Supreme Court New South Wales Medium Neutral Citation: R v Badger [2015] NSWSC 985 Hearing dates: 21 July 2015 Date of orders: 21 July 2015 Decision date: 21 July 2015 Jurisdiction: Common Law Before: Hamill J Decision: Conditional bail granted. Catchwords: CRIMINAL LAW – BAIL Legislation Cited: Bail Act 1978 (NSW) Bail Act 2013 (NSW) Bail Amendment Act 2014 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: DPP v Campbell [2015] NSWCCA 173 R v Aaron Paul (Supreme Court (NSW), Schmidt J, 28 May 2014, unrep) R v Henry [1999] NSWCCA 11; 46 NSWLR 346 R v McLeod (Supreme Court (NSW), Mathews J, 13 April 1994, unrep) Category: Procedural and other rulings Parties: Nicholas Anthony Badger (Applicant) Crown (Respondent) Representation: Solicitors: W Shukoor (Legal Aid NSW) D Curran (NSW ODPP) File Number(s): 2015/12156 Publication restriction: Nil EX TEMPORE Judgment 1. Nicholas Badger has made a release application under the provisions of the Bail Act 2013 (NSW), as amended by the Bail Amendment Act 2014 (NSW). The application relates to two distinct offences or series of offences. First, he seeks bail in relation to a charge of receiving, which was committed on 28 March 2013 and in relation to which he was dealt with in the Local Court and sentenced to a fixed term of imprisonment of three months. That sentence is to expire on 7 October 2015, it having commenced on 7 July (or 8 July perhaps). In relation to that matter the applicant has lodged a severity appeal to the District Court, which is currently listed for hearing on 7 August in Gosford. 2. The second series of offences is far more serious and relate to an incident or incidents which occurred on 11 October 2014. As a result of those incidents, Mr Badger was charged with two offences of armed robbery; the weapon in question being a knife and also with offences of stealing from a dwelling, larceny of a motor car and possession of prohibited drugs - two counts relating respectively to amphetamines and cannabis. 3. Simply by stating the offences themselves, one can see their seriousness, but when one looks at the facts on sentence, which appear at this stage not to be disputed, one can see that they are, indeed, very serious offences and offences in relation to which a custodial sentence is either inevitable or very, very close to inevitable. The sentencing exercise will be guided by the Court of Criminal Appeal's guideline judgment in R v Henry [1999] NSWCCA 11; 46 NSWLR 346. 4. The Crown points to the fact that the sentence will, as I say, almost inevitably result in a further period of custody for the applicant and that in those circumstances, there is a significant risk that if he is granted bail, he will fail to appear. There is also a risk, according to the prosecution submissions, of the applicant committing further offences. That risk arises as a result of what apparently is a significant drug problem that the applicant has struggled with over many years. 5. The applicant proposes in his release application that he go into a full-time rehabilitation program and to that end, on two previous occasions, judges of this Court have made orders for a drug and alcohol report. On 16 February 2015 McCallum J adjourned the bail application to 21 April 2015 and ordered a drug and alcohol report and on 21 April 2015 Hidden J adjourned the application until today and ordered a drug and alcohol report. 6. Throughout that period the applicant has remained in custody and there is at least a certain amount of irony in the fact that it is now put against him (and I should say properly put), that because the sentence hearing will be relatively soon, there is little purpose in granting him bail. That submission, as I say, is a proper one to make in the circumstances, but it has to be balanced against the fact that the applicant has been before the Court, both in February and April of 2015 seeking bail. 7. In any event, I now have before me a report from the Australian Council of Alcoholism and Drug Dependence. It is not necessary to go through the details of that report, but the critical features are that it is a recognised and well established program, which has enjoyed a degree of success in dealing with clients suffering from significant drug and alcohol problems. Mr Badger clearly falls into that category. Secondly, it says that there is currently available to him a bed in a full-time rehabilitation program at the Canton Beach Family Addictions Recovery Centre Residential Program. 8. Further, I was provided with a moving letter from the applicant's mother, Dereen Badger. Mrs Badger's letter is a realistic one, in that she acknowledges the problems that her son has had over a number of years in spite of the fact that he had been raised in a family with "good morals and good values". She acknowledges that he "made poor choices". She acknowledges that he had earlier essentially failed, notwithstanding his best intentions, to complete rehabilitation courses and says that at that stage he was very vulnerable. 