Bogers v The State of Western Australia
[2017] WASC 244
•18 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BOGERS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 244
CORAM: FIANNACA J
HEARD: 28 JULY & 17 AUGUST 2017
DELIVERED : 18 AUGUST 2017
FILE NO/S: MBA 20 of 2017
BETWEEN: ADAM WILLIAM BOGERS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Turns on facts
Legislation:
Bail Act 1982 (WA), s 14 & s 22, sch 1 pt C cl 1 & cl 3
Result:
Bail refused
Category: B
Representation:
Counsel:
| Applicant | : | Mr A Hammond |
| Respondent | : | Mr R Arndt |
Solicitors:
| Applicant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
FIANNACA J:
The history of the application
The applicant, Adam William Bogers, has applied for bail in respect of 77 charges pending in the Magistrates Court of Western Australia. On 18 August 2017, I delivered my decision refusing bail. I gave brief reasons with detailed written reasons to follow. These are my detailed reasons.
The charges in respect of which the bail application is made are for various offences, most of which are either fraud or involve the possession and use of identification material with intent to commit an indictable offence. There is also a small number of drug offences and a charge of indecent assault. The charge numbers have been identified in the affidavit of Mr Hammond (the applicant's counsel), dated 12 July 2017. It is not necessary for me to set them out here, although I may refer to specific charges in the course of my reasons.
The offences are alleged to have been committed by the applicant at various times between 20 November 2015 and 31 August 2016 at various locations in the Perth metropolitan area. He was charged on nine separate occasions over a period of 11 months, from 22 July 2016 to 26 June 2017. On the last occasion, when he was charged with one count of fraud, he was in custody on remand for all of the other offences.
On three occasions since 22 July 2016, the applicant has been released on bail. On each occasion, bail has been revoked. It appears that he was initially on bail for all charges that had been brought against him until 7 September 2016. One of the conditions was a curfew requiring him to be at home between 7.00 pm and 7.00 am and to present himself to police on request. Bail was revoked as a result of the applicant breaching that curfew, by failing to present during a routine check, and he was then in custody for 28 days from 13 September 2016 until 10 October 2016, when he was released on home detention bail. Conditions of that bail included that he not use any illicit substance and that he submit to urinalysis testing, with any positive result from such testing to constitute a breach of bail. Bail was revoked after he tested positive for methylamphetamine. He was then in custody for 13 days from 30 November 2016 until 12 December 2016, when he was again released on home detention bail by the Magistrates Court under the Intellectual Disability Diversion Program. However, bail was again revoked after he provided a void sample for urinalysis testing on 30 December 2016 and then failed to provide a sample as required on 6 January 2017. He was arrested on 23 January 2017 and has been remanded in custody since 24 January 2017.
After his arrest, the applicant again applied for bail in the Magistrate's Court. The application was heard on 13 February 2017 by Magistrate Lawrence. The application was opposed and the magistrate refused bail.
The application before Magistrate Lawrence relied substantially on the contention that the applicant has a mental illness, and that it would affect his time in custody and his preparation for trial in relation to the charges the subject of the application. His Honour was troubled by those matters, but found that there was a 'lack of cogent evidence as to just what sort of mental illness [the applicant] has'.[1] The Magistrate noted that it was of concern, based on a report from the CEO of the Department of Corrective Services (DCS), that during the period of home detention bail the applicant repeatedly failed to provide a valid, clean or non‑suspicious sample. I do not have a copy of that report in these proceedings, but the contents were sufficiently related by the Magistrate, and are consistent with the outline of the same matters contained in an affidavit filed in these proceedings made by the Community Corrections Officer who was supervising Mr Bogers while he was on home detention bail. In any event, his Honour found, in effect, that the applicant had been given an opportunity on home detention bail and had failed to comply adequately. When that was considered against the background of the applicant's poor antecedents, the variety and number of charges, and the applicant's risk of re‑offending, his Honour concluded that bail should be refused.
[1] ts 17; see also ts 19.
The present application is under s 14(2) of the Bail Act 1982 (WA) (Bail Act). It invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Bail Act. It is not an appeal from the magistrate's decision refusing bail.
The original application, filed on 14 July 2017, did not identify the charges to which it related. The hearing proceeded on the basis of an amended application dated 26 July 2017, which identified all of the charges to which I have referred, including charge PE 35767/17, which was brought against the applicant on 26 June 2017. Bail has not previously been considered in respect of that charge, because the applicant was in custody for the earlier charges. Under s 14(1) of the Bail Act, I have jurisdiction to hear the application in respect of that charge, and I consider it is appropriate to do so. The State did not take issue with that approach.
Legal principles
The legal principles applicable on an application of this kind were set out in Milenkovski v The State of Western Australia.[2] It is not necessary for me to refer to them in detail. It is sufficient to say that the application is governed by the provisions of the Bail Act, which is intended to be a comprehensive code on the subject of bail in this State. In particular, the application in this case is governed by cl 1 of pt C of sch 1 of the Act.
Clauses 1 and 3 of Schedule 1, Part C of the Bail Act
[2] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [31].
Clause 1 provides that the grant or refusal of bail is in the judicial officer's discretion. It requires that the discretion be exercised having regard to questions posed by paragraphs (a) to (g) of that clause, as well as to any others which the judicial officer considers to be relevant.
For the purposes of this application, the following paragraphs are potentially relevant:
(a)whether, if the accused is not kept in custody, he may ‑
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
…
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(e)whether there is any condition which could reasonably be imposed under Part D which would ‑
(i)sufficiently remove the possibility referred to in paragraph (a) …; or
...
(iii)remove the grounds for opposition referred to in paragraph (c).
The matters specified in those paragraphs are non-exclusive, mandatory, relevant considerations.[3]
[3] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24].
The proper construction of cl 1 and the manner in which the discretion is to be exercised was elucidated by McLure P in Milenkovski, as follows:[4]
… 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.
[4] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [41].
As I noted earlier, the question in cl 1(a), 1(c) and 1(e) are potentially relevant in this case. Clause 3 of sch 1 pt C provides that, in considering whether the accused may do any of the things set out in cl 1(a), the judicial officer shall have regard to the following matters, as well as any other matters that the judicial officer considers relevant:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, financial position of the accused; and
(c)the history of any previous grants of bails to him; and
(d)the strength of the evidence against him.
Those matters are non-exclusive, mandatory considerations.[5]
[5] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [25].
While the questions in cl 1 are framed in terms of whether there are grounds why bail should not be granted, so that a negative answer would necessarily result in the grant of bail, when the court has considered the matters in cl 3 and answered the questions in cl 1 and there are competing considerations, there is no presumption either for or against bail when exercising the discretion.[6]
[6] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39].
The hearing
The application was heard on 28 July 2017 and 17 August 2017. The State opposed the application. It was adjourned on 28 July 2017 because I indicated to the parties that the manner in which some of the information on which each of them was relying had been put before the court in an unsatisfactory form. The parties agreed the application should be adjourned so that each of them could put relevant information on affidavit, where that had not occurred, and, where possible, it would be from a person who had direct knowledge of the facts. That was of particular importance in the case of the applicant, who had sought to give explanations for certain events in a hearsay form through his counsel's affidavit.
Section 22 of the Bail Act provides that, in considering any case for bail, a judicial officer may receive and take into account such information as he thinks fit whether or not the same would normally be admissible in a court of law. Therefore, I am not precluded from taking into account information in the hearing on the basis that it is hearsay that would ordinarily be inadmissible, or because it is not contained in an affidavit. However, if either party intends to rely on factual matters about which there may be dispute, and which depend on the observations, assertions or assessments of particular individuals, including the applicant, then if the court is to place any weight on such matters on an application invoking the jurisdiction under s 14(1) of the Bail Act, it would ordinarily be expected that the information will be contained in an affidavit from the individual who is able to give direct evidence of the fact, and that the individual would be available for cross‑examination if required.
The expectation that the information would be on affidavit is an incident of the court being a court of record, and the expectation that factual matters will be deposed to by the individual who can give direct evidence about them goes to the weight that can be placed on the information. Further, when factual matters are in dispute, it may be difficult for the court to make findings if the evidence is not tested by cross-examination of relevant witnesses. These observations must be considered in the context identified by McLure P in Milenkovski that, 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.
In this case after the adjournment on 28 July 2017, additional information was provided to the court either on affidavit or in the form of a statement made in accordance with the Criminal Procedure Act 2004 (WA), or was tendered without objection where it is an official record. Although one of the affidavits was not sworn or affirmed by the time of the hearing, there was no objection to the court receiving it, provided the sworn or affirmed original was filed before this decision.
Ultimately, the evidence in the hearing was as follows:
1.An affidavit of Mr Hammond dated 12 July 2017, which annexed a number of materials which I will outline shortly (exhibit 1).
