Camilleri v The State of Western Australia
[2023] WASC 193
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CAMILLERI -v- THE STATE OF WESTERN AUSTRALIA [2023] WASC 193
CORAM: FIANNACA J
HEARD: 6 APRIL 2023, 10 MAY 2023 & 12 MAY 2023
DELIVERED : 12 MAY 2023
PUBLISHED : 2 JUNE 2023
FILE NO/S: MBA 15 of 2023
BETWEEN: CHRISTOPHER JOHN CAMILLERI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail application - Bail granted - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Medicines and Poisons Act 2014 (WA) s 14(4)
Misuse of Drugs Act 1981 (WA)
Weapons Act 1999 (WA)
Result:
Bail granted
Representation:
Counsel:
| Applicant | : | Ms Z Gilders |
| Respondent | : | Ms A Miller |
Solicitors:
| Applicant | : | ZG Criminal Law |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Ornig v The State of Western Australia [2015] WASC 131
YSN v The State of Western Australia [2017] WASCA 155
FIANNACA J:
Introduction
This is an application for bail in respect of 14 charges against the applicant, Christopher John Camilleri, pending in the Magistrates Court of Western Australia in Joondalup. The charges are listed to be tried in that court on 29 November 2023.
The applicant is charged with 14 offences, being:
Date of alleged offence
Charge no.
Offence
13 January 2022
PE58038/2022
Common assault in circumstances of aggravation
Criminal Code (WA) s 313(1)(a)
PE58041/2022
Making a threat to unlawfully do an act, in circumstances of aggravation
Criminal Code s 338B(1)(b)(ii)
A date between 15 and 20 January 2022
PE58039/2022
Common assault in circumstances of aggravation
Criminal Code s 313(1)(a)
PE58042/2022
Criminal damage or destruction of property in circumstances of aggravation
Criminal Code s 444(1)(b)
6 August 2022
PE58040/2022
Common assault in circumstances of aggravation
Criminal Code s 313(1)(a)
PE58043/2022
Assault occasioning bodily harm, in circumstances of aggravation
Criminal Code 317(1)(a)
PE58044/2022
Impeding another person's normal breathing or blood circulation by applying pressure to the neck
Criminal Code s 298(b)
7 or 8 August 2022
PE58045/2022
Assault occasioning bodily harm, in circumstances of aggravation
Criminal Code 317(1)(a)
31 August 2022
PE58046/2022
Making a threat to unlawfully do an act, in circumstances of aggravation
Criminal Code s 338B(1)(b)(ii)
13 January -
31 August 2022
PE58047/2022
Persistently engaging in family violence
Criminal Code s 300(1)
8 December 2022
PE1078/2023 and PE1079/2023
Two counts of being in possession of drug paraphernalia in or on which there was a prohibited drug or plant
Misuse of Drugs Act 1981 (WA) s 7B(6)
29 December 2022
PE58048/2022
Obstructing a public officer
Criminal Code s 172(2)
PE3299/2023
Unlawful possession of a controlled or prescription drug
Medicines and Poisons Act 2014 (WA) s 14(4)
The majority of the charges relate to alleged violence and threats by the respondent against his wife, who I will refer to as 'the complainant'. Those are the offences alleged to have occurred in January and August 2022. The circumstance of aggravation, in each case, is that the applicant was in a family relationship with the victim.
The applicant was arrested in respect of those alleged offences on 29 December 2022. In the meantime, he was charged on 20 December 2022 with the two counts of possessing drug paraphernalia, arising from a search of premises where he was located in East Perth on 8 December 2022. The police found four smoking implements and a set of digital scales, all which had traces of methylamphetamine on them.
When the applicant was arrested on 29 December 2022, he is alleged to have resisted arrest, which gave rise to the charge of obstructing a public officer. It is also alleged that, when a search was conducted of his person at that time, he was found to be in possession of three Sildenafil (Viagra) tablets for which he did not have a prescription. That gave rise to the last of the abovementioned charges.
Magistrate's decision
After his arrest on 29 December 2022, the applicant was remanded in custody. He applied for bail in the Magistrates Court on 25 January 2023. The learned magistrate requested a Bail Risk Assessment report for consideration of protective bail conditions. A report, dated 6 February 2023, was prepared by a Senior Family Violence Worker with the Family Violence Service, in consultation with the WA Police family Violence team and the Department of Communities, Child Protection and Family Support. The report noted that the applicant 'is known to police for family violence in a previous relationship, which was case managed as a "Recidivist File" by the police'.[1] Having regard to a number of circumstances, including the assessment that the alleged victim (Ms Camilleri) was at 'risk of harm' and the applicant's antecedents, the author advised that 'Family Violence Service does not support an application for bail as it is assessed protective bail conditions would not ensure the safety of Ms Camilleri'.[2]
[1] Bail Risk Assessment Report dated 6 February 2023, p 4.
[2] Bail Risk Assessment Report dated 6 February 2023, p 5.
The application was subsequently heard in the Perth Magistrates Court on 8 February 2023 by Magistrate Johnston. Her Honour found that there was a real risk to the safety of Ms Camilleri and that the applicant would interfere with her if he was not kept in custody, and was of the view that there were no conditions, including home detention, that would 'overcome' those risks, so that a grant of bail was inappropriate.[3]
[3] ts 29 - 30, Magistrates Court, 8/2/2023.
Present application
The applicant filed an application for bail in this court on 27 March 2023. It did not identify the charges to which it related, although that was done in Ms Gilders' affidavit, and subsequently in the written submissions filed on his behalf. The affidavit and submissions did not refer to three of the abovementioned charges, being PE1078 and 1079/2023, and PE3299/2023. When it became apparent in these proceedings that those charges were not included in the application, the applicant filed a new application dated 10 May 2023, which identifies all of the relevant charges, in substitution for the original application.
The application is brought under s 14(2) of the Bail Act 1982 (WA) (the Act) and invokes the jurisdiction of this court under s 14(1), by which the court may exercise afresh the jurisdiction to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act. It is not an appeal from the magistrate's decision refusing bail.
I heard the application on 6 April 2023, 10 May 2023 and 12 May 2023.
The respondent is incorrectly named as the State of Western Australia. Section 21(1) of the Act provides that the parties to proceedings on a case for bail are 'the prosecutor and the accused and, subject to subsection (2), no other person shall be a party to, or be represented at, the proceedings.' The prosecutor in respect of the charges the subject of this application is the Western Australia Police Force, as appears on the prosecution notices. Counsel who appeared for the respondent was representing the Western Australia Police Force. As the issue was not raised at the hearing of the application, I will proceed on the basis that, the reference to the State of Western Australia incorporates the Western Australia Police Force.
The respondent opposed the application.
At the conclusion of the hearing on 6 April 2023, I arrived at the view that a grant of bail would only be appropriate on the basis of home detention, and, given the delay until the applicant's trial, I should give consideration to the appropriateness of imposing such a condition, which required me to obtain a report under s 24A(2) of the Act from a community corrections officer (CCO) about the suitability of the applicant to be subject to a home detention condition. It is apt that I set out my reasons given at that time:[4]
[O]n the materials that have been presented … on this application, I am satisfied that there is a real risk that the applicant would commit an offence if not kept in custody, and that he would endanger the welfare of the complainant and interfere with the complainant as a witness if he were not kept in custody. The question is whether there are conditions that can be imposed reasonably that would sufficiently reduce that risk so that … the continued detention of the applicant pending his trial in respect of the charges to which the application relates would no longer be warranted, having regard to the fact that he is presumed to be innocent of the charges until proven guilty.
This is not a case where delay is a significant factor. That is, delay before the matters would be determined at trial. But it is still a significant period of time for a person to be in custody, in circumstances where they are presumed innocent, if conditions could reasonably be imposed that would sufficiently reduce the relevant risks I have identified. I am not satisfied on the evidence currently available, and having regard to the submissions that have been made, that conditions short of home detention would sufficiently reduce … each of the risks to which I have referred.
However, it may be that a home detention condition would be sufficient to reduce the risks, at least in terms of the applicant directly putting the complainant at risk of harm, or [interfering] with her as a witness. Although the respondent has referred to the potential for the welfare of the complainant being endangered, or the complainant being interfered with as a witness, by the applicant engaging others to do his bidding, it seems to me that that is something that is not necessarily prevented by keeping the applicant in custody.
Ultimately, while I have some reservations about whether a home detention condition would be sufficient, I consider that it is a matter that I should give further consideration to. And the adequacy of such a condition would be informed, it seems to me, by the outcome of a bail assessment in respect of the premises to which the applicant wishes to be released and in relation to the applicant himself. Even if a favourable report were to be forthcoming, I would still need to have regard to the details of that report in terms of the circumstances in which the applicant would be residing, the nature of his relationship with his current partner, and other matters that might relate, for instance, to his desire for employment and so on which may affect the question of whether a home detention condition would be adequate to reduce the risk to the point where it would no longer be proper to keep the applicant in custody, pending his trial.
