Kitson v Director of Public Prosecutions (NSW) [2019] NSWSC 1856

Supreme Court New South Wales

Medium Neutral Citation: Kitson v Director of Public Prosecutions (NSW) [2019] NSWSC 1856 Hearing dates: 17 December 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Common Law Before: Hamill J Decision: Conditional bail granted. Catchwords: CRIMINAL LAW – bail – show cause – recidivist offender – psychiatric illness – custodial conditions – where schizophrenic locked in cell 23 hours per day – conditions of bail – awesome – diligence Legislation Cited: Bail Act 2013 (NSW) ss 16A, 16B, 17, 18 and 19 Crimes Act 1900 (NSW) s 112(2) Category: Principal judgment Parties: David Kitson Director of Public Prosecutions (NSW) Representation: H Atkinson (Applicant) T Lumsden (DPP) File Number(s): 2019/00374866 Publication restriction: Nil

Judgment 1. On Tuesday, 17 December 2019 David Noel Kitson made a release application pursuant to the provisions of the Bail Act 2013 (NSW). Because he was on parole at the time of the alleged commission of a serious indictable offence, he was required to show cause why his detention was not justified. 2. The show cause requirement arises in the following circumstances. The applicant was released to parole on 13 September 2019 and the parole period was due to expire on 29 October 2019. The sentences and parole period related to sentences imposed for offences committed in October 2018 and April 2019 and included the possession of an unauthorised pistol, entering enclosed lands and resisting police. On 18 October 2019, that is 11 days before the parole period was due to expire, the applicant is alleged to have committed an offence of aggravated break and enter with the commission of a serious indictable offence (damaging property): s 112(2) Crimes Act 1900 (NSW). There are associated offences of trespass, common assault, destroying property and larceny. The alleged victim of those crimes was the applicant's sister. The aggravated break and enter offence is a serious indictable offence and, because he was on parole, s 16B(1)(h) means that it is a "show cause offence". Bail must be refused unless the applicant shows cause why his detention is not justified: s 16A. 3. The alleged offences involved the applicant, who has a mental illness and was homeless at the time, attending his sister's home at 2:00am on 18 October 2019. He asked for food and she gave him a packet of biscuits. She told him he was not welcome to come inside. There is a history of troubles between the siblings and the applicant has previously committed offences against her. Similar offences were committed in June and July 2017. In December 2017 he was in the company of his sister in breach of an apprehended violence order and was in possession of a paring knife. 4. Returning to a brief narrative of the events of 18 October, the alleged victim awoke at around 7:00am to find the applicant in her living room. He told her that he entered through a window and an argument developed when she asked him to leave. The applicant punched a hole in a wall, smashed a bowl and threw a chair. He held the cord of the vacuum cleaner against the front of the complainant's throat. At some stage the complainant's dogs started to fight and attempted to bite the applicant. The applicant assisted his sister in separating the dogs. The complainant called the police. When the police arrived the applicant attempted to flee but was arrested shortly thereafter, taken into custody and charged with the present offences. He has been in custody since that time. 5. I accept the Prosecutor's submission that the prosecution case appears to be strong. I also accept that there is a strong likelihood that the applicant will receive a custodial sentence if he is convicted of the offence under s 112(2) of the Crimes Act. 6. The applicant has a bad criminal history. It spans around 48 pages. It includes a number of offences of breaking into houses and a number of offences of violence. As I have mentioned in passing some of the offences were similar to the present offence and involved the same victim, that is, his sister. The record also demonstrates an ongoing failure to comply with court orders. The nature and extent of his criminal history, and his ongoing failure to comply with court orders and obligations, is a significant factor militating against a finding that he has shown cause why his detention is not justified. Similarly, the expressed and justified fears of the applicant's sister and the Court's obligation to protect her from harm and harassment mean that overcoming the show cause requirement in s 16A is extremely difficult in this case. 7. Mr Atkinson of the Aboriginal Legal Service relies on a number of circumstances to contend that there are unusual features of the case capable of overcoming the significant obstacle represented by the provisions of s 16A. He tendered a psychiatric report of Dr Richard Furst dated 10 March 2019. That report was used in earlier sentencing proceedings. However, the diagnoses in that report appear to remain current. In short, the applicant suffers from schizophrenia resulting in severe states of psychosis and ongoing paranoid thoughts. It also includes auditory hallucinations, depressed mood and suicidal ideation. 