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- Unreported Judgment
Re Ellis (a pseudonym) QSC 130
SUPREME COURT OF QUEENSLAND
Re Ellis (a pseudonym)  QSC 130
IN THE MATTER OF AN APPLICATION FOR BAIL BY ELLIS (a pseudonym)
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
BS No 5911 of 2021
Supreme Court at Brisbane
3 June 2021
2 June 2021
The application is adjourned to 7 July 2021.
CRIMINAL LAW – PROCEDURE – BAIL – FURTHER APPLICATIONS – where the applicant is charged with eight counts on an indictment and five summary offences – where the most serious count is trafficking in dangerous drugs, alleged to have occurred over a 14 month period – where the applicant has previously been refused bail by this Court in respect of the same matters – where the Crown concedes there has been a material change of circumstance since the previous bail application – where the Crown submits there is a significant risk that the applicant will commit an offence and fail to appear if granted bail – where the applicant has proposed seeking an adjournment of his sentence for at least 12 months while he attends a 12 month residential drug rehabilitation program – where the applicant is a drug addicted person charged with serious dangerous drug offences – where the applicant will likely have to serve an additional period in custody when sentenced – where the applicant has untreated, serious mental health conditions – where the applicant bears the onus of showing cause under s 16(3) of the Bail Act 1980 (Qld) why his continued detention on remand is not justified – where the Court is not satisfied the risk of the applicant reoffending can be ameliorated to an acceptable extent by the conditions he proposes for bail
Bail Act 1980 (Qld), s 16(3)
Drugs Misuse Act 1986 (Qld), s 5(1)
The applicant appeared on his own behalf
J Daniels for the Director of Public Prosecutions (Qld)
- Mr Ellis has applied for bail. He has been on remand since his arrest on 7 February 2020. The application was heard on 2 June 2021. A significant number of the documents Mr Ellis relied upon were not on the court file. Ms Daniels of the Office of the Director of Public Prosecutions, who appeared for the Crown, arranged for a copy to be provided to the Court. It was appropriate to reserve a decision on the application overnight, to consider those documents, and to offer the parties an opportunity to make any further submissions about them the following day.
- On 3 June 2012, the parties made no further submissions on the documents. Mr Ellis provided some further information about the cost and availability of a rehabilitation program. This is a revised version of the ex tempore reasons given by the Court.
- Mr Ellis applies for bail in relation to eight counts on an indictment and five summary offences. The most serious count is trafficking in dangerous drugs contrary to s 5(1) of the Drugs Misuse Act 1986 (Qld). It carries a maximum penalty of 25 years imprisonment. The indictment alleges he engaged in trafficking over the 14 months between 9 December 2018 and 8 February 2020.
- In her written submissions, Ms Daniels summarised the Crown case in this way:
- “(a)The applicant trafficked in Methylamphetamine, cannabis and GHB;
- (b)The applicant engaged in both street level and wholesale supplies during the trafficking period;
- (c)The applicant had a customer base of at least 50 customers, 58 actual supplies and a further 35 offers;
- (d)The applicant utilised encrypted messaging to likely further supplies and police identified the applicant using telephone intercepts of the applicant’s phone;
- (e)The applicant sold Methylamphetamines in quantities from 0.5 grams to 28 grams;
- (f)The applicant typically sold cannabis in 28 gram quantities;
- (g)The applicant supplied GHB in personal quantities;
- (h)The applicant owed a substantial amount of money to his suppliers;
- (i)The applicant supplied firearms on six occasions; and
- (j)The applicant made admissions to trafficking.”
- Mr Ellis was refused bail on these matters by this Court on 15 May 2020. The Crown concedes he may seek bail again. This is because there has been a material change in circumstances relevant to the original refusal of bail that justifies a re-exercise of the court’s discretion in considering the bail application. The conceded material change is in respect of two related factors:
- (a)Mr Ellis has now sought treatment for post-traumatic stress disorder (PTSD) arising from being a child victim of sexual offending; and
- (b)He has a medical requirement for immediate counselling to address PTSD and a secondary associated issue being addictive behavioural pattern and/or substance abuse issues.
