The Queen (Crown) v David Celeski

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 30 June 2016
• Court: Supreme Court of ACT
• Docket Number: File Numbers: SCC 78 of 2016 SCC 80 of 2016 SCC 81 of 2016
• Date: 30 June 2016

[2016] ACTSC 140

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Numbers: SCC 78 of 2016

SCC 79 of 2016

SCC 80 of 2016

SCC 81 of 2016

The Queen

(Crown)

and

David Celeski

(Defendant)

Representation:

Counsel

Ms S Gul (Crown)

Mr P Bevan (Defendant)

Cases Cited:

Application for bail by Celeski [2016] ACTSC 101

Connors v The Queen [2014] ACTSC 252

Director of Public Prosecutions v Cozzi (2005) 12 VR 211

DPP v Tang (1995) 83 A Crim R 593

Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 (1999) 92 FCR 168

Groth v Secretary; Department of Social Security (1995) 40 ALD 541

Harvey v Attorney-General for the State of Queensland (2011) 220 A Crim R 186

In an Application for Bail by Connors [2015] ACTSC 407

In the Application for Bail by Massey [2008] ACTSC 145

In the Application for Bail by Rodriguez [2008] ACTSC 50

In the Matter of an Application for Bail by Seears [2013] ACTSC 187

Re application for bail by Breen (2009) 172 ACTR 21

R v Kelly [2000] 1 QB 198 [2000] 1 QB 198

R v McGrail [2016] ACTSC 142

R v Rubino [2012] ACTSC 157

R v Wilkins [2015] ACTSC 145

Sebbens v The Queen [2014] ACTSC 281

Legislation Cited:

Bail Act 1992 (ACT), ss 9A, 9B, 9C, 9D, 20B, 20C, 20C(2), 22, 23,

Criminal Procedure Act 1986 (NSW), s 47

Human Rights Act 2004 (ACT)

Magistrates Court Act 1930 (ACT), s 90B

Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)

Supreme Court Act 1933 (ACT), Pt 8

Criminal Code 2002 (ACT), ss 44, 308, 311, 318, 403

CRIMINAL LAW— JURISDICTION, PRACTICE AND PROCEDURE — BAIL — Accused's circumstances —change in circumstances — special or exceptional circumstances — illness of family member — carer — drug use — rehabilitation

Decision:

• 1. David Celeski is granted bail subject to the following conditions:

  • (a) a person gives acceptable security for payment to the Territory of $10,000 if David Celeski fails to appear in court in accordance with his undertaking;

  • (b) that he accept supervision by the Director-General or her delegate and obey all reasonable directions of the person supervising him, including as to urinalysis;

  • (c) that he accept monitoring by the Court Alcohol and Drug Assessment Service (CADAS);

  • (d) that he attend the SMART Recovery program twice a week and consent to the Officer-In-Charge of the program providing to the person supervising him and to CADAS any information reasonably required in relation to attendance and engagement in the program;

  • (e) that he submit to urinalysis as and when directed;

  • (f) that he report to the Officer-in-Charge of Queanbeyan Police Station every Monday, Wednesday and Friday between 8:00am and 8:00pm;

• 2. That Monica Celeski is a suitable person for the purposes of condition (a) of the bail.

Refshauge J

1 On 19 November 2015, David Celeski, was arrested by ACT police and charged with damaging property, attempted theft and trespass.

2 He appeared in the Magistrates Court on that day and was granted bail.

3 On 15 January 2016, he was intercepted by NSW police with two other people in a car in which stolen property, firearms and ammunition was found. Later that day, a warrant was executed on his premises in Queanbeyan, NSW, and stolen property, drugs, a firearm and ammunition was seized. As a result, a number of court attendance notices, under s 47 of the Criminal Procedure Act 1986 (NSW), were issued to him. He was, as a consequence, not remanded in custody and has remained at large for those offences, though whether on bail or not, the evidence before me does not enable me to tell.

4 Regrettably, he was then arrested by ACT police again, on 22 January 2016, and charged with burglary, theft and dishonestly riding in a motor vehicle without the owner's consent, as well as some summary offences, all of which offences were alleged to have been committed while he was on bail for the earlier offences. He was refused bail and remanded in custody.

5 On 6 May 2016, he applied for bail but it was refused by Murrell CJ: Application for bail by Celeski [2016] ACTSC 101.

6 He then applied for bail before me. On 17 June 2016, I granted him bail. Given the circumstances, it is appropriate I set out brief reasons for doing so. These are my reasons.

