Presumption of bail should be tightened

EARLIER this month one of the ACT Supreme Court’s acting justices, Justice John Nield, dismissed as appeal against a three-year sentence imposed in the Magistrates Court on Gavin Massey. Massey is 28 and had 57 convictions before the 10 new offences.

Let’s leave aside the adequacy of the sentence for 10 offences including possession of a prohibited firearm, car stealing and driving while disqualified. The magistrate and judge have the history before them and are in a better position to judge.

Moreover, I don’t want to jump on the NSW law-and-order bandwagon which most sensible people realise has cost NSW taxpayers vast amounts of money without a jot of improvement in public safety. Victoria has half the imprisonment rate of NSW (a tad over 100 per 100,000 people compared to a bit over 200 in NSW), yet Victorians are just as safe as people north of the Murray.

Incidentally the US rate is 750 per 100,000, and people in the US are demonstrably less safe than people in Australia.

Rather, let’s look at another element of Justice Nield’s judgment — a disquieting consequence of the ease with which bail is granted in the ACT.

Massey was charged on 26 July 2009 for stealing a car and mobile phone and driving while disqualified the previous day.

The police sensibly refused him bail. He came before a magistrate a few days later and pleaded not guilty or no plea and was remanded in custody for a couple of weeks.

When he reappeared he got bail to reappear on 30 October.

Need I say it? Three days after being given bail he again drove while disqualified and stole some goods from a service station.

The police reported a breach of bail and Massey was ordered to appear before the court.

Needless to say he did not turn up and his bail was revoked.

Instead, having jumped bail, he committed four more offences, including the firearms offence on 7 September.

Six of his 10 offences were committed while on the loose after being granted bail.

Yes, we have a presumption of innocence and that means you should have a presumption of granting bail. That’s fine for people charged for the first time.

But this bloke came before the magistrate in his mid-20s with 57 convictions under his belt. Surely, the presumption of bail can be tempered a bit in these circumstances.

Surely we can say to someone with 57 convictions: “You, mate, are walking on egg shells. If you get charged with anything, you can expect to wait in custody till the matter is heard.”

And let’s face it, if Massey had been refused bail in the first place he would have been better off. He would not have committed the second tranche of offences and his jail term would have been shorter. So we are not being tough on crims here.

Justice Nield was deadpan in his judgment on the question of bail. It was not relevant to the matter at hand – the severity of sentence. But his clinical listing of all the offences committed while on bail or while having jumped bail indicate at least a raised eyebrow.

This, by the way, is not an isolated case. A Sunday Canberra Times article earlier this year quoted police frustration at multiple offenders being released on bail but they would not name names. This, case, though, is chapter and verse, with all the offences, dates and bail dates listed.

There are several difficulties with dealing with this. One is a perception by magistrates that they should err on the side of bail because the accused will only appeal to the Supreme Court where the perception – rightly or wrongly – is that bail is easier to get.

Solution: change the appeal mechanism so the accused has to appeal to another magistrate or two before going to the Supreme Court.

Secondly, there is a long waiting time for trials in the ACT. It means that not granting bail has higher consequences if the accused is found not guilty.

The solution here is more difficult because there are two schools of thought on why trial dates have blown out. One is that the court could be managed better with stricter case management and faster turning around of civil matters to free judicial resources for criminal matters. The other is that the ACT Supreme Court is stretched.

Certainly, compared to other jurisdictions the ACT is poorly off when measured as judges per head of population. It is even worse off if you measure judicial resources against the size of the economy and when you consider that our courts service in one way or the other a slice of surrounding NSW.

Maybe it is a bit of each. Maybe increasing the Magistrates Court’s jurisdiction would free the Supreme Court of some lesser matters.

A revisiting of the Bail Act might help. Criminologist David Biles wrote in these pages last year that the presumption of bail should be removed in cases of break and enter or car stealing while on bail.

You might also think that the presumption of bail in cases where the accused has 57 prior convictions seems a bit silly.

As Biles points out, car theft is often associated with other crime (witness Massey’s theft from a service station) and break and enter causes many householders to feel violated and unsafe. They are not mere property offences.

He pointed out that the ACT is among the worst jurisdictions for these offences. We are not as safe as we think.

We don’t want to engender a police mentality of: “Round up the usual suspects – anyone with a conviction.” But the Massey case seems a fairly clear example that the presumption of bail is a bit too broad in the ACT.

….. NEW ITEM.

By the way, I’m still here. No bolts of thunder and lightning have struck me down since last week’s article on the silliness of the “saint” Mary MacKillop hysteria.

Let me relate that a very learned friend of mine whose position prevents him from joining the public debate under his own name sent me an impressive argument about miracles and the law which deserves a wider audience.

He said that in 1972, the US Supreme Court ruled executions to be constitutionally unlawful as cruel and unusual punishment because they were applied in a random and capricious way. Only a small proportion of murderers were sentenced to death and one might die when others who committed just as heinous a crime might be spared.

Saint Mary did this in reverse. She spared one or two but left hundreds of equally deserving people with terminal illnesses who prayed to her to die when she could have cured them.

“However, I guess it’s always been thus,” my friend wrote. “If you were a leper in Judea circa 30AD and happened to be in the right place at the right time and Jesus passed by, you would be cured. But if you came along half an hour after he’d left you were out of luck.”