Abdi v The State of Western Australia
[2014] WASC 484
•17 DECEMBER 2014
ABDI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 484
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 484 | |
| Case No: | INS:315/2014 | 15 DECEMBER 2014 | |
| Coram: | HALL J | 17/12/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | MOHAMMED HASSAN ABDI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail Alleged home invasion in company Robbery and sexual assault of occupants Flight risk Turns on own facts |
Legislation: | Nil |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for bail - Alleged home invasion in company - Robbery and sexual assault of occupants - Flight risk - Turns on own facts
Legislation:
Nil
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Mr A L Troy
Respondent : Mr J Boots
Solicitors:
Applicant : Putt Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
1 HALL J: This is an application for bail.
2 The accused has been committed to this court for trial on one count of aggravated burglary, two counts of aggravated armed robbery, ten counts of aggravated sexual penetration without consent and one count of deprivation of liberty.
3 At the time of his committal the accused entered a plea of guilty to the aggravated burglary offence but denied some of the circumstances of aggravation. The accused first appeared in this court on 15 December 2014. At that time a trial was listed for 23 to 26 March 2015.
4 The accused was initially charged on 26 June 2014 with eight offences. He was denied bail and has been remanded in custody since that date. A bail application made in the Stirling Gardens Magistrates Court was refused on 23 July 2014. The reasons given by the magistrate for that refusal were the seriousness of the alleged offences, the strength of the prosecution case, the likelihood of imprisonment if the accused is convicted and evidence indicating that the accused was a flight risk.
The application
5 On the present application the accused submits that a number of relevant matters were not placed before the magistrate at the last application for bail and that, in any event, the circumstances of the accused have changed sufficiently to now make it appropriate that he be granted bail.
6 At the time of the application in the Magistrates Court the accused was represented by a different lawyer. It would seem that at that time there was some prospect that the accused would plead guilty to charges in addition to the aggravated burglary. It is submitted by the present lawyers for the accused that this possibility was a factor which influenced the magistrate to refuse bail. That suggestion does not appear to be borne out by the transcript. In any event it is further submitted that the accused has now resolved to plead not guilty to the other charges.
7 The accused is a New Zealand citizen residing permanently in Western Australia with his family. It is proposed that if released on bail he would live with his parents. His family is able to provide a substantial surety.
8 It is also said that the accused has a very limited prior criminal record and is relatively young, being 23 years old. He is prepared to surrender his passport and be subject to stringent bail conditions. It was submitted that in these circumstances conditions could be imposed that would alleviate any risk that the accused would fail to attend court or commit offences.
9 One matter referred to in the Magistrates Court was that the accused is presently the subject of an outstanding arrest warrant in Victoria. It was submitted on behalf of the accused, and apparently accepted by the State, that this warrant related to the breach of a community based order. It was suggested that this was not in itself a significant matter that would justify a denial of bail.
10 As regards the strength of the prosecution case, whilst the accused admits the aggravated burglary he denies the allegations of sexual penetration, deprivation of liberty and armed robbery. It is said that the prosecution case depends critically on two female complainants who are foreign nationals and have returned to their home country. It was said that in these circumstances there was no certainty that the complainants would be available to give evidence at the trial. The prosecution responded to this by saying that both witnesses had been contacted and expressed their willingness to appear as witnesses at the trial. The State proposes flying the witnesses back to Western Australia for the trial. At this stage there is no reason to doubt that that will occur.
11 The other important element of the prosecution case in regard to the disputed offences is a written statement by the accused provided by his former solicitor to the prosecution. In that statement the accused makes significant admissions regarding the sexual offences. The admissibility of the statement is disputed and a directions hearing to resolve that question has been set down on 3 February 2015. Submissions in regard to that issue have not yet been filed but counsel for the accused indicated that the grounds for objection related to admissibility and fairness. It is not possible at this stage to determine whether that objection has any prospect of success.
12 The State opposes bail being granted. The reasons for that opposition are:
(1) the strength and seriousness of the State case;
(2) the prior criminal history of the accused; and
(3) the risk that the accused would flee the jurisdiction.
The seriousness of the charges and likely outcome
13 The prosecution case is that in the early hours of the morning of 10 May 2014 the accused and two other alleged co-offenders went to a house in Dianella. Two Taiwanese women and an Asian man were residing at the address. It is believed that the premises were being used as a brothel. Earlier that evening one of the co-offenders had telephoned the operators of the brothel to arrange for the services of a prostitute. I will refer to this co-offender as S and the other co-offender as A.
14 On arrival at the house S knocked on the front door. One of the women went to the front door and opened it. S then pushed open the door whilst holding a broken glass beer bottle in his hand. S and the accused then entered the house and S pushed the woman who had answered the door into her bedroom whilst holding the broken glass bottle to her throat. A then also entered the house. S demanded that the woman who had opened the door produce some money. After she did so he required her to take her clothes off and then forced her to engage in various sexual acts.