It is, I think, sufficient at this stage to say that while home detention may be a condition that may sufficiently reduce the risk, I should not close off that avenue. And so, I am prepared, at this point in time, to request a bail assessment report to determine the suitability of the address to which the applicant wishes to be released, and of the applicant, for a home detention condition.
[4] ts 2 - 4, Supreme Court, 6/4/2023 (extract of proceedings).
A Bail Assessment Report dated 8 May 2023 ('the home detention report') was subsequently provided to the court by a Senior CCO. As will appear below, at the adjourned hearing on 10 May 2023, I had reservations about the suitability of the proposed accommodation, being the home of the applicant's parents, because of comments made by the applicant's mother to the author of the home detention report. Counsel for the applicant sought a further adjournment to obtain an affidavit from the applicant's mother to clarify the matters that gave rise to my reservations. An affidavit from the applicant's mother, sworn 11 May 2023, was filed that day.
At the further adjourned hearing, on 12 May 2023, I decided that I should grant the applicant bail on the basis of a home detention condition and other conditions that addressed the applicant's risk factors under cl 1(a) of sch 1 pt C of the Act. I did so for the reasons that follow, which also provide the basis for my preliminary decision on 6 April 2023.
Legislative provisions and legal principles
Pursuant to s 13(1), when considering an application of this kind, the court must exercise its jurisdiction subject to, and in accordance with, pt III of the Act and the further provisions in pts B, C and D of sch 1. The principles relevant to the exercise of that jurisdiction are well known and are set out in Milenkovski v The State of Western Australia[5] and YSN v The State of Western Australia.[6] It is sufficient to note the following key points.
[5] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 (Milenkovski)[6] YSN v The State of Western Australia [2017] WASCA 155 (YSN).
The grant or refusal of bail is at the discretion of the court, which is required to have regard to the questions in paragraphs (a) - (g) of cl 1 of pt C of sch 1 of the Act and any other questions which the court considers relevant. There is no express statutory presumption for, or against, bail, except in certain specified circumstances that are not relevant to this application.[7] However, ordinarily, because of the structure of the statutory provisions, bail will be granted unless the court is satisfied that the accused should be kept in custody after considering the questions in paragraphs (a) - (g) of pt C of sch 1, having regard to the matters in cl 3 of pt C.[8]
[7] Milenkovski [39] (McLure P, Pullin JA & Hall J agreeing).
[8] Milenkovski [41].
The provisions of cl 1 are in the form of questions which address, firstly, whether there are grounds to refuse bail, and secondly, whether there are any conditions that the court can impose which, relevantly for present purposes, 'would sufficiently remove' the reasons for refusing bail.
The first category of questions requires consideration of, among other matters, whether the applicant will appear at a future court date in accordance with a bail undertaking, whether he may commit an offence, whether he may endanger the safety or welfare of any person, and whether he may interfere with witnesses or otherwise obstruct the course of justice (either himself or through some other person).[9] In considering those questions, the court must have regard to the factors set out in cl 3 of sch 1 pt C, which include (a) the nature and seriousness of the offence and the probable method of dealing with the applicant for the offence, if convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to him; and (d) the strength of the evidence against him.
[9] To avoid uncertainty, cl 1(g) requires the court to consider whether the circumstances of the alleged offending are so serious as to make a grant of bail inappropriate. While the alleged offending was serious, the respondent did not submit that the offending falls into the category contemplated by cl 1(g). In my opinion, it does not.
The second category of questions in cl 1 requires consideration of conditions that may 'sufficiently remove' the risk (or risks) that the applicant may do any of the things identified by the first category of questions, which would otherwise justify a refusal of bail.
If I am satisfied there is a real risk that the applicant may do any of the things identified in the first category of questions, referred to above, I must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and I must consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail, having regard to reasonable conditions that could be imposed.[10] In making that assessment and deciding whether there is a proper ground for refusing bail, I must have regard to the fact that the accused is presumed to be innocent of the offences with which he is charged and the risk of injustice if, ultimately, he was to be acquitted after being held in custody for a lengthy period.
[10] YSN [19].
The question in that context is whether there are conditions of bail that could reasonably be imposed that would sufficiently reduce the risk, so that the remaining risk no longer warrants the detention of a person who has not been convicted and is presumed to be innocent.[11]
[11] YSN [20].
A court may impose a home detention condition as a condition on a grant of bail to an accused who is over the age of 17 years if the court is satisfied, after considering a report from a CCO about the accused and his circumstances, that the accused is suitable to be subject to a home detention condition, that the place where it is proposed the accused will remain while subject to the home detention condition is a suitable place, and that unless a home detention condition is imposed, the accused will not be released on bail.[12] The Act sets out the conditions to which an accused is subject if released on bail with a home detention condition.[13] It is not necessary to set them out in detail for present purposes. It is sufficient to note that, in effect, a person subject to such a condition is required to remain at his specified residence until the time when he is required, by his bail undertaking, to attend court, with a number of exceptions relating to working or obtaining work, as approved by a CCO, seeking urgent medical or dental treatment, averting or minimizing a serious risk of death or injury to the accused or another person, obeying an order issued under a written law, requiring the accused to be present elsewhere, a purpose approved by a CCO or a direction given by a CCO.
[12] The Act, sch 1 pt D cl 3(2).
[13] The Act, sch 1 pt D cl3(3).
An accused who is subject to home detention must not leave Western Australia and must comply with every reasonable direction of a CCO.
If a CCO recommends that the accused be subject to electronic monitoring, the court may direct the accused, while subject to the home detention condition, to be subject to electronic monitoring, so as to allow the location of the accused to be monitored, and to be under the supervision of a CCO and comply with the directions of the CCO in relation to electronic monitoring.[14] A CCO may direct an accused to wear an approved electronic monitoring device and to permit the installation of an approved electronic monitoring device at the place where the accused is to remain, and may also give any other reasonable direction to the accused necessary for the proper administration of the electronic monitoring of the accused.[15]
[14] The Act, sch 1 pt D cl 3(4).
[15] The Act, sch 1 pt D cl 3(5).
I note that, while a judicial officer must consider a report from a CCO about the accused and his circumstances to determine if the judicial officer is satisfied that the accused is suitable to be subject to a home detention condition, and that the place where it is proposed the accused will remain while subject to the home detention condition is a suitable place, that determination may depend also on other evidence and factors. The court will give due weight to an opinion expressed by a CCO about the suitability of an accused and his proposed residence for a home detention condition. However, it is for the court to be satisfied about those matters, having regard to all of the materials in the application and all the considerations in sch 1 pt C of the Act. At the stage that the court is considering a home detention condition, it will have reached the conclusion that unless such a condition is imposed, the accused will not be released on bail. In other words, there is no other combination of conditions that, without home detention, would sufficiently remove any risk identified under cl 1(a) of sch 1 pt C. The question remains, ultimately, whether a home detention condition, alone or in combination with other conditions, would sufficiently remove such a risk, such that the remaining risk no longer constitutes a proper ground for refusing bail.
Materials in the application
The applicant relied on:
(1)an affidavit of his counsel, Ms Zoe Anne Violet Gilders, sworn 27 March 2023 (Ms Gilders' affidavit), which annexed the statements of material facts for the offences to which she referred, the applicant's criminal history and the transcript of proceedings in the Magistrates Court on 8 February 2023;
(2)an affidavit of the applicant, sworn 7 March 2023 (applicant's affidavit); and
(3)the affidavit of the applicant's mother, Mary Camilleri, sworn 11 May 2023 (Ms Camilleri's affidavit).
The respondent relied on an affidavit of Detective Senior Constable Steven Deeny, sworn 5 April 2023 (Deeny affidavit). He is the investigating officer in respect of the offences alleged to have been committed against the complainant. Annexed to the affidavit were a statement from the complainant signed and dated 28 December 2022 (the complainant's statement), photographs of a jacket belonging to the applicant and tattoos on his arm and neck, screenshots of messages on the complainant's mobile telephone, said to have been between the applicant and the complainant, and extracts from a PDF download from the complainant's mobile telephone, which contain messages (including voice messages) said to be between the applicant and the respondent, and which identify the dates of the messages.
The respondent also tendered audio recordings of voice messages sent by the applicant to the complainant, which, by reference to the PDF download, were identified to have been sent on 25 August 2022 and 31 August 2022. It was not in dispute that it was the applicant speaking in the voice messages.
The materials before me also include the prosecution notices for all of the charges, the Bail Risk Assessment Report of 6 February 2023 and the home detention report.