2.A further affidavit of Mr Hammond dated 15 August 2017, which annexed a psychological report prepared in respect of the applicant in 2013 (AGH 1A), prison medical notes concerning the applicant from 4 October 2016 to 26 May 2017, and a note from an officer at Casuarina Prison confirming that the prison records show that the applicant has attended Alcoholic Anonymous sessions in the chapel at the prison on 16 occasions from 18 February 2017 until 22 July 2017 (exhibit 2).
3.An affidavit sworn by the applicant on 17 August 2017 (exhibit 3);
4.Transcript of proceedings before Judge O'Neal of the District Court of Western Australia on 19 November 2010 concerning the sentencing of the applicant after trial for offences of unauthorised impairment of electronic communications (exhibit 4);
5.Transcript of proceedings before Judge Braddock of the District Court on 23 January 2014 concerning the sentencing of the applicant for 35 counts of fraud and one count of dishonestly obtaining or dealing in personal financial information (exhibit 5);
6.A statement from Senior Constable Wilson concerning an incident on 12 June 2016, in which the applicant was found in possession of drug paraphernalia, a number of mobile telephones and another person's identification card;
7.A statement of Senior Constable Knight about an incident on 18 July 2016, in which the applicant was in possession of a backpack containing numerous items of identification, being motor driver's licences and a blood donor card, belonging to five other people;
8.A statement of Detective Senior Constable Thomas outlining the evidence in respect of an investigation into the offences with which the applicant has been charged concerning numerous frauds alleged to have been committed on a betting agency called 'bet365';
9.The record of the applicant's criminal history dated 8 February 2017;
10.A copy of an affidavit dated 15 August 2017 of Ms Reti, a community corrections officer with DCS, working at the Rockingham Adult Community Corrections Office, who was one of the officers responsible for the administration and supervision of the applicant's home detention bail and outlines his history on bail from that time;
11.A copy of an affidavit of Detective Sergeant Lewis dated 14 August 2017, the sworn original of which has now been received by the court, which outlines the police investigation into the fraud offences alleged to have been committed by the applicant on two taxi companies and in respect of rented accommodation.
Mr Hammond's first affidavit (exhibit 1) provides information about the charges that have been brought against the applicant and the applicant's instructions in respect of his personal circumstances and proposed accommodation. Annexed to the affidavit are the transcript of the bail application before Magistrate Lawrence, certified copies of the relevant prosecution notices, a document purporting to be a psychological report (which was heavily redacted), letters from a number of persons (including an undated letter from the applicant in which he set out his version of events in relation to his failure to provide a sample for urinalysis on 6 January 2017), and a certificate dated 23 March 2017 confirming the applicant's participation in the Life Skills Re‑Entry Brief Intervention Program at Casuarina Prison.
The psychological report annexed to that affidavit, annexure AGH 3, is of little worth in these proceedings, without intending any disrespect to its author. It is dated 11 November 2014, and appears to have been a report prepared after the applicant was referred by the Prison Counselling Service at Casuarina Prison to the Specialist Counselling Service because he was demonstrating 'significant difficulty understanding prison requirements' and was 'struggling to cope with prison routines and with interactions with staff and other prisoners'. He was serving the term of 12 months' imprisonment imposed on him by Braddock DCJ on 23 January 2014. The report bears a DCS header and purports to have been prepared by a Clinical and Forensic Psychology Student, whose name has been redacted. There is no indication that it has been endorsed by a supervisor. The description of the author self‑evidently indicates that the author was not a qualified expert, certainly not for the purposes of providing opinion evidence on which the court could rely. In any event, the assessment appears to have been made for management purposes, not for court proceedings. The report is heavily redacted in areas where the basis for the assessment, in particular in respect of the applicant's Full Scale IQ score, is set out. To the extent that the report was relied on by the applicant in support of his claim that he suffers from Autism Spectrum Disorder, it provides no such report. At most, it raises a question about the need to explore that possibility, indicating it would require independent assessment by a psychiatrist, clinical psychologist and speech pathologist, and would require an examination extending back into the applicant's developmental years.
While the report provides information that could be relied on concerning the applicant's behaviour, both as recorded within the prison and observed by the author, it concerns behaviour from three years ago and does not assist me to make any findings about his behaviour or functioning now.
As I have indicated, Mr Hammond's first affidavit (exhibit 1) annexed a letter from the applicant and referred to his instructions. I was not prepared to rely on that information as evidence of the truth of the things the applicant had said. That was because of his antecedents, which include a history of fraud offences, obstructing police and similar offences. Those antecedents indicate that he is prepared to be dishonest to achieve objectives, and he is prepared to impede investigations. I note also that in 2010, Judge O'Neal made adverse findings about the applicant's credibility, saying he would not be prepared to rely on anything said by the applicant unless it was supported by other evidence he accepted. It seems to me there is nothing in the materials to indicate that the applicant has reformed so as to render that approach no longer appropriate. Indeed, the findings made by Judge Braddock in 2014 suggest that she, too, placed little weight on the applicant's explanations for his offending.
I also note that the materials before both Judge O'Neal and Judge Braddock included psychiatric reports, in which the examining psychiatrists diagnosed the applicant with an antisocial personality disorder. Both judges considered the personality disorder, rather than any organic or other mental impairment, to be the underlying psychiatric factor in the applicant's offending.
The applicant has now sworn an affidavit in which he purports to give explanations for the incidents that resulted in his bail being revoked. He also gives evidence about his current condition in prison.
The State did not wish to cross-examine the applicant on his affidavit. However, the State's submissions were to the effect that the applicant cannot be relied on because of his history and the implausibility of his explanations for the breaches of bail. Having regard to the applicant's antecedents, in particular his history of gross dishonesty, and taking into account the findings made by Judge O'Neal and Judge Braddock, I am of the opinion that I should not rely on any assertion of fact by the applicant that is in contention unless it is supported by independent evidence. In his affidavit, the applicant claims that he is easily manipulated, yet his history, and the findings made by Judge O'Neal, show that he has been manipulative, such that one must be cautious before relying on claims made by the applicant, whether in respect of past events or his current functioning.
Consideration of Clause 3 factors
As I have indicated, while the Bail Act does not place a legal onus on either party, the law is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. If there is such material, the court's discretion is engaged, which involves a weighing of factors for and against the grant of bail.
It is convenient then to commence with the factors in cl 3 that inform the answers to the questions in cl 1 (whether there are grounds for refusing bail) that are relevant in this case.
Clause 3(a) ‑ The nature and seriousness of the offences and probable method of dealing with the accused if convicted
The charges
The charges consist of:
(1)One count of possession of a prohibited drug (methylamphetamine) with intent to sell or supply it to another: s 6(1)(a) Misuse of Drugs Act 1981 (WA), the maximum penalty for which is a fine of $100,000 or 25 years' imprisonment or both;
(2)Seven counts of gaining a benefit by fraud: s 409(1)(c) Criminal Code (WA), the maximum penalty for which is 7 years' imprisonment;
(3)Five counts of attempting to gain a benefit by fraud: s 409(1)(c) and s 552 Criminal Code, the maximum penalty for which is 3 years and 6 months' imprisonment;
(4) Eleven counts of causing a detriment by fraud: s 409(1)(d) Criminal Code, the maximum penalty for which is 7 years' imprisonment;
(5)One count of attempting to cause a detriment by fraud: s 409(1)(d) and s 552 Criminal Code, the maximum penalty for which is 3 years and 6 months' imprisonment
(6)Three counts of possession of stolen or unlawfully obtained property: s 417(1) Criminal Code, the maximum penalty for which is 7 years' imprisonment;
(7)Nineteen counts of making, using or supplying identification material with intent to commit an indictable offence: s 490(1) Criminal Code, the maximum penalty for which is the greater of either 7 years' imprisonment or the penalty to which the person would have been liable if convicted of attempting to commit the indictable offence;
(8)Twenty‑four counts of possession of identification material with intent to commit an indictable offence: s 491(1) Criminal Code, the maximum penalty for which is 5 years' imprisonment;
(9)One count of indecent assault: s 323 Criminal Code, the maximum penalty for which is 5 years' imprisonment;
(10)Two counts of possession of drug paraphernalia in or on which there was a prohibited drug or plant: s 7B(6) Misuse of Drugs Act, the maximum penalty for which is a fine of $36,000 or 3 years' imprisonment or both;
(11)Three counts of possession of a prohibited drug (methylamphetamine and cannabis): s 6(2) Misuse of Drugs Act, the maximum penalty for which is a fine of $2,000 or 2 years' imprisonment or both.
The possession offences under the Misuse of Drugs Act are all simple offences, except for the possession with intent to sell or supply, which is an 'either way' offence, that is, it may be dealt with either on indictment or summarily. The fraud offences are 'either way' offences, except for two counts, which must be dealt with on indictment as they are for values in excess of $10,000. The offences under s 490(1) of the Criminal Code are indictable only, and the indecent assault, possession of stolen or unlawfully obtained property, and the offences under s 491(1) of the Criminal Code are 'either way' offences.
