Supreme Court New South Wales Medium Neutral Citation: R v Lawrence [2019] NSWSC 787 Hearing dates: 18 June 2019 Decision date: 18 June 2019 Jurisdiction: Common Law Before: Hamill J Decision: (1) Bail refused. Catchwords: CRIMINAL LAW – bail application – offences of violence – home invasion – threats to kill – criminal history of violence – history of breaching court orders – unacceptable risk – difficulty for aboriginal applicants in obtaining drug rehabilitation reports – unstructured proposal for rehabilitation – "angry people not always wise" – Jane Austen – wise forensic decision not to contest strength of prosecution case – gratitude expressed to Aboriginal Legal Service lawyer – bail refused Legislation Cited: Bail Act 2013 (NSW) Texts Cited: Jane Austen, Pride and Prejudice (1813) Category: Principal judgment Parties: Regina Kellie Lawrence Representation: Solicitors: D Laird (Regina) A Burkitt (Respondent) File Number(s): 2019/00075185 Publication restriction: Nil EX TEMPORE Judgment 1. HAMILL J: This is a release application by Kellie Lawrence under the Bail Act 2013 (NSW) in relation to a series of offences all of which are related and all of which occurred at about the same time on 3 March 2019. Those offences include breaking and entering a home and committing an assault occasioning actual bodily harm, breaking and entering a home and committing a serious offence of intimidation, resisting police and assaulting a police officer. I think that may be it. 2. Ms Lawrence was arrested shortly after the offences are alleged to have been committed and she has been in custody ever since, that is now a period of in excess of three months. The case is still before the Local Court for mention or charge certification in the Wollongong Local Court on 26 June 2019. 3. To this point in the litigation Ms Lawrence has pleaded not guilty and if that plea is maintained, on the estimates I have been given by the Prosecutor, she will remain in custody for something like a year and perhaps a bit more. If there is some charge negotiation or she otherwise enters pleas of guilty, it is likely that the case will be dealt with much sooner depending on which stream the case takes (that is to say, the early appropriate guilty plea as described or simply entering a plea). It is certainly clear looking at the charges and facts that there may be some room for negotiation that may lead to the matter being shorter. 4. However one looks at it, Ms Lawrence will remain in custody for a significant period of time during which she enjoys the presumption of innocence and in circumstances where, in spite of her criminal record to which I will presently refer, she has not previously been sentenced to a term of imprisonment to be served full-time. The facts of the case as alleged by the prosecution are very serious. They involve what is generally described as a home invasion or in fact on the prosecution's allegation two home invasions. 5. Tendered on the bail application as part of Exhibit A is a police statement of facts along with statements of four witnesses who were the occupants or in attendance at the flats where the offences allegedly took place. Drawing inferences from what is said in those documents, the motive for what happened appeared to be to exact revenge on somebody who had allegedly punched Ms Lawrence possibly to the chest. What the prosecution alleges is that Ms Lawrence took her boyfriend around to a unit block in Myuna Way, Mangerton, which is a suburb of Wollongong, in an attempt it seems to locate the perpetrator of the previous act of violence. 6. While the offences appeared in that respect to be targeted at the perpetrator of previous violence, the targeting was quite indiscriminate. As it turned out three people were assaulted in their own homes, punches were thrown, other forms of assault were committed and threats to kill the occupants were made. The victims received not grievous but serious enough injuries or at least one or more of them did. At least one of the threats to kill was made by the applicant herself. 7. Ms Burkitt appears for Ms Lawrence on the application and submitted in this regard that the worst of the violence was perpetrated by the male co-accused, that is the boyfriend of the applicant. But the fact is that on the prosecution case that boyfriend was the applicant's implement or instrument used to serve her purpose of exacting revenge for the earlier assault. Further, whilst there were occasions when Ms Lawrence indicated that he was assaulting the wrong person and otherwise assisted to stop his assault, she herself on the prosecution case uttered serious threats including a threat to kill. Whilst it is true as Ms Burkitt says that most of the actual violence was perpetrated by the co-accused, the escapade appeared to be undertaken at Ms Lawrence's instigation and to exact revenge for a previous assault on her. 8. Ms Burkitt made the wise forensic decision not to make submissions concerning the strength of the prosecution case. 9. On my limited understanding, which is based on those statements and on the statement of facts, the prosecution case appears to be an extremely strong one. It involves personal identification by picture identification by some of the witnesses. There is also it seems the naming of Ms Lawrence by her first name, 'Kellie', by one of the occupants who either knew her personally or who knew her from the area. Further, and perhaps significantly in terms of the circumstantial evidence available to support that identification, is that police were called shortly after the incident and Ms Lawrence and her co-accused were found by police in a nearby backyard with what is described in the facts sheet as "fresh blood on their faces". 