15 The other woman was forced to a separate bedroom by the accused. He held one of his hands to her throat and pulled her hair with the other hand. She too was required to produce money and was then required to walk to the other bedroom where the first woman was being sexually assaulted by S. The accused then told the second woman to take her clothes off and then forced her to engage in several sexual acts against her will. At some point the two men swapped over. A also went to the bedroom and forced one of the women to engage in sexual acts with him. At the time A was in possession of a knife. During this time the Asian man was forced into a rear bedroom by S.
16 When arrested and interviewed by the police the accused initially declined to speak. Subsequently he told police that he had gone to the premises as a paying customer and that whilst there three masked men had broken in and required him to continue engaging in sex with one of the women. He subsequently retracted that story in a written statement provided by his former solicitor to the police. In that written statement the accused admits that he went to the brothel with S and A, that items of property were stolen and that the two women were sexually assaulted by he and his co-offenders. However, in the statement he denies knowing that the co-offenders were armed. That statement is the subject of the objection I referred to earlier.
17 On the hearing of this application counsel for the accused said that the story told to the police regarding masked men would not be relied on. It was accepted that the prosecution would nonetheless be likely to adduce the police interview because it contained relevant admissions and because it undermined the credibility of the accused in making other claims. It would seem that if the written statement is admitted in evidence it too will be said by the accused to be untrue. I was told that the likely defence would be that whilst the accused did attend the premises and was guilty, as admitted, of aggravated burglary he would deny engaging in any sexual acts with the women and would deny any knowledge of the weapons.
18 The armed robbery and sexual penetration offences depend critically on the evidence of the two female complainants. However, that evidence is also supported by some independent evidence. There is evidence of bruising to the right arm and right buttock of one of the complainants. These injuries are said to be consistent with the physical violence that she alleges was used to move her around whilst the offending was occurring. There is also evidence of DNA on a mattress and the clothes of one of the complainants that is consistent with being that of the accused.
19 The prosecution will also rely upon telephone conversations alleged to be between S and the accused. A translation of those conversations appears at pages 225 to 245 of the prosecution brief. In those conversations there are discussions regarding the police making enquiries. There is also a discussion in oblique terms which is capable of being interpreted as a suggestion by the accused that if the police persist in their enquiries he and S should flee the jurisdiction. It should be noted that the accused disputes that this conversation is in fact one between himself and S. However at this stage there is no reason to doubt that it will form part of the prosecution case and that the prosecution will be able to establish that the accused is one of the participants. That conversation is relied upon by the prosecution not only as being indicative of a conscientiousness of guilt but also to indicate that the accused is a flight risk.
20 The maximum penalty for aggravated burglary is 20 years' imprisonment: s 401(1)(a) of the Criminal Code (WA). The maximum penalty for aggravated armed robbery is life imprisonment: s 392 of the Criminal Code. The maximum penalty for sexual penetration without consent is 20 years' imprisonment: s 326 of the Criminal Code. The maximum penalty for deprivation of liberty is 10 years' imprisonment: s 333 of the Criminal Code.
21 The offence of aggravated burglary, for which the accused has already entered a plea of guilty, is itself serious. Whilst he denies doing bodily harm or knowing that a co-offender was armed with an offensive weapon he admits being in the house without consent and with intent to commit an offence in circumstances where he was in company, where he knew or ought to have known that there were other people on the premises and that the place was used for human habitation. Even on his own admissions this is a serious home invasion that is likely to result in a sentence of immediate imprisonment. If convicted of the other charges imprisonment is also the likely outcome. The alleged offences are of great seriousness and convictions on all of the charges could well result in a lengthy term of imprisonment.
22 The likelihood of a custodial sentence in the event of conviction does not in itself justify a denial of bail but it is a relevant consideration because it provides a significant incentive to abscond. Whilst the accused appears to have some strong family ties to Western Australia, the evidence that suggests that he has discussed fleeing overseas with his co-offenders and that both of those co-offenders are believed to have so absconded, supports a conclusion that the risk of flight is not fanciful.
Past failure to comply with bail
23 The accused does not have a long or particularly serious criminal record in this State. However, it does include a breach of bail in 2012 for which he was fined $250. However, information provided by the State indicates that the accused has convictions for theft, burglary and failure to answer bail in Victoria. Those convictions occurred on 30 August 2012. There is also a record of failure to comply with the conditions of a community based order in Victoria, for which a warrant of arrest has issued. Whilst I have no details of these prior convictions, the failures to comply with bail and community orders do not support a conclusion that the accused can be relied upon to comply with stringent bail conditions.
Relevant principles
24 The written submissions by the accused assume that the jurisdiction to consider this application only arises if the accused proves new facts or changed circumstances. He submits that new facts have been discovered and circumstances arisen that have changed since the bail application before the magistrate. He also submits that his then solicitor failed to adequately present his case for bail on that occasion. These are matters that, if established, permit a reconsideration of bail: sch 1 pt B cl (4) of the Bail Act 1982 (WA).