- Although he may reapply for bail, s 16(3) of the Bail Act 1980 (Qld) requires the Court to refuse bail unless Mr Ellis satisfies the Court that his continued detention in custody is not justified. During the times the Crown alleges these indictable offences were committed, Mr Ellis was at large, having been apprehended for other indictable offences, but not yet sentenced. This means he bears the onus of showing cause why his continued detention on remand in respect of the present indictable offences is not justified.
- Relevantly for this application, his continued detention in custody is justified where there is an unacceptable level of risk that he would commit further offences or fail to appear and surrender into custody, if he were granted bail.
- In the written submissions for the Crown, Ms Daniels explained why a grant of bail was opposed.
- (a)First, Mr Ellis has a history of reoffending.
- (b)Second, in an interview with the authorities, he said when he was last released from prison he received pressure from outside parties to pay existing debts to his drug suppliers. The debts may be $60,000 or more. If he were released on bail, this financial pressure would increase the risk of him committing an offence to earn money to pay the debts.
- (c)Third, given the seriousness of some of the offences with which he is charged, Mr Ellis is likely to receive a substantial sentence of imprisonment. This may require him to serve a further period in custody. The prospect of his likely return to custody would undermine his attempts at rehabilitation and reduce the effectiveness of a residential rehabilitation program such as that he has investigated and proposed.
- (d)Fourth, the Crown contends that the risk of flight would likely increase as Mr Ellis considered the upcoming sentence with the potential of him returning to custody.
- To put these Crown submissions in some context, Ms Daniels identified that at the first bail application, the Crown submitted a head sentence of at least six years’ imprisonment was likely to be imposed for Mr Ellis’ alleged offending. His Counsel submitted the head sentence could range from six to nine years’ imprisonment. Mr Ellis has been in custody now for a total of 482 days. Of these, 197 days are declarable as time served in custody solely because he has been on remand for these present counts and charges. During the balance, he was serving another sentence. However, had he not been charged with the present matters, he would likely have been at liberty on parole for those other 285 days.
- If Mr Ellis pleaded guilty to the present counts and offences today and received a sentence of six years’ imprisonment, with a requirement that he serve two years in custody before being eligible to apply for parole, and if the sentencing Judge took into consideration all the 482 days he has spent in custody, then it is likely he would have to serve an additional 249 days, or eight months, in custody before he would be eligible to apply for parole.
- The concern raised on behalf of the Crown is that the prospect of returning to serve another eight months in custody would have a significantly adverse effect on Mr Ellis’ prospects of successful rehabilitation in the interim and so affect the relevant risks of him reoffending or not appearing to be sentenced, if he were granted bail today.
- I am satisfied the risk of Mr Ellis not appearing to be sentenced may be ameliorated by appropriate bail conditions. However, I am concerned that the risk of him committing an offence while on bail is much more difficult to address.
- At the hearing, Mr Ellis appeared on his own behalf by video link from the Wolston Correctional Centre. He was well-groomed and neat in his prison uniform. He was cooperative throughout the hearing.
- He spoke clearly, appropriately, and concisely. He was articulate in a well-modulated voice of an appropriate volume. His submissions were generally well organised. His working papers were neatly arranged, and he was able to identify and extract relevant documents with ease. He is plainly an intelligent person.
- Mr Ellis’ preference is not to be sentenced later this month. He has a different proposal. If granted bail today, he would seek to adjourn his sentence for at least 12 months. He would attend a 12-month therapeutic abstinence-based rehabilitation program at Sunrise Way in Toowoomba. The court was told that a bed was available in the program to commence in a week and in a fortnight. The cost of the program is 85% of the Newstart Allowance or Jobseeker Payment. As Mr Ellis proposes that enrolment in, and continued attendance at, the rehabilitation program would be a condition of his bail, Mr Ellis says he would have a strong incentive to participate and complete the rehabilitation program.
