The Queen v Rhys Wilkins

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 07 January 2015
• Court: Supreme Court of ACT
• Docket Number: File Number(s): SCC 224 of 2014 SCC 305 of 2014 SCC 306 of 2014
• Date: 07 January 2015

[2015] ACTSC 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCC 224 of 2014

SCC 225 of 2014

SCC 305 of 2014

SCC 306 of 2014

The Queen

(Crown)

and

Rhys Wilkins

(Accused)

Representation:

Counsel

Ms S McKenzie (Crown)

Mr A Doig (Accused)

Cases Cited:

Channon v The Queen (1978) 33 FLR 433

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

People v O'Callaghan (1966) IR 501

Saga v Reid [2010] ACTSC 59

Legislation Cited:

Bail Act 1992 (ACT), s 9

Crimes (Sentencing) Act 2005 (ACT)

Criminal Code 2002 (ACT), ss 603(7), 604

Magistrates Court Act 1930 (ACT), s 90B

Criminal Code Regulations 2005 (ACT), Pt 1.1 of Sch 1, Item 44

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Bail — Whether special or exceptional circumstances are present

Decision:

Rhys Wilkins be granted bail on the following conditions:

1. That he accept the supervision of the Director-General, or her delegate, and comply with all reasonable directions of the person supervising him;

2. That he report forthwith to the intake officer of ACT Corrective Services, Eclipse House, London Circuit, Canberra City;

3. That he present himself, immediately after reporting to the intake officer as provided in condition 2, to Arcadia House, Mary Potter Circuit, Bruce ACT for admission by no later than 4:00 pm on 7 January 2015;

4. That he reside at Arcadia House, Mary Potter Circuit, Bruce ACT, and be present at that residence at all times and until completion of the Arcadia House Transition Program on 4 March 2015;

5. That, if he is not admitted to, or leaves, or is discharged from, or otherwise fails to complete the Arcadia House Transition Program at any time before 4 March 2015, he surrender himself immediately to the ACT Supreme Court or the City police station;

6. That he not consume intoxicating liquor or any illicit drugs, including cannabis;

7. That he provide samples of his breath, blood or urine for analysis as directed by the person supervising him;

8. That he provide a sample of his breath or oral fluid as directed by a police officer who has reasonable grounds for making such a direction; and

9. That he attend the ACT Supreme Court, at 9:30 am on 5 March 2015.

Refshauge J

1 Pre-trial detention is not a punishment, despite some common views in the community to the contrary. Indeed, the law of human rights makes it clear that deprivation of liberty for persons not convicted of offences could be punishment, as Justice Walsh opined in the People v O'Callaghan (1966) IR 501 at 516–17. Nevertheless, pre-trial detention is permissible if the strict conditions of the law are met. In this Territory, those conditions are set out in the Bail Act 1992 (ACT).

2 Rhys Wilkins has now applied for bail. He has been charged with serious drug offences. These arise from the following circumstances. On 9 December 2013, police searched Mr Wilkins' home under a search warrant and seized a small plastic bag containing about 0.025 grams of substance containing methylamphetamine, a second plastic bag containing 6.323 grams of substance containing methylamphetamine, a glass smoking implement with 0.089 grams of residue analysed to contain methylamphetamine, $7,465 in cash and a set of silver scales. A white shirt was also seized.

3 On 10 October 2014, police searched Mr Wilkins' home again under a search warrant and seized a clear zip lock bag containing about 12 grams of substance, including methylamphetamine from the right hand pocket of his shorts. They also found two other bags with the same drug, one bag in a drawer in the kitchen and the other in a shelf in the kitchen pantry cupboard. Police then found $2,600 in cash in the living room and $400 in cash in a plastic zip lock bag containing a large number of similar bags in a storage shed.

4 As a result of these offences, Mr Wilkins was charged, by summons dated 14 May 2014, with trafficking in methylamphetamine. He was arrested on 10 October 2014 and charged with a further charge of trafficking in methylamphetamine. He was committed for trial to this Court on the first charge on 25 September 2014 and on the second charge on 18 December 2014.