25 In my view, my jurisdiction to consider bail does not require that there be a change of circumstances. This is because the jurisdiction exercised by the magistrate was to consider bail for proceedings in the Magistrates Court or on committal to this court. The accused has now made a first appearance in this court and accordingly any jurisdiction to grant bail is of a different nature pursuant to sch 1 pt A cl (2). I am exercising a different jurisdiction to that formerly exercised by the magistrate. However, even if changed circumstances were required, I am satisfied that they exist.
26 It is now clear that the accused maintains that he is not guilty on all charges other than the aggravated burglary. There has also been some changes regarding the available evidence. In particular, the prosecution brief has been supplemented to include transcripts of alleged telephone calls. It is now more possible to make an assessment of the strength of this evidence.
27 The matters specified in sch 1 pt C cl (1) of the Bail Act are non-exclusive mandatory relevant considerations when considering bail: Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. The discretion is also to be exercised having regard to such other matters as are considered to be relevant.
28 In Milenkovski McLure P made the following points regarding pt C cl (1):
There remains the proper construction of the general provision in cl 1 of pt C. It contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction who is required to have regard to the questions in pars (a) - (g) and to any other questions which the decision-maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) - (g). There are a number of significant points to note. First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail [39] - [41].
Merits of the application
29 Having regard to the considerations in pt C cl (1) of sch 1 of the Bail Act I have come to the following conclusions.
30 If not kept in custody there is a substantial risk that the accused may not appear in court in accordance with his bail undertaking (cl 1(a)(i)). That conclusion is supported by the following factors. The offences are serious in their nature and of their type. If convicted the accused is likely to be sentenced to a substantial term of immediate imprisonment. The offence of aggravated burglary to which he has already pleaded guilty is in itself serious and is likely to attract such a sentence. There is evidence that is capable of being interpreted as expressing an intention on the part of the accused to flee the jurisdiction.
31 It is submitted on behalf of the accused that if he had such an intention he had an opportunity to flee before being arrested. Between the time of the alleged commission of the offences and the time he was arrested there was a delay of some weeks. In this period the accused was aware that the police were making enquiries. On the other hand the prosecution points out that a co-offender was arrested by police and released on bail before he absconded. It is submitted that the accused may not have acted upon his expressed intention to abscond because he expected that if arrested he also would be bailed and would, accordingly, have an opportunity to escape at that time. Whilst I accept that the terms of the recorded telephone conversation are not entirely clear and may be in code, I do accept that it would be reasonably open to interpret the conversation as indicating an intention on the part of the accused to flee the jurisdiction if that became necessary as a result of the police investigations.
32 The prosecutor has put forward grounds for opposing the grant of bail: cl 1(c). These are the inherent seriousness of the charges and the strength of the prosecution case as well as the risk of absconding. I accept that the strength of the prosecution case is dependent upon the willingness and availability of the complainant witnesses and the admissibility of the accused's written statement. At this stage, however, there is no reason to doubt that the complainants will be available to give evidence and will give evidence in accordance with their statements. Nor is there presently reason to doubt that the written statement will be admitted in evidence. On those assumptions the prosecution case appears to be a strong one. The accused is, of course, entitled to the presumption of innocence and the strength of the case does not detract from that presumption. However, the strength of the case does provide an increased incentive to abscond.
33 It has been suggested that conditions could be imposed that could sufficiently remove any flight risk: cl 1(e). These are a substantial surety, surrender of his passport, a condition to reside at his parents' home, reporting to police and/or a curfew condition. I am not satisfied that such conditions could be effective. The fact that the co-offenders have been able to flee the jurisdiction is a pointed indication of the possible risk. The risk in this case is sufficiently high that it could not be adequately addressed by conditions of the type referred to. There is a very high incentive to abscond and, arguably, an expressed intention in that regard.
34 The alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate: cl 1(g). This is a matter I have referred to in detail earlier in these reasons. A forced entry into residential premises whilst in company and the sexual assault of female occupants and stealing from those occupants, both with violence or threats of violence, is alleged criminal conduct of great seriousness. Whilst there is no requirement to show exceptional circumstances to justify a grant of bail on charges of this nature, the serious nature and alleged circumstances militate strongly against a grant of bail.
35 The other mandatory relevant considerations referred to in cl 1 are not applicable to this case.
Conclusion
36 In summary, there is a significant possibility that the accused would not appear in court if granted bail. The offences are of the greatest seriousness and the prosecution case is strong. There is a high incentive for the accused to abscond. There are no conditions that could sufficiently obviate that risk. In any event, the nature and seriousness of the charges are such as to make a grant of bail inappropriate. For those reasons the application for bail is refused.
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