Kangas v R [2015] NSWSC 1294

Supreme Court New South Wales

Medium Neutral Citation: Kangas v R [2015] NSWSC 1294 Hearing dates: 16 & 30 July 2015 Date of orders: 30 July 2015 Decision date: 30 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: Bail granted Catchwords: BAIL – release application – show cause requirement – residential rehabilitation as relevant to show cause requirement Legislation Cited: Bail Act 2013 (NSW), s 16A Cases Cited: Director of Public Prosecutions v Campbell [2015] NSWCCA 173 Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Category: Principal judgment Parties: Luke Kangas (applicant) Regina (respondent) Representation: Solicitors: Legal Aid Commission (applicant) Office of the Director of Public Prosecutions (respondent) File Number(s): 2015/73905

Judgment – Ex tempore 1. HER HONOUR: Before the Court is a release application by Luke Kangas, who stands charged with two separate series of offences. The first series, from August 2014, consists of drug offences and charges of being in possession of weapons. As to a number of those charges, representations have been made to police resulting in a considerable reduction in the number of matters charged, the only matters now faced by the applicant being a charge of possessing an imitation pistol (a cigarette lighter), a prohibited weapon (being a push dagger) and a trench knife. All of the drug charges laid on that occasion have been dropped. 2. The applicant was granted bail for those offences but whilst on bail is alleged to have committed a further series of offences involving the possession of indictable quantities of methylamphetamine and a smaller amount, I think, of cocaine. 3. The applicant has been in custody since his arrest on those matters on 10 February 2015. The application faces the hurdle of a show cause requirement since the second series of offences is alleged to have been committed whilst the applicant was on bail for the first. The Court must refuse bail unless the applicant shows cause why his detention is not justified: s 16A(1) of the Bail Act 2013 (NSW). 4. The applicant has put forward a bail proposal which would see him enter residential rehabilitation. It has been accepted by the Court of Criminal Appeal that that is a consideration relevant to showing cause: Director of Public Prosecutions v Campbell [2015] NSWCCA 173 at [20]. 5. In my view, the proposal put forward by the applicant cogently establishes (according to the way in which the show cause test has been interpreted by the Court of Appeal in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83) that the applicant has satisfied the show cause requirement. He has demonstrated a considerable commitment to rehabilitation, pushing through bureaucratic hurdles through his own persistence and obtaining an offer of a bed at Canton Beach Family Addictions Recovery Centre, notwithstanding the absence of a report from Justice Health (due to administrative difficulties). 6. As to whether the applicant satisfies the risk assessment test, plainly there is a bail concern that he will commit a serious offence if released on bail owing to the existence of an apparent drug difficulty but, in my view, that risk is adequately met by the conditions proposed. 7. There is one matter I should observe. In the decision of Campbell in the Court of Criminal Appeal, the Crown submitted that releasing the respondent to bail in order for him to undertake a rehabilitation program would fetter the discretion of the sentencing judge when the matter next came before the District Court. The circumstances in which that submission was made were very different from the present case. There, the applicant had been committed for sentence to the District Court where he was due to be sentenced in about six weeks and where he faced a strong likelihood of having a custodial sentence imposed. The present case, by contrast, is one in which the applicant's charges remain in the Local Court, the distance until any sentence proceedings is considerably longer than six weeks (and may well range into many months) and material put before the Court when the application was made demonstrates at least a strong prospect that, if convicted for the indictable drug matters, the applicant may not necessarily ultimately serve a term of imprisonment. He has now been in custody for almost six months. If a sentence of imprisonment were imposed, there is a prospect that he would receive a sentence with a non-parole period of six months or not much more. 8. In any event, leaving aside the very different circumstances between the present application and the circumstances considered by the Court of Criminal Appeal in Campbell, I would, with great respect to that Court, express my disagreement with the treatment of that submission. The Court said at [24]: "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". 1. In my view, the fact of a superior court granting bail to a person who faces sentence in a lower court cannot properly be characterised as being capable of being perceived to fetter the discretion of the sentencing court. A superior court's assessment of the considerations set out in the highly prescriptive provisions of the Bail Act does not logically inform the discretion of the sentencing judge, nor is the risk that that might occur a relevant consideration in determining bail, having regard to the mandatory and exhaustive list of considerations under s 18 of the Act. 2. One can understand the concern about the perception in the particular circumstances of Campbell but it should be made clear, in my view, that on a strict application of the law, neither court should be concerned or feel its discretion fettered by a determination of the other on wholly different legal considerations. Ultimately, the question whether a person is entitled to be granted bail must be determined in accordance with the Bail Act, in which there is found no expression that a concern about fettering the discretion of a sentencing court can or should be taken into account in determining either whether a person's detention is justified or whether any bail concern exists and can be met by conditions. In any event, that is not an issue that arises in the present case. 3. For the reasons stated the applicant is granted bail.