Finally, at the commencement of the adjourned hearing on 12 May 2023, the respondent informed the court that the complainant had written to the investigating officer, again expressing her fear that her safety would be in danger if the applicant were to be released on bail.
The issues raised in the application
As was the case in the Magistrates Court, the respondent did not submit that there is a real risk that the applicant will fail to appear to answer the charges if not kept in custody. However, the respondent submitted there was a real risk the applicant would commit an offence, endanger the safety of the complainant, interfere with the complainant as a witness, and thereby obstruct the course of justice. The respondent further submitted that there were no conditions that could reasonably be imposed that would sufficiently reduce the risks, so as to make a grant of bail appropriate.
The applicant conceded that the court could be satisfied there was a real risk of the things identified by the respondent occurring. However, the applicant submitted that there were conditions that could be imposed that would sufficiently reduce the risks, and that he would abide by any conditions the court saw fit to impose, including home detention.
Circumstances of alleged offences
Two of the matters to which the court must have regard under sch 1 pt C cl 3 of the Act are the nature and seriousness of the offence. That requires consideration of the alleged circumstances of the offending. I will focus on the alleged offences that are relevant to the risks for the purposes of cl 1(a), namely the possibility that the applicant will commit a violent offence, or make an unlawful threat, against the complainant, or will endanger her or interfere with her as a witness. The other alleged offences, especially the offences concerning drug paraphernalia, which indicate illicit drug use, are relevant to those primary risks, and may require attention to the conditions that are attached to any grant of bail, but do not require further exposition.
The circumstances, as outlined below, are adapted from the statements of material facts for the alleged offences, and refer also to the complainant's statement.
Charges PE58038 and PE58041/2022
The applicant and the complainant had known each other for over ten years and started dating about two years prior to the complainant's statement of 28 December 2022, so in 2020 or 2021.[16] They married on 24 November 2021.[17] The complainant had a small child, a boy who was 4 years old at the time she made her statement.
[16] Deeny affidavit, p 5, Annexure SD1 (complainant's statement) [4].
[17] Deeny affidavit, p 5, Annexure SD1 (complainant's statement) [5].
It is alleged that on Thursday, 13 January 2022, around 6.00 pm at the complainant's home, the applicant became aggressive for an unknown trivial reason and started abusing the complainant verbally. He grabbed the complainant's arm and began to drag her down the corridor towards the front door of the home to pull her into the garage, having indicated that he was going to assault her away from her son. It is alleged that the applicant made a threat to the complainant, by saying words to the effect that he was going to break her arm and jaw. The applicant is a tall and solidly built man. The complainant is described as short and of small build.
The complainant initially could not pull away but eventually broke free from the applicant's grip, fleeing the house. After running to an alleyway, she arranged for a friend to contact the police. The complainant returned to her home when she saw the police, but, fearing for her safety and that of her son, she downplayed the facts of the incident when speaking with the attending police, who consequently left.
Those alleged facts give rise to the first charge of common assault in circumstances of aggravation (PE58038/2022) and the first charge of making a threat to unlawfully do an act, in circumstances of aggravation (PE58041/2022).
Charges PE58039 and PE58042/2022
It is further alleged that, on a date between Friday, 14 January 2022 and Friday, 21 January 2022, the applicant went to the complainant's home on his motorcycle. After banging on the front door to be let in, the complainant told the applicant to leave, as her son was asleep inside. The applicant left but returned shortly after. The complainant walked outside to speak with him without waking her son. The applicant began yelling at the complainant for attempting to end their relationship. The applicant headbutted the complainant whilst wearing a motorbike helmet, causing minor pain to the complainant. He then slapped the complainant's face, causing her immediate pain. The slap was hard enough to cause her to fall backwards onto the ground. These circumstances give rise to the second charge of common assault in circumstances of aggravation (PE58039/2022).
It is also alleged that, during the incident, the applicant took the complainant's glasses from her face and stomped on them on the ground, smashing them. This gives rise to the charge of criminal damage or destruction of property in circumstances of aggravation (PE58042/2022).
After the incident, the applicant left on his motorbike. The complaint did not report the incident at the time, as she was fearful for her safety and that of her son.
Charges PE58040, 58043 and 58044/2022
It is further alleged that on Saturday, 6 August 2022, around 7.30 pm, the applicant and the complainant were at the complainant's home. The complainant put her son to bed. The applicant then argued with her about a rumour that she had been unfaithful to him whilst he was in prison. It is alleged that the applicant pressed a pen into the complainant's neck, causing her pain. The complainant believed she was going to be stabbed. That assault is the subject of the third charge of common assault in circumstances of aggravation (PE58040/2022).
It is alleged the applicant yelled, screamed, and threatened the complainant for over an hour.
During the incident, the applicant forced the complainant into a foetal position on the floor, pinning her against the wall. He threatened to bite off her nose to mutilate her, so nobody would want her. The complainant pulled her legs up to protect her face. However, the applicant was able to get to her face. He bit down hard on the complainant's nose, causing bruising and leaving bite marks. Those actions are the subject of the charge of assault occasioning bodily harm, in circumstances of aggravation (PE58043/2022).
The applicant then grabbed the complainant's throat with both hands, in a tight grip, which caused the complainant to lose her breath. At the same time, the applicant was making threats that he was going to kill the complainant. The complainant became limp, lost control of her body, blacked out and slumped onto the ground. The applicant's alleged actions are the subject of the charge of impeding another person's normal breathing or blood circulation by applying pressure to the neck (PE58044/2022).
When the complainant came to, the applicant was passing her a phone, telling her to call an ambulance herself.
After the incident, the applicant left the area, and the complainant slowly recovered from the assault. The complainant did not report the matter to police, because she feared for her safety and that of her son.
Charge PE58045/2022
It is further alleged that on Sunday, 7 August 2022 or Monday, 8 August 2022, the applicant and the complainant were at the complainant's home when the applicant began arguing with the complainant about rumours of someone trying to sleep with her. The applicant became enraged and threatened to stab the complainant with his flick knife.
After threatening the complainant, the applicant struck her with what has been described as a flurry of punches to the face, and to the side and rear of her head, causing her severe pain. The applicant then grabbed the complainant's hair and dragged her by the hair around the house, calling her a 'whore' and a 'dog'. Whilst lying on the ground, the applicant kicked the complainant's body before leaving. As a result of the assault, the complainant suffered a severely swollen and bruised left eye, pain to her right cheek bone, lasting several weeks, and pain to the head where her hair was pulled. This incident is the subject of the second charge of assault occasioning bodily harm in circumstances of aggravation (PE58045/2022).
Charge PE58046/2022
The next offence is alleged to have been committed on Wednesday, 31 August 2022. It appears that, prior to the incident, the applicant had called the complainant and asked her to order fish and chips for dinner. While driving to her home from work, he called her again and became angry when he became aware that the complainant had not yet ordered the fish and chips for dinner. The statement of material facts states that, during the call, the applicant threatened to bash the complainant and to mutilate her face, saying that he was going to bite her nose off, like he 'should've done before'. It is evident from the audio recording of the relevant voice messages that the reference to mutilation was separate to the message about biting the complainant's nose off. At one stage, he said, 'I promise I'm gonna set your face on fire, so that you're mutilated, you dog.' The applicant subsequently made the statement about biting the complainant's nose off in the context of having suggested that the complainant is someone who 'bites' her own nose off to spite her face. The applicant said that he was going to bite her nose off while she was still alive, followed by, 'Imagine how painful that's gonna be, cunt.'
When the applicant arrived at the complainant's home, he continued to yell at and threaten the complainant through the front door. After the complainant refused to let the applicant in, he left.
Those alleged facts give rise to the second charge of making a threat to unlawfully do an act, in circumstances of aggravation (PE58046/2022).
The statement of material facts provides only a glimpse into the applicant's rage, torrent of abuse towards the complainant in foul and derogatory language, and the threatening nature of his words and demeanour in the audio recordings of his voice messages. He was sending, or leaving, voice messages because the complainant was not answering the phone, although the PDF download from her phone shows that she was communicating with the applicant from time to time during the incident by text messages. Some of the voice messages are very short - a matter of a few seconds. It is apparent from the progression of the voice messages that the applicant was becoming more enraged as the complainant refused to meet his demands to answer the phone, let him inside or come outside. While at the house, he threatened to smash through the glass door, saying he only needed to come through one. At one point he said, 'One hit with an axe and you'll be dead, you dog.' He threatened to bury the hatchet in her head. When the complainant suggested to the applicant that his behaviour was terrorising her young son, he said he was there to terrorise her, not the child.
At one point in time, it appears the complainant was indicating she would call the police, as the applicant said, 'I promise you'll be dead by the time they get there, cunt, if you do it.'