9. When first approached by the Legal Aid lawyers, Mrs Badger was not prepared to support her son's bail application because she felt that he was in a critical stage of his, as she puts it, "ice addiction" and she did not want him to think that she condoned his actions or his addiction. Since that time she has noticed changes in him and, in particular, the remorse that has been expressed and positive steps that he has taken whilst in custody. 10. He said things to her like, "It's never too late to change" and that he understands that his "recovery journey" will be a long one. She says that her family will be supportive of him, whatever be the result and also notes that he has indicated a desire to remove a number of what I might respectfully call unsightly facial tattoos because, "they are a constant reminder of his very poor choices". Mrs Badger is prepared to offer a surety, so certain is she now that he will comply with any conditions of bail that are imposed in his struggle against drug use. 11. He was not called to give evidence, but his solicitor asked him in open Court about his drug use in gaol; it being observed that he has been in custody since 8 November 2014. He was directly asked the question whether or not he had used drugs in custody. As I sat here awaiting his answer, I fully expected his answer to be no, whereupon I would have given it very little weight, because what else would he say? In fact, what he said was that when he first went into custody he did use drugs initially and he said he did so for a few days, but since then had stopped using drugs and had availed himself of what I gather to be fairly limited opportunities for rehabilitation. 12. I have to say that I found that answer, particularly the fact that he acknowledged using drugs, knowing full well that I was listening, to be a refreshingly honest response by the applicant and it has persuaded me that his application at least has some considerable merit. But, we remain in the situation where the Crown opposes bail for the very cogent reason that at some point in the future he will be incarcerated as a result of the robbery offences. 13. There is some tension in a number of the authorities on this subject so that, for example, in a case called R v McLeod (Supreme Court (NSW), 13 April 1994, unrep), Mathews J said: "The rehabilitation program is a very long one, as the applicant is well aware. Indeed, that is one of the reasons for seeking that I send him to it now, so that a sentencing Judge's hands will be virtually tied and the Judge will feel constrained to continue the rehabilitation order. That, as I perceive it, is not the function of a bail application." 1. That was a decision made under the Bail Act 1978 (NSW), but the sentiments remain pertinent. On the other hand, in a bail application decided by Schmidt J (R v Aaron Paul (Supreme Court (NSW), 28 May 2014, unrep)) her Honour said: "In reaching that conclusion, the question is raised by the Crown as to whether such bail conditions might have an impact on the sentencing exercise to be conducted by the Local Court on 16 June. I have expressed my opinion that given the nature of the provisions of the current legislative scheme and its concern with risk assessment and risk mitigation, which I have discussed, I cannot see how conclusions reached in relation to those statutory concerns can have any impact on the sentencing exercise which will have to be undertaken on 16 June. The sentence will have to be determined on the basis of the relevant evidence led in those proceedings." 1. That decision of Schmidt J was made under the Bail Act 2013, but before the significant amendments made by the Bail Amendment Act 2014. Since those amendments, the Court of Criminal Appeal has considered the operation of the amendments on a number of occasions and in a case called DPP v Campbell [2015] NSWCCA 173 the Court was confronted with a somewhat similar situation and said this, para 24: "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 ensuring a life of drug and alcohol addiction. There is merit in the Crown 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." 1. As I have said, there is real tension between those authorities and it is difficult to reconcile what Schmidt J said with what the Court of Criminal Appeal said. However, it obviously is something that needs to be considered on a case by case basis, and I do not consider myself bound by the remarks that I have just quoted from Campbell, even though in some cases that may be quite persuasive and, indeed, determinative of certain bail applications. 2. Of course, it is a consideration that cuts both ways, as I pointed out in argument, in a case where it was "touch and go" as to whether a custodial or non-custodial sentence should be imposed. A lower Court judicial officer might feel that the refusal of bail in this Court in the weeks and months leading up to the sentencing proceeding was a relevant consideration, exercising the sentencing discretion in them. It should be made clear that anything that this Court does, when considering a bail application, should not in any sense be seen to constrain the sentencing discretion or, to take another instance, the responsibility of a parole board when hearing an application for revocation of parole or reinstatement of parole. Different factors are at play and different legislation guides the determinations to be made in each instance. 