler, of Oolong House, a residential drug and alcohol rehabilitation program at Nowra dated 22 June 2015 offering a bed to the respondent for its 16 week program. I note that the first four weeks involve an assessment and if "after this period the decision is made to terminate your residency, Oolong House will help you move to the destination of your choice". The respondent entered the program after he was granted bail last week. Show cause requirement 1. The respondent is subject to the "show cause" requirement in s 16A of the Bail Act. That is, the Court "must refuse bail unless the accused person shows cause why his … detention is not justified". It is necessary that he establishes this on the balance of probabilities (s 32(1)). The reason he is subject to this requirement is that he was on parole at the time he committed the offences with which he has been charged: s 16B(1)(h)(ii). Submissions 1. The Crown submissions identified that it was in favour of the respondent having shown cause why his detention was not justified that he had been accepted into a residential rehabilitation program. But pointing in the other direction were the following factors: (a) he had pleaded guilty to very serious offences; (b) he has a significant criminal history for a person of his age; (c) he has a history of failing to appear and of breaching bail; (d) he seems to accept that he must be sentenced to a significant term of imprisonment; and (e) he is to appear for sentence in the District Court on 10 August 2015 1. The Crown also submits that releasing the respondent to bail in order for him to undertake a rehabilitation program will fetter the discretion of the sentencing judge when the matter comes before the District Court in just over six weeks' time. 2. For the respondent it was conceded that his record was a matter of concern. It was submitted, however, that it was important for the respondent to take up the opportunity to show that he is committed to pursuing a course of rehabilitation. It may support an application for the temporary deferral of sentencing pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow further time for his rehabilitation prospects to be better ascertained. It may also support a submission that special circumstances be found so as to justify a longer period of parole for rehabilitation purposes. Rehabilitation was said to be important not only in the respondent's interests but also in the interests of the community. Determination 1. The respondent is only a young man but he has amassed already an appalling criminal record. The offences to which he has pleaded guilty are of considerable seriousness and will likely be met with a significant term of imprisonment. His compliance with bail and other forms of conditional liberty, notably parole, has been poor. 2. Rehabilitation is an issue of obvious importance but, given the time between now and when he is to appear for sentence it is unlikely that much will be achieved that will assist the sentencing judge to assess his future prospects of successfully eschewing a life of drug and alcohol addiction. There is merit in the Crown's submission that allowing the respondent bail so that he can enter a residential rehabilitation program at this point could be perceived as this Court fettering the sentencing judge's discretion. 3. I am not persuaded that the respondent has established on the balance of probabilities that his detention at this point is not justified. In fact, it is amply justified. Order 1. I propose that the Court should order that bail be refused. 2. CAMPBELL J: I agree with R A Hulme J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2015