An Application for Bail by Jeremy Schwalm

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 05 August 2011
• Docket Number: No. SCC 100 of 2008
• Date: 05 August 2011

[2011] ACTSC 153

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCC 100 of 2008

In the matter of an Application for Bail by Jeremy Schwalm

Counsel for the applicant: Mr D Claxton

Counsel for the respondent: Mr J Lawton, Mr T Jackson and Mr D Sahu-Khan

R v Goodwin (2009) 233 FLR 473

R v Hamid (2006) 164 A Crim R 179

Siganto v The Queen (1998) 194 CLR 656

In the matter of an application for bail by Massey [2008] ACTSC 145

In the matter of an application for bail by Skeen [2009] ACTSC 30

R (O) v Crown Court at Harrow [2006] 3 WLR 195

Court Procedures Rules 2006 (ACT), r 4733

Crimes (Sentencing) Act 2005 (ACT), ss 7, 12

Bail Act 1992 (ACT), s 9D, 22

Human Rights Act 2004 (ACT), s 18

Magistrates Court Practice Direction No. 1 of 2009

CRIMINAL LAW — jurisdiction, practice and procedure — bail — considerations to be taken into account when determining an application for bail — bail granted.

CRIMINAL LAW — jurisdiction, practice and procedure — bail — interpreting the Bail Act 1992 (ACT) consistent with human rights — bail granted.

ORDER

THE COURT ORDERS THAT:

• 1. Jeremy Schwalm be granted bail on the following conditions:

  • a. he be subject to the supervision of the Director General of Corrective Services or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to drug and alcohol treatment and counselling;

  • b. he be released into the company of an officer of ACT Corrective Services' Managed Accommodation Program (MAP) and that he enter that program forthwith;

  • c. he remain in that program during the remand period and obey all reasonable directions of the person in charge of the program;

  • d. if, for any reason, he is discharged from the program or he completes the program, he is to report to the Registrar of the ACT Supreme Court within 24 hours with a view of returning to court for the reconsideration of his bail;

  • e. he is to abstain from the consumption of alcohol or illicit drugs; and

  • f. he is to submit to breath analysis or urinalysis when require by the person in charge of the program, the person delegated to supervise him or a police officer.

EX TEMPORE JUDGMENT

1 On 9 January 2008, Mr Jeremy William Schwalm was charged with assault occasioning actual bodily harm, alleged to have been committed on 25 August 2007.

2 The committal proceedings were conducted on 11 March 2008 and Mr Schwalm was committed to this court for trial. He was in custody at the time. The usual orders were made on 19 March 2008 about the filing and serving of the relevant pre-trial documents (see r 4733 of the Court Procedures Rules 2006 (ACT)).

3 On 11 April 2008, bail was granted to Mr Schwalm.

4 A tentative trial date was suggested for 1 December 2008 and on 19 August 2008 the matter was listed for arraignment at which it was expected that the trial date would be set. Mr Schwalm did not then appear, however, and the court was advised that he had matters in New South Wales which may, as in fact they did, result in Mr Schwalm not being able to attend to take a trial on the suggested date because he would be serving a New South Wales sentence of full time custody.

5 In fact, on 10 September 2008, Mr Schwalm was sentenced to a total period of 18 months' imprisonment with a non-parole period of six months. He then appealed that sentence. The appeal was ultimately dismissed on 28 November 2008.

6 On 14 October 2008, I directed that a warrant should issue for Mr Schwalm's arrest as he had not appeared on a number of directions hearings where he was required to appear. The intention was that when he was released from custody in New South Wales he would be arrested and returned forthwith to the Territory.

7 I do not know whether a warrant was in fact actually issued but it appears not to have been executed and, by June 2009, neither the court nor the parties seemed to know where Mr Schwalm was.

8 His record shows that he then received a series of prison sentences in New South Wales. On 25 February 2009 he was sentenced to 15 months' imprisonment to date from 4 October 2008 with a non-parole period of seven months and then on 29 July 2009 he was sentenced to 15 months' imprisonment to date from 4 January 2009 with a non-parole period of six months. On 15 December 2009, he was sentenced to a total of six months and 18 days to date from 27 November 2009. Finally on 19 May 2010 he was sentenced to seven months' imprisonment. Thus he was, it appears, in New South Wales custody until 14 July 2010.