- In July 2020, the primary mental health nurse at Wolston Correctional Centre expressed the opinion that Mr Ellis would benefit from attendance at a residential Drug and Alcohol Rehabilitation Programme. It is also recommended by Psychiatrist Dr Malcolm Foxcroft MBBS FRANZCP.
- Mr Ellis has a well-developed plan for his rehabilitation. He has been investigating and assembling information in support of his rehabilitation for more than a year. I do not doubt he is genuine in wishing to undertake the Sunrise Way program. As the documents he has produced show, he participated actively in the medium intensity rehabilitation programs while in custody and can identify the benefits he gained from them. He has realised he needs additional qualified and experienced assistance with his drug dependence.
- His mother was in court for the bail hearing, having travelled from Taroom, as was his sister and Anglican Chaplain, the Venerable David Lunniss. (His father died in 2018.) Ms Ellis swore an affidavit supporting her son’s bail application. She has offered her home on a station on the Roma-Taroom Road as a residence for Mr Ellis, if he is granted bail, until he is accepted into the residential rehabilitation centre and after he completes the program until he is sentenced. She would arrange for him to be assessed by her general practitioner for intensive counselling sessions at the Adult Mental Health Service (AODS) in Taroom.
- Mr Ellis could proceed to sentence for the present counts and charges during the Court’s sittings scheduled to commence in Toowoomba on 21 June 2021.
- Ms Daniels submitted that a sentencing Judge could consider all of the information, evidence and submissions Mr Ellis has assembled for his bail application and put to the Court about his personal history, psychiatric diagnosis, his need for treatment, his work, training and behaviour whilst in custody, and his planning and organisation of rehabilitation and treatment after his release. As Ms Daniels expressed it, Mr Ellis’ case is so persuasive on these points that any additional residential rehabilitation and treatment undertaken between now and the sentencing date would be unlikely to alter the sentence imposed for the present offending.
- It is not appropriate to predict the approach a sentencing Judge might take. In any case, the extent to which the decision of a sentencing Judge would or would not be affected by evidence of further rehabilitation or treatment is a distraction from the obligation of the Court to assess the relevant risk of Mr Ellis re-offending if granted bail. However, the steps Mr Ellis has taken to date are relevant to an assessment of the risk associated with his release on bail.
- While in custody, he has undertaken drug screening tests as required by the Chief Superintendent. On each occasion, a negative result has been returned. The most recent of those tests seems to have been on 10 January 2021.
- Mr Ellis has completed two moderate intensity substance intervention programs.
- Between 31 July 2020 and 9 October 2020, he did the Straight Talk 50 hour Alcohol and Other Drugs Healing Program provided by Gallang Place Aboriginal & Torres Strait Islander Corporation. The individual intervention completion report, prepared by the program facilitators and a reviewer, noted his excellent effort in participation in tasks and processes, his high level, open and accurate disclosure, his high understanding of concepts, high internalisation of skills and knowledge and high relevance of his individual prevention plan. They observed that his attitude levels were:
“excellent, always positive, he shared and disclosed why he is now in prison, his attendance was high, he was on time and respectful, he always showed respect at all times during all sessions. … [Mr Ellis] engaged and participated during each session by clarifying topic content and questioning ideas of the content. Facilitators acknowledged this to be productive and healthy practice. He also assisted and supported the other men by sharing his experiences.”
“[Mr Ellis’] engagement throughout the program was [of a] high level standard. … Facilitators have observed a significant shift in his social and emotional wellbeing (psychological) state while engaging in the program. The facilitators have also observed that [Mr Ellis] has been positive with his engagement and contributions to the group activities, sharing his experiences, talking about shifts in his own thinking when reflecting on past events.”
- Between 16 June 2020 and 11 August 2020, Mr Ellis completed the three modules of the Artius Recovery from Substance Abuse medium intensity program. He attended all 18 sessions. The detailed report from the facilitating psychologist noted:
“[Mr Ellis] demonstrated insight into the links between his substance use and offending behaviour and developed the ability to apply session content to his substance use difficulties. [Mr Ellis] was able to contribute to group discussions, and he was a cooperative, respectful and enthusiastic member of the group. He demonstrated active engagement with the session content by seeking clarification with group facilitators when required. [Mr Ellis] was also observed to reflect on previously learnt session content, such as program strategies, and discuss his practice and the impact of different strategies that he found most useful. His workbook was considered to be completed to a good standard.
