Atherton v Western Australia
[2005] WASC 15
ATHERTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 15
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 15 | |
| Case No: | MCS:7/2005 | 17 FEBRUARY 2005 | |
| Coram: | BLAXELL J | 22/02/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail refused | ||
| B | |||
| PDF Version |
| Parties: | STEVEN JOHN ATHERTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Serious offence allegedly committed while on bail for another serious offence Possession of methylamphetamine with intent to sell or supply Whether there are exceptional reasons why the applicant should not be kept in custody Turns on own facts |
Legislation: | Bail Act 1982 (WA), Sch 1 Pt C, cl 1, cl 3, cl 3A |
Case References: | Nil Caratti v The Queen [1999] WASCA 91 Lim v Gregson [1989] WAR 1 Mullally v The Queen [2000] WASCA 26 Musarri v The Queen [2000] WASC 268 Oates v The Queen [2003] WASC 180 Outman v The Queen [2000] WASC 303 Pinkstone v The Queen [2000] WASC 199 Pinkstone v The Queen [2000] WASC 321 R v Jemielita (1995) 78 A Crim R 91 R v Robertson [2001] WASC 120 Rechichi v The Queen [1999] WASC 73 Saka v The Queen [2001] WASC 92 WCVB v The Queen (1989) 1 WAR 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Serious offence allegedly committed while on bail for another serious offence - Possession of methylamphetamine with intent to sell or supply - Whether there are exceptional reasons why the applicant should not be kept in custody - Turns on own facts
Legislation:
Bail Act 1982 (WA), Sch 1 Pt C, cl 1, cl 3, cl 3A
Result:
Application for bail refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr D Moen
Respondent : Ms E Benwell
Solicitors:
Applicant : Mossensons
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Caratti v The Queen [1999] WASCA 91
Lim v Gregson [1989] WAR 1
Mullally v The Queen [2000] WASCA 26
Musarri v The Queen [2000] WASC 268
Oates v The Queen [2003] WASC 180
Outman v The Queen [2000] WASC 303
Pinkstone v The Queen [2000] WASC 199
Pinkstone v The Queen [2000] WASC 321
R v Jemielita (1995) 78 A Crim R 91
R v Robertson [2001] WASC 120
Rechichi v The Queen [1999] WASC 73
Saka v The Queen [2001] WASC 92
WCVB v The Queen (1989) 1 WAR 279
(Page 3)
1 BLAXELL J: This is an application for bail pending the trial of the applicant on a charge of possession of methylamphetamine with intent to sell or supply to another. At the time of allegedly committing this offence, the applicant was already on bail for a number of alleged offences including possession of amphetamines with intent to sell or supply to another, and possession of ecstasy with intent to sell or supply to another.
2 In these circumstances cl 3A of Pt C of the First Schedule to Bail Act1982, requires that I refuse bail unless I am satisfied that there are "exceptional reasons" why the applicant should not be kept in custody, and that I may also properly grant bail having regard to cl 1 and cl 3 of that schedule.
3 The statement of material facts alleges that on 25 January 2005 the applicant was driving his Holden utility along a road in Maddington. At the same time police officers were driving a vehicle in the opposite direction and they executed a "U" turn. The applicant then drove his utility into a driveway off the road, came to a stop, and threw a cigarette packet out of the passenger side of his vehicle. The cigarette packet landed on the driveway, and when it was inspected by the police officers it was found to contain four small clipseal bags filled with a total of 3.9 grams of methylamphetamine. The applicant also had $956.50 cash in his possession.
4 The present application is supported by affidavits from the applicant, his solicitor (Steven Cohen), and his mother (Liz Treloarth). The applicant states that earlier on 25 January 2005 he had lent his utility to a friend, "Stephanie". It is now his understanding that Stephanie spent some time that day with another friend, Vanessa Hardman, and that Vanessa:
" … purchased some methylamphetamines and put them in a cigarette packet. She subsequently left the cigarette packet in my car when Stephanie returned the car to my house … When I was pulled over by the police the cigarette packet was still in the car."
5 This version of events is corroborated by Ms Hardman in a statement which was signed by her and provided to Mr Cohen after she had obtained independent legal advice. According to Ms Hardman, on 24 January 2005 she arranged to purchase 4 grams of "speed" for $200, which was intended for her own personal use. At the time of arranging to purchase
(Page 4)
- the speed, the vendor did not have all of the drugs with him, so they agreed to complete the transaction later that day at the Southern River Tavern. When she later went to the tavern she was driven there by "Steph" in the applicant's car. Her statement continues:
"20. We then met the man who gave us the rest of the speed, paid him and stayed at the tavern for a drink or two.
21. I put the packet of Speed in my cigarette packet which was Craven Special Mild – 25's.
22. I always smoke these cigarettes (at least since I started smoking).
23. We then left the tavern to go back to Steph's house. Steph drove in Stevens Car.
24. We stayed at Steph's house for a little while. A short time later, I recall telling Steph that I was worried I left the cigarette packet with the speed in the car.