The offences and the proceedings

7 It is alleged that on 19 November 2015, Mr Celeski and a co-offender drove a rental truck to some commercial premises in Majura Park, ACT. He is said to have spray painted over the CCTV camera there to prevent detection and then attempted to remove an electric oven from the premises but was interrupted by a manager of the business conducted at the premises, who had arrived at the premises following the activation of a burglar alarm. Mr Celeski and his co-offender drove away in the truck.

8 Police later arrived and pursued the truck until it stopped. Mr Celeski ran from the truck but police chased and arrested him.

9 He was charged with damaging the CCTV camera, an offence against s 403 of the Criminal Code 2002 (ACT), for which the maximum penalty is 1,000 penalty units (a fine of $150,000) and imprisonment for 10 years, and attempted theft of the electric oven, an offence contrary to ss 44 and 308 of the Criminal Code attracting the same maximum penalty.

10 He was also charged with the summary offence of trespass, an offence against s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth).

11 He appeared in the Magistrates Court later that day and was granted bail. The proceedings were adjourned and, on 10 December 2015, he entered a plea of not guilty to the charges. On 20 April 2016, he was committed for trial to this Court.

12 On 15 January 2016, however, NSW police arrested Mr Celeski, as noted above (at [3]). He was charged with the following offences following the finding of certain goods in the car in which he was travelling: having money in his possession reasonably suspected of being stolen or otherwise unlawfully obtained, possession of a stolen firearm, possession of a prohibited weapon (being an extendable baton), possession of a prohibited firearm and possession of ammunition without authority.

13 As a result of a subsequent search of his house, he was charged with three offences of possession of a prohibited drug, having possession of various goods reasonably suspected of being stolen or otherwise unlawfully obtained, possession of ammunition without authority, cultivating cannabis and possessing a prohibited weapon without a permit.

14 I did not have details of the NSW proceedings in relation to these offences, save that Mr Celeski was not remanded in custody for them and, apparently, he has pleaded not guilty. The offences are due to be heard in June.

15 On 22 January 2016, however, Mr Celeski was found in the underground car park of some apartments in Harrison, ACT. A number of cars had been broken into and damaged. Mr Celeski was arrested but attempted to resist arrest. He had earlier been seen in a stolen motor vehicle in the car park. Mr Celeski was charged with damaging property (the same offence as mentioned above at [9]), dishonestly riding in a motor vehicle without the owner's consent, an offence contrary to s 318 of the Criminal Code which provides for a maximum penalty of 500 penalty units (a fine of $75, 000) and 5 years imprisonment, burglary, an offence against s 311 of the Criminal Code for which the maximum penalty is 1,400 penalty units (that is a fine of $210,00) and imprisonment for 14 years and theft, an offence under s 308 of the Criminal Code attracting a maximum penalty of 1,000 penalty units (a fine of $150,000) and imprisonment for 10 years.

16 He was also charged with summary offences of possessing ammunition and obstructing a Territory official in the execution of his duty.

17 He appeared in the Magistrates Court on 23 January 2016 and was remanded in custody. On 2 February 2016, he pleaded guilty to the charges of burglary and theft.

18 The proceedings were adjourned to 18 February 2016 when he was further charged with summary offences of possession of goods reasonably suspected of being stolen, two offences of possession of drugs, affixing to a motor vehicle registration plates calculated to deceive and a further offence of obstructing a Territory official in the execution of his duty.

19 On 25 February 2016, he pleaded not guilty to the remaining charges. On 20 April 2016, he was committed to this Court for sentence on the charges of burglary and theft and all the summary offences were transferred to the Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).

20 On 6 May 2016, he applied for bail. The application was heard by Murrell CJ. The basis of the application was that Mr Celeski had been assessed as suitable for admission to a drug rehabilitation facility conducted by Directions, Arcadia House, for admission to its Transition Program, a program I have described in R v Wilkins [2015] ACTSC 145 at [40]–[41].

21 He had been a drug user for some time and was keen to get help to stop using drugs.

22 As noted (at [5]), the Court dismissed the application because the desire to enter drug rehabilitation was not seen as special or exceptional circumstances, a necessary pre-condition to the grant of bail.

The law

23 The Bail Act 1992 (ACT) is a complex piece of legislation which places certain considerations in the way of Mr Celeski's bail application.

24 As Mr Celeski has been committed for trial to this Court, however, I have jurisdiction to hear the bail application: s 20B of the Bail Act.

25 The Bail Act provides for four primary approaches to bail by reference to the offence with which an accused person has been charged.

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