… He has demonstrated a good understanding of session content and was able to relate this information to his own recovery.
[Mr Ellis] was able to identify personal motivating factors for continued abstinence and working towards a healthy lifestyle. These factors included bettering himself and breaking the self-identified “negative cycle”, getting help from professional supports and to continue to make positive changes to live in line with his values, and attend a residential rehabilitation and graduate. He identified personal values and strengths that would assist him in the process of working towards his goals, including family, and being hardworking, compassionate, determined, supportive, and caring. [Mr Ellis] identified that his value of family was most important to him as his family are his main supports. He also identified that his strengths will be helpful in breaking the self-identified negative cycle that he feels he has been stuck in.
… [Mr Ellis] demonstrated a good ability to recognise and acknowledge the reasons he has engaged in substance use in the past, and this was evidenced by his contributions to group discussions and his Relapse Prevention Plan. He outlined that his primary concern was past methamphetamine use, arising due to an attempt to cope with negative emotions such as grief and loss, low mood, anger, stress and boredom, as well as lack of responsibility.”
- During the program, he created a detailed relapse prevention plan.
- On 19 October 2020, he completed the Queensland Corrective Services “Build don’t Break” resilience program, attending seven of the nine sessions.
- In November 2020, he received a statement of recognition for attending 30 Narcotics Anonymous meetings and continuing the path of recovery structured on the 12 step program of recovery. He has taken over leadership and responsibility for organising Narcotics Anonymous meetings every Saturday at the Wolston Correctional Centre.
- Mr Ellis also has a reference attesting to his participation in a Peace Education program.
- He has an employment statement covering his work as a landscape worker (level 2) from 2 July 2018 to 15 October 2020. This was a trusted position with access to all areas, including the Green Zone. His duties included mowing, removal and cleaning bins in all areas, including residential and secure areas, Covid cleaning practices in all areas where required, removal of office furniture from areas, basic maintenance duties and general use of power tools, electric and petrol. Mr Ellis’ attendance was of a high standard and he worked extra shifts when required without complaint. The supervisor commented that Mr Ellis takes instructions well, works well as a team and is well liked within the team.
- He proffered his case notes as showing his good behaviour while he has been in custody.
- In custody, he has completed a Certificate 2 qualification in Resources and Infrastructure Work Preparation, under instruction from Strategic Deployment Services.
- Fr Lunniss, provided a reference based upon his weekly discussions with Mr Ellis on ethics and the development of appropriate decision-making skills. Amongst other achievements, the Chaplain commended on Mr Ellis’ leadership and organisation of the Narcotics Anonymous meetings at the prison.
- The evidence about the materially changed circumstances of the bail application was in the form of a report by psychiatrist Dr Foxcroft, dated 8 January 2021.
- Dr Foxcroft examined Mr Ellis on 7 January 2021 by video link.
- Dr Foxcroft concluded Mr Ellis fulfills all the necessary criteria for DSM-IV PTSD and has symptoms of substance use disorder – amphetamines, which is active but in temporary remission while he is in custody. Mr Ellis described to Dr Foxcroft a history of having been subjected to a six to eight-month period of significant sexual abuse, when he was in Year 6 at school, involving multiple sexual assaults by his teacher.
- Mr Ellis grew up as the younger child of his parents. He was born in Goondiwindi. His sister is about seven years older. He had a good home environment and good relationships with both his parents. The family moved to Cecil Plains, Bongeen and then Toowoomba. He had no difficulties in primary school prior to Year 6. After suffering abuse at the hands of a teacher, he began experiencing symptoms of PTSD. He lost interest in school. He had started using cannabis in Year 11.
- He left school early in Year 12 and began work with a plumbing company in Toowoomba. This lasted for about 12 months. He then worked with an asphalt company and completed a Certificate 3 in laboratory testing. He worked there for two years and then transferred to another asphalt and bitumen surfacing company as a leading hand.