While it is correct that the applicant eventually left when the complainant refused to let him in, he persisted with his demands to be let in for some time. At times he appeared to mellow, and at one point said he would calm down if the complainant did as he asked. However, the general tenor of the applicant's behaviour in the voice messages was threatening and abusive. Nevertheless, he did leave without doing any of the violent things he threatened to do.
Charge PE58047/2022
The conduct that is the subject of the charge that the applicant persistently engaged in family violence has been particularised in the statement of material facts to consist of the violent acts that constitute the offences of violence that have been separately charged. However, Ms Miller, for the respondent, said in submissions that she understood the prosecution would also be relying on acts of violence alleged to have been committed by the applicant either on 17 or 18 November 2022, when the applicant is alleged to have grabbed the complainant's hair, pulled her down so hard that he pinned her onto the bed, and twisted her neck so badly that she thought her neck was going to break. That incident is described at [168] to [172] of the complainant's statement.[18] The complainant goes on to state that it was after that incident that she sent the applicant a text message telling him he had to move out, which is said to be the point at which she sought to end the relationship.
Broader factual context on which the prosecution relies
[18] Deeny affidavit, pp 19 - 20, Annexure SD1.
In her submissions, Ms Miller for the respondent helpfully outlined a chronology of events within which the applicant's alleged offending needs to be considered when determining the nature and level of risk he poses to the safety of the complainant, and the risk that he would interfere with her as a witness and compromise the integrity of the criminal justice system. It was submitted that the complainant's subjective fear of the applicant, and of repercussions from him or his associates for having made a complaint to the police and being a witness, is an important relevant consideration in determining the level of risk that the integrity of the criminal justice process would be compromised if the applicant is not kept in custody. In that context, it was submitted that it is necessary to have regard to the evidence that the applicant has threatened violence to the complainant if she went to the police. It was submitted that, given the complainant's evidence that the applicant has been violent towards her previously, there is a real concern for her safety. Further, there is a real risk that her fear of repercussions will affect her willingness or capacity to give evidence at the applicant's trial.
The respondent submitted that, when considering the level of risk of danger to the complainant's safety and interference with the integrity of the criminal justice system, the applicant's alleged offending against the complainant should not be regarded as isolated instances.[19] Rather, the complainant's evidence indicates that the alleged offences were part of a persistent course of conduct by the applicant. The complainant stated that the respondent had been verbally abusive towards her throughout her marriage.[20]
[19] ts 18, Supreme Court, 6/4/23.
[20] Deeny affidavit, p 6, Annexure SD1 [10].
The first group of offences, the subject of this application (PE58038, 50839, 50841 and 58042/2022), are alleged to have occurred in January 2022. The applicant was on parole at that time in respect of a sentence imposed in the District Court of Western Australia at Perth on 21 December 2020, backdated to commence on 11 November 2020, for an offence of possession of a prohibited drug (methylamphetamine) with intent to sell or supply. He was released on parole on 24 November 2021,[21] the day on which he and the complainant married.
[21] Home detention report, p 2.
The applicant subsequently breached parole in March 2022 by not residing at his parole address, which was his parents' home.[22] It appears his mother indicated to the authorities at that time that she did not want the applicant returning to the family home.[23] The applicant was taken back into custody on a warrant that was issued on 15 March 2022,[24] and he continued to serve his sentence until he was released on 6 August 2022. The respondent submitted that there was, therefore, a significant period of time between March and August 2022 when the applicant did not have the opportunity to threaten or harm the complainant in the same way he had done previously, allegedly, in the community.[25]
[22] Home detention report, p 2.
[23] Home detention report, p 2.
[24] Home detention report, p 2.
[25] ts 18, Supreme Court, 6/4/23.
The complainant has stated that she picked the applicant up from prison on the morning of 6 August 2022.[26] The same day, he is alleged to have committed the violent offences against the complainant, being charges PE58040, 58043 and 58044/2022, which included the act of strangulation. As was noted in the outline of the facts above, the applicant was angry because of rumours that the complainant had slept with someone else. The applicant is alleged to have committed a further violent offence against the complainant on 7 or 8 August 2022 (PE58045/2022). He is then alleged to have made the threat that is the subject of charge PE58046/2022 on 31 August 2022.
[26] Deeny affidavit, pp 9 - 10, Annexure SD1 [54], [57].
It is alleged that, between those dates, the applicant sent threatening texts to the complainant on 10 and 11 August 2022. The PDF extracts from the download from the complainant's mobile telephone show that there were messages exchanged between the applicant and the complainant on those dates. It is sufficient to note, in general terms, that the messages suggest hostility on both sides. It is not clear whether the first message to appear in the extracts, which is from the complainant to the applicant, is the first message sent that day. If so, the complainant commenced by telling the applicant he had ruined his second, third and fourth chances in a couple of days, and that he had destroyed their marriage 'worse than before'.[27] She then made a disparaging remark about the applicant having to pay for sex because he is a 'junkie', followed by the suggestion that she was the only sober person who had 'actually wanted and loved' the applicant.[28] The messages that followed from the applicant included statements that may reasonably be interpreted as threats, interspersed by other messages, including responses from the complainant saying, 'Keep going' and 'No worries'.[29] The first threat from the applicant was an implied threat of consequences if the complainant started 'running' him down.[30] Later, he told the complainant that a person referred to as 'mozz' 'will be out looking' for her, and said he (the applicant) 'might give [her] address out'.[31] Subsequently, after the complainant messaged, 'Keep going', the applicant messaged, 'Well done, hope you get rapped (sic) by mozz[,] health (sic: he) bashes the shot (sic: shit) out of his victims'.[32] Upon a reasonable interpretation, the message was intended to instil fear in the complainant that she would be sexually assaulted and badly beaten. Finally, the applicant sent a message suggesting he might give the complainant's father's address to 'them',[33] which in context would appear to be a reference to 'mozz' and his associates.
[27] Deeny affidavit, p 55, Annexure SD5, line 6732 (10/08/2022, 10:29:57 PM).
[28] Deeny affidavit, p 55, Annexure SD5, line 6732 (10/08/2022, 10:29:57 PM); line 6731 (10/08/2022, 10:30:13 PM).
[29] Deeny affidavit, p 55, Annexure SD5, line 6713 (10/08/2022, 10:38:10 PM), line 6711 (10/08/2022, 10:39:08 PM).
[30] Deeny affidavit, p 55, Annexure SD5, line 6726 (10/08/2022, 10:37:22 PM).
[31] Deeny affidavit, p 55, Annexure SD5, line 6718 (10/08/2022, 10:37:25 PM).
[32] Deeny affidavit, p 55, Annexure SD5, line 6712 (10/08/2022, 10:38:53 PM).
[33] Deeny affidavit, p 55, Annexure SD5, line 6710 (10/08/2022, 10:39:11 PM).
There is no excuse for the applicant making vile threats to the complainant, of the kind referred to above. However, when considering the significance of such threats in the context of determining the level of risk that the applicant would behave in a similar way if not kept in custody, it is necessary to have regard to the surrounding circumstances, including what appears to have been the initiation of the exchange by the complainant in disparaging terms. If the applicant were to be released on bail, it would be expected that the complainant would not attempt to contact the applicant, and he would be prohibited from contacting her.
It is apparent that the materials tendered in these proceedings do not contain all communications between the applicant and the complainant. For instance, it would appear that between 11 August 2022 and 16 August 2022, the complainant must have indicated to the applicant that she might report his conduct to the police. That follows from a threat made by the applicant on 16 August 2022, when he sent the complainant a text message stating:[34]
Put me in jail.em (sic) there's a hole (sic) club coming for you
[34] Deeny affidavit, p 52, Annexure SD5, line 3703 (16/08/2022, 2:16:30 PM).
'Em' is a shortening of the complainant's first name. The reference to a 'club' is explained in the complainant's statement, and in the Deeny affidavit, as a being a reference to an outlaw motor cycle gang (OMCG), of which the applicant is a member. The complainant has stated that the applicant has been a member of the particular OMCG for a very long time,[35] and Detective Senior Constable Deeny refers to several items of evidence, including clothing with the OMCG insignia found during a search by police in a hotel room occupied by the applicant, photos of tattoos on the applicant's body, and text messages between the complainant and the applicant in which the applicant agreed that he was putting 'the club' before his family.[36]
[35] Deeny affidavit, p 5, Annexure SD1 [6].
[36] Deeny affidavit [6] - [10], [15] - [19], pp 23 - 26.
That text message is relied on by the respondent as a significant threat that gives rise to real concerns for the safety of the complainant. I accept that to be the case, but it is necessary to consider any particular text message in the context of the whole of the circumstances, not in isolation.