The alleged facts
The facts alleged in respect of the offences are set out in the statements of material facts prepared by the police. They also emerge from the statements of police officers and the affidavit of Detective Sergeant Lewis (exhibits 6 ‑ 8 and 11).
By way of overview, Detective Sergeant Lewis states that the applicant came to the attention of the Major Fraud Squad as a result of a number of complaints made by different businesses and individuals. In each case, an allegation of fraud was made after it was discovered that fraudulently obtained credit cards were being used by an individual to obtain various goods and services online. The investigation ultimately resulted in charges which allege that by fraudulent means the applicant obtained goods and benefits, or caused a detriment in the form of monetary loss to the total value of $206,681 and that he attempted to gain goods or benefits to the value of $678. It is alleged that the applicant committed the frauds or attempted to commit fraud by procuring and using various identification documents belonging to other people, including copies of motor driver's licences, bank details and credit card numbers, to facilitate the commission of the offences. He was in possession of the identification documents unlawfully. The credit card numbers were from stolen or compromised credit cards.
The most significant fraud is alleged to have been committed from 20 November 2015 to 8 May 2016 upon Hillside (Australia New Media) Pty Ltd trading as bet365. The applicant is alleged to have defrauded that company of $161,051 (charge PE 50272/2016). It is alleged that the applicant used identification material in the names of other persons to create 17 false accounts with that betting agency. Funds were paid into the bet365 accounts using unlawfully obtained credit card details. Funds were withdrawn from some of the bet365 accounts and paid into one or more accounts held by the applicant with the Bank of Queensland.
The next most significant fraud was committed on Swan Taxis, causing a monetary loss of $2,739.98 from 8 December 2015 to 4 January 2016 and $15,359.40 from 4 January 2016 to 21 January 2016. The applicant is alleged to have used an online application provided by Swan Taxis which could be downloaded to a smart phone or mobile device. The application allowed customers to register a personal account, which could then be used to make taxi bookings. Customers were required to register a credit card number against their name, which would be used to pay for any taxi fares incurred for bookings through the application. During the first period of alleged offending, the applicant is alleged to have created an account under a false name, using the application. He provided a mobile telephone number. He then linked seven credit cards to the account, which he used to pay for taxi fares booked during the period. The credit card numbers were obtained by fraudulent means and were used without the knowledge or consent of persons who actually held the credit card accounts. During the second period of alleged offending, the applicant is alleged to have created a new account through the application in a different false name. On this occasion, he is alleged to have linked five credit card numbers to the account, which he used to pay for taxi fares booked during the period. Again, the credit card numbers were obtained by fraudulent means and were used without the knowledge or consent of the persons who actually held the credit card accounts.
The online payment processing system used by Swan Taxis in operating the booking application was administered by Westpac Bank. Once the bank discovered that the credit cards had been stolen or compromised and the transactions were not authorised, Swan Taxis incurred what is referred to as a 'chargeback' from the bank. The company became liable for the fares charged to the credit cards, thus incurring the loss of over $18,000 to which I have referred.
The other fraud offences with which the applicant is charged involved the ordering of goods and services (predominantly accommodation) using internet services. Similarly to the conduct in respect of bet365 and Swan Taxis, the applicant is alleged to have used false names when ordering the goods and services and to have paid, or attempted to pay, for the goods and services by using credit card details which he had no authority to use. It is alleged that his conduct included presenting false identification. In relation to frauds alleged to have been committed on a business known as Epic Delivery, which provided an application for smart phones and mobile devices for ordering goods online, which would then be delivered by drivers for the business, customers were required to register a personal account and credit card details, similarly to the circumstances in the bet365 and Swan Taxi cases. The applicant is alleged to have offended in a similar manner to those cases, and the frauds were discovered when the business received 'chargebacks' from their bank.
The charges concerning the use or supply of identification material relate to the applicant's alleged use of such material, including the fraudulent use of a driver's licence, to commit the various frauds. The charges of possessing identification material with intent to commit an indictable offence relate to items found in his possession on 12 June 2016 and 18 July 2016.
On 12 June 2016, police became aware the applicant would be arriving at an address in Beaconsfield in a taxi. They were waiting at that address when he arrived. He was in the back of the vehicle and was seen to rummage in a bag. He left the bag in the vehicle when he got out. He also removed his jacket and left it on the back seat. When police approached the applicant, he volunteered that none of the things in the back of the vehicle were his. When the items in the back of the vehicle were searched, police found five identity cards in the name of TA[7], three identity cards in the name of PAO and a driver's licence in the name of PKRA. On that occasion, the police also found a small quantity of methylamphetamine and a smoking implement among the possessions. I note that TA was one of the names which the applicant is alleged to have used in booking accommodation.
[7] For the purposes of these reasons, it is not necessary to state the names of the complainants, hence I will use only their initials.
On 18 July 2016, the applicant went to a supermarket in Baldivis. He had two bags with him. He left those bags in a shopping trolley with some groceries when he went to look for a female associate who had been with him, but had left the shop. The manager moved the items to a safe location. When the applicant returned to the shop, he confronted the manager about his belongings. The police were called and, in a subsequent search of his belongings, they found four drivers' licences belonging to other persons, an Occupational Health and Safety Construction Induction card of one ARN, which had his identification number and signature, a Red Cross blood donor card belonging to one GS, which identified his date of birth, blood type, donor identification number and signature, and a damaged Mastercard debit card in the name of one CH. CH was another name the applicant is alleged to have used in booking accommodation. Two of the drivers' licences belonged to people who had renewed their licence, but had not received it in the post as expected. The other two drivers' licences and the blood donor card had been stolen from a vehicle parked outside a residence on 4 June 2016.
The indecent assault charge concerns an incident on 17 July 2016. The applicant was staying in short-stay rented accommodation in Subiaco, which he is alleged to have acquired by fraudulent means, using the name of CH and credit card details he was not authorised to use. He is alleged to have used a false (female) name to book a domestic house cleaner to attend the unit he was renting for the purposes of cleaning the unit. However, he made inappropriate overtures in text messages that he would give her a massage if she was interested. The cleaner, JST, nevertheless attended the unit. She went in a vehicle with her daughter. Inside the unit, the applicant told JST she should take off her clothes. He grabbed her bottom. When she told him to stop, he said he wanted to have sex with her. When she declined, he started to unzip his pants and said he wanted topless cleaning. He then tried to touch the complainant's breasts. The complainant stopped the applicant and pushed him away. She made an excuse to leave the unit. She told her daughter what happened, and they returned to the unit, where the complainant's daughter recorded the applicant on her mobile telephone. He was wearing only a towel at that stage. The applicant was arrested for the offence on 6 September 2016.
Seriousness of offending and the probable method of dealing with the accused if he is convicted
All of the offending is objectively serious. The applicant concedes that given the nature and seriousness of the offences, the probable method for dealing with the applicant for them, if he was convicted, would be terms of immediate imprisonment. In my opinion, a significant term of imprisonment would be almost inevitable. Obviously, the length of any term of imprisonment will depend on what offences he is convicted of and the findings made about the circumstances of the offences by the court. However, it seems to me, having regard to the alleged facts as contained in the materials before me, that if the applicant is convicted of the most serious of the offences, the sentence is likely to be a very substantial term of imprisonment.
If the applicant were to be convicted of all the fraud offences, they would constitute of a persistent course of conduct over a lengthy period involving planning and a degree of sophistication in the use of false identification material and unlawfully appropriated credit card details. While some of the applicant's alleged conduct left a trail that enabled the police eventually to connect the offending to him, it was nevertheless offending of a very serious kind, resulting in very significant losses to a number of complainants. Viewed against the background of the applicant's previous convictions for fraud, particularly on 23 January 2014 when he was sentenced to a term of imprisonment by Braddock DCJ (see details below), the offending would require the imposition of individual sentences and a total effective sentence that reflected the need for personal deterrence, as well as general deterrence.
The applicant's possession and use of illicitly obtained identification material and credit card details with intent to commit indictable offences, if proved, would constitute an extensive degree of offending of that kind, with the potential to cause a great deal of mischief and harm to the owners of the documents and credit cards. He has previously been imprisoned for dishonestly obtaining or dealing in personal financial information (by Braddock DCJ on 23 January 2014). Again, personal deterrence would be a significant consideration in sentencing for the alleged offending in this case.