- In about 2012 or 2013, he was offered Methamphetamine, started using it, and became addicted. He has always smoked ice rather than injected it. By 2014, he was using three to four grams per day.
- Dr Foxcroft regards both his early daily cannabis use and his later Methylamphetamine use as a type of self-medication, to numb feelings and block memories of his early childhood abuse.
- Mr Ellis has served various terms of imprisonment for drug related offences. He has, for some years, been a daily user of Methylamphetamine when out of gaol. He has relapsed rapidly when released from custody on each occasion since his original offences, save for the three-month period he spent in rehabilitation with Ozcare in Mackay. On that occasion, he completed the course, before returning to Toowoomba. There he resumed using drugs again.
- Until this year he had not disclosed his history of child sexual abuse and so he has had no diagnosis or treatment for PTSD. He has from time to time been treated with medication for depression and panic attacks. Dr Foxcroft concluded that Mr Ellis had developed a clinically significant post stress disorder following a history of serious sexual assaults in 2004 when he was 10 to 11 years old. In Dr Foxcroft’s opinion, he experienced these incidents “as a severe, indeed catastrophic, psycho-social stressor and the nature of the assaults, including digital and oral rape would indeed form a catastrophic level stressor in the average person, and particularly a small child.”
- Dr Foxcroft concluded that Mr Ellis had developed symptoms of anxiety, was fearful of telling others and was intimated by the teacher not to disclose the assaults and developed symptoms of PTSD from the time of the incidents and has continued to have symptoms of PTSD.
- Although Mr Ellis had a reasonable work history prior to the onset of his Amphetamine use, according to Dr Foxcroft:
“His overall function had deteriorated as his symptoms of PTSD persisted and he was vulnerable to the effects of Amphetamine, resulting in a rapid escalation into addiction, which has subsequently resulted in incarceration in his current prison sentence. This man describes a history of PTSD and a secondary substance dependence arising from history of sexual assaults. He has no other vulnerability factors or predisposing factors. He has a good family background, with no evidence of any other vulnerability factors.
Were it not for the history of sexual assaults, it is unlikely this man would have developed symptoms of PTSD and secondary drug dependence.”
- Dr Foxcroft found no evidence of antisocial personality traits.
- He did identify a moderate impairment in social and recreational activities, having no real recreational pursuits and, when out of gaol, his primary activity has been seeking drugs. Dr Foxcroft also identified a mild impairment in social functioning in the form of disruption to Mr Ellis’ capacity to form and maintain interpersonal relationships, poor trust of others, poor social network, no real friendship network and poor interpersonal relationships. He also noted a mild impairment in concentration, persistence and pace, being distractable, having difficulty reading and performing concentration tests. And a mild impairment in self-care and personal hygiene associated with relapses in drug dependence.
- Of relevance to his period in custody, Dr Foxcroft noted that Mr Ellis reports he is “constantly on the lookout for dangers”, “fears the inmates with whom he has to share a room or cell”, has “episodes of hypervigilance” and “ his primary emotion at the present time is anxiety.” He also noted Mr Ellis:
“is hoping to be moved to a single room as he is highly paranoid and anxious about the co-inmates and this results in an increase in his symptoms of PTSD and nocturnal nightmares and flashbacks.”
- Dr Foxcroft recommended:
“[Mr Ellis] should have intensive treatment for his condition. He is still at a point where his condition can be altered, and the trajectory of his life altered significantly. He should certainly be placed in the long-term drug and rehabilitation program at Sunrise for a 12-month period of live-in residential care. … In addition to this, he should be given intensive psychiatric treatments by a clinical psychologist or psychiatrist skilled in the treatment of Post-Traumatic Stress Disorder and drug dependence. This should take the form of dialectic behavioural therapy, cognitive behavioural therapy and supportive psychotherapy and should occur on a weekly basis for a four-month period and then a fortnightly basis for a further 12 months … He should be continued on the antidepressant medication … likely for a three-year period … This man has the potential for a good response to treatment and the possibility of returning to the workforce after completion of such a rehabilitation and treatment program.”
