DARIO PALMIERI v THE KING [2024] SASC 153

Applicant: DARIO PALMIERI Counsel: MRS M SHAW KC AND MR W MICKAN (ON 19 DECEMBER 2024) - Solicitor: SHAW LEGAL & ADVISORY Respondent: THE KING Counsel: MR G CASALBORE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 10/12/2024, 12/12/2024, 18/12/2024, 19/12/2024 File No/s: SCCRM-24-048367 A SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PALMIERI v THE KING [2024] SASC 153 Decision of the Honourable Acting Chief Justice Livesey (ex tempore) 19 December 2024 CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL CRIMINAL LAW – PROCEDURE – BAIL - CONDITIONS By an application dated 4 December 2024, a review of bail is sought following a Magistrate’s decision to refuse bail on 20 November 2024 at Adelaide, pursuant to s 14(2)(a) of the Bail Act 1985 (SA). The applicant is charged on Information dated 1 March 2024, with one count of trafficking in a controlled drug (49 grams of methylamphetamine), contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA). The applicant was on home detention bail when, on 29 October 2024, police attended the applicant’s home detention bail residence and, during a search, found the applicant leaving through the back door whilst holding a bag with a substance suspected to be approximately 16 grams of methylamphetamine. By separate Information dated 30 October 2024, the applicant is charged with another count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The applicant relied on what were said to be difficult personal circumstances and hardship in prison. Held – granting bail on home detention conditions: 1. The applicant will remain on remand until his trial can be reached in the District Court at some stage during 2027. 2. The applicant may well spend longer in prison on remand than under any non-parole period he may receive under a sentence imposed in accordance with the sentencing standard in R v -- 1 of 8 -- Young (2016) 126 SASR 41. The long time spent in prison on remand is also likely to rule out any prospect of a non-custodial sentencing option. 3. To provide some means of ensuring that the applicant is not “set up to fail”, the home detention bail conditions must ensure that the applicant adheres to medical and mental health treatment and require that he address his drug addiction issues by participating in the Matrix programme (when a position becomes available), along with regular and random drug testing. Bail Act 1985 (SA) ss 10, 14; Controlled Substances Act 1984 (SA) s 32; Criminal Law Consolidation Act 1935 (SA) s 138, referred to. Adams v The Queen (2022) 141 SASR 204; Heng v The Queen [2022] SASCA 24; R v Lian [2023] SASCA 122; R v McIntyre [2020] SASCFC 101; R v Palmer [2016] SASCFC 34; Reynolds v The King (2023) 306 A Crim R 173; R v Young (2016) 126 SASR 41; Dunstan v DPP (1999) 92 FCR 168, considered. -- 2 of 8 -- PALMIERI v THE KING [2024] SASC 153 Criminal – Application: Livesey ACJ (ex tempore) Introduction 1 By an application dated 4 December 2024, bail is sought following a Magistrate’s decision to refuse bail on 20 November 2024 at Adelaide. The applicant seeks a review of the Magistrate’s decision pursuant to s 14(2)(a) of the Bail Act 1985 (SA) (the Bail Act). 2 The Magistrate cited the “gravity of [the] circumstances of the offending and the risk of re-offending” as the basis for his decision to refuse bail. 3 It is well recognised that a bail review is not an appeal, but a hearing de novo. The Court is vested with the power to make the decision it considers should have been made at first instance without requiring the applicant to demonstrate error. The Court may have regard to material that was not put before the Magistrate. 4 As will be seen, this case is made difficult by a combination of matters. These include the applicant’s apparent breach of home detention bail a few weeks ago, difficult personal circumstances and hardship, and the prospect – which the prosecution accepts – that the applicant will remain on remand during the balance of 2024, until his trial can be reached in the District Court at some stage during 2027. Circumstances of the alleged offending 5 The applicant is charged on an Information dated 1 March 2024, with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), and one count of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA).1 6 It is alleged that on 29 February 2024 police went to the applicant’s residence in Tea Tree Gully and, during their search, found one and a half ounces of methylamphetamine on a table. Elsewhere, they found 400mls of 1,4-Butanediol, $9,750 in cash and a knuckle duster. Two imitation handguns were also found. Only the methylamphetamine and the cash remain the subject of charges. 7 There was another person at the property at the time, and he has also been charged with trafficking. 8 Senior counsel for the applicant explained that the element of possession is in issue. When asked about the strength of the prosecution case, counsel for the prosecution submitted that there was “certainly a case to answer”. He referred to the evidence of recognised drug trafficking paraphernalia found at the property, 1 MCCRM-24-008135. -- 3 of 8 -- [2024] SASC 153 Livesey ACJ 2 and he explained that the E-crime analysis of the applicant’s mobile phone has not yet been completed. 