5 There is no explanation as to why Mr Wilkins was summonsed for the first charge, nor why it took so long to prepare and serve the summons.

6 He has also been charged with associated summary offences which have been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT). These are charges of possessing a white shirt, being property reasonably suspected of being stolen, possessing methylamphetamine and possessing proceeds of crime.

The counts for trial

7 The drug trafficking charges are offences contrary to s 603(7) of the Criminal Code 2002 (ACT), which provides for a maximum penalty on conviction of 1,000 penalty units (that is, a fine of $140,000) or imprisonment for ten years, or both. They are, accordingly, to be regarded by the courts as serious offences though by no means the most serious in the criminal calendar.

8 Under s 604 of the Criminal Code, if a person possesses a traffickable quantity of methylamphetamine, a person is presumed, unless the contrary is proved, to have the intention or belief about the sale of the drug required for conviction for trafficking in the drug.

9 Section 602 of the Criminal Code provides that a person trafficks in methylamphetamine if the person possesses it with the intention of selling it. Under s 601 of the Criminal Code, a traffickable quantity of a drug is that amount which is not less than the quantity prescribed by regulation. In Pt 1.1 of Sch 1 of the Criminal Code Regulations 2005 (ACT), Item 44 provides that the traffickable quantity of methylamphetamine is six grams, the commercial quantity is three kilograms and a large commercial quantity is six kilograms.

10 It appears that the Crown will be relying on these presumptions and meanings to show that Mr Wilkins has trafficked in methylamphetamine, though the possession of the plastic bags, the scales and the money will no doubt be relied on as negativing any attempt he may make to prove that he did not possess the drug for the intention of selling any of it.

11 In bail applications in the Magistrates Court, the transcripts of which were in evidence before me, it was made clear that the basis on which Mr Wilkins was defending the charges is that he proposes to rebut the presumption in s 604 of the Criminal Code. That approach was reiterated before me.

12 So far as the charges of possessing the methylamphetamine are concerned, it seems to me that the Crown has a strong case. So far as the trafficking charges are concerned, the Crown's case is also strong at face value, since the analysis of the drug and its weight will be, presumably, proved by expert evidence on bases not usually easy to challenge successfully.

13 I do not know, however, the strength of the case that Mr Wilkins appears to wish to raise, namely that he did not have the drug in his possession with the intention of selling any of it. As far as I can tell Mr Wilkins was allowed at large in respect of the first charge, as would be appropriate for charge for which he was summonsed. When committed to this Court, he was then, however, granted bail. When he was subsequently arrested for the second charge he was refused bail and has remained in custody since then.

14 He faced a particular hurdle, as far as bail was concerned, by the fact that he was charged with a second charge while on bail for the first charge, which brought into operation s 9D of the Bail Act, as both offences are punishable by imprisonment for five years or longer, namely, ten years. They are, for the purposes of that section, serious offences.

15 In the circumstances, where a person is accused of committing a serious offence while a charge for another serious offence is pending or outstanding, s 9D of the Bail Act requires that a court not grant bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail. This means that Mr Wilkins has to show some unusual or uncommon circumstances which justify or favour the grant of bail as explained in Re an application for bail by Massey [2008] ACTSC 145.

16 As there explained, a combination of circumstances may amount to special or exceptional circumstances even though each circumstance may not, on its own, meet the test. The following matters are relied on for the grant of bail.

17 The principal matter is that Mr Wilkins has, since his arrest, sought drug rehabilitation. He has had contact with Directions ACT, a well-known and respected drug and alcohol rehabilitation provider, with a view to entering into its short-term residential program, known as the Arcadia House Transition Program, a twelve week program with an emphasis on therapeutic community principles.

18 He has maintained contact with that agency since 17 October 2014, when he was assessed as suitable for admission to the Arcadia House program. He was initially given a bed offer on 3 November 2014 and then on 10 November 2014. He was not granted bail to be able to take up either offer. He has been, since then, on the waiting list for a bed and a bed has now become available...