The text exchanges between the applicant and the complainant were mainly concerned with the breakdown of their relationship, and were unfriendly in nature. However, on 26 August 2022, after the complainant had indicated that her son would be heartbroken again, but would eventually forget the applicant, the applicant suggested that the child would not forget him in a hurry, and then asked, '[Y]ou sure we can't work through this[?]'[37] He then messaged, 'If we can't[,] can I have photos of me and [the child]'.[38]
[37] Deeny affidavit, p 51, SD5, line 2640 (26/08/2022, 4:51:46 AM).
[38] Deeny affidavit, p 51, SD5, line 2639 (26/08/2022, 5:23:38 AM).
The respondent noted that, after the alleged offending of 31 August 2022, the applicant went into residential drug rehabilitation in Esperance.[39] It is not clear on what date that occurred, although the complainant has said that it was shortly after the alleged offending on 31 August 2022.[40] According to the complainant, the applicant was released from rehabilitation by 10 or 11 November 2022, because they spent a night at a hotel in Perth on either of those days for her birthday (which is on 14 November).[41]
[39] Deeny affidavit, p 19, Annexure SD1 [161].
[40] Deeny affidavit, p 19, Annexure SD1 [161].
[41] Deeny affidavit, p 19, Annexure SD1 [166] - [167].
The complainant has said that, during the period the applicant was in rehabilitation, he made telephone calls to her several times a week and, although some of the calls were 'normal', most contained threats about killing her if she ever tried to leave him.[42] The home detention report notes that the applicant was 'close to being exited from the facility due to demanding and abusive behaviour via phone call to his ex-partner, victim of the current alleged offending'.[43]
[42] Deeny affidavit, p 19, Annexure SD1 [162] - [165].
[43] Home detention report, p 2.
Nevertheless, as I have said, there is evidence that the complainant resumed her relationship with the applicant after he came out of rehabilitation, and they spent a night at a hotel for her birthday soon after. According to the complainant, there followed further violence by the applicant towards her on either Saturday or Sunday of the following weekend,[44] which would be on 19 or 20 November 2022, although in submissions Ms Miller referred to 17 or 18 November 2022.[45] In any event, the allegation is that the applicant used methylamphetamine at that time, and the complainant argued with him about that.[46] It is alleged that the applicant grabbed the complainant's hair, pulled her down and pinned her to the bed, twisting her neck forcefully in the process.[47] He eventually settled down.[48] Although this incident is not referred to in the statement of material facts, Ms Miller said she understood that the incident will be relied upon as part of the applicant's conduct constituting the offence of engaging persistently in family violence.[49]
[44] Deeny affidavit, p 19, Annexure SD1 [168] - [172].
[45] ts 19, Supreme Court, 6/4/23.
[46] Deeny affidavit, p 19, Annexure SD1 [169] - [170].
[47] Deeny affidavit, p 20, Annexure SD1 [171] - [172].
[48] Deeny affidavit, p 20, Annexure SD1 [173].
[49] ts 20, Supreme Court, 6/4/23.
The complainant has said that the applicant left her place the following morning to collect his truck, and she then sent him a text message telling him he had to move out.[50] She has said that the applicant 'went quiet' for a few days and she then put his belongings out the front and told him to collect them, which he did sometime that week.[51] She has said that the applicant caused her to lose her job as a tow truck driver during the last week of November 2022, and that he told her that an associate from the OMCG had made threats to the owner of the business.[52] She has said that she called police on 30 November 2022 and informed them of some of the things the applicant had done, but she did not make a statement at that stage because she was fearful for her safety.[53] She made a statement to police on 28 December 2022, saying she now wanted the applicant to be held accountable.[54]
[50] Deeny affidavit, p 20, Annexure SD1 [174] - [176].
[51] Deeny affidavit, p 20, Annexure SD1 [177] - [178].
[52] Deeny affidavit, p 20, Annexure SD1 [179] - [180].
[53] Deeny affidavit, p 21, Annexure SD1 [184] - [186].
[54] Deeny affidavit, p 22, Annexure SD1 [187].
In the meantime, there were text message exchanges between the complainant and the applicant between 11 December 2022 and 28 December 2022. Many of the messages from the applicant to the complainant were abusive and threatening, riddled with expletives and references to the complainant as 'dog' and 'cunt'. As abhorrent as his use of such language is, in its abusive context, the complainant also used the latter description for the applicant and one of his associates,[55] so it appears to have been a shared vernacular. However, in context, the applicant's persistent references to the complainant in those terms may properly be regarded as menacing.
[55] Deeny affidavit, pp 48 - 49, Annexure SD5, lines 465 (11/12/2022, 1:45:32 PM) and 83 (21/12/2022, 12:25:38 PM).
The difficulty in assessing the weight to be placed on the applicant's threats to the complainant from 11 December 2022 is that she appears to have initiated contact after the applicant had obtained a new mobile telephone, with a new number, so as not to have contact with her.[56] He has said that he did not provide the new number to the complainant.[57] That appears to be confirmed by the first two messages for 11 December 2022, which appear on screenshots from the applicant's telephone.[58] It is not in dispute that the exchange of messages at that time was between the complainant and the applicant. On the records from the complainant's telephone the applicant's new number came up as 'New Chrisso', which confirms that the complainant was aware this was his new number. The first message was from the complainant, received by the applicant at 12.53 am, and read, 'Haven't tried to hack your phone actually[.] Still haven't got a thankyou'. The applicant responded, 'Wtf and who give my number'. It is evident, therefore, that the respondent was surprised and unhappy about the contact.
[56] Applicant's affidavit, [3].
[57] Applicant's affidavit, [3].
[58] Applicant's affidavit, Annexure CJC 1.
When the complainant wrote, '… still no thanks wife', the applicant responded, at 12.56 am, 'You ain't my wife'.[59] The next two messages from the complainant, received by the applicant at 12.56 am, were, 'Ok' and 'How being a homeless junkie going for ya?'. The screenshots from the applicant's telephone show that he then had two or three missed calls, at 1.04 am and 1.10 am, but the caller did not leave a message.[60] It appears from further text messages at 1.11 am, saying, 'Whatever' and 'Tried being nice to you n you jusy (sic) abuse me',[61] that the missed calls were from the complainant. There is then a further message, said to be from the complainant, saying, 'Answer', a further missed call and a message saying, 'Was [the complainant's child's] birthday'.[62]
[59] Applicant's affidavit, Annexure CJC 1.
[60] Applicant's affidavit, Annexure CJC 1.
[61] Applicant's affidavit, Annexure CJC 2.
[62] Applicant's affidavit, Annexure CJC 2.
It is not clear whether there was further communication between that message and the first message that appears in the PDF extract from the complainant's telephone for 11 December 2022, which is from the applicant at 1.44.55 am.[63] The message read, 'I'm going to see Karl'. Detective Senior Constable Deeny has deposed that he honestly believes 'Karl' to be a reference to AKL,[64] a senior member of the OMCG.[65] He has said that the complainant indicated she is 'fearful of the [applicant's] connections with [AKL]'.[66] The complainant's response to the applicant's message was, 'Oh great[,] the cunt that's going round calling me a set up dog'.[67]
[63] Deeny affidavit, p 49, Annexure SD5, line 466.
[64] I have anonymised the person's name as he has not been charged with any offence concerning the matters the subject of this application.
[65] Deeny affidavit [23] - [24].
[66] Deeny affidavit [25].
[67] Deeny affidavit, p 49, Annexure SD5, line 465 (11/12/2022, 1:45:32 PM).
There are no further messages, in the materials before the court, until 21 December 2022. Apart from noting that the messages evince continuing hostility between the applicant and the complainant, it is sufficient to identify the following messages from the applicant, on which the respondent relies as evidence of the risk the applicant poses to the complainant:[68]
[68] Deeny affidavit, pp 44 - 48, Annexure SD5, lines 87, 75, 51, 50, 48, 46, 43, 42, 40, 38, 37.
(1)21 December 2022, 12.21.00 pm: 'Yeah keep on going cunt and you be in fucken box';
(2)21 December 2022, 4.50.58 pm: 'Your (sic) a dead dog ill (sic) be there maggot';
(3)27 December 2022, 1.59.34 pm: 'Em you will die before you toe (sic: tow) again':
(4)27 December 2022, 2.00.04 pm: 'And message one contact of mine ya deadto (sic)';
(5)27 December 2022, 2.01.11 pm (after the complainant wrote, 'Keep threatening to kill me'): 'Keep melody (sic: meddling) in my life you know';
(6)27 December 2022, 2.03.56 pm: 'Pack your shit and fuck off now dog cos I'll be there in an hour dog dog dog dog';
(7)27 December 2022, 2.04.30 pm: 'No worries cunt. Get used ti (sic) being poor cos you won't be getting another cent from me and if you do go to the police cunt you know I have a lot (sic) of brother and you won't see it coming';
(8)27 December 2022, 2.08.53 pm: 'Remember bad things happen to bad people';
(9)27 December 2022, 2.16.12 pm: Em I don't want to hear from you now. Just fuck off from my life now, stop meddling in my shit and go peacefully before you push me too far and [the complainant's child] ends up with no one';
(10)27 December 2022, 2.30.16 pm: 'Putrid stalker';
(11)27 December 2022, 2.31.40 pm: 'I hope you message one contact of mine it'll feel so (sic) to watch u take your last breathe (sic) mutt'.