As for the indecent assault, while the physical acts were not of the most serious kind, the circumstances of the alleged offending were serious, involving as they did calculated behaviour in booking the complainant's services as a cleaner, and doing so in a false name, having rented the accommodation in another false name. The guile used in making the arrangements might be thought to be offset to some extent, however, by the offers in his text messages of a massage, which suggested a suspicious motive for the booking. Nevertheless, it was alleged offending of a different kind to the other alleged offending, so that, subject to the application of the totality principle, one would ordinarily expect a cumulative sentence for the indecent assault if the applicant were convicted of that offence as well as at least some of the other offences, although I note that the applicant is to be dealt with in the Magistrates Court for that offence, whereas the fraud offences are all likely to be dealt with on indictment.
On the basis of the facts that have been put before me that are alleged against the applicant, I agree with the State's submission that, if the applicant is convicted of the most serious of the fraud offences, he is likely to be sentenced to a term of imprisonment that exceeds the time he will have spent in custody, about which I will say more later. The total effective sentence is likely to be even longer if the applicant is convicted of the indecent assault offence and the offence of possession of a prohibited drug with intent to sell or supply. In either case, assuming that he would be sentenced to a term of imprisonment with eligibility for parole, in my opinion the time that he will have spent in custody would not be of a length that would exceed the non-parole period that he would be required to serve.
Clause 3(d) - Strength of the evidence against the applicant
A bail application is not an occasion for the court to make findings of credibility of witnesses who may give evidence at trial or to determine factual disputes that are to be litigated at trial and which may go fundamentally to the issue of whether the applicant is guilty of the offences charged. However, the strength of the prosecution case is a relevant factor under cl 3 and the court is required to make an assessment in that regard, if that is possible on the available information. It may readily be seen that it can affect the assessment of whether an accused is likely to answer his bail, there potentially being a disincentive if the case against him is strong, but it may also go to the question of whether the accused may commit an offence if not kept in custody. It may also be relevant to the question of whether an injustice will be occasioned if the accused remains in custody for a lengthy period on remand before trial.
As appears from my outline of the evidence tendered in the application and the other materials relied on (such as statements of material facts), I have available only a limited part of the evidence that would be adduced at trial. Nevertheless, there is sufficient information in the statements and affidavit of the police officers involved in the investigation to satisfy me that the case against the applicant may be regarded as a strong case in respect of the bet365 fraud offence, the two counts of fraud concerning Swan Taxis, the frauds committed on various providers of accommodation and the offences of possessing and using identification material with intent to commit an indictable offence. It is not necessary for the purposes of these reasons to canvass the evidence in detail. It is sufficient to refer to a number of items of evidence relied on by the State at the hearing as indicative of the strength of the prosecution case.
The case is largely circumstantial, although, in respect of the accommodation frauds and the frauds committed on Epic Delivery, the applicant was identified from photoboards by the accommodation providers and their employees and by one of the Epic Delivery drivers who delivered goods to the applicant. In relation to the applicant's alleged leasing of a property on Onslow Road in Shenton Park, the identification produced by the person who booked the accommodation was a driver's licence with the applicant's photo, but bearing another person's name.
The circumstantial case relies on the connection of various items found in the applicant's possession, or in premises occupied by him, to the names, usernames, telephone numbers and credit card details used in the commission of the frauds. It also relies on the connection between the various offences. For instance, goods ordered fraudulently from Epic Deliveries were required to be delivered to addresses where the applicant was staying under false pretences. Police also ascertained that the Internet Protocol (IP) addresses from which various accounts had been created on the bet365 website were connected with short‑term rental providers the applicant had dealt with. The applicant was located in two of the premises that had been rented by the use of fraudulent means, namely a unit on Mill Point Road in South Perth (on 2 August 2016) and a house in Finchley Street, Lynwood (on 15 August 2016).
Some of the other evidence upon which the State relies to submit that the case against the applicant is strong in relation to a number of the offences is as follows:
1.The discovery in the applicant's possession on 12 June 2016 of identification material (both as original items and digital images) matching the names used in creating the bet365 and Swan Taxis accounts and in booking accommodation.
2.The discovery in the applicant's possession on 12 June 2016 of keys to accommodation booked using those names.
3.Photoboard identification of the applicant by accommodation providers and their employees, and by a driver from Epic Deliveries (which I mentioned earlier).
4.The payment of funds from some of the bet365 accounts into Bank of Queensland accounts in the applicant's name. (Documentation used in the creation of those accounts has been obtained by the police, but it was not produced in these proceedings.)
5.The discovery in the applicant's possession, when he was arrested on 2 August 2016 of a Bank of Queensland debit card, linked to one of those accounts.
6.The discovery of other identification material, including material which matched the names used in some of the fraud offences, in bags left in a shopping trolley abandoned by the applicant at the supermarket in Baldivis on 18 July 2016.
7.The use of the same names in the offences against bet365, Swan Taxis, and the accommodation providers.
8.Bet365 records which establish that multiple accounts were accessed using the same computer.
9.A Skype chat log between the applicant and a 'Lubos Mares' located on a mobile device seized from the Applicant, in which Mares provides the applicant with credit card details.
10.An audio recording of telephone calls made to bet365 by a male person using the same mobile telephone number linked to fraudulent activity against bet 365. The recording was not produced in these proceedings. It is referred to by the investigator, Detective Sergeant Lewis as evidence identifying the applicant. I infer from that statement that the male voice on the recording sounds like the applicant, with whose voice Detective Sergeant Lewis is familiar, having spoken with the applicant.
11.One of the fraudulent accounts with Swan Taxis was created by an individual using a mobile number which was associated with a mobile telephone given to the applicant by a witness, Ms Fazzino.
12.Lies told by the Applicant denying possession of items seized from him, such as identifying material belonging to other persons, which may be regarded as evincing a consciousness of guilt in respect of the manner in which he came into possession of those items and the intention with which he possessed them.
The combination of circumstances established by that evidence provides a compelling case, prima facie, that the fraud offences charged were committed and that the applicant was the perpetrator.
As for the alleged indecent assault, it is unlikely that the identity of the applicant will be in issue if, as the statement of material facts states, the applicant was recorded on a mobile telephone by the complainant's mother shortly after he is alleged to have committed the offence. It seems the real issue will be whether he did the things alleged by the complainant. The fact that she made an immediate complaint to her daughter is a fact that may be regarded as buttressing her credibility. However, it is not necessary to say more than there is nothing to suggest the case for that offence lacks cogency.
Counsel for the applicant said that he has not been able to take instructions from the applicant in relation to the alleged facts or the evidence that has been made available, essentially because of the applicant's failure to engage with counsel about those matters, and therefore he could not comment on the strength of the prosecution case. All that means, of course, is that there is no alternative position to consider when assessing the strength of the evidence against the applicant.
As I said earlier, on the material before me, I am satisfied there is a strong case against the applicant in relation to the most serious of the offences and, indeed, most of the fraud offences and the offences concerning identification material. It provides reason to consider that the applicant may not ultimately appear in accordance with a bail undertaking. The strength of the case also provides reason to consider that the applicant is someone who is likely to commit similar offences if he were released on bail, particularly if he is engaging in behaviour such as consuming illicit drugs, which tends to suggest recidivism into antisocial and unlawful behaviour. The evidence is that he committed accommodation fraud very shortly after being released on bail after he was arrested on 2 August 2016. He is alleged to have used a false (female) name to book the accommodation in Lynwood. He was located in those premises.
Clause 3(b) - Character and antecedents
The applicant is 31 years of age.
He has poor antecedents, with a criminal record commencing when he was a juvenile. Confining my consideration to his offending as an adult, I note in summary that the applicant has convictions for the following offences that are relevant to his attitude to bail and authority:
1.Unauthorised impairment of electronic communication (3 counts ‑ s 477.3(1) Criminal Code (Cth)) ‑ 19 November 2010 in the District Court of Western Australia (before O'Neal DCJ);
2.Assaulting a public officer, breaching bail and failing to comply with reporting obligations (2 counts) ‑ 3 December 2010;
3.Breaching bail, failing to comply with reporting obligations (2 counts), and giving false details to police - 10 May 2012; and
4.Escaping lawful custody and obstructing public officers (2 counts) ‑ 1 May 2014.
The offences of unauthorised impairment of electronic communication involved the applicant using an off-shore website to flood the WA Police email system on two occasions with tens of thousands of spam emails, and to do the same to the NSW Police email system on one occasion. The consequence in each case was to impair the email systems for some time. The content of the emails reflected the applicant's grievance with WA Police who had seized his computer. He was sentenced to a total of 12 months' imprisonment, but was released on a bond for 12 months to be of good behaviour. In effect it was a suspended sentence.
As I noted earlier, O'Neal DCJ made adverse findings as to the applicant's credibility. His Honour found that things said by the applicant to the psychiatrist who had prepared a report for the sentencing were simply untrue. His Honour also referred to two letters he had received from the applicant and said that he would not believe anything the applicant said unless it was confirmed by independent evidence he did accept. In particular, his Honour said that the applicant had lied to him on the first day of the trial as to the reason for his failure to attend on time. He also referred to information he had received suggesting the applicant was someone who was easily led, the implication being that the applicant had fallen into bad company and had been led astray. His Honour found, on the basis of the communications the applicant had with others who assisted him to commit the offences that he was the one doing the leading, and that he was the bad company.