9 I was told that he returned to the Territory earlier this year in order to bring the outstanding ACT matters to a head. It appears that he did attempt to resolve the outstanding matters, for he appeared in the ACT Magistrates Court on 15 February 2011 and was dealt with by way of fines for a charge of unlawful possession of stolen property on 10 February 2008 and for breach of a bail undertaking to appear in court on 24 October 2007.

10 Regrettably, the matter in this court was apparently not mentioned and no steps were taken by the prosecution to arrange for any warrant to be executed or the matters to be referred to this court.

11 Unfortunately, his good intentions did not last and after his appearance in court he has committed a number of offences and been charged with others. As best I can tell, he was charged with:

• a. dishonestly riding in a motor vehicle belonging to another person between 20 and 23 January 2011;

• b. burglary between 9 and 10 February 2011;

• c. stealing from the premises burgled;

• d. possession of stolen property on 14 February 2011;

• e. possession of a drug of dependence on 16 March 2011;

• f. possession of cannabis on that day;

• g. possession of cannabis on 19 April 2011;

• h. possession of stolen property on 19 April 2011;

• i. having with him an article for use in theft on 19 April 2011; as well as

• j. failing to appear and answer to his bail on 10 October 2008.

12 Of these offences, I was also told that he has now pleaded guilty to the charge of possession of the various drugs, of having an article for use in theft and one of the charges of possession of stolen property, to all of which he was sentenced to a term of imprisonment which was suspended on the day on which he was sentenced.

13 Presumably, as required under s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), a Good Behaviour Order was also then made.

14 No doubt because he was in custody in New South Wales at the time, the prosecution offered no evidence on the charge of failing to answer his bail and that charge was dismissed. He has pleaded not guilty to the charges of burglary, theft and dishonestly riding in the motor vehicle. Those matters are listed for a case management hearing (see Magistrates Court Practice Direction No. 1 of 2009) on 11 August 2011, and will no doubt then, or at an adjournment of that hearing, be given a date for hearing that appears likely to be later this year.

15 No plea has been entered on the second charge of possessing stolen goods and I understood that representations were being made to the prosecution about that charge and that will also be listed at the case management hearing on 11 August 2011.

16 As to the trial of the charge in this court, it appears unlikely that it will be listed until the fourth sittings in 2012, namely November to December 2012.

17 On 20 April 2011, Mr Schwalm appeared in the Magistrates Court to answer a breach of bail which he admitted. He was then remanded in custody and has been in custody since then.

18 On 6 May 2011, he applied for bail in this court and it was refused. On 10 June 2011 he again applied for bail. That application was adjourned to 17 June 2011 and then to 20 June 2011 and then adjourned generally.

19 The application was re-listed on 1 July 2011, it was again adjourned generally until it came before me on 27 July 2011. I adjourned it to 29 July 2011 so that Mr D Claxton, who appeared for Mr Schwalm, could obtain further evidence about certain of the matters alleged in the application.

20 The application then proceeded and I reserved my decision until today.

21 Mr Schwalm has been assessed as suitable for the Managed Accommodation Program (MAP) conducted by ACT Corrective Services. I heard on 29 July 2011 from Mr Mark Snee of that program. It is a residential program designed as a half-way house for appropriate offenders on release from prison to help them to adjust to their integration into the community, as well as for those on bail remand to assist them address criminal issues preparatory to sentencing.

22 The house is staffed 24 hours a day and, while not a custodial setting, has strict rules. A curfew is imposed on residents from 10 pm to 7 am and they are subject to random urinalysis. All breaches of rules are reported, and the residential staff have no discretion about that. Mr Snee referred to a particular instance which demonstrated the stringency of that approach.

23 The staff assist the residents with counselling and other rehabilitation options, as well as with securing employment. Residents may stay for up to six months. Mr Snee described the philosophy of the program as giving a second chance to persons admitted to the program.

24 It is clear that Mr Schwalm has a significant drug problem. He has, as is not unexpected for people in his situation, a mixture of circumstances that can be optimistic and those that inevitably engender pessimism.

25 Most significant...