The complainant went to the police the day after the last of those threats, 28 December 2022. She made a statement about the applicant's assaults and threats, as outlined above. The respondent noted that one of the threats made on 27 December 2022 was specifically in respect of consequences that would be visited upon the complainant if she went to the police.
Applicant's antecedents and personal circumstances
There is scant information about the applicant's personal circumstances in the materials before the court. In outlining the factual circumstances of the alleged offending, I have referred to facts concerning the history of the applicant's relationship with the complainant. After they were married in November 2021, they lived both together and separately, intermittently, with the complainant's 4-year-old son, until their relationship broke down following the alleged offending against the complainant.
As I also indicated above, there is evidence that the applicant is a 'patched' member of an OMCG. He also has a history of drug use and has engaged in a residential rehabilitation programme, although there is no evidence of the progress he made in that programme. During his interview with the author of the home detention report, he said he had formed a relapse prevention plan by which he intends to abide if released on home detention bail.[69] He showed the plan to the author of the report.
[69] Home detention report, p 2.
At the time of the hearing of the application, the applicant was 39 years old. Although there is no evidence in respect of his relationship with his new partner, I accept the information provided by the applicant's counsel in submissions, namely that he was residing with his new partner at the time of his arrest, that she works full time as a trainer in the hospitality industry, and that she is supportive of the applicant. It was also said that she is pro‑social.[70] However, in the absence of any evidence as to her attitude to the applicant's membership of the OMCG and his previous drug use, I am not prepared to make any finding in that regard, although there is no suggestion that she has any adverse antecedents.
[70] Applicant's written submissions [19].
The applicant has previously worked as a tow truck driver for an unspecified period. It appears such work would be available to him if he is released from custody. However, for reasons I will discuss below, it would not be appropriate for him to obtain work in that business.
The applicant has an extensive criminal record, commencing with offending at the age of 18 years. That record includes six convictions for offences of personal violence, being:
(a)two counts of assault occasioning bodily harm and one count of grievous bodily harm, for which he was sentenced to a total of 8 months' imprisonment in April 2008;
(b)one count of common assault, for which he was fined $1,000 in March 2010;
(c)one count of fighting in public, for which he was fined $750 in August 2011; and
(d)one count of assault occasioning bodily harm, for which he was fined $2,000 in September 2011.
Although the applicant was released on parole in respect of the sentence imposed in April 2008, his parole was cancelled due to re-offending.[71] His subsequent offending was largely for drug-related offences, both indicative of personal use and drug dealing. In February 2011, he was convicted of an offence of possessing amphetamine with intent to sell or supply and was sentenced to a suspended term of imprisonment, which he subsequently breached, resulting in a term of imprisonment being imposed in August 2011. There were further drug offences until he was convicted of two counts of offering to sell or supply methylamphetamine, for which he was sentenced to 18 months' imprisonment in August 2015. It appears he served the whole of that term. He was also declared to be a drug trafficker under the Misuse of Drugs Act 1981 (WA). He subsequently committed further drug offences and was convicted of possession of methylamphetamine with intent to sell or supply and possession of stolen or unlawfully obtained property, for which he was sentenced to a total effective term of 2 years' imprisonment in December 2020. He was released on parole in November 2021. He breached parole, although it appears he eventually completed the period of parole.[72] Prior to that, the applicant had breached Community Based Orders made in respect of drugs and firearms offences for which he was sentenced in April 2019.
[71] Home detention report, p 2.
[72] Home detention report, p 2.
The applicant's record also reveals convictions for numerous traffic offences, other weapons offences, an offence of criminal damage or destruction of property, and various offences that demonstrate persistent disregard for authority. The latter offending is of particular importance when assessing whether the applicant is likely to comply with bail conditions. His offending has included:[73]
(a)a breach of protective bail conditions (October 2010);
(b)providing a false name to police (January 2011);
(c)two offences of breaching bail by failing to appear (July 2013 and May 2014);
(d)a breach of a violence restraining order (March 2015);
(e)failing to obey a data access order without reasonable excuse (December 2020); and
(f)obstructing a public officer (November 2020).
[73] Date references are to the time of offending, as shown in the History for Court - Criminal and Traffic for the applicant, compiled 30 December 2022.
The violence restraining order, which was the subject of the breach offence in 2015, related to the applicant's mother who had sought the order on the basis of applicant's behaviour when affected by drugs.[74] The applicant's instructions to his counsel were that the breach arose from communications with his mother in attempts to retrieve some property from his parents' address after he had been asked to leave.[75] In the absence of any evidence to the contrary, I accept that to be the case.
[74] ts 4, Supreme Court, 6/4/2023 (Ms Gilders' submissions).
[75] ts 4, Supreme Court, 6/4/2023 (Ms Gilders' submissions).
Notwithstanding that history, if released, the applicant intends to live at his parents' home. His parents live together in a Perth suburb in the home they have owned for over 50 years.[76] They are retired and spend most of their time at home.[77] The author of the home detention report noted that they appear to be supportive of the applicant and are pro-social. The applicant's mother, Ms Camilleri, has said that she can tell when the applicant is affected by drugs, and, when the applicant was previously on parole, she informed Adult Community Corrections when the applicant was under the influence of illicit drugs.[78]
[76] Home detention report, p 2.
[77] Home detention report, p 2.
[78] Home detention report, p 2; Ms Camilleri's affidavit [10].
Home detention report
The home detention report records that the conditions of home detention bail were explained to the applicant, and he was provided with written conditions that reflect the home detention obligations under the Act and Adult Community Corrections Rule 201, which has been made pursuant to s 50L of the Act and sets out further obligations. The applicant indicated his understanding of the conditions and his willingness to comply with all conditions that may be imposed.[79] Although he initially indicated his desire to return to working as a tow truck driver, he indicated his understanding that it may not be a viable option and said he would seek assistance to find employment with a named employment agency.[80]
[79] Home detention report, p 2.
[80] Home detention report, p 2.
An accommodation assessment was conducted by a Senior CCO on 26 April 2023 in respect of the home of the applicant's parents. The residence was deemed to be suitable for home detention. The author reported that Ms Camilleri demonstrated some understanding of her son's history of offending, substance use, risk factors and current circumstances, but she said she did not believe her son perpetrated any act of physical violence against the complainant. The author noted that there are some concerns 'around [the applicant's parents'] lack of knowledge surrounding their son's past and current alleged offending, and risk factors, which could raise concerns about their willingness to report any non-compliance with his bail conditions'.[81]
[81] Home detention report, p 3.
In addition, Ms Camilleri voiced concerns about her son being at home all day, saying he would need to work, 'as she would struggle if he was in the home all day every day'. This raised concerns in my mind about the suitability of the residence for home detention, which prompted the obtaining of an affidavit from Ms Camilleri. In her affidavit, Ms Camilleri explained that she had told the author of the report that she wants the applicant to get a job 'because it is not healthy to be sitting inside doing nothing and[, as] he is 40 years old[,] he cannot be doing nothing'.[82] She said that she understands that, until the applicant gets a job, he would have to stay in the house, unless he has an appointment for medical or job reasons.[83] She also expressed her understanding that she could leave the house, and that the applicant would have a tracking monitor.[84] It is implicit from her affidavit that, knowing that the respondent may be house-bound for most of the time, she remains willing to provide him with the accommodation.
[82] Ms Camilleri's affidavit [5].
[83] Ms Camilleri's affidavit [6].
[84] Ms Camilleri's affidavit [7].
The author reported that the conditions and obligations of Home Detention Bail were explained to Ms Camilleri, and she confirmed she understood them and was willing to assist the applicant to comply.[85] In her affidavit, Ms Camilleri confirmed that she would inform the police or the Department of Justice if she notices the applicant to be affected by illicit drugs, that she does not want the applicant to have any contact with bikies, and that such persons are not welcome at her house.[86] She also said that the complainant was not welcome at the house.[87] She said that the applicant must respect her house if he wants stay, and if he does not, she will call 'Community Justice'.[88]
[85] Home detention report, p 2.
[86] Ms Camilleri's affidavit [10] - [11].
[87] Ms Camilleri's affidavit [11].