The offences of failing to comply with reporting obligations, in respect of which the applicant was convicted in December 2010 and May 2012, relate to his obligations under the Community Protection Offender reporting) Act 2004 (WA), which appear to have arisen from his conviction of Indecent Assault in the Perth Magistrates Court on 6 May 2009.
In addition, the applicant has numerous other convictions for offences of dishonesty.
On 7 May 2010, when he was aged 24, he was convicted of an offence of attempting to gain a benefit by fraud, and was placed on a community‑based order for 9 months.
On 3 December 2010, in addition to the convictions referred to earlier for that date, the applicant was convicted of offences of Forging and Uttering, with intent to defraud, for which he was sentenced to 6 months' imprisonment (as part of a total effective term of 12 months' imprisonment) suspended for 11 months. He subsequently breached that suspended imprisonment order (and a concurrent order for other offences) by committing further offences from March 2011 to October 2011. He was dealt with for some of those offences on 10 May 2012 and for others on 23 January 2014. I have already referred to some of the offences of which he was convicted on 10 May 2012. In addition, on that date the applicant was also convicted of possessing a prohibited drug and possessing a smoking utensil, committed in October 2011.
On 14 January 2014, the applicant was convicted in the District Court, on his pleas of guilty, of 35 offences of gaining a benefit by fraud (s 409(1)(c) Criminal Code (WA)) and one count of dishonestly obtaining or dealing with personal financial information (s 480(4) Criminal Code (Cth)), which were committed in August and September 2011. On 23 January 2014, he was sentenced to a total effective sentence of 12 months' imprisonment, with eligibility for parole.
Finally, I note that, in addition to the offences of escaping lawful custody and obstructing public officers, on 1 May 2014 the applicant was also convicted of four counts of attempted fraud, one count of fraud, three counts of unlawful possession of stolen or unlawfully obtained property and one count of possessing a prohibited drug. Most of those offences were committed on 10 December 2012, although there were other dates of offending until 3 October 2013.
Apart from information concerning the applicant's cognitive functioning and psychiatric assessments, there is no evidence concerning his background and personal circumstances generally except as emerges from historical materials, including the transcripts of proceedings before O'Neal DCJ and Braddock DCJ. I will come back to the submissions made about his cognitive functioning when dealing with the submissions made by the applicant's counsel.
Mr Hammond's first affidavit, exhibit 1, annexed a number of references, being from:
1.Reverend Graham Wright, the Co-ordinating Chaplain at Casuarina Prison, who says, in a letter dated 25 May 2017, he has provided the applicant with pastoral care for over three years in an attempt to assist the applicant to avoid further imprisonment. This has included providing the applicant with a support network, including membership of a local church in Rockingham. He also confirms the applicant has attended Alcoholic Anonymous meetings in the prison chapel;
2.Jack Simpson of Crossroads Prison Ministries of America, who says in a letter dated 9 June 2017 that in May 2017 the applicant recommenced a Bible Correspondence Course and has made a good effort to complete all the work;
3.Nicole Buckland, a close friend of the applicant, who expresses her loyalty to the applicant and a desire to assist him in the community;
4.Francesca Welte, another close friend of the applicant, who worked with him at Telstra. She speaks about the stress the applicant has been under due to family separation. She is also loyal to the applicant and purports to vouch for his character, including his trustworthiness. Although she may be correct in identifying certain positive qualities in the applicant, her assessment about his trustworthiness is clearly at odds with his criminal record and the evidence concerning the offences, to which I have referred. Otherwise, her letter contains inadmissible opinions about the causes of his offending;
5.Sandra Bogers, the applicant's mother. As would be expected, she remains loyal to and supportive of the applicant.
I accept that each of those persons is a person of integrity, honestly expressing their opinion and/or support. However, none of the information detracts from the view I have formed about the applicant's antecedents, as discussed above, or about the seriousness of the alleged offending and the strength of the evidence against the applicant. I will take the material into account in the exercise of my discretion, but it does not carry great weight in light of the applicant's breaches of the conditions of his bail.
From the oral pre-sentence report provided to Braddock DCJ on 23 January 2014, I glean the following that may be of relevance. The applicant has a sister. He was living with his mother and sister while he was on home detention. In the past he has lived intermittently with both parents, who are separated. He attended school until the end of Year 10. He has an 'inconsistent' employment history. His father provided him with a computer and a computer training course and he was employed in the area of his computer skills (which I assume was the period he was employed at Telstra) until he was charged with the offences of unauthorised impairment of electronic communications in 2008. I have no information about any further employment. He has no assets or savings of significance.
The applicant has been of sound physical health. As at January 2014, he had been diagnosed with an antisocial personality disorder and with intermittent psychotic symptoms which appear to have been associated with drug use. The episodes were said to usually precede court appearances and to cease when his access to drugs was cut off. He has a history of drug use since the age of 13, cannabis and amphetamines being among his drugs of choice. The applicant has previously been referred to alcohol and drug rehabilitation services, but as at January 2014, his level of compliance had been poor and there had not been any significant gains. The applicant's antisocial personality disorder was regarded as requiring very intensive, specialised therapy. He was regarded as having little insight into his condition.
I accept the evidence tendered on behalf of the applicant that he has been attending church regularly while in custody on remand. While it is laudable that the applicant is giving attention to his spiritual well-being, it does not assist me to assess whether the applicant has taken steps to gain insight into his risk of offending. I also note other evidence tendered on his behalf that the applicant has attended Alcoholics Anonymous meetings on a regular basis since February 2017, at least until 22 July 2017, and that recently he has attended two meetings of Narcotics Anonymous. However, again, while laudable, the information does not indicate what insight the applicant has gained into his alcohol and drug use. I have not been provided with any psychological or psychiatric assessment in that regard.
Clause 3(c) - History of any previous grants of bail
As I noted earlier, the applicant has a conviction for breaching bail in May 2012. The applicant submits that little weight should be placed on that conviction because it occurred several years ago and the applicant has answered his bail on occasions when he has been granted bail since then. In isolation I would agree, but it needs to be considered in the light of at least two factors which, in my opinion, elevate the significance of the conviction.
First, as I noted earlier, the applicant was convicted of escaping lawful custody and obstructing public officers in May 2014, so the interim period (since May 2012) has not been devoid of conduct that raises concerns about whether the applicant would appear in answer to his bail. Secondly, the applicant has not previously been charged with the number of offences he now faces. It is true that he attended court in answer to his bail during the periods he was on bail for those offences, and the contravention was in relation to conditions intended to reduce his risk of offending. However, on the information placed before me on behalf of the applicant, he has not engaged in discussion with his counsel about the factual allegations and the evidence against him. His compliance with his undertaking to appear must be regarded in that context and it does not necessarily speak for the attitude he may have once he has a proper appreciation of the case against him and that he may be facing a lengthy term of imprisonment if convicted. Therefore, I cannot ignore the previous conviction for breach of bail.
I turn to his contravention of the bail conditions in respect of the charges the subject of the application. The State submits that the applicant's non‑compliance with the important conditions of his bail concerning drug use and testing militates against the grant of bail.
On 15 November 2016, the applicant provided a sample for urinalysis that was void, due to the temperature being outside of acceptable levels. Obviously, the temperature of a sample will indicate if it has been produced from the body at the time of collection or has been artificially introduced, in which case it may not be the subject's sample, or it may be a sample produced by the subject at an earlier time. In either case, it is a means of avoiding detection of drugs or metabolites in the subject's body at the time of collection.
After the void sample on 15 November 2016, the applicant then provided a second sample, which tested positive for the presence of methylamphetamine. The inference to be drawn from a positive result is that the applicant used methylamphetamine and, therefore, was in possession of that drug. The applicant states in his affidavit that he believes the result was a false positive. No basis is provided for that belief. The statement is not a denial of use of the drug. The information contained in Mr Hammond's first affidavit suggested that the applicant denied using the drug, but in light of the applicant's affidavit, I place no weight on that information.
In any event, the applicant's bail was revoked, but he was then released on home detention bail again on 12 December 2016.
On 23 December 2016, the applicant again provided a sample for urinalysis. While it did not test positive for the presence of a prohibited drug, concerns were raised about the integrity of the sample, as temperature and creatinine levels were just within tolerance thresholds. It was submitted on behalf of the applicant that I cannot draw any adverse inference from that information, because if the levels were within tolerance thresholds and the sample was not treated as void, it must be accepted that the applicant provided a valid sample. In my opinion, the fact that the sample was not regarded as void, because it was within tolerance levels, does not invalidate the concerns raised about the integrity of the sample by those conducting the testing. I accept that no adverse inference can be drawn against the applicant from the information, but it provides context for the testing that followed and the vigilance of those conducting the testing.
