Alone v The State of Western Australia
[2014] WASC 238
•3 JULY 2014
ALONE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 238 | |
| Case No: | INS:148/2014 | 26 JUNE 2014 | |
| Coram: | McKECHNIE J | 3/07/14 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Home detention bail with conditions | ||
| B | |||
| PDF Version |
| Parties: | SHELBY ANN ALONE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Bail Whether exceptional circumstances delay before trial turns on own facts |
Legislation: | Bail Act 1982 (WA) |
Case References: | Milenkovski v The State of Western Australia [No 2] [2011] WASC 273 The State of Western Australia v Sturgeon [2005] WASC 256 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- INS 60 of 2014
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail - Whether exceptional circumstances delay before trial - turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Home detention bail with conditions
Category: B
Representation:
Counsel:
Applicant : Ms H E Prince
Respondent : Mr A C Ebell
Solicitors:
Applicant : Lyn Zinenko Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [No 2] [2011] WASC 273
The State of Western Australia v Sturgeon [2005] WASC 256
1 McKECHNIE J: The applicant applies for home detention bail pending her trials for aggravated armed robberies. The application is opposed by the prosecution.
2 The applicant must show exceptional circumstances for the grant of bail.
3 She was initially charged with one count of receiving and three counts of fraud, allegedly committed on 30 June 2013. She was bailed to re-appear in the Stirling Magistrates Court on 14 August 2013. She failed to appear. She was arrested on 16 August 2013 and has been in custody ever since.
4 The applicant has two trials listed in the Supreme Court:
• The first trial INS 148/14, provisionally listed for 10 to 12 November 2014, the applicant stands charged with one count of aggravated armed robbery, one count of unlawful detention and one count of making a threat to unlawfully harm, allegedly committed on 11 August 2013.
• In respect of the second trial INS 60/14, provisionally listed for 27 to 29 January 2015, the applicant stands charged with one count of aggravated armed robbery allegedly committed on 3 July 2013.
5 An application for home detention was made on 18 December 2013 and refused.
6 The sole ground asserted as constituting exceptional circumstances is the length of time the applicant will be in custody until trial.
7 The applicant was born on 2 April 1992. She is now 22.
8 She has an unremarkable criminal record but it is clear from counsel's submissions before the Magistrate in December 2013, and before me, that the applicant had a significant drug problem at the time of the alleged offending.
9 The offences are serious and the prosecution case in each of the aggravated armed robberies is a reasonable case. If convicted, the likely sentence would be a term of immediate imprisonment. However, that is of limited relevance. If acquitted, the time spent in custody can never be recovered.
10 The significance of delay between arrest and trial was outlined in Milenkovski v The State of Western Australia [No 2] [2011] WASC 273 [29] - [35]. There is no fixed point at which delay either by itself or in combination with other factors, will constitute exceptional circumstances. However, the remarks of E M Heenan J in The State of Western Australia v Sturgeon [2005] WASC 256 [52] remain apposite.
11 I have concluded that in the circumstances of this case a delay of 15 months between arrest and trial constitutes exceptional circumstances. I take into account:
• the applicant's age;
• the presumption of innocence;
• a reasonable alternative to custody, namely home detention.
12 In my view the above three matters, in combination with delay, justify an order that the applicant be released until trial in respect of the charges before the Supreme Court.
13 I have a home detention bail assessment. The objectives of the Bail Act can be met by home detention together with other strict conditions. Breach of any condition will likely see an immediate return to custody.
Orders
(1) The applicant will be released on home detention to Unit 5, 2 Curedale Street, Beaconsfield.
(2) The applicant is not to contact or attempt to contact Simon Garforth.
(3) The applicant is to submit to urinalysis as directed by CJS and any positive result be treated as a breach of bail.
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