8. The applicant's mental health issues place his substantial criminal history, and unenviable record of non-compliance into some context. Certainly, if the allegations in the present case are accepted, his behaviour towards his sister was, as well as being terrifying to her, somewhat irrational and bizarre. 9. Mr Atkinson put from the bar table, and I accept, that the applicant is currently being held in a highly restricted form of segregation. I understand this arose because of threats or intimidation directed to the applicant by other inmates. At the present time, and over the period during which Mr Atkinson has been dealing with him, the applicant has been kept in his cell for 23 hours per day. He has had one psychiatric appointment during the period of remand. These conditions and the lack of therapeutic intervention are likely to be highly deleterious to the applicant's mental condition. This is an important component in his submission that he has shown cause why his detention is not justified. As sympathetic as I am to that matter, because of the fears expressed by the victim and the applicant's recidivism, it would of itself be insufficient to overcome the show cause requirement. 10. However there are other features of the case that need to be considered. Mr Atkinson has worked diligently to fashion conditions of bail that would overcome the legitimate fears of the applicant's sister that she will again be exposed to the irrational and frightening behaviour of her brother. The applicant's sister lives in or near Albury and that is where it is alleged that the present offences were committed. The bail proposal is for the applicant to live in the town of Blayney near Bathurst. Blayney is over 400 km from Albury and it would take something like four or five hours to drive between the proposed bail address and Albury. Further, if he lived in Blayney the applicant would have access to mental health services in Orange. A friend of the applicant, Mr Walmsley, has offered him accommodation in Blayney and his grandmother lives in that town and has offered to assist in supervising him. Appointments were made at two medical centres in Orange that would allow the applicant to access mental health services. These were at the Orange Aboriginal Medical Service and the Orange Community Mental Health Team. The time for the appointment at the Aboriginal Medical Service passed while this judgment was reserved and there is no appointment available now before Christmas. However, the applicant is on a cancellation wait list. There is an appointment with the Orange Community Mental Health Team on 6 January 2020 at 11:30am. 11. Along with conditions requiring the applicant to stay at home during the evening, a prohibition on consuming drugs and alcohol, enforcement conditions and stringent reporting conditions, the concerns I have for the safety of the applicant's sister are greatly mitigated. 12. As I have said, the applicant has been in custody since 18 October 2019. The case was mentioned in the Albury Local Court on 17 December 2019 and adjourned until 11 February 2020 for charge certification. The offence under s 112(2), as presently charged, cannot be dealt with otherwise than on indictment. Accordingly, there will be some little delay, if not a significant delay, between now and when the case is finally disposed of in the District Court. On my understanding of the Court lists, the delay may exceed a year. 13. This is a difficult case. However, I am satisfied that the applicant's current custodial situation, in combination with his mental health issues and the stringency of the bail conditions proposed, are sufficient to overcome the show cause requirement in the particular circumstances of the case. 14. The Prosecutor raised four legitimate bail concerns pursuant to s 17 of the Bail Act. They were (1) a risk that the applicant will not attend Court, (2) a risk that he will commit serious offences, (3) a risk that he poses a threat to members of the community and the victim in particular, and (4) a risk that he may attempt to interfere with the principal witness. 15. However, residing in Blayney and obtaining the treatment he needs for his psychiatric condition along with regular reporting and a prohibition from attending the town of Albury except when absolutely necessary to attend Court, sufficiently mitigates those concerns so that they are not unacceptable risks for the purpose of s 19 of the Bail Act. In reaching that conclusion, I have considered where relevant the exhaustive list of considerations in s 18. 16. I have made some adjustments to the proposed conditions. I express my gratitude to the solicitors for both the Prosecution and the Applicant for their awesome diligence and great assistance in this difficult application. 17. Accordingly, conditional bail is granted. (For conditions, see court file)