On 30 December 2016, the applicant provided a sample that was void, as it was outside the required temperature threshold. In her affidavit (exhibit 10), Ms Reti states that Pathwest reported that the applicant had difficulty providing the sample, citing 'stage fright', and requested to leave and come back. That was not allowed, but he was permitted to go to the cafeteria to get some water. Pathwest staff claimed they went to look for him and that he could not be seen. Ms Reti refers to a telephone call allegedly made by the applicant before leaving, which would suggest he was engaging in behaviour to defeat the testing, but I am not prepared to have regard to that information without direct evidence about the incident. What I accept is that the applicant returned a short time later and provided the sample that was void, and that, despite being advised the sample was void because its temperature was outside the valid range, he declined to provide a second sample.
In his affidavit, the applicant proceeds on the basis that the sample of 30 December 2016 was void because it had irregular creatinine levels, and says he is unsure why that would be the case. The assumption is incorrect. He provides no explanation why the sample would be outside the valid temperature range. In the absence of any challenge to the test result that the sample was void, I accept the test result was as described by Ms Reti, and I am satisfied that the only reasonable explanation is that the sample was not one produced naturally by the applicant at the time of testing.
On 6 January 2017, the applicant failed to provide a sample. According to Ms Reti, the information provided to DCS by the person at Pathwest who requested the sample and was overseeing the provision of the sample was that the applicant appeared to be using a rubber tube to squeeze urine into a cup from a 'substituted urine sample'; in other words, one he brought to the collection centre with him. Of course, if that were the case, one could have no confidence that it was his urine sample or, even if it was, as to when it was produced. It would be an attempt to deceive the testers as to the true situation concerning the presence of any drug in his system at the time of testing.
DCS was informed that when confronted about what he was doing by the collector, the applicant denied using such a device, but refused to lower his trousers to confirm he had nothing there. He became agitated and was asked to leave the collection centre. The outcome was that he failed to provide a sample, in breach of a condition of his bail.
In his affidavit, the applicant claims that when he arrived for testing that day, he was told that the cameras were not working, and that the nurse, who was female, was going to have to visually confirm that he was producing the sample naturally. I surmise that cameras were normally used for such visual confirmation. He claims that he felt extremely uncomfortable because the nurse was female. He also claims that while he was urinating, the nurse reached for his penis and said, 'What's that?' He claims that at that stage there was only a small amount of urine in the cup and that it spilt onto the floor as a result of the nurse's action. He claims the nurse then accused him of 'having a fake penis', and that, embarrassed and angry, he shook his penis so she could see it was real. He then claims she told him to take all of his clothes off, and that, 'in a fit of extreme anxiety', he quickly pulled his pants up and left the building. He claims he immediately called DCS and explained what had happened, but was told there was nothing he could do. He claims that when he got home, he again called DCS and asked whether he could take the test again with a male nurse. He says he was told that would be fine, but that DCS did not get back to him.
The applicant's history establishes that he can be a fabulist. As I noted earlier, I am not prepared to rely on his account unless it is supported by independent evidence that I accept to be credible. His account is not supported by any independent evidence, in any respect. In my opinion, it is fanciful. I note, in passing, that the circumstances alleged in respect of the indecent assault offence, if established, would suggest that any claim by the applicant that he is very uncomfortable performing an act such as providing a urine sample in the presence of a female Pathwest technician is tenuous, at best. I note also that he does not say in his affidavit that he asked for a male nurse or technician to be present instead, which one might have expected if he was truly uncomfortable. In any event, I do not accept his account. I put it to one side.
However, the applicant's counsel submitted that I should not rely on hearsay evidence in respect of this issue. That is, I should not make a finding, on the basis of Ms Reti's affidavit, that the applicant in fact used an artificial device in an attempt to defeat the testing procedure. I agree.
Clearly, even on the applicant's account, he was accused of using an artificial device, so I would be prepared to find that the accusation was made. That would tend to suggest the technician believed him to be using such a device. However, given the seriousness of such conduct, if proved, I would only make a finding that the applicant actually used such a device on the basis of direct evidence, even if only in the form of a report or other record made by the Pathwest technician. No such report or record was produced.
However, the absence of such a finding does not assist the applicant. What I am left with is the fact that the applicant failed to provide a sample, with no acceptable explanation for that failure. That, of itself, suggests an attempt to avoid the consequences of urinalysis testing. In light of his history of a positive sample on 15 November 2016 and the void sample on 30 December 2016, his conduct is consistent with an attempt to avoid detection of drug use.
As far as the positive result for methylamphetamine in November 2016 is concerned, it is the case that, notwithstanding that result and the fact that his bail was breached, the applicant was again released on home detention by the Magistrates Court on the Intellectual Disability Diversion Program in December 2016. However, that does not detract from the significance of his behaviour until that point in time, as indicative of someone who is not likely to comply with the conditions of his bail and who poses a risk of further offending. I note that the testing on the occasion when the applicant provided the positive sample was instigated after his mother and his sister, with whom he was living as part of the home detention bail, reported that he was behaving aggressively and was suspected of using drugs. It was not simply a situation in which the results were discovered by way of random testing. There is information to indicate that his drug use was affecting his behaviour.
I am satisfied that the applicant was deliberately in breach of the conditions of his bail in providing a void sample and then failing to provide a sample. I do not accept his account that he tried to arrange to return to the collection centre to provide a sample in the presence of a male nurse or technician.
Clause 1(a)(i) - Whether if not kept in custody, the applicant may fail to appear in accordance with his bail undertaking
Having regard to a combination of factors, I am of the opinion that the applicant may not appear in accordance with his bail undertaking, if released on bail. Those factors include:
1.the applicant's antecedents, including the convictions which I identified as demonstrating a negative attitude to bail and authority;
2.the strength of the evidence against him in respect of the most serious offences and the likelihood that he would be sentenced to a lengthy term of imprisonment if convicted;
3.the applicant's non-compliance with conditions of his bail designed to prevent him from regressing into criminal behaviour, by prohibiting drug use.
As to the second point, as I said earlier, the applicant's previous compliance with the undertaking to appear gives me no confidence that he would appear once he has a proper appreciation of the case against him.
Clause 1(a)(ii) - Whether if not kept in custody, the applicant may commit an offence
In outlining the offences with which the applicant is charged and strength of the evidence against him, I have identified circumstances that raise concerns that the applicant may commit offences of the kind with which he has been charged if he is not kept in custody.
Of specific relevance is the fact that he is alleged to have committed a number of the offences with which he is charged while he was on bail for other offences, with which he is also charged. A series of offences of attempted fraud, fraud, possession of identification material with intent to commit an indictable offence and possession of methylamphetamine with intent to sell or supply, which are alleged to have been committed on 1 and 2 August 2016,[8] were allegedly committed while he was on bail for offences in respect of which he was charged on 22 July 2016.[9] On 2 August 2016, he was arrested at the Mill Point Road address in South Perth, of which he is alleged to have gained occupation by fraudulent means. Having then been released on bail in respect of 18 offences with which he was charged that day, including the accommodation fraud, he is alleged to have committed a further accommodation fraud in precisely the same manner between 10 and 16 August 2016,[10] and to have been in possession of methylamphetamine[11] and cannabis[12] on 16 August 2016. As I outlined earlier, on 16 August 2016, he was located in the accommodation he is alleged to have obtained by fraud in Lynwood.
[8] PE 44690 - 97/2016.
[9] FR 7600 - 02/2016.
[10] PE 46457/2016.
[11] PE 46458/2016.
[12] PE 46459/2016.
After being released on bail in respect of offences with which he was charged on 9 August 2016 and 16 August 2016, the applicant is alleged to have committed the offence of being in possession of stolen property on 31 August 2016.[13]
[13] RO 6333/2016.
Against that background, it might be thought that he was fortunate to have been released on bail on each occasion he was charged. However, it would appear that, taking into account cl 1(e), which is part of the statutory mechanism that gives effect to the presumption of innocence, the court considered that home detention bail would be a means by which the possibilities of the applicant not appearing and/or committing an offence could be sufficiently removed.
The applicant relies on the fact that he has not been charged with any offence alleged to have been committed while he was subject to home detention bail, and submits that I should regard home detention bail as a sufficient means for removing the possibility that he would commit an offence if released on bail. However, the indications that the applicant was relapsing into illicit drug use, in particular the positive result for methylamphetamine which indicates that he had come into possession of methylamphetamine, which is an offence, undermine the confidence the court could have in home detention removing the possibility of the applicant offending again in the manner he had before. Obviously, the fact that he would be required to reside at specified premises would remove the risk of him committing the kind of fraud by which he gained access to accommodation, but the most significant alleged frauds previously related to the betting agency and Swan Taxis.
