Benedetti v The State of Western Australia

[2008] WASC 83

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BENEDETTI -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 83

CORAM:   BLAXELL J

HEARD:   8 MAY 2008

DELIVERED          :   13 MAY 2008

FILE NO/S:   MCS 10 of 2008

BETWEEN:   MARK BRIAN BENEDETTI

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Serious offence alleged to have been committed whilst on bail for serious offence - Whether exceptional reasons shown as to why bail should be granted - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1, cl 1, cl 3, cl 3A

Result:

Application for bail refused

Category:    B

Representation:

Counsel:

Applicant:     Ms A M Padmanabham

Respondent:     Mr J C Whalley

Solicitors:

Applicant:     Brennan & Co

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

1. BLAXELL J: This is an application for bail pursuant to s 14 of the Bail Act1982 (WA). The application is sought in respect of five charges to which the applicant has pleaded guilty and been committed for sentence to the District Court (the original charges), as well as a subsequent charge for an offence allegedly committed while on bail for the original charges and to which he is pleading not guilty. The subsequent charge alleges a 'serious offence' within the meaning of the Bail Act1982 and one of the original charges was also a 'serious offence'. Accordingly, cl 3A of sch 1 of the Bail Act1982 requires me to refuse bail for the subsequent offence unless I am satisfied that there are exceptional reasons why the defendant should not be kept in custody, and also that bail may properly be granted having regard to the provisions of cl 1 and cl 3.

2. At the hearing of the application, there were insufficient materials before me to enable a determination of these questions, and I granted each party leave to file further affidavits.  Those affidavits have now been filed and the relevant facts and circumstances are as follows.

The original charges

1. At about 11.44 pm on 10 July 2007, the applicant was observed by police officers riding a Yamaha motorcycle north on Thelma Street, Como.  At the intersection of Canning Highway, he accelerated heavily causing the front wheel of the motorcycle to lift approximately 40 cm off the road surface.  He then continued to accelerate with the front wheel off the road surface and while in this position reached a speed of 120 km/h in a 50 km/h zone.

2. When the police officers stopped the applicant, their inquiries revealed that he was not the holder of a valid driver's licence, it having been cancelled in the Fremantle Magistrates Court on 27 April 2006 until 17 August 2008.  The applicant was then searched and was found to be carrying two small plastic bags in the right front pocket of his jeans.  These plastic bags contained powder material, which was later found to be 7.3 gms of amphetamines.

3. When apprehended, the applicant was also carrying a backpack which was later found to contain $26,000 in cash as well as a knife with a 10 cm double‑edged blade.  The applicant was also interviewed, but did not offer any reasonable explanation for his possession of these items.  Consequently, the applicant was charged with the following offences:

   (1)Reckless driving.

   (2)Driving while disqualified from holding or obtaining a motor driver's licence.

   (3)Possessing stolen or unlawfully obtained property (viz, the $26,000 cash).

   (4)Carrying a controlled weapon.

   (5)Possession of prohibited drugs with intent to sell or supply.

4. When the applicant appeared in the Magistrates Court on these matters, he either pleaded not guilty or did not enter pleas and was released to bail.  However, on 21 February 2008, he entered pleas of guilty to all matters and was committed to the District Court for sentence.

The subsequent charge

1. At about 2.40 pm on 13 February 2008, the applicant was stopped by police while driving his 2007 BMW coupe along East Street, Fremantle.  The applicant's partner, Tamara Belcher, was also in the vehicle and she was seated in the front passenger seat.

2. The vehicle was searched and police officers found a black bag on the front passenger's side floor area.  The contents of this bag included the following:

   -two clipseal bags containing a total of 381 gms of methylamphetamine

   -a wallet containing cards, including an RAC card in the name of the applicant

   -a letter from the Department of Health addressed to the applicant

   -a receipt from Harvey Norman for the purchase of a computer printer by the applicant

   -other documentation relating to that computer printer

3. Also located in the vehicle were the following items:

   -two further clipseal bags containing 6.87 gms and 0.355 gms of methylamphetamine respectively

   -a loaded .357 handgun

   -$30,050 in cash

4. The handgun was hidden behind the glove‑box of the vehicle.  (The affidavits before me do not indicate whereabouts in the vehicle the other items were found.)  The applicant was arrested, and declined to be interviewed. 

5. The applicant was charged with possessing the total of nearly 390 gms of methylamphetamines with intent to sell or supply, and also with driving while disqualified from holding a motor driver's licence.  His application for bail on those charges was refused.

Other relevant facts and circumstances

1. On 16 January 2008, the applicant obtained a safety deposit box at the Commonwealth Bank in Perth.  On 8 February 2008, the police searched that safety deposit box and found that it contained the sum of $109,850 in cash.  This money was seized and is now the subject of a freezing notice under the Criminal Property Confiscation Act 2000 (WA).

2. The applicant is 35 years old and ordinarily resides with his partner and their three young children at a unit in Yangebup.  The children are aged 8 months, 5 years and 6 years, and, due to their young age, Ms Belcher is unable to work full‑time.  The family is financially dependent upon the applicant, as are three other of his children (aged 8, 11 and 12 years) from a former relationship. 

