The Queen(Crown) v Kristie Lee Watson (Offender)

• Jurisdiction: Australian Capital Territory
• Judge: Penfold J
• Judgment Date: 31 October 2017
• Court: Supreme Court of ACT
• Docket Number: File Numbers: SCC 165 of 2017; SCC 168 of 2017
• Date: 31 October 2017

[2017] ACTSC 311

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Penfold J

File Numbers: SCC 165 of 2017; SCC 168 of 2017

The Queen

(Crown)

and

Kristie Lee Watson

(Offender)

Representation:

Counsel

Ms S Naidu (Crown)

Mr B Shelton (Offender)

Cases Cited:

Application for bail by David Celeski [2016] ACTSC 101

In the matter of an application for bail by Islam [2010] ACTSC 147 ; 4 ACTLR 235

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

In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70

In the matter of an application for bail by SA [2010] ACTSC 114

In the matter of an application for bail by Schwalm [2011] ACTSC 153

In the matter of an Application for Bail by Timothy Noel Allan [2009] ACTSC 64

R v Celeski [2016] ACTSC 140

R v Cockburn [2015] ACTSC 297

R v Elphick [2014] ACTSC 372

R v JM [2011] ACTSC 157

R v Wilkins [2015] ACTSC 8

Legislation Cited:

Bail Act 1992 (ACT), ss 9D, 9D(2), 22

Human Rights Act 2004 (ACT), ss 8, 8(3), 28, 30, 40C

CRIMINAL LAW — Bail — offender to be sentenced for drug trafficking and drug possession offences — long term cannabis use and recent use of other drugs — desirable for offender to participate in residential rehabilitation — bail granted for participation in residential rehabilitation.

STATUTES — Interpretation — scope of “special or exceptional” circumstances — interpretation of Bail Act 1992 (ACT) — operation of Human Rights Act 2004 (ACT) — preference for particular form of rehabilitation not relevant factor, but reasons for preference may be — residential rehabilitation now available in custody for un-sentenced male prisoners but not for un-sentenced female prisoners — differential interpretation of “special or exceptional circumstances” for male and female prisoners — interpretation of “special or exceptional circumstance favouring grant of bail” to include availability of rehabilitation opportunity in community for female bail applicant while only male prisoners have access to residential rehabilitation in custody.

Decision:

See [48]–[49] below.

Background

1 Kristie Lee Watson has pleaded guilty to nine offences involving or associated with drug trafficking. The offences came to light on two separate occasions, first in November 2015 when police executed a search warrant at Ms Watson's home and second in April 2017 when police observed Ms Watson selling drugs from her car in a car park and subsequently executed a search warrant at her home. She has now pleaded guilty to nine charges.

2015 charges

2 Five charges arise out of the 2015 incident, and are as follows:

• (a) trafficking in a trafficable quantity of cannabis;

• (b) being knowingly concerned in the trafficking of a controlled drug, being MDMA (Ecstasy);

• (c) being knowingly concerned in the trafficking of a controlled drug, being tetrahydrocannabinol (THC);

• (d) being knowingly concerned in the trafficking of a controlled drug, being methylamphetamine;

• (e) possessing a drug of dependence (amphetamine).

2017 charges

3 The four charges arising from the 2017 incident are as follows:

• (a) trafficking in a trafficable quantity of cannabis;

• (b) trafficking in a controlled drug (Lysergide (LSD, LSD-25));

• (c) possessing a prohibited substance (MDMA);

• (d) possessing a drug of dependence (cocaine).

Other history

4 There have been various delays in the proceedings in respect of the 2015 offences, but Ms Watson was finally charged with the cannabis trafficking offence on 20 March 2017, that is, shortly before the 2017 offences came to light.

5 Before the 2015 incident, Ms Watson had been dealt with in May 2015 for two offences, one each of cultivating eight cannabis plants artificially and possessing cannabis, committed in September 2014. A good behaviour order ( GBO) for 18 months had been made in respect of those offences, and on 18 August 2015 Ms Watson was dealt with for a breach of that GBO constituted by failing to submit to supervision. The Magistrate took no further action on the breach, and it seems that Ms Watson complied with her supervision obligations satisfactorily for the remainder of her 12-month probation condition.