[88] Ms Camilleri's affidavit [12].
The home detention report noted that the applicant's parents would not be able to offer him transport from prison on the day of his release, or to attend court, but that the applicant's current partner had indicated she would be able to do so.[89]
[89] Home detention report, p 3.
The author of the home detention report concluded that, although there were some concerns, to which I referred above, the fact that the applicant's parents are pro-social and spend most of their time in the family home, means they may provide some oversight for the purposes of home detention.[90] However, the author also noted, without further comment, the applicant's poor response to supervised orders in the past and his breaches of 'protective sanctions'.[91]
[90] Home detention report, p 3.
[91] Home detention report, p 3.
Applicant's submissions
The applicant acknowledged that there was evidence from which the court could find that there is a real risk that the applicant would commit an offence, or interfere with or endanger the safety or welfare of the complainant, if he is not kept in custody. However, the applicant submitted that there are conditions that could be imposed that would sufficiently reduce those risks as to make the continued detention of the applicant, pending trial, inappropriate. The applicant submitted that the relevant risk to be considered is the applicant's risk of doing the things identified, not the risk that members of an OMCG may engage in some criminal activity designed to deter the complainant from giving evidence.[92]
[92] See Ornig v The State of Western Australia [2015] WASC 131 (Ornig) [44] (Corboy J).
The applicant's initial bail proposal included a residential condition, protective conditions in respect of the complainant, a condition prohibiting contact with any member or nominee of an OMCG or with AKL, conditions concerning the risk of illicit drug use, and a condition limiting the applicant to one mobile telephone device, and requiring him to surrender it to police for inspection. The proposal did not include home detention. However, the applicant indicated he would be prepared to comply with any conditions the court considered necessary for a grant of bail, including home detention. In final submissions, the applicant did not press for a grant of bail without home detention.
The applicant submitted that there was no evidence the applicant had sought to contact the complainant directly or indirectly since his arrest. It was submitted that the risk that he would try to approach her is further reduced by the fact that he is not aware of where she is residing. It was submitted that, in those circumstances, stringent home detention conditions that restricted his freedom of movement, and enabled monitoring of his location and his use of electronic devices that could be used to contact the complainant, in combination with protective conditions and conditions that address his risk factor of illicit substance and alcohol use, would provide adequate measures against the risks of offending, or of interference with the complainant, being realised. It was submitted that the applicant's parents and new partner can be regarded as further protective factors in that context.
Respondent's submissions
The respondent opposed bail on the ground that there is a real risk that, if the applicant is not kept in custody, he may commit an offence against the complainant or one of her family members, or endanger her safety or that of her family members, or interfere with the witnesses, specifically the complainant.[93] Ms Miller, for the respondent, acknowledged there was an overlap between those matters. It was submitted that the extent of the risks had not changed since the bail application in the Magistrates Court, and the respondent continued to rely on the assessment in the Bail Risk Assessment report of 6 February 2023 that protective bail conditions would not ensure the complainant's safety. However, as Ms Miller acknowledged, that report did not deal with the possibility of other conditions, including home detention, augmenting the protective bail conditions to provide protection of the complainant.
[93] ts 16, Supreme Court, 6/4/2023.
The respondent submitted that even a home detention condition would not sufficiently reduce the risks of harm and interference with the complainant, as a witness. Ms Miller identified five factors leading to that conclusion:
(1)The threats made to the complainant were of the most serious kind, and they included threats to arrange for others to harm her.
(2)The applicant has demonstrated a capacity to carry out those threats.
(3)The complainant has indicated that she is fearful of reporting the alleged offences in light of the threats made.
(4)The fact that the applicant and complainant are no longer in a relationship, and the applicant has a new partner, should not be regarded as reducing the risk that he will offend against the complainant, or interfere with her as a witness, when one has regard to the history and nature of the alleged violence by the applicant against the complainant and the fact that the complainant has now made a complaint to the police and there are charges pending against the applicant. In other words, despite the change in circumstances in their relationship, the risk of harm is not reduced, because the complainant has done the very thing she was threatened not to do.
(5)Finally, the applicant's history of breaching bail and other court orders means that the court could have no confidence that he would comply with conditions prohibiting him from contacting the complainant and others.
In respect of the last point, one of the matters relied on by the respondent was the fact that the alleged offending occurred while the applicant was on parole.
The respondent also submitted that the extent of the risk that the applicant would commit an offence or interfere with the complainant needs to be considered in the context that the alleged offending involves family and domestic violence, which has been directed at controlling and punishing the complainant, such that it is unrealistic to conclude that the applicant would decide to cease that course of conduct at this stage. The respondent submitted that it is not uncommon for the actual risk of harm to increase when a victim of domestic violence decides to leave an abusive partner.
The respondent noted that the prosecution case relies significantly on the evidence of the complainant, which heightens the degree of risk stemming from the applicant's threats that consequences will follow for her should she report the alleged offences to the police.
The submission that the applicant has demonstrated a capacity to carry out his threats relied, in part, on the fact that the complainant lost her job as a tow truck driver, after the applicant threatened her that he would ensure she lost her job. The respondent submitted that the inference could be drawn from the complainant's account that the applicant enlisted others to bring pressure to bear on the complainant's employer to dismiss the complainant.
The respondent submitted that home detention would not necessarily prevent the applicant from contacting other people to enlist them to harm or intimidate the complainant, as he has threatened to do. It was submitted that it might not take much to interfere with the course of justice. The complainant's subjective level of fear is relevant in that context, as is her previous reluctance to report violent incidents to the police.
In discussion with counsel, I pointed out that being in prison does not necessarily prevent an accused from enlisting the assistance of others to harm or intimidate a witness. A remand prisoner is not subject to conditions such as those that could be imposed in respect of bail, preventing the applicant from associating with certain individuals or a group of people (such as an OMCG) in order to minimise the risk of interference with a witness indirectly. Even if there were to be any restriction on the persons whom he could contact, or who could visit him, it is not unknown for prisoners to convey information to other persons through visitors or persons with whom the prisoner can communicate by telephone.
Ms Miller acknowledged that such circumstances may present as a weakness in the respondent's argument that custody would be more effective than home detention in preventing interference with the complainant, but nevertheless submitted that custody allows for closer monitoring of the respondent's activities.
Analysis
I am satisfied, having regard to the materials tendered in the application and the parties' submissions, that there is a real risk that, if the applicant is not kept in custody, he would commit an offence against the complainant, endanger her welfare, or interfere with her as a witness, so as to obstruct the course of justice. Indeed, I am satisfied that the risk in each case is high.
In coming to those conclusions, I have had regard to the strength of the evidence against the applicant in respect of the charges the subject of the application, which are said by the respondent to be predictive of his likely behaviour towards the complainant if he is not kept in custody. Some of that evidence, in the form of voice and text messages, is relevant to an assessment of the respondent's risk independently of whether it tends to prove the offences charged. I have also had regard to the applicant's history of offending, especially the offences of violence outlined at [83] above and the offences outlined at [85] above, involving breaches of bail conditions and court orders. The latter are relevant to assessing the likelihood that the applicant would obstruct the course of justice.
In my opinion, the text and voice messages sent by the applicant to the complainant tend to corroborate important aspects of the complainant's evidence that she was threatened and assaulted by the applicant. A specific graphic example is the series of messages from the applicant in which he threatened to bite the complainant's nose off, when the biting of her nose is one of the acts of violence she alleges he perpetrated against her. Moreover, the vitriol, anger and threats displayed in the voice and text messages are consistent with the applicant's conduct associated with the alleged acts of violence, as described by the complainant. In my opinion, while the case against him is yet to be tested, the evidence against the applicant in respect of the offences the subject of the application is strong.
Further, while I respectfully agree with Corboy J's comments in Ornig, referred to above, concerning the need to focus on the risk of the applicant engaging in particular conduct, not the risk of an OMCG doing so, the applicant's membership of an OMCG and the fact that he has previously invoked it as a means by which he may cause harm to the complainant are relevant considerations in determining the nature and extent of the risk that he may cause harm or intimidate the complainant with a view to preventing her from giving evidence.
The question, then, is whether there are conditions that can reasonably be imposed that would sufficiently reduce the risks I have identified, such that the remaining risks no longer constitute proper grounds for refusing bail.
In that regard, I have taken into account the complainant's subjective fears and the fact that, if the risks to her safety were realised, the potential for harm is significant. I am mindful of the need to exercise particular caution in a case involving domestic or family violence, for the reasons submitted by the respondent. I understand that there would be scepticism about the applicant's capacity or willingness to comply with protective bail conditions that would be imposed for the benefit of the complainant and her father (who, it will be recalled, was mentioned by the applicant in a text message).