10. According to police, there was some resistance on Ms Lawrence's part to being arrested and hence there are the resist and assault police officer charges. I have to say, whilst one is always sympathetic to the police doing their jobs, those really are the least of Ms Lawrence's problems in terms of the facts. It is the nature of the home invasion type offences which causes her particular difficulties in today's application. Everything I have just said are allegations, nothing has been proved against Ms Lawrence and she is presumed to be innocent. It will be for the prosecution to establish her guilt beyond a reasonable doubt if she maintains her plea of not guilty. 11. The case seems to be based substantially on identification evidence and if the matter goes to jury trial or otherwise, the tribunal of fact will have to be extremely cautious in acting on identification evidence because it does have a history of unreliability in the criminal law. Similarly, insofar as the prosecution relies on circumstantial evidence, it will be for the prosecution to exclude any other reasonable hypothesis consistent with innocence. What sometimes looks and reads like a very strong prosecution case can fall apart at trial particularly when that case is based on the word of lay witnesses whose credibility is impossible to gauge at this distance. Even so, it is impossible not to accept the prosecution's submission that the case against Ms Lawrence is very strong. I would probably put it a bit higher than that. 12. It is also difficult to gainsay the proposition that a custodial sentence is the most likely outcome particularly if the matter proceeds to trial and Ms Lawrence is convicted. It may be that alternatives to a full-time custodial sentence would be available particularly if there is some sensible negotiated plea and she could rely on that plea along with any contrition and remorse, and prospects for rehabilitation, that she demonstrates. 13. Ms Burkitt on behalf of Ms Lawrence has presented a strong case in relation to Ms Lawrence's current intentions towards rehabilitation and reform. She has spent her time in custody well. One certificate of attainment was tendered but I accept Ms Burkitt's submission, and indeed Ms Lawrence told me by video link, that she had completed other certificates including the Responsible Service of Alcohol and Responsible Conduct of Gambling. 14. She has impressed the prison chaplain, a Mr Ellis. In spite of the perhaps understandable scepticism of the Prosecutor as to such people seeing the good in people, I accept that Mr Ellis has been impressed with the attempts that Ms Lawrence has made in custody to regularly attend chapel services, that she has been polite and respectful, and that she has demonstrated whilst in his presence what he describes as a level of understanding both of herself and the needs of others. He also describes her insight into her own issues and her desire to gain further insight so that she can return to the wider community a better person. Chaplain Ellis asked the Court to consider those efforts she is making to improve her life. 15. And importantly the applicant has the support of her mum, Miriam Beale, who is present in Court – and who has been present in Court all day – listening to her daughter's application. Ms Beale has demonstrated a good deal of respect and strength. She has written a letter in which she offers to support her daughter Kellie as much as she can, she has offered her accommodation at an address in Smith Street at Wollongong and she has indicated her preparedness to supervise Kellie if Kellie is granted bail and to report it to police if her daughter breaches any bail conditions. Ms Beale suffers from a heart condition, cardiovascular disease, and having Ms Lawrence around would make her life easier. I don't doubt any of that and nor do I doubt Ms Lawrence's desire to be with her mother and to assist her as best she can. 16. Ms Burkitt has also set out a series of stringent bail conditions including a residence condition, a reporting condition, a prohibition on drinking alcohol and entering premises were alcohol is sold, a prohibition on taking drugs, non-association, curfew conditions, geographical restrictions such as not to enter Mangerton and would accept any enforcement conditions in relation to the proposed curfew and drug rehabilitation or alcohol rehabilitation steps. In the course of argument there was a discussion about also having conditions that would require Ms Lawrence to attend the Orana Centre in Wollongong and undertake whatever counselling programs, drug and alcohol rehabilitation programs and the like, that may be available to her. This was in addition to her agreement to engage with a Dr Rowen of the Aboriginal Medical Service, again with a view to obtaining advice and assistance with whatever psychological problems may underlie the difficulties she has. 17. Part of the problem with all of that is that the nature of the drug rehabilitation or alcohol rehabilitation proposal was somewhat cobbled together by Ms Burkitt and I during argument and that is by no means a criticism of Ms Burkitt. Rather, it is the fact as I understand it that there are real difficulties at the moment for the Aboriginal Legal Service in obtaining drug and alcohol reports. This is apparently as a consequence of the terms of the new Practice Note. I confess that I do not fully understand the problem, but I do understand and accept from Ms Burkitt, who has appeared in many bail applications over the last eight months in this Court (and she has been present to see a number of cases where they can rely on a drug and alcohol report and structured and residential programs) that the number of applications has dropped dramatically since the introduction of the new Practice Note. 18. I have no doubt that is an unintended consequence of a Practice Note designed to ensure that people's bail applications get on quickly and are ready to proceed on the day. It just might be that the clients of the Aboriginal Legal Service and perhaps some of the clients of the Legal Aid Commission as well are inadvertently disadvantaged. I am told there may be some representations being made about that. Insofar as it would help at all I would invite the ALS to obtain a copy of these remarks in due course. 