9 The applicant was remanded in custody following his arrest on 29 February 2024, until he was granted home detention bail by a Magistrate on 8 March 2024. Due to concerns raised by the Department of Child Protection about the applicant living with children, the applicant was remanded in custody by a Magistrate on 13 June 2024 and then granted home detention bail by a Magistrate to a different address on 19 June 2024. 10 On 22 October 2024, a urinalysis returned a positive result for amphetamine and methylamphetamine. 11 On 29 October 2024, police went to the applicant’s home detention bail residence and, during their search, found the applicant leaving through the back door whilst holding a bag. Police allege that inside the bag was a substance suspected to be approximately 16 grams of methylamphetamine. The applicant has since been remanded in custody. 12 On a separate Information dated 30 October 2024, the applicant is now charged with another count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA).2 Consideration of the bail review 13 On 12 and 18 December 2024 I was assisted by detailed submissions and affidavit evidence from both parties. Evidence was led from the applicant’s OARS supervisor, Mr Palmer.3 I accept his evidence, though it was given in general terms, about the applicant’s declining mental health and difficulties with his Corrections officer immediately before his second arrest. He told me that other clients had encountered difficulties with the same officer. 14 I have received a generally favourable home detention report regarding residence with Ms Remi Thomson, his former domestic partner and the mother of their two children. The issue raised in the report concerns an Intervention order obtained by the applicant, which remained in place for one month, following an incident between the applicant and Ms Thomson some time ago. I am assured that there is now no issue and they have been constructively co-parenting their children in recent years. 15 The applicant has no prior convictions for drug offending and his prior offending concerning bail occurred well over a decade ago. The applicant is not a prescribed applicant, and he has the benefit of a presumption of innocence and a presumption in favour of bail pursuant to s 10 of the Bail Act. 2 MCCRM-24-043484. 3 Offenders Aid and Rehabilitation Services of South Australia. Mr Palmer gave evidence without the benefit of his file. -- 4 of 8 -- [2024] SASC 153 Livesey ACJ 3 16 The prosecution is opposed to all forms of bail and contends that the presumption in favour of bail is rebutted by the risk that the applicant will re-offend. The prosecution has not submitted that there is any risk of absconding or interfering with evidence. 17 Ms Thomson has provided a letter addressing her recent decline in health and her need for assistance with the care of their children. The applicant has parental responsibilities for six children. One of the applicant’s children has been diagnosed with autism and requires additional assistance. 18 The applicant contends that he suffers from a number of mental health issues for which he is currently prescribed an anti-depressant medication, Sertraline. The applicant submitted that whilst in custody he cannot receive adequate care and support for his mental health. The material available to me suggests there have been incidents involving suicide attempts or suicidal ideation involving the applicant before and after his initial arrest. There is a report about the applicant’s suicidal ideation whilst on remand. He has spoken about the suicide of another prisoner. 19 The prosecution has produced a SA Prison Health Service report dated 16 December 2024 in support of the proposition that the applicant’s health issues can be managed in prison. Whilst I am not convinced that the applicant’s health needs cannot be managed in prison, I accept that they will be better managed out of prison.4 20 The applicant remains fearful for his safety and says that he is experiencing hardship in custody.5 He has been assaulted and threatened with stabbing over demands for money. The applicant has, for the first time, been incarcerated at Yatala Labour Prison in protective custody. His counsel says that this has had a salutary effect on him. 21 I accept that prolonged time in custody whilst on remand will adversely impact the applicant and his family and cause hardship. Regrettably, these kinds of difficulties are often encountered. I cannot say whether the hardship is out of the ordinary or relatively extreme.6 22 Senior counsel for the applicant addressed the significant delays associated with the answer charge and committal process. These are said to be the result of the failure by the prosecution to produce its evidence. There will be no answer charge hearing before February 2025, and no arraignment until closer to mid-2025. 4 Cf R v Polymiadis, 8 August 2023, McIntyre J, p 4; R v Pietrantonio, 23 January 2024, Parker AJ, p 2, both cases concerning “special circumstances” under s 10A of the Bail Act. 5 I cannot say whether the applicant is finding prison significantly more onerous or burdensome than other prisoners, cf R v Lian [2023] SASCA 122, [145]-[190] (Doyle JA, with whom Lovell JA agreed). 6 Cf Adams v The Queen (2022) 141 SASR 204, [31]-[32], [50], [77], [80]-[83] (Livesey P), [97]-[101] (Doyle JA), [103] (Bleby JA). -- 5 of 8 -- [2024] SASC 153 Livesey ACJ 4 The applicant’s counsel said that she has trials listed throughout 2026, and that no trial in the District Court is likely before 2027. 23 The prosecution does not challenge the proposition that no trial is likely before a date at some stage during 2027. Without bail, the applicant may remain incarcerated for a period in the order of three years. The determination of the bail review 24 The prosecution concedes that, had the applicant only been facing the offences on the March Information, there would likely be no impediment to bail. 25 The applicant’s principal hurdle is that he has already been granted bail and it is alleged he breached his bail agreement. The home detention bail conditions apparently did not prevent re-offending. The applicant has not yet provided instructions regarding the October Information. There may yet be some negotiation about it. 26 Section 10(1) of the Bail Act provides: 10—Discretion exercisable by bail authority (1) If an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to— (a) the gravity of the offence in respect of which the applicant has been taken into custody; and (b) the likelihood (if any) that the applicant would, if released— (i) abscond; or (ii) offend again; or (iii) interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries; or (iv) commit a breach of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; and (d) any need that the applicant may have for physical protection; and (e) any medical or other care that the applicant may require; and (f) any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement; and (g) any other relevant matter, the bail authority considers that the applicant should not be released on bail. -- 6 of 8 -- [2024] SASC 153 Livesey ACJ 5 27 The applicant’s case on review really turns, I think, on the submission that he may well spend longer in prison on remand than under any non-parole period he is likely to receive under a sentence imposed in accordance with the sentencing standard in R v Young.7 Obviously, a long time spent in prison on remand is also likely to rule out any prospect of a non-custodial sentencing option. 28 A number of judges of this Court have expressed the view that a period on remand of two or three years is not reasonable.8 All involved in the administration of criminal justice have a “heavy responsibility to … expedite trials within the constraints of ensuring a fair trial”,9 and this extends to the obligation in the government to review and augment the resources necessary for the proper administration of justice.10 29 It has also been said that bail should not be approached on the basis that it should be denied so as to eliminate the risk of re-offending, and the better view is to determine whether “any risk is sufficient to justify … denying the accused person a legal right, the right to bail” recognised by the Bail Act. 11 30 The idea of granting the applicant another chance on home detention bail has troubled me. However, the answer to the question - why give the applicant another chance? – is that only another chance on home detention bail will in justice and fairness address the competing considerations raised by this case. Though there is an obvious risk of re-offending, that must be balanced against the presumption of innocence and the presumption in favour of bail, together with the hardship caused to the applicant and his family by the prospect that he will spend around three years in prison awaiting his trial in the District Court. 31 When these considerations are brought to account, the applicant should be granted bail despite the risk of re-offending. As before, that should be home detention bail. 32 I will grant home detention bail on conditions that are more onerous than previously. To provide some means of ensuring that the applicant is not “set up to fail”, he must adhere to medical and mental health treatment. The conditions must also require that the applicant address his drug addiction issues by participating in the Matrix programme (when a position becomes available). He must be subjected to close supervision by a different Corrections officer, along with regular and 7 R v Young (2016) 126 SASR 41, which speaks of a starting point of imprisonment four to seven years for street level trafficking. The issue here is not so much the head sentence but the potential length of the non-parole period, where non-parole periods of between one half and three quarters of the head sentence are usually imposed in this State, see R v Palmer [2016] SASCFC 34, [4] (Kourakis CJ); R v McIntyre [2020] SASCFC 101, [84] (Doyle J (as he was), with whom Stanley and Hughes JJ agreed); and Heng v The Queen [2022] SASCA 24, [6], [19] (Livesey P), [68]-[72] (Doyle and Bleby JJA). 8 Reynolds v The King (2023) 306 A Crim R 173, [23]-[27] (Kourakis CJ) (two years); R v FN, 14 December 2022, Stein J, p11 (three years or more). 9 Reynolds v The King (2023) 306 A Crim R 173, [23] (Kourakis CJ). 10 Reynolds v The King (2023) 306 A Crim R 173, [27] (Kourakis CJ). 11 Dunstan v DPP (1999) 92 FCR 168, [21] (Madgwick J). -- 7 of 8 -- [2024] SASC 153 Livesey ACJ 6 random drug testing. Obviously, the applicant’s movements will be monitored by electronic surveillance. 33 The bail agreement must also reflect that Ms Barke, Ms R Palmieri, Ms Thomson, Ms T Palmieri and Ms T Keddie are prepared to act as guarantors and that Ms R Palmieri ($5,000), Ms Thomson ($2,500) and Ms Barke ($5,000) will provide cash sureties. Conclusion 34 I will order home detention bail on the conditions set out in the draft bail agreement. -- 8 of 8 --