Clause 1(c) - Whether the prosecutor has put forward grounds for opposing the grant of bail
In his affidavit, Detective Sergeant Lewis refers to another matter that I consider to be relevant to at least two aspects of the bail application. First, it tends to undermine further the confidence one can have in the applicant complying with his bail undertaking. Secondly, it also tends to reinforce concerns that the applicant would commit an offence if released on bail. The evidence was not challenged. Detective Sergeant Lewis states:[14]
The accused has shown a propensity to do whatever he can to deflect Police attention away from him, this includes sending an email to the Major Fraud Squad after he was charged. The accused attempted to disguise the email address to make it look like it had been sent by the United States Federal Bureau of Investigations (FBI). The context of the email was that the accused was a source of the FBI and all charges against him should be dropped.
[14] Exhibit 11 [21].
Detective Sergeant Lewis does not provide particulars of when the email was received or the email address from which it was sent. Nor does he explain how the police were able to attribute the email to the applicant, beyond the obvious inference that can be drawn from the content. I infer from the attribution that it was received by the Major Crime Squad while the applicant was on bail, when he would have had access to a computer for sending emails. Given the applicant's history, it would appear to be a reasonable conclusion that the email was sent by the applicant. He had the obvious motive. In any event, the officer's statement in his affidavit has not been challenged.
While the audacity of the email suggests the applicant must be naïve, which may be consistent with the submission made on his behalf that he may have cognitive deficits, it is also consistent with an antisocial personality disorder, which has previously been diagnosed. It tends to demonstrate a preparedness to use desperate measures to avoid facing the charges brought against him. It also demonstrates persistence with deceptive conduct, which underpinned the alleged offences.
The State submits that the applicant's failure to comply with conditions of home detention bail on more than one occasion is itself a significant reason why the court should conclude that releasing the applicant on home detention bail again is not appropriate. I did not request a report as to the applicant's suitability for home detention. Obviously, the issue is not whether the family home is a suitable place for home detention. Nor is there any question about the suitability of his mother and sister to provide support. The assessment of the applicant's suitability for home detention bail at this time depends on consideration of his behaviour while he was on bail, and any change in his behaviour or thinking since he was returned to custody. Moreover, the question ultimately is whether such bail would sufficiently remove the concerns I have that the accused may not appear in court and that he may commit an offence.
In my opinion, when bail conditions have been imposed as a protective measure for the community, in particular to address the risk of an accused committing an offence, repeated failures to comply with such conditions must eventually call into question the efficacy of those conditions to provide the intended protection. It should come as no surprise to an accused that repeated breaches of bail may have the consequence of bail being denied. That does not mean that the denial of bail is a punishment. Where it is justified, it is the result of an exercise of discretion to protect the integrity of the administration of justice and the community. That conclusion may be reached because necessary bail conditions may no longer be regarded as effective. That situation was reached in the applicant's case, in my opinion.
The applicant's submissions
As I noted earlier, the applicant concedes that, given the nature and seriousness of the offences, the probable method for dealing with the applicant for them, if convicted, would be terms of immediate imprisonment. However, he submits that, notwithstanding that possibility, he has answered his bail on each occasion he has been granted bail in respect of the various charges the subject of the application. Therefore, he submits, it is not a factor that should militate against the grant of bail.
The applicant also submits that the court can be satisfied for the purposes of cl 1(e) of sch 1 pt C of the Bail Act that home detention bail with strict conditions, including a requirement that the applicant submit to urinalysis testing (as before), would sufficiently remove any concerns that he may not appear in answer to his bail or that he may commit an offence. He submits that the support he will receive from his mother and sister, who again are willing to provide a home to which he can be released on bail, is a strong protective factor that, in combination with strict conditions, would safeguard against the risk that he would commit an offence and would ensure he would answer his bail.
The applicant further submits that his resolve to avoid relapse into drug use and offending will be bolstered by his dedication while in custody to pro‑social activities, such as attending church and Alcoholic Anonymous meetings.
In terms of discretionary considerations, the applicant relies essentially on two grounds in support of his application.
First, it was submitted on his behalf that he suffers from a cognitive disorder and that, as a result, his incarceration is more difficult and stressful than for someone who does not have that disorder. It was submitted that his condition has made it difficult for him to focus on providing counsel with instructions about the alleged offences. That is because his disorder has caused him to be obsessed about being released on bail, so that his counsel has not been able to engage the applicant in any meaningful way to obtain instructions about the charges. It was submitted that the applicant's incarceration, in those circumstances, is not in the interests of justice or of the community, because it hampers the prospect of resolving the prosecution of the charges by pleas of guilty, where they might be appropriate, or confining a trial (or trials) only to issues that are truly in contention. It was submitted further that it would be in the interests of the community for the applicant to be properly assessed for any cognitive deficits, in particular whether he suffers from Autism Spectrum Disorder, and that can only be done effectively within the community.
The applicant also relies on the time that he will have spent in custody if he is not granted bail before the charges would come to trial. Already, he has spent some seven months or so in custody. It was submitted on his behalf that the complexity of the case against him is such that almost inevitably there will be a substantial delay before it is resolved. It was submitted that, by the time he were to have a trial, at least in respect of the indictable matters that are to be dealt with in the District Court, it may be that he will have spent as much as 18 months in custody. It was submitted that such a period in remand would result in a serious injustice to the applicant. If he were eventually acquitted of the charges, he will have been incarcerated for a lengthy period as an unconvicted person. Even if he were convicted, the time he will have spent in custody is likely to exceed at least the non-parole part of any sentence that might be imposed.
Consideration of the applicant's submissions
I will deal with the applicant's submissions in the order in which I have outlined them.
Clause 1(e) considerations
I explained earlier why there are concerns that the applicant may not answer his bail, and why the fact he attended court while on bail for the charges the subject of this application does not provide confidence that he will answer his bail once he has a proper appreciation of the evidence against him, which may bring into greater focus the prospect of a lengthy term of imprisonment. I am concerned only with the possibility that he would not appear. That possibility is enhanced by the evidence I referred to earlier from Detective Sergeant Lewis concerning the email believed to have been sent by the applicant in which he has indicated a desire to avoid facing justice in respect of the charges.
I also explained earlier why there are concerns that the applicant would commit an offence if he were not kept in custody. I have taken into account the fact that the applicant has not been charged with committing any offence after he was released on home detention bail, but his repeated breaches of his bail conditions give rise to an enhanced risk that he would commit an offence. Further, the explanation given by the applicant in respect of his failure to provide a sample on 7 January 2017, which I have found to be fanciful, raises a further concern, in that it indicates a persistence in his attempts to deceive (on this occasion practised on the court) and gives me no confidence that he would comply with similar bail conditions now.
I do not consider that the support the applicant has from his mother and sister, and the steps he has taken in terms of attending church and Alcoholics Anonymous and Narcotics Anonymous meetings sufficiently remove the possibility that he would fail to answer his bail or that he would commit an offence. His family support did not prevent him from relapsing into the use of methylamphetamine or his deceptive conduct in providing a void sample and then failing to provide a sample for urinalysis testing. As for his steps towards bettering himself, which include his participation in the Outcare Life Skills Re‑entry Brief Intervention Program at Casuarina Prison, I have not been provided with information which would enable me to draw any conclusions about whether the applicant has gained insight into his behaviour that would reduce the risk of his failing to answer his bail or committing an offence.
If the applicant were to offend while on bail, the offending would likely be of such a nature as to cause significant financial and administrative harm to potential victims. If he were to embark on a course of identification fraud, the offending would also be likely to cause significant mischief to those whose identifications he might procure unlawfully. The need to protect the public from the potential of such harm is a significant relevant factor.
The applicant's cognitive functioning
The applicant has claimed that, as a child, he was considered to be autistic. He has also previously referred to the possibility that he suffers from Asperger's Syndrome. There is no medical evidence before me to support the conclusion that the applicant has Autism Spectrum Disorder, Asperger's Syndrome or any other developmental or neurological disorder, let alone that any such condition may explain any of his offending behaviour or his failure to comply with previous bail conditions, or may result in him suffering hardship in a custodial environment over and above those suffered by a prisoner who does not suffer from any such condition.
Counsel for the applicant accepted that there is no medical evidence before the court that diagnoses the applicant with an intellectual disability or developmental disorder. However, he submitted that I should place some weight on the contents of the psychological reports annexed to his affidavits.
