Cardosa v The State of Western Australia - [2015] WASC 471

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CARDOSA -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 471

CORAM: MARTINO J

HEARD: 20 NOVEMBER & 1 DECEMBER 2015

DELIVERED : 1 DECEMBER 2015

FILE NO/S: MBA 39 of 2015

BETWEEN: MICHAEL JOHN CARDOSA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application for bail

Legislation:

Bail Act 1982 (WA)

Result:

Home detention bail granted

Category: D

Representation:

Counsel:

Applicant: Mr T M Petherick
Respondent: Mr D T Carlson

Solicitors:

Applicant: Petherick Cottrell Lawyers
Respondent: Director of Public Prosecutions (WA)

Cases referred to in judgment:

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
MARTINO J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

The applicant applies under s 14 of the Bail Act 1982 (WA) for bail to his appearance in the Magistrates Court at Mandurah on 14 March 2016.
I am to exercise the discretion to grant or refuse bail having regard to the questions set out in cl 1 pt C sch 1 to the Bail Act, as well as any other questions which I consider to be relevant. In considering whether the applicant may do any of the things mentioned in cl 1(a) pt C sch 1, I am to have regard to the matters set out in cl 3 pt C sch 1 as well as to any other matters which I consider relevant.
The applicant applied for bail in the Magistrates Court on 7 August 2015. Bail was refused. The applicant does not need to demonstrate that there has been any error in the Magistrates Court in refusing bail. This is a fresh hearing of the application for bail, which I am required to determine in accordance with the provisions of the Bail Act.
In Milenkovski v The State of Western Australia,[1] McLure P said:
The Bail Act does not in terms place any legal onus on any party to a bail application. However ... 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.
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [41].
The applicant is in custody on 34 charges. They are one charge of being armed with a dangerous weapon in circumstances likely to cause fear, two charges of possession of a firearm while not being the holder of a licence or permit under the Firearms Act 1973 (WA) in the circumstance of aggravation that the firearm was a handgun, two charges of possession of ammunition while not being the holder of a licence or permit under the Firearms Act, one charge of possession of an explosive substance under circumstances that gave rise to a reasonable suspicion that he did not have the substance in his possession for a lawful purpose, eight charges of possession of property reasonably suspected of having been unlawfully obtained, two charges of possession of a firearm while not being the holder of a licence or permit under the Firearms Act in a circumstance of aggravation that the firearm had been altered from the design or characteristics of its original manufacture, one charge of possession of a firearm while not being the holder of a licence or permit under the Firearms Act in the circumstance of aggravation that a number or identification mark had been defaced or removed from the firearm, four charges of possession of a prohibited weapon, six charges of possession of a firearm while not being the holder of a licence or permit under the Firearms Act, three charges of possession of a contrivance, namely a silencer, while not authorised under the Firearms Act, two charges of possession of drug paraphernalia, two charges of possession of a prohibited drug, namely less than one gram of cannabis.
The facts alleged by the State on the charge of being armed with a dangerous weapon in circumstances likely to cause fear are that, on the morning of 26 May 2015, the applicant went to the home of the complainant. The applicant was armed with a shotgun. He called the complainant to come out of his house, which the complainant did not do. The applicant then fired two shots from the shotgun and left. The complainant later went outside. He saw a shotgun shell on the ground, which the police have recovered. There was no damage to the complainant's house.
On the following day, police officers executed a search warrant at the applicant's home. They found a large quantity of property, which they allege is property reasonably suspected of having been stolen, three firearms, ammunition, three silencers, three crossbows and a Taser. They also found a telephone, which was later analysed and found to have video footage of the applicant using a firearm. The police officers also found a business card for a storage unit.
On 29 May 2015, police officers executed a search warrant at the storage unit. The unit was rented by the applicant's co-accused. Police officers found more firearms and ammunition at the storage unit. Police officers have obtained CCTV footage from the owner of the storage unit which shows the accused and his co-accused unloading items from a four wheel drive vehicle.
The applicant has deposed that he is innocent of the charges. He has attended all court appearances required of him and he has never breached bail. He is a long-term resident of the Peel area. He does not have a passport. If granted bail, he will live at his mother's address. His mother has health and mobility problems and he wishes to be able to continue to support her. The application is supported by a letter from the applicant's mother and her general medical practitioner. The applicant's mother suffers from advanced disc disease and from depression. The applicant is her major support person. His mother's depression has worsened since he has been remanded in custody.