- The correctional authorities are to be commended on arranging the psychologically based medium intensity programs Mr Ellis took part in during the second half of 2020. This was a difficult period with the additional measures required by the pandemic. Mr Ellis’ more serious underlying PTSD condition seems only to have been disclosed in January 2021. However, it is of particular concern that he has not received professional medical treatment for his mental health conditions since that time. It has been more than 30 years since the Royal Commission into Aboriginal Deaths in Custody recommended that “the health care available to persons in correctional institutions should be of an equivalent standard to that available to the general public” including mental health services “provided either within the correctional institution or made available by ready access to community facilities and services”.
- It is not unusual for persons charged with dangerous drug offences to come before the court seeking bail on conditions requiring them to undertake residential rehabilitation programs. The risk of a person charged with a serious dangerous drug offence re-offending, if released on bail, is objectively high. With appropriate conditions and in appropriate circumstances, bail on such conditions is granted because the residential program addresses the underlying addiction that is the likely cause of the offending, and does so in such a way as to persuade the court that the risk of the person re-offending is ameliorated to an acceptable extent.
- There are two factors specific to Mr Ellis that distinguish his from most applications of this kind seeking bail.
- Firstly, as Ms Daniels identified, if Mr Ellis is released on bail and undertakes the residential program, his rehabilitation will be overshadowed by the prospect that – in 12 months’ time or so – he will be sentenced for his past offending and will likely serve a number of additional months in custody before he can apply for release on parole. This spectre affects the court’s assessment of the effectiveness of the rehabilitation program to reduce the risk he will re-offend while on bail.
- Secondly, Mr Ellis has another significant factor underlying his offending. His recently diagnosed and, as yet, untreated PTSD also affects the court’s assessment of the risk. Mr Ellis requires a careful professional assessment of his mental health and an appropriately tailored treatment plan, informed by the co-existence of and interrelationship between his PTSD and his active substance use disorder.
- The court’s assessment of the risk of Mr Ellis re-offending while on bail is also affected by the consequences, should that risk be realised. As the alleged offending involved both wholesale and street-level trafficking the consequences would be serious for both the individuals with whom he might deal, but also serious for the community as a whole. The consequences for Mr Ellis would also be very serious, more so because further trafficking charges would likely delay and diminish the prospect of him receiving the careful and professional assessment and treatment he requires for his serious mental health conditions. On the conditions proposed by Mr Ellis, this risk would continue for a period of at least 12 months.
- That risk is significant.
- Should he remain in custody for the further three weeks or another short period until sentence, then every additional day in custody before sentence could be declared as time served in respect of any sentence the court imposes.
- His particular circumstances – combined with his cooperation with the justice system, his good conduct while in custody, his genuine efforts to address his underlying issues and the evidence of his amended character – are likely very relevant to any sentence that might be imposed on Mr Ellis. They might inform an assessment of his prospects for rehabilitation and the need for personal deterrence.
- His recent disclosures to and the report by Dr Foxcroft may affect the extent to which general deterrence and community denunciation are considered relevant to the sentence. They might also inform an assessment of how onerous was the time he has spent in custody in respect of these alleged offences and how onerous any additional time in custody might be for a person in need of specialist professional mental health assistance.
- At present, on balance, I am not persuaded that the risk of Mr Ellis re-offending – with all of its serious consequences – can be ameliorated to an acceptable extent by the conditions he proposes for his bail.
- Mr Ellis has asked to adjourn his application for bail. The adjournment is not opposed by the respondent.
- I will adjourn the application until 7 July 2021. If there is a further delay, not caused by Mr Ellis, so that he is not sentenced by that date and faces a further period on remand, and if it remains the case that suitable treatment for his now diagnosed mental health conditions is not able to be provided while he is on remand, then those circumstances relevant to his bail application might be such as to affect its outcome.
- Published Case Name:
Re Ellis (a pseudonym)
- Shortened Case Name:
Re Ellis (a pseudonym)
 QSC 130
03 Jun 2021