The sentencing hearing

6 Ms Watson's sentencing hearing began on 12 October 2017. The evidence before me referred to the following matters:

• (a) Ms Watson had been in custody since she was arrested in connection with the 2017 offences on 6 April 2017.

• (b) Ms Watson is a single mother with three children, aged 12 years, 8 years and 4 years. At some point between the November 2015 execution of the search warrant and the April 2017 arrest, she had tried to arrange to attend residential rehabilitation, including seeking help with childcare from her mother, but her mother had not at that stage been able to reduce her working hours to allow her to care for the three children.

• (c) Since Ms Watson was remanded in custody at the Alexander Maconochie Centre ( AMC), her mother has managed to reduce her working hours to 12 hours per fortnight and has become the full-time carer for her three grandchildren.

• (d) Ms Watson is a long-term user of cannabis. At some point from the middle of 2016, and for reasons that are not apparent, Ms Watson began using cocaine regularly and MDMA and LSD occasionally. Although the recent drug use has not been explained, and it is by no means clear that the long-term cannabis use is directly related to her offending (certainly that was not the impression given by Ms Watson when she spoke to police in June 2017 about the 2015 and the 2017 incidents), I am satisfied that it would be desirable and possibly useful for Ms Watson to participate in an extended residential rehabilitation program at some point.

• (e) Ms Watson has been offered a place in what is described as a 12-week residential rehabilitation program conducted by Directions ACT at Arcadia House in Bruce, ACT. The place would be available from 16 October 2017, and the program would run until 15 January 2018.

7 Defence counsel's original sentencing submissions were to the effect:

• (a) that although a number of the offences required sentences of terms of imprisonment, the roughly 6 months that Ms Watson had already spent in custody would be a sufficient proportion of the ultimate sentence to be served in full-time custody; and

• (b) that it would therefore be appropriate to sentence Ms Watson and immediately suspend the remainder of her term of imprisonment subject to a good behaviour order that would require, or at least permit, her to enter the Arcadia House program.

8 I was, and remain at this stage, by no means convinced that the roughly 6 months that Ms Watson has so far spent in custody would be a sufficient period of full-time custody for the offences with which I am dealing, especially having regard to:

• (a) the various aggravating factors of the offending; and

• (b) the absence of any convincing evidence for a number of the mitigating factors put to me by Ms Watson's counsel.

9 For that reason, I was not inclined to sentence immediately in the manner proposed by defence counsel.

Possibility of granting bail

10 However, because of the availability of an immediate place in residential rehabilitation, I told the parties that I was prepared to contemplate, either in the context of simply adjourning the sentencing hearing or possibly in the context of making a deferred sentence order, granting bail to Ms Watson to allow her to take up that residential rehabilitation place. I made it clear to the parties that this should not be taken as an indication that Ms Watson had in fact served enough full-time custody to address the needs of the current sentencing exercise.

Operation of Bail Act

11 The Crown, however, pointed out that any bail application by Ms Watson would be subject to s 9D of the Bail Act 1992 (ACT).

Section 9D

12 Section 9D is relevantly as follows:

9D Bail for serious offence committed while charge for another pending or outstanding

(1) This section applies if—

• (a) a person is accused of a serious offence; and

• (b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.

  …

(2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering—

• (a) for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or

• (b) ….

…

(6) In this section:

outstanding -a charge against a person for an offence is outstanding—

• (a) until the charge is finally dealt with in any of the following ways:

  • (i) he charge is withdrawn;

  • (ii) the charge is dismissed by a court;

  • (iii) the person is discharged by the Magistrates Court following a committal hearing;

  • (iv) the person is acquitted or found guilty by a court of the offence; and

• (b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal—from the date the new trial is ordered until the earliest of the following happens—

  • (i) the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);

  • (ii) the order for the new trial is reversed on a further appeal.

  Note Found guilty, of an offence, includes—

  • • having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders—general)

  • • having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding...