Barbaro, Re [2022] QSC 58 [2022] 16 QLR

SUPREME COURT OF QUEENSLAND CITATION: Re Barbaro [2022] QSC 58 PARTIES: IN THE MATTER OF AN APPLICATION FOR BAIL BY HARLEY JOE BARBARO HARLEY JOE BARBARO (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QLD) (respondent) FILE NO/S: BS2814 of 2022 DIVISION: Trial PROCEEDING: Application filed on 10 March 2022 ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 14 April 2022 DELIVERED AT: Brisbane HEARING DATE: 1 April 2022 JUDGE: Burns J ORDER: Application dismissed CATCHWORDS: CRIMINAL LAW – PROCEDURE – BAIL – CONDITIONS – where the applicant was in a show cause position pursuant to s 16(3)(a) of the Bail Act 1980 (Qld) – where it was proposed that the applicant be fitted with a monitoring device as a condition of his bail – where, when assessing whether there is an unacceptable risk that the applicant might, relevantly, offend whilst on bail, s 16(2A) of the Bail Act 1980 (Qld) precludes the court from having regard to the effect on that risk of imposing a condition that the defendant wear a monitoring device when on bail – whether there was an unacceptable risk that the applicant might, relevantly, offend whilst on bail – whether the applicant had shown cause why his continued detention in custody was not justified Bail Act 1980 (Qld), s 11(1), s 11(9B), s 16(1)(a), s 16(2A), s 16(3)(a) Criminal Code (Qld), s 77B, s 205A, s 339, s 340(1)(b) Penalties and Sentences Act 1992 (Qld), s 161Q Lacey v DPP (Qld); Lacey v DPP (Qld) [2007] QCA 413, cited COUNSEL: M Longhurst for the applicant B Berger for the respondent -- 1 of 5 -- 2 SOLICITORS: Maloney MacCallum Lawyers for the applicant Office of the Director of Public Prosecutions (Qld) for the respondent [1] The applicant, Harley Joe Barbaro, seeks bail with respect to one charge of assault occasioning bodily harm whilst armed and in company (with a serious organised crime circumstance of aggravation1), one charge of contravening an order about information necessary to access information stored electronically and four charges of breach of bail. [2] These offences were allegedly committed whilst the applicant was on bail for other offences. Because of that circumstance and the further circumstance that two of the offences for which he now seeks bail are indictable offences,2 he is in a show cause position by reason of s 16(3)(a) of the Bail Act 1980 (Qld). By that provision, bail must be refused unless the applicant satisfies the court that his continued detention in custody is not justified. [3] The justification for detaining someone in custody pending trial is to be found in s 16(1)(a) of the Act. Relevantly to this case, bail must be refused where there is an unacceptable risk that the defendant, if released on bail, would (1) commit an offence or (2) endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare or (3) interfere with witnesses or otherwise obstruct the course of justice. In assessing whether there is an unacceptable risk with respect to any of these events, the court must “have regard to all matters appearing to be relevant” and in particular, to the considerations specified in sub-s (2), that is to say, the nature and seriousness of the offence charged, the character, antecedents, associations, home environment, employment and background of the defendant, the history of any previous grants of bail and the strength of the evidence in support of the charge. [4] Where a defendant successfully shows cause why his or her detention in custody is not justified, the court may impose conditions on the grant of bail.3 The power to do so is conferred by s 11 of the Act and it is wide-ranging. For example, and of some moment to this case, power is expressly conferred on the court to impose a condition requiring a defendant to wear a monitoring device while he or she is released on bail.4 However there is an important limitation; the court must not make the conditions of bail more onerous for the defendant than those that in the opinion of the court are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.5 [5] As has become common in applications of this kind, when the applicant through his counsel attempted to show cause why his continued detention in custody was not justified, considerable reliance was placed on a draft order containing a suite of conditions which, it was submitted, would operate in combination so as to reduce the 1 As to which, see s 161Q of the Penalties and Sentences Act 1992 (Qld). 2 The assault (Criminal Code (Qld), s 339) and the contravention offence (Criminal Code (Qld), s 205A). 3 Bail Act 1980 (Qld), s 16(4)(a). 4 Bail Act 1980 (Qld), s 11(9B). 5 Bail Act 1980 (Qld), s 11(1). -- 2 of 5 -- 3 relevant risks to an acceptable level.6 Amongst those draft conditions was a requirement that the applicant “be fitted with a tracking device” to monitor his movements. In this regard, it was initially submitted that the applicant would agree to a condition requiring him to remain at all times within two kilometres of his residence (save for a number of exceptions7) but, by the end of the argument, his counsel indicated that the applicant would agree not to leave his residence at all (save for the same exceptions). In other words, what was proposed was a form of home detention. Furthermore, the submission was made that the fitting of a tracking device would ensure the applicant’s compliance with such a restriction because he would not be able to leave his residence without an alert being generated by the device. [6] There was a fundamental problem with these submissions. When assessing whether there is an unacceptable risk with respect to any event specified in s 16(1)(a) of the Act, the court must not have regard to the effect on the risk of imposing a condition that the defendant wear a monitoring device when on bail: s 16(2A). Indeed, it is a curious feature of the Act that while express power is conferred on the court to impose such a condition, regard must not be had to it when assessing risk. This prohibition is at odds with various provisions of the Act which contemplate the court having regard to the effect which the imposition of other conditions (such as sureties, a curfew, reporting requirements and the like) are likely to have on the assessment of risk. For example, a defendant may present as an unacceptable risk of committing an offence if released on bail but the court may be persuaded that this risk is acceptable if there is compliance with the conditions on which it is proposed that he or she will be admitted to bail. [7] It follows that when the court is assessing whether there is an unacceptable risk that the defendant if released on bail will, for example, commit an offence, regard cannot be had to any proposal to fit the defendant with a monitoring device. Furthermore, if the court is persuaded by reference to other conditions which might be imposed that the defendant is not an unacceptable risk, it is difficult to imagine how the imposition of a further condition requiring the fitting of a monitoring device could be at all justified. This is because the court is precluded from making bail conditions more onerous for the defendant than is necessary. It almost goes without saying that if the court is already of the opinion that the relevant risk is acceptable, the imposition of a further condition would almost certainly be more onerous than necessary, and particularly if it required the defendant to wear a monitoring device. Perhaps one circumstance where that might be permissible is where, after the assessment of risk, such a condition is added in substitution for one or more conditions which were taken into account in the assessment of risk (such as a reporting condition or a curfew) but, beyond that, it is as I have said difficult to imagine how such a condition could be imposed. [8] That made clear, in this case the applicant was subject to two separate grants of bail at the time of the alleged offences which are the subject of this application. After being charged with habitually consorting8 on 9 October 2021, he was granted bail on conditions that, relevantly, prohibited him from having contact with “any member or associate of any outlaw motorcycle gang”. Then, on 24 February 2022, he was 6 Exhibit MFI-A. 7 To attend court, to comply with any bail conditions, to attend on his lawyers, to seek medical assistance for himself, his fiancée or his children or to fulfil his employment. 8 Criminal Code (Qld), s 77B. -- 3 of 5 -- 4 charged with a number of other offences including one charge of serious assault/obstruct police.9 He was released on bail on the usual conditions together with a further condition that he not have contact with a named person. [9] All but the contravention offence are alleged to have been committed by the applicant on 28 February 2022. The assault is said to have been committed outside a gymnasium at Helensvale when, it is alleged, the applicant and other members of an alleged outlaw motorcycle gang attacked another man. This incident was captured in part at least by closed-circuit television. I viewed the footage during the course of the hearing. The other four alleged offences for that day concern breaches of bail which are all relevantly the same; the applicant is alleged to have been in contact with members of an outlaw motorcycle gang inside the gymnasium. This contact, too, was captured by closed-circuit television and still images from that footage are in evidence before me. The contravention offence was allegedly committed by the applicant during the execution of a search warrant at his residence on 4 March 2022. He is said to have refused to provide police with access to his electronic devices although it may well be that he had a reasonable excuse for failing to do so. On the limited material before me, the Crown would appear to have a strong case on the breach offences and a reasonably strong case on the assault offence. I should add that, in expressing this view as to the strength of the Crown case on the alleged assault, I have not overlooked the feature that the “complainant” refused to cooperate with police or that the only evidence implicating the applicant appears to be the closed-circuit television footage. Also, I have not overlooked the further feature that the “complainant” subsequently provided a statutory declaration to the applicant’s solicitors in which he claims to have consented to any attack on him. [10] The applicant is 29 years of age. He has been remanded in custody since his arrest on 4 March 2022. He has the support of his fiancée who is the mother of their young child and they are expecting another baby later this year. She is particularly reliant on the applicant for financial and other support and she is experiencing a number of medical complications with her pregnancy. If released on bail, the applicant would return to his occupation as the part owner of a barbershop and, in addition, take up an offer in a second line of work as a bricklayer. The proceeding against him for the alleged offences is in its infancy. There is accordingly a risk that, if he is not admitted to bail, he may end up spending a longer time in custody than the actual custodial portion of any sentence for these offences if he is convicted of them, although that factor alone will rarely, if ever, be determinative.10 Leaving aside the proposed condition concerning the fitting of a monitoring device, the other conditions proposed on behalf of the applicant would, if complied with, considerably reduce the relevant risks in this case and perhaps even to an acceptable level. A surety in the sum of $100,000 is offered by the applicant’s mother and the proposed conditions also include a residential condition, a curfew, a geographical constraint, no contact provisions and significant limitations on his use of mobile telephones. [11] However, I am not persuaded that the applicant has demonstrated why his continued detention in custody is not justified. Of the risks previously identified (above at [3]), the primary risk is that if the applicant is admitted to bail he will commit further offences. Although the proposed conditions just discussed would go a long way to reducing that risk to an acceptable level, I have no confidence that the applicant would 9 Criminal Code (Qld), s 340(1)(b). 10 Lacey v DPP (Qld); Lacey v DPP (Qld) [2007] QCA 413, [13]. -- 4 of 5 -- 5 comply with them. His criminal history is not insubstantial. It includes convictions for a range of offences and he has been the subject of fines, community service orders, suspended terms of imprisonment and an actual period of imprisonment in 2021. He has one prior conviction for habitually consorting and no less than seven past convictions for breaching bail. Despite being on bail conditioned that he, amongst other things, have no contact with outlaw motorcycle gang members, there is a strong case against him to the effect he did precisely that. [12] The application is dismissed. -- 5 of 5 --