However, while the applicant's past breaches of protective bail conditions and a violence restraining order are cause for reservations about whether he would comply with protective conditions on this occasion, he was not previously subject to home detention or the strict conditions that have been proposed in this case. Further, while the threats made to the complainant prior to her going to the police are abhorrent, there is no evidence in these proceedings that anything has occurred in the time during which the applicant has been in custody to indicate that he has sought to put his threats into action through the agency of others. As I noted earlier, the confines of a prison are not necessarily a barrier to an accused enlisting others to carry out threats.
When the applicant made threats prior to his arrest, he was not subject to constraints on his freedom of the type that would be in place if the applicant were to be subject to home detention and strict conditions that would enable the police to monitor his conduct and communications. Further, it is a relevant consideration that, although the threats were inexcusable, the last series of threats made by the applicant prior to his arrest occurred when the complainant re-established contact with him, after he had sought to distance himself from her. That provides some basis for expecting that the applicant would comply with an obligation to have no contact with the complainant, when that obligation will be buttressed by home detention and strict conditions that would reduce the risk of such contact occurring and would enable the authorities to monitor his movements and communications.
Without diminishing the complainant's fears, the potential for the previous threats to affect her preparedness to give evidence, should the applicant be released on bail, needs to be considered against the background that the complainant made her complaint to the police, and gave a statement, despite those threats, and while the applicant was at large. There is evidence that, in January 2023, the complainant moved to the United Kingdom to protect herself and her son, but that she 'felt forced to return to Australia' because she had no support in the United Kingdom.[94] She returned in March 2023. While those events tend to confirm the extent of her fears, they also demonstrate a degree of resilience, which is to her credit.
[94] Deeny affidavit [29], [31].
In assessing the extent of any residual risks, should bail be granted, I have also had regard to the support the applicant will have from his parents and his current partner. While that support does not detract from my finding that the risks I have identified are real and significant, it is another factor that may reduce those risks in the context of strict bail conditions. Similarly, given that an important factor in the applicant's alleged offending is the effect of illicit drugs or alcohol, conditions that would prohibit him from using such substances, and would allow for monitoring for such use, could also be expected to reduce the risks.
I accept that interference with a witness may occur in ways that do not involve physical harm. In that context, I have had regard to the fact that the complainant lost her employment in circumstances in which the applicant may well have had a hand. However, even if the complainant was currently in employment, about which there is no evidence, the risk of interference with her employment (as a means of intimidation) is not necessarily reduced by the respondent being in custody. The purpose of a remand in custody is not to punish the accused, but to protect against the risks to the safety of the community or specific individuals, and to the integrity of the justice system, when conditional bail is considered to be incapable of achieving such protection. A condition that would prevent the applicant from working in the tow truck business could be expected to lessen the prospect of the applicant being able to interfere with the complainant's employment, should she return to that line of work.
In my opinion, the risks would also be reduced by conditions that would prevent the applicant from associating or communicating with any person involved with any OMCG, or with the person referred to as 'Karl' in one of his text messages to the complainant.
The conditions in relation to the applicant's use of electronic devices, set out at the end of these reasons, provide significant scope for the police to monitor the applicant's communications and detect whether he has sought to delete or disguise any communications. They also prevent any possible claim that communications that might be found on the applicant's devices are not his, as he is precluded from sharing the use of his electronic devices. The requirement that he provide the police with access to data on his devices would also preclude the use of encrypted devices. In my opinion, the conditions are necessary to sufficiently reduce the risk of the applicant interfering with the complainant or enlisting others to do so, given that many of his threats to her are alleged to have been communicated by mobile telephone.
Although the respondent did not submit that the applicant poses a significant flight risk, and I do not find that to be the case, there is some risk in that regard, particularly in light of the strength of the evidence against him. It is appropriate, therefore, that there be some conditions apart from home detention that mitigate that risk, namely in respect of obtaining a passport and approaching points of departure from the jurisdiction.
However, the main purpose of home detention is to mitigate against the risk that the applicant may commit an offence, endanger the welfare of the complainant, or interfere with her as a witness by other means. In my opinion, apart from the conditions concerning a passport and approaching points of departure, all of the conditions set out at the end of these reasons are necessary for that purpose.
For the reasons I have given, I am satisfied that the proposed conditions would sufficiently reduce the risks I have identified, such that any residual risk no longer constitutes a proper ground for refusing bail, given that the applicant is presumed to be innocent of the charges, notwithstanding the strength of the case against him. It is to be expected, however, having regard to the nature of the risks I have identified, that the applicant will comply with the conditions strictly. He should expect that any breach of the conditions of bail would result in his arrest and an application by the authorities for his bail to be revoked.
Conclusions
For the reasons I have given, the applicant is granted bail on the following conditions:
1.The accused is to be subject to a home detention condition in accordance with Sch 1 Pt D cl 3(3) of the Bail Act 1982 (WA).
2.The accused, while subject to the home detention condition, is to be subject to electronic monitoring under Sch 1 Pt D cl 3(5) of the Bail Act 1982 (WA).
3.The accused is not to be released on bail, in accordance with these conditions, until there is confirmation from Adult Community Corrections that monitoring equipment is available and can be installed at the nominated premises where you are to reside.
4.The accused is to be under the supervision of a community corrections officer and comply with the directions of the community corrections officer under Sch 1 Pt D cl 3(5) of the Bail Act 1982 (WA).
5.The accused must reside at [REDACTED] for the purposes of home detention.
6.The accused is not to leave Western Australia or approach within 500 metres of any point of international departure.
7.The accused is not to apply for a passport.
8.The accused must not be in possession of, use or consume any illicit substance.
9.The accused must not be in possession of any prescription medication unless it is prescribed for him.
10.The accused is to submit to urinalysis testing for illicit substances or prescription drugs as directed by a community corrections officer, and any positive result, failure to provide a sample or provision of a dilute or void sample is to constitute a breach of this condition.
11.The accused is not to be in possession of, or consume, alcohol.
12.The accused is to submit to random breath testing, as required by a police officer with the Western Australia Police Force (police officer), and any positive result for alcohol, or a failure to provide a sample, is to constitute a breach of this condition.
13.The accused is not to apply for, acquire, or hold a licence to possess any firearm, any ammunition, or any prohibited or controlled weapon as defined in the Weapons Act 1999 (WA).
14.The accused is not to work as a tow truck driver or assist in the work of a tow truck driver.
15.The accused is not to possess more than one landline telephone and one mobile telephone.
16.The accused is to provide to any police officer involved in the investigation of the charges the subject of this bail undertaking (the charges) (a) details of every computer, telephone and other electronic device capable of being used for communication and/or storing digital data or information which is possessed or used by him, whether or not it is capable of being connected to the internet, and (b) the location of every such computer, telephone and/or other electronic device.
17.The accused is not to use any computer, telephone or other electronic device other than those for which details have been provided to any police officer involved in the investigation of the charges.
18.The accused must not delete or otherwise remove or disguise, or cause or allow to be removed or disguised by another person, any data, including but not limited to calls, Short Message Service (SMS) messages, search histories or logs capable of identifying his activities on that computer, telephone and/or other electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance of a police officer involved in the investigation of the charges.
19.The accused, upon request, must permit a police officer at any location nominated by such officer or another police officer, to access information on any computer, telephone and/or other electronic device capable of storing digital data, for the purpose of ascertaining the accused's activities on the computer, telephone and/or other electronic device, and provide such officer, upon request, any password or other means used to unlock or access the device. Should any other person need to access any of the accused's electronic devices, for instance, to provide technical advice or assistance, approval must be sought in advance from a police officer involved in the investigation of the charges.
20.The accused must enable device locking, pin, or password protection of any computer, telephone and/or other electronic device possessed or used by him, and must not provide any such pin, password, or any other device locking means required for such access, to anyone other than a police officer or a person who is providing technical advice or assistance, when approval has been given by a police officer for such a person to provide technical advice or assistance.
Protective Bail Conditions:
21.The accused must not contact or attempt to contact Emily CAMILLERI (the complainant) by any means, direct or indirect, which includes having someone else contact or attempt to contact the complainant.
22.The accused is not to approach within 30 metres of the complainant, and is not to enter or remain upon, any premises where the complainant lives or works, or be within 50 metres of the nearest external boundary of such premises.
23.The accused is not to approach within 30 metres of the complainant's father, [REDACTED], and is not to communicate with him by any means, direct or indirect, which includes having someone else communicate with him.
24.The accused must not contact or associate with any member, nominee or person connected with any Outlaw Motorcycle Club by any means, direct or indirect, which includes having someone else contact such a person on his behalf.
25.The accused must not contact or attempt to contact [AKL] by any means, direct or indirect, which includes having someone else contact [AKL] on his behalf.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
2 JUNE 2023
[39].
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