19. But be that as it may, I have to decide the case on the evidence before me and even though the proposals are not unreasonable ones and well thought out by Ms Burkitt on her feet, they do not involve the sort of structured or residential rehabilitation that may otherwise be indicated. The reason I say it might be indicated brings me to the criminal history of Ms Lawrence and it is a criminal history which causes great concern because of the number and apparent seriousness of offences of violence. That is a significant matter to be weighed in the balance when considering an application for bail. 20. There is an offence on her record from the Children's Court but I choose to disregard that. That is an offence of assault. There is an assault occasioning actual bodily harm in the year 2000 which resulted in a six-month suspended sentence. There is an assault in 2002 which resulted in a s 9 bond. There is some obviously very minor offences of assaulting a police officer, I say minor because there was merely a fine of $50. There is an offence of maliciously inflicting grievous bodily harm in 2004 which resulted in a suspended gaol sentence. There is an offence of robbery in company in 2011 which again resulted in a suspended gaol sentence and, as I understand it, most recently there were offences in 2014 of assault occasioning actual bodily harm and breaching bail. The upshot of which is there is a problem underlying Ms Lawrence's behaviour which manifests itself or has manifested itself in the past with offences of violence. 21. The Prosecutor submits that the courses she has done in custody do not address the difficulties that she may have with anger management and, as Jane Austen said in Chapter 25 of Pride and Prejudice: "Angry people are not always wise". 1. Certainly the events that bring Ms Lawrence before the Court today suggest that may well be the case. 2. I have considered the stringent bail conditions proposed by Ms Burkitt. Part of the difficulties as I have said is the unstructured nature of the rehabilitation programs that are proposed, but in addition to the matters of violence that I have mentioned on the record, there is also a history of failing to comply with orders. Even though I have absolutely no doubt that her mother fully intends to support her and would do everything that she can to support her, and whilst I think that sitting here right now the applicant would have every intention of complying with the stringent bail conditions, the history that is presented in her criminal record makes it very difficult to have any degree of confidence that she would be able to do so. There are a number of previous breaches and failures to comply with conditions of bail and other matters. 3. The other difficulty is that the option of living in Smith Street really is very close to the area of Mangerton. It is a 15 or 20 minute drive away I am told, but it is really just on the other side of Wollongong, and that gives rise to concerns. 4. The Prosecutor relies on the bail concern that she will fail to appear. My inclination is that I could structure conditions that would make that concern otherwise than an unacceptable risk by reference to s 18 factors and s 19. But the bigger concern is the risk that Ms Lawrence would commit a serious offence and her criminal record in that regard, notwithstanding the submissions of Ms Burkitt on her behalf, and what I think is the goodwill both from the applicant today and from her mother, is such that I am just not able to contemplate conditions that will mitigate that risk. I do find that there is an unacceptable risk that she will commit a serious offence and in particular a serious offence of violence. 5. That being so, having come to that finding, bail must be refused and the release application must be refused. 6. In closing I would say, if some sort of more structured rehabilitation program were available my decision may have been different. I would also say that if Ms Lawrence continues with her efforts at rehabilitation in custody, and if some form of plea negotiation takes place, it may be that her prospects of getting out and leading a useful life, because she is clearly a decent young woman when she is not angry, are much enhanced. 7. Ms Lawrence I am refusing you bail today but I wish you well and Ms Burkitt will explain that to you afterwards, thank you. 8. LAIRD: If your Honour could add to that, if she remains in custody unresolved for another three months that entitles her to another application for bail in this jurisdiction. I am very concerned about whether if she pleads not guilty she is still left with this position, and coupled with a further better proposal for in some cases rehabilitation outside of a residential area that may well be sufficient grounds to justify another application for bail in this jurisdiction. 9. HIS HONOUR: I am grateful for that Mr Laird. We will make sure your remarks are in the transcript. 10. LAIRD: Thank you your Honour. 11. HIS HONOUR: Ms Burkitt, I understand you have been doing this job in the bails Court for eight months and this is your last day. I also know from speaking to my colleagues that they are extremely grateful for the work you have done, the diligence with which you have done it and the good grace with which you have done it. So on behalf of the Court – and obviously me – thank you. ********** Amendments 12 March 2020 - Publication restriction amended. 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