3. I wish to make it clear, in view of the decision to which I have ultimately come, that I do not consider that anything I say today should influence the outcome of the sentencing proceedings. What should influence it is the conduct of the applicant in the meantime and the seriousness of the offences with which he has been charged. He acknowledges here today, and his lawyer acknowledges here today, that he will be sent to gaol in due course. 4. I have to consider, in determining his application whether or not the legitimate bail concerns that have been raised by the prosecution are unacceptable risks for the purpose of the operation of ss 18 and 19 of the Bail Act as amended. Section 18 provides me with an exhaustive list of considerations to be taken into account in formulating that conclusion. 5. As with all such lists, there are things that go both ways. It seems, from the letter of his mother that the applicant has good community ties. The offences for which he is to be sentenced are of an extremely serious nature. The prosecution case is so strong that the applicant has admitted his guilt in relation to the matter. 6. The applicant, surprisingly perhaps, given what I understand to be his long standing drug addiction, does not have a criminal record of any great magnitude, and in New South Wales at least appears to have no offences of violence on his record. He also has an interstate record, some of which includes offences of violence in Victoria, going back a number of years. But, on the whole, given the concession he makes as to his drug problem, his record is not a bad one. 7. There is no suggestion, as I understand it, of his committing serious offences whilst on bail or non-compliance with such conditions. Whilst it is not clear on any of the evidence, I am prepared to assume, given his involvement in drugs, that he has criminal associates. The question then is how long he has to spend in custody. That is how it is put in s 18(1)(h) of the Bail Act. If one starts from today, it is probable, I suppose that he will be sentenced in the next couple of months, as the Crown Prosecutor puts it. His matter is for mention in the District Court this week and one would expect there to be a sentence date in the next six to eight weeks, although one cannot be certain. 8. I do not think that the Act should be construed to start from today. The fact of the matter is he has been in custody since 8 November 2014 and will remain in custody if bail is refused, until September or October, coming on to a period of 12 Months. So, he will spend a lengthy period of time in custody. As I have said, he has twice before come to the Court seeking bail, but because the drug and alcohol report was not ready and because of the lengths of adjournments and delays in this list, he has ended up having his matter dealt with today, in July. 9. As I have said, there is a very strong, if not inevitable, likelihood that a custodial sentence will be imposed. Sub-paragraph (j) is relevant to a resolution of the application concerning the sentence imposed in the Local Court for receiving. Again, in view of the fact that I do not want to be seen to be fettering the discretion of the District Court Judge who deals with that severity appeal, I should be somewhat circumspect in what I say. 10. But, as is pointed out by his solicitor, the imposition of a three month full-time gaol sentence for an offence of receiving, committed in 2013 for a person with quite a short criminal history, at first blush appears to be a very stern sentence. Indeed, such a sentence should only be imposed once a Court had considered s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and a finding that it was the only suitable or available or reasonable sentence, given the facts. In the circumstances, I think the prospects of success are quite good. 11. The applicant has some need to be free to prepare for his Court case, but certainly, another lawful reason would be his attempt at rehabilitation. The views of the victims have not been made known to me, although one might expect, given the nature of the facts that they would be concerned if he is released. 12. All of those things considered in balance and taking into account the very cogent submissions made on behalf of the Crown, I have come to the view that the bail concerns that I have can be ameliorated or mitigated by the types of conditions that Mr Shukoor proposes on behalf of Mr Badger and I propose to grant him conditional bail. ********** Amendments 12 August 2015 - Coversheet 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: 12 August 2015