The applicant's grandmother is 93 years old and is in poor health. The applicant wishes to support her. The application is supported by a letter from the applicant's employer. The applicant is a valued employee. Employment is available to him if he is released on bail.
The applicant's partner is pregnant with their first child. He is unable to support her while he is in custody. The applicant has been assaulted in prison and he is fearful of his safety while in prison.
The appearance on 14 March 2016 is for trial on all the charges. The applicant's counsel considers it unlikely that the trial will be completed on that day. He has informed me that if the trial is not completed on that day, it is likely that the trial will not be completed until around August or September 2016.
The applicant's counsel informed me that the credibility of the complainant of the charge of going armed in a way that may cause fear will be challenged at trial. He also informed me that there is some confusion as to the correct address of the applicant's home, and he will be challenging the validity of that search. Counsel for the applicant also informed me that the applicant contends he had no involvement with the storage of items at the storage unit.
The applicant has a lengthy record. He has served imprisonment and was on a suspended imprisonment order at the time he was charged with the offences in respect of which he now applies for bail. His record includes convictions for breach of a violence restraining order, a breach of a community‑based order and a breach of a suspended imprisonment order. It also includes convictions for drug offences, including possession of a prohibited drug with the intent to sell or supply and offering to sell or supply a prohibited drug, offences of possession of an unlicensed firearm, possession of a controlled weapon and aggravated unlawful wounding.
The State opposes the application for bail. It submits that if granted bail, there will be a risk that the applicant will interfere with the complainant on the charge of going armed in a way that may cause fear, and that he may offend.
The charges that have been laid against the applicant are serious, involving allegations of unlawful possession of significant firearms and ammunition and an allegation that a firearm was deployed in a frightening manner.
The applicant's record is extensive.
The applicant has used drugs, possessed dangerous items and been violent. I am concerned that if granted bail, the applicant may re‑offend and may interfere with the complainant on the charge of going armed in a way that may cause fear. For that reason, I was not prepared to grant bail on the initial hearing of the application, but requested a home detention bail report, which I have received. That report states that:
Mr Cardosa's period of remand has not been without incident, with reported fighting, being out of bounds and being discharged from his work due to a poor work ethic.
It was noted that he is having difficulty following unit rules. The report also describes the house as being suitable and says that:
The home and support being offered by the applicant's mother appears positive, should he choose to maintain and comply with Adult Community Corrections directions.
The report also says that the author has reviewed the Australian Business Register of the stated employer and the ABN was cancelled on 9 September 2015. However, should the applicant provide the Court with evidence of employment, a curfew requirement is recommended to monitor his work commitments.
Following receipt of that report, with my permission, counsel for the respondent contacted the author of the report and ascertained that if released to employment while on home detention bail the applicant would not be monitored.
The question of whether or not to grant home detention bail is a marginal one. There are the significant risks to which I have already referred.
On the other hand, if Mr Cardosa does comply with his home detention bail conditions, then there will be benefits for him and his mother, and the house is suitable and his performance can be monitored appropriately.
I am not prepared to allow Mr Cardosa to take up employment when released to home detention bail because he will not be monitored and the risks of him re‑offending or interfering with the complainant during the hours of a work day are simply too great. However, I am prepared to allow home detention bail with a 24‑hour curfew.
For those reasons, I grant home detention bail on the following terms.
The terms are home detention bail with a personal undertaking of $20,000, a surety of $50,000, including a 24‑hour curfew, seven days a week, not to use illicit substances, including cannabis, not to consume alcohol, to attend urinalysis as directed and provide a valid sample and to comply with all lawful directions of a Community Corrections officer.
I grant that bail to the appearance in the Magistrates Court at Mandurah on 14 March 2016.