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Supreme Court 7 April 2015

R v Wright

[2015] NSWSC 2109

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW BAIL ABORIGINAL OFFENDER

Citation: R v Wright [2015] NSWSC 2109
Court: Supreme Court of New South Wales
Date: 7 April 2015
Judge(s): Rothman J

Background

The applicant, an Aboriginal man born in 1984, sought bail in connection with a series of charges arising from a domestic violence incident. The charges included aggravated break and enter, assault, contravening an apprehended domestic violence order, malicious damage, intimidation, and resisting and assaulting police officers.

The applicant had a lengthy criminal record that included repeat domestic violence offending and breaches of domestic violence orders and court orders generally. Most prior offences had been committed while the applicant was under the influence of drugs or alcohol, which the court treated as a significant factor qualifying his stated intention not to contact the victim.

The central question was not whether bail could be granted in principle, but whether conditions could be designed to reduce the risk of serious harm to the victim to an acceptable level.

  • Whether an unacceptable risk of serious offending against the victim could be sufficiently ameliorated by bail conditions
  • Whether culturally appropriate supervision and residential arrangements could substitute for remand in custody, consistent with the approach endorsed for Aboriginal accused persons
  • What weight should be given to the applicant's background, including circumstances of deprivation and disadvantage, in assessing bail

Decision

Rothman J accepted that, absent conditions, there was an unacceptable risk of serious offending against the victim. The primary risk was not that the applicant would fail to appear but that he might re-offend against her, particularly given the history of offending under the influence of substances.

The court considered the line of authority dealing with Aboriginal offenders and circumstances of deprivation, drawing on the Court of Criminal Appeal's decision in R v Michael John Brown [2013] NSWCCA 178. That decision directed courts, particularly where Aboriginal accused persons are involved, to explore culturally appropriate alternative supervision as a preferred option to remand in gaol, noting the dramatic increase in Aboriginal incarceration rates on remand since the Royal Commission into Aboriginal Deaths in Custody.

The proposed conditions included the applicant residing with a close relative in Lithgow and being prohibited from attending Parkes, where the victim lived. Rothman J found that these arrangements, read together with the Brown principle, were sufficient to reduce the risk to an acceptable level.

Bail was accordingly granted, subject to conditions recorded on the court file.

Orders Made

• Bail is granted for Luke Charles Wright on charges of breach of bond, damage property, common assault, two counts of damage property, contravening an apprehended domestic violence order, assault police officer in execution of duty, resist police officer in execution of duty, intimidation, aggravated break and enter to commit serious indictable offence, and malicious damage knowing persons are present, subject to conditions as per court file

Key Takeaways

  • The Supreme Court confirmed that, for Aboriginal accused persons, courts should actively explore culturally appropriate alternative supervision as a preferred option to remand in custody, consistent with the approach set out in R v Michael John Brown [2013] NSWCCA 178.
  • Rothman J acknowledged the dramatic rise in Aboriginal incarceration on remand since the Royal Commission into Aboriginal Deaths in Custody, treating this as a live and relevant consideration in the bail assessment.
  • An applicant's history of offending under the influence of drugs or alcohol is a relevant factor capable of qualifying an otherwise rational stated intention not to re-offend against a victim.
  • Where a residential condition geographically separates an accused from the victim, and culturally sensitive supervision is available, that combination may reduce an otherwise unacceptable risk to an acceptable level.
  • The principles in R v Fernando (1992), Bugmy v The Queen [2013] HCA 37, and Kennedy v R [2010] NSWCCA 260, concerning the relevance of Aboriginal background and circumstances of deprivation, were treated as applicable in the bail context, not only at sentencing.

Legislation and Cases Referenced

Legislation
- Bail legislation (specific Act not cited in the judgment)

Cases
- R v Michael John Brown [2013] NSWCCA 178
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Kennedy v R [2010] NSWCCA 260
- R v Fernando (1992) 76 A Crim R 58