Mr Hammond's first affidavit (exhibit 1) annexed the psychological report (AGH 3) to which I referred when outlining the evidence. For the reasons I gave in that section, I do not place any weight on that report, but, in any event, it does not support a finding of any cognitive disorder. The report refers to psychometric testing, but all of the information concerning that testing has been redacted, except for the applicant's Full Scale IQ score, which was said to fall within the 'Borderline bracket' and placed him in the eighth percentile (i.e. he performed at a level at or above eight percent of adults in his age bracket). The author went on to say that the applicant did not meet the requirements for the classification of 'Intellectual Impairment'. Even if I had considered it appropriate to give any weight to the report, neither the reliability, nor the significance of the IQ test result are explained and no meaningful interpretation can be placed on the opinions expressed.
Mr Hammond's second affidavit (exhibit 2) annexed an earlier psychological assessment report which is undated, but refers to an interview and assessments conducted in August and September 2013. The names of the author and the person who has countersigned the report have been redacted, but they are described respectively as a Clinical Psychology Trainee and a Clinical Psychologist Coordinator (who is also described as a Clinical Supervisor). Again, it is not apparent that the author of the report is a qualified expert, given the designation of 'trainee'. Again, that is not intended to be disrespectful. The report self-evidently was not prepared as a forensic report. The author was not presenting herself/himself as an expert for the purposes of providing an opinion to the court. Nevertheless, I have had regard to the report as permitted under s 22 of the Bail Act, notwithstanding that it would not ordinarily be admissible in a court of law.
The report does not indicate where the author or the supervisor were employed. However, it states that the applicant was referred by his 'case manager', who is referred to as a Community Mental Health Nurse, 'to assess his overall cognitive functioning, to determine his cognitive strengths and weaknesses and to assess [his] personality profile'. The reference to the Community Mental Health Nurse indicates that the applicant was receiving community mental health services. However, there is no evidence before me about the circumstances in which that came about, or for what mental health issue he was being treated or assisted.
Turning to the contents of the report, I note immediately that the applicant's results on the instrument used for personality assessment were considered to be invalid, because of the applicant's indiscriminate responding towards 'True' responses. The other matters of note are, first, that, while the applicant was said to have received a head injury in March 2010, a CT scan in 2013 indicated no intracranial pathology that could account for alleged behavioural change that had been described by his family. Secondly, the full scale IQ result conducted for that report indicated a level of intellectual functioning in the 'Borderline range', slightly lower than the result reported the following year, in the 2014 DCS report. I note, however, that the applicant's verbal comprehension score was higher, in the 'Low Average' range. An overall difficulty with the results, however, is that the author considered that some of the results, for instance those suggesting 'deficits in non-verbal abilities', 'could be an impact of recent or long term marijuana use'. The author went on to suggest that testing of the applicant in a period of drug abstinence would be valuable to determine if his cognitive functioning would differ from the results in the report. The author considered that testing during a period of abstinence would provide clarification of the applicant's 'underlying cognitive capacity and whether the deficits noted are ongoing'.
It may be that the testing done in 2014 was during a period of abstinence from drug use, but, as I have indicated, no meaningful conclusion can be drawn from that report.
In the final analysis, I am not satisfied, on the evidence before me, that the applicant suffers from a cognitive deficit or other mental impairment that would make his incarceration more difficult or that precludes him from comprehending the allegations against him, considering the evidence and engaging with his counsel to provide him with instructions. The applicant has obviously been capable of providing instructions to his counsel in the past, including in relation to the case concerning impairing electronic communications, which appears to have had a degree of complexity to it. He obviously has a high level of intellectual functioning when it comes to computers. It may be, as was said by O'Neal DCJ, that it is a narrow band of intelligence, but it is a band that involves logical analysis. There is nothing before me to suggest he could not apply such analysis to the evidence in the prosecution case.
Mr Hammond, in his first affidavit, said that he has had primary responsibility for managing the applicant's file since 27 February 2017 and, since that time, has experienced 'considerable difficulty in taking instructions from the applicant as to his response to the alleged offences' (exhibit 1, 4 [16]). He went on to say that the applicant had contacted Mr Hammond's office by telephone at least once on any given day, for a total of 45 instances, sometimes three or more times in one day. He stated that nearly all the telephone calls concerned the applicant's bail application (exhibit 1, 4 [17]). He said that the applicant has often been in a state of considerable distress, audibly sobbing on the telephone (exhibit 1, 4 [18]). Mr Hammond also said that the applicant has related his low mood and distress to alleged poor treatment of him by staff and other inmates (exhibit 1, 4 [19]). Mr Hammond said that the applicant had on occasion been relocated to the Crisis Care Unit in Casuarina Prison, and that a prison officer had expressed concern about the applicant's mental state (exhibit 1, 4 [20]).
Mr Hammond's second affidavit annexed medical records from the prison in respect of the applicant from 4 October 2016 to 26 May 2017. Those records show that the applicant has consulted with a mental health worker on a number of occasions, that his mood has varied, at times being tearful (on one occasion because he was grieving over the death of a friend) and at least on one occasion being angry and aggressive. While the question of an organic brain change from a head injury and the possibility of Autism Spectrum Disorder have been raised, it is no different to the raising of the same questions in 2013 and 2014. The records do not support any finding of a cognitive deficit.
The applicant's behaviour in persistently calling his lawyers and obsessing over his bail application does suggest a level of mental instability, but it may be related to his personality disorder. Further, there appears to be some incongruity between that behaviour and the suggestion that he is finding solace in attending church, and insight by regularly attending meetings of Alcoholics Anonymous.
In his first affidavit, Mr Hammond said that the applicant's preoccupation with making an application for bail has frustrated his attempts to take instructions from the applicant and develop a response to the prosecution case. It is on that basis that the argument is made that the interests of justice would be best served if the applicant were on bail and able to more readily attend to the material in the prosecution case and focus on providing instructions to his counsel in respect of the allegations. It seems to me that the essence of the submission was that releasing the applicant on bail is the only way in which he will be able to have a fair trial, or a fair resolution of his case.
One can readily sympathise with counsel who is frustrated in his endeavours to obtain instructions so as to be able to properly advise and defend an accused. However, having regard to the applicant's history and his antisocial personality disorder, it is difficult to avoid the suspicion that he is being manipulative in the manner in which he has behaved towards his counsel and in endeavouring to have the court find that he is unable to properly instruct counsel while he remains in custody.
I am not satisfied that the applicant is prevented, because of any cognitive disorder, from engaging with his counsel in order to provide him with adequate instructions in respect of the charges. It may be that he has obsessed about his desire to be released on bail, and that has been an obstacle, but with that obstacle out of the way, one would hope that he will now engage with his counsel to provide him with adequate instructions.
Time the accused is likely to spend in custody on remand
The applicant's next appearance in the Magistrates Court in respect of a majority of the indictable offences is a Committal Mention day on 31 August 2017. The State confirmed that, if the applicant is committed on that day, a trial listing hearing in the District Court would then likely take place in November of 2017. I was informed that, depending on the number of charges that proceed to trial and the likely duration of the trial, it is possible that a trial could proceed in the second quarter of 2018. The programming will depend also on whether all matters in respect of which the applicant is committed to the District Court, and which will require a trial, will proceed together. That was not a matter that was dealt with in submissions. All that could be said at this stage is that, prima facie, there is a basis in law on which all of the fraud and identification material charges could proceed together. I was informed that, subject to which charges proceed and issues of joinder, the State expects that a trial may take five to 10 days, but likely towards the upper end of that range.
The simple offences with which the applicant has been charged are listed for a Trial Allocation Date on 17 October 2017. I do not have any information about when he is likely to receive trial dates for those matters, but the consideration of bail in respect of those matters is subsumed within the broader application. It would appear that, by the time the applicant has his trial in the District Court, he will have spent 15 to 18 months in custody on remand (which takes into account the periods I referred to at [3] above), if he is not released on bail.
I have already discussed the seriousness of the offences charged and the likely sentence if the applicant is convicted. While it is undesirable for an accused person to remain in custody, without conviction, for an significant period of time pending trial, that time will be taken into account for the purposes of sentencing if the applicant is convicted. As I said earlier, if the applicant is convicted of the most serious offences, the time he will have spent in custody is likely to be within the range of an appropriate non-parole period if he were to be sentenced to a term of imprisonment with parole. In my opinion, it would be well within any head sentence that would be imposed. Of course, if the applicant were to be found not guilty of the most serious of the offences, the situation may be different, and he would be entitled to feel a sense of injustice in having spent the time in custody that will have elapsed by then. However, in assessing the likelihood of such an injustice arising, I must have regard to the strength of the evidence against the applicant. For reasons I have already given, I do not consider that the risk is such as to justify a grant of bail at this stage, given the concerns to which I have referred.
Of course, if it were to transpire after the applicant has been committed for trial, that it will be a longer period than I have been informed before the charges could proceed to trial, the question of bail can be reconsidered, as that would constitute a change in his circumstances.
Conclusion
For the reasons I have given, I am not satisfied that a grant of bail would be appropriate in this case.
Bail is refused.
Suppression
There is an order prohibiting the publication of these reasons until further order.
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