25. By that time, Steven had taken his car from Steph's house. …"
7 In light of Ms Hardman's statement, it is also significant that the applicant is said to have picked up the cigarette packet containing the drugs and to have thrown it out of the passenger window of his car immediately prior to his apprehension by the police. If this occurred, it could only be consistent with him exercising dominion or control over the methylamphetamines, whether alone or concurrently with Ms Hardman. (The applicant's affidavit does not specifically deal with this aspect of the statement of material facts, but I am told from the bar table that he denies having thrown the cigarette packet).
(Page 5)
8 Other matters of relevance to the present application are that the applicant has a moderately serious prior record of convictions, including numerous simple drug offences, and one offence of possessing cannabis with intent to sell or supply to another. However, he has no prior offences of breach of bail. The applicant has been in custody since 25 January 2005 and his trial in the Perth Court of Petty Sessions has been set down for hearing on 16 May 2005.
9 The applicant's mother has deposed that she has a debilitating heart condition, and her general practitioner confirms that Mrs Treloarth "is in poor health and is now finding she is unable to manage with her home duties". According to Mrs Treloarth, the applicant has "always cared for me" and has shown her a great deal of support during her illness. While he is in custody, she is living in his house and caring for his animals (three large dogs) and property. She is scared of dying alone at her son's house and fears that "the stress of the situation is exacerbating my heart condition".
10 Following the hearing of the application (and presumably in response to particular issues that I raised with counsel during the course of submissions) the applicant's solicitor has filed a supplementary affidavit by Mrs Treloarth. In this second affidavit Mrs Treloarth deposes inter alia that there are no other members of her family who are available to assist her or to look after the applicant's property. Her affidavit also states:
"14. I further say on the evening of 15 February 2005, Steven's friend who was at Steven's house where I am staying had his car firebombed. Nobody is sure who was responsible.
15. The bombing occurred in the middle of the night whilst I was asleep.
16. The car was also parked right outside the window where I sleep.
17. If the bomb was thrown a mere few metres to the side of the car, it would have smashed through the bedroom window and exploded in my bedroom.
18. I cannot live like this. If these activities continue I will die.
(Page 6)
- 19. I am not breathing properly, there is no-one to care for me and I fear if I fall or have a heart attack, there will be no-one to assist me.
20. With Steven's situation as it is, it is becoming increasingly dangerous staying at Steven's property, but I cannot leave otherwise the property is likely to be damaged.
21. I am in currently in such a state that I am in the process of obtaining a referral to a cardiologist to re-test my heart to find out what exactly is going on in my chest."
11 A grant of bail can be considered only if there are "exceptional reasons" why the applicant should not be kept in custody. Such exceptional reasons will exist if there are circumstances which are out of the ordinary or unusual, and which provide a rational basis for overriding the statutory disposition against a grant of bail.
12 This is not a case where there is a delay in trial which amounts to an exceptional circumstance, because there is to be a relatively speedy hearing of the charge against the applicant. However, the fact that there is to be an early hearing is relevant to the consideration whether such exceptional circumstances as do exist provide reasons for the release of the applicant. Also relevant in this regard are the strength of the prosecution case, and the likely outcome if the applicant is convicted. (As a general proposition there will always be stronger reasons for granting bail when there is a weak prosecution case and a long delay until trial, than when there is a strong prosecution case with a speedy outcome).
13 The applicant submits that there are two exceptional reasons why he should not remain in custody. These are his mother's state of health, and the signed statement from Ms Hardman admitting ownership of the methylamphetamines.
14 As to the first of these circumstances, it is very easy to sympathise with Mrs Treloarth's plight, and to understand the stress that the applicant's incarceration is causing her. However, in my view, there is nothing exceptional or unusual about an alleged offender having an elderly parent who is not in good health. Furthermore, it is a regrettably common occurrence that the incarceration of an offender or alleged offender will place great stress upon the immediate members of his or her family and will sometimes affect their health.
(Page 7)
15 The firebombing referred to in Mrs Treloarth's most recent affidavit is certainly an exceptional circumstance, but in my view it does not provide a reason why the applicant should be released from custody. Mrs Treloarth was not living at her son's property before his arrest and it has been her choice (for understandable reasons) to do so afterwards. The fact that the applicant's friend whose car was firebombed was staying the night when it happened suggests that there are other persons who can keep an eye on the property. Furthermore, if no-one else is available to live there temporarily then the local police would no doubt be willing to conduct regular patrols. As to the care of the applicant's animals, it is a matter of common knowledge that there are dog homes and other institutions in the community which can provide temporary assistance.
16 With regard to Ms Hardman's statement admitting ownership of the drugs, I consider that this could amount to an exceptional circumstance if it was reasonably credible and provided a complete answer to the case against the applicant. However, as already noted, the reference by Ms Hardman to "the packet" of drugs is inconsistent with the fact that there were four clipseal bags. Ms Hardman's version of events also does not explain why the applicant would have felt compelled to throw the cigarette packet containing the drugs out of his car. In my view, this is a credible assertion, given that the applicant was alone in his car at the time, and it is difficult to conceive of any motive for the police officers to claim that he threw the packet if this did not in fact occur.
17 Accordingly, I am of the view that there are no exceptional reasons why the applicant should not be held in custody. It follows that, pursuant to cl 3A of Pt C of the First Schedule to the Bail Act 1982, I am required to refuse the application.
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