3. The applicant has a moderately long record of prior convictions which commenced in 1991.  These were mostly for traffic matters and minor offences of dishonesty, but from about 2000, included some minor firearms and drug offences.  In 2002, the applicant was sentenced to 12 months' imprisonment for a total of seven firearms offences, including three of discharging such a weapon so as to cause fear.  In 2003, he received sentences (substituted on appeal) of 2 years 8 months for a number of offences, including possessing amphetamines with intent.  The applicant's record also shows that he has been convicted on three previous occasions for a total of five breaches of bail.

4. The affidavits before me do not indicate the nature of the applicant's occupation at the time of his arrest.  However, I have been provided with letters from two of his friends who operate small businesses and who have respectively offered him employment as a boilermaker‑welder, and as a delivery driver.  (Needless to say, the applicant would be unable to take up the latter position because of the cancellation of his motor driver's licence.)

5. When the applicant was taken into custody (following the refusal of bail in the Magistrates Court), he was unable to make payments of rent in respect of the property he normally lives in with his partner and three younger children.  On 28 April, he was served with an eviction notice which required him to vacate the premises and to remove all of his personal property no later than 9 May 2008.  The applicant has been using the rental property to store all of his and his family's personal property, including clothes, photographs, white goods, and appliances.  These personal items remain on the premises, and the applicant asserts that in his present situation, he is unable to make any arrangements for their removal.

6. In this regard, the applicant's partner has become physically unwell as a result of his incarceration and also has the care of the three infant children.  Although his parents are very supportive, they are aged and physically unable to transport the items themselves.  Furthermore, the applicant is not in the position to pay a transport company to remove the items because all of his property has been frozen.  Although his parents own a house, they have virtually no income and are unable to assist financially.  Accordingly, the applicant claims that he stands to lose all of his personal property if he is unable to remove it himself.

7. If the applicant is released to bail, he proposes to live with his parents at their house in Munster. 

Whether the applicant should be granted bail

1. As already noted, the application for bail must be refused unless I am satisfied that there are exceptional reasons why the applicant should not remain in custody, and also that bail may properly be granted pursuant to cl 1 and cl 3 of sch 1 of the Bail Act1982.

2. The applicant contends that there is a combination of factors which should be sufficient to satisfy me that there are exceptional reasons justifying a grant of bail, namely:

   -the hardship to his family if he remains in custody

   -the personal hardship he will suffer, including loss of income

   -the loss of significant personal property belonging to his family and himself as a result of their eviction from the rental property

   -the likely delay in the subsequent charge going to trial in the District Court

   -the weakness of the prosecution case

3. Dealing with each of these matters in turn, there can be little doubt that the applicant, and particularly his immediate family, are suffering hardship as a result of his current incarceration.  However, this is something that is commonly, and almost inevitably, experienced by nearly all defendants to criminal prosecutions who are refused bail.  I am not persuaded that there is anything unusual about the hardship being experienced in the present case which makes it exceptional.

4. I also consider that the applicant's claim that he will lose his personal property if he is unable to remove it from the rented premises is misconceived.  In this regard, the Residential Tenancies Act 1978 (WA) contains provisions (including s 79) which protect the rights of tenants in such circumstances, and there is a qualified obligation on a landlord to store goods for 60 days and then to sell them at public auction, with the payment of proceeds going to the owner.  In any event, I am not persuaded that the applicant cannot make arrangements through friends and family for the goods to be removed.

5. The applicant has been charged with possession of 381 gms of methylamphetamines, and in the event of his ultimate conviction, the likely sentence of imprisonment will almost certainly exceed the time that he will spend on remand.  In any event, it is open to the applicant to apply for an expedited trial, and experience shows that such applications are almost always granted.  Furthermore, the applicant has pleaded guilty to the original charge of possessing 7.3 gms of amphetamines with intent, and in light of his prior record, there is every prospect that he will be sentenced to imprisonment for that offence.

6. The applicant contends that the prosecution has a weak case in respect of the subsequent charge.  I understand his essential submission to be that the surrounding circumstances point to the 381 gms of methylamphetamines having been in the possession of his partner (in the front passenger seat), rather than himself.  (This submission appears to be based on the proposition that the drugs could only have been in the possession of either the applicant or his partner, and makes no allowance for the possibility that they were in their joint possession.)

7. In my opinion, an objective analysis of the limited evidence available to date indicates that the prosecution has a fairly strong case against the applicant. The only reasonable inference is that the bag containing the drugs was placed upon the front passenger seat floor by either the applicant or his partner. The circumstances which tend to connect the applicant with the drugs include his close relationship with his partner, the presence of his card and paperwork in the bag, and the fact that $30,000 in cash was also there. With regard to this last fact (and without making any ruling on the issue), it is probable that evidence that the applicant on a previous occasion was found in possession of a similar sum in similar circumstances will be admissible pursuant to s 31A of the Evidence Act1906 (WA). The evidence that the applicant also had a large sum of cash in a safety deposit box may also fall into the same category.

8. For all of the above reasons, I am not persuaded that there are exceptional reasons why the applicant should not be kept in custody.  In any event, I consider that the materials before me show that if the applicant did not remain in custody, there would be a substantial risk of him failing to appear in court in accordance with any bail undertaking and that he might commit an offence of a similar nature.  In my opinion, there is no condition which could reasonably be imposed which would obviate these risks.

9. Accordingly, the application for bail will be refused.