Clarke v The State of Western Australia - [2016] WASC 266

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CLARKE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 266

CORAM: FIANNACA J

HEARD: 30 MAY, 9 & 30 JUNE 2016

DELIVERED : 30 JUNE 2016

FILE NO/S: MBA 11 of 2016

BETWEEN: CAMERON CLARKE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - Home detention condition - Grounds for refusing bail - Delay - Strong prima facie case - Turns on own facts

Legislation:

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

Result:

Application dismissed
Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr G James QC
Respondent: Mr B Tooker

Solicitors:

Applicant: Nigams Legal Pty Ltd
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
The State of Western Australia v Hinton [2015] WASC 288

Table of Contents

The application and outcome
The charges
Bail at the time of alleged offending
Outline of alleged facts

April offences
September offences
October offences

Evidence at the hearing

Ms Perling's affidavit ‑ the applicant's account

Legal principles
Application of the principles to this case

Clause 1(a)(i) ‑ Whether the applicant may fail to appear in court in accordance with his bail undertaking if released on bail
The nature and seriousness of the offences ‑ Clause 3(a)
Character, antecedents, etc ‑ Clause 3(b)

(i)      The applicant's personal circumstances
(ii)      Financial position and other resources relevant to risk of flight
(iii)     Prior criminal record

History of previous grants of bail ‑ Clause 3(c)
Strength of the evidence against the applicant ‑ Clause 3(d)

(i)      April offences
(ii)      September offences
(iii)     October offences
(iv)     Conclusion as to the strength of the prosecution case

Clause 1(a)(ii) ‑ Whether the applicant may commit an offence if released on bail
Clause 1(e) ‑ Are there conditions that could neutralise the grounds for refusing bail?

Whether delay in getting to trial will result in an injustice

Conclusion

Publication

FIANNACA J:
(This judgment was delivered orally on 30 June 2016 and has been edited from the transcript.)

The application and outcome

On 29 April 2016, the applicant, Cameron Clarke, applied to this court for bail in respect of his next appearance at a Committal Mention hearing in the Magistrates Court in Perth on 8 July 2016 on a number of charges alleged to have been committed on 14 April 2015, 10 September 2015 and 28 October 2015. They include charges of having ready access to weapons and cash, possession of stolen or unlawfully obtained property, unlawful possession of firearms and ammunition and three counts of possessing a prohibited drug with intent to sell or supply. The offences of 10 September 2015 and 28 October 2015 are alleged to have been committed while the applicant was on bail for the offences of 14 April 2015.
The applicant was refused bail in the Magistrates Court. The present application was brought under s 14(2) of the Bail Act 1982 (WA) (the Act) and invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred by s 13 and sch 1 pt A of the Act on the magistrate who refused bail. It is not an appeal.
The application was heard on 30 May 2016. A number of affidavits were tendered on behalf of the applicant, and the respondent tendered the prosecution briefs, as compiled at that stage in respect of each of the charges, and a number of disks containing closed circuit television (CCTV) and surveillance video relevant to the September 2015 charges. At the conclusion of that hearing, I reserved my decision.
One of the submissions made on behalf of the applicant was that, if I was of the view that bail would be appropriate only if the applicant were subject to a condition of home detention, the applicant was prepared to be subject to such a condition and I should obtain a home detention assessment report, as required by s 24A(2) of the Act. In the event, I came to the preliminary view that home detention would be a necessary condition if bail were to be granted, and that I should obtain a report about the applicant's suitability for home detention before coming to a concluded view about the application. On the one hand, I considered that there were grounds for refusing bail and that the other proposed conditions of bail would not be adequate to neutralise the grounds for refusing bail. On the other hand, the respondent had provided information to the court soon after the adjournment indicating that the applicant may not have his trial in respect of the indictable offences, which will be heard in the District Court of Western Australia, until May or June 2017. The significant delay was a matter that I would need to take into account in the exercise of my discretion.
Accordingly, on 9 June 2016, I reconvened the hearing to order a home detention report. A report dated 22 June 2016 was received on or shortly after that date. The Community Corrections Officer was of the view that the address at which it was proposed the applicant would stay was suitable for home detention, with a number of protective factors in place. There was no suggestion that the applicant would not be suitable for release on home detention. However, in the meantime, the State had obtained information from the District Court to indicate that the applicant could receive a trial in March 2017.
I came to the conclusion that, notwithstanding the positive home detention report, bail should be refused. I made that order on 30 June 2016, at which time I gave brief reasons with detailed written reasons to follow. These are my reasons for refusing bail.

The charges

The prosecution notices on the prosecution briefs show that the applicant is charged with the following offences relevant to this application, as particularised ('Code' refers to the Criminal Code (WA); 'MDA' refers to the Misuse of Drugs Act 1981 (WA); 'Firearms Act' refers to the Firearms Act 1973 (WA)):

Offences alleged to have been committed on 14 April 2015
Statutory provision	Offence	Particulars	Statutory penalty
Code s 68D(2)	Without lawful excuse, having ready access simultaneously to a dangerous weapon and cash more than the prescribed amount	Had access to a Desert Eagle 9 mm handgun and $31,180 in cash.	5 years' imprisonment

Code s 417(1)	Possessing property reasonably suspected of being unlawfully obtained	$31,180.95 in cash	7 years' imprisonment
Firearms Act s 19(1)(c) and (1ac)	Possession of a firearm for which he was not the holder of a licence or permit, the firearm being a handgun.	Was in possession of a Desert Eagle 9 mm handgun.	7 years' imprisonment
Offences alleged to have been committed on 10 September 2015
MDA s 6(1)(a)	Possession of a prohibited drug with intent to sell or supply	Approximately 989 g of methylamphetamine	$100,000 or 25 years' imprisonment or both
Firearms Act s 19(1)(c) and (1ad)	Possession of ammunition for which he was not the holder of a licence or permit	10 rounds of live .22 calibre ammunition	5 years' imprisonment
Code s 68D(2)	Without lawful excuse, having ready access simultaneously to a dangerous weapon and cash more than the prescribed amount	Had access to a Walther .22 calibre semi‑automatic handgun and $268,080 in cash.	5 years' imprisonment
MDA s 6(1)(a)	Possession of a prohibited drug with intent to sell or supply	30.4 g of methylamphetamine	$100,000 or 25 years' imprisonment or both
Code s 417(1)	Possessing property reasonably suspected of being unlawfully obtained	$268,080 in cash	7 years' imprisonment

Code s 68E(2)	Without lawful excuse, having ready access simultaneously to a dangerous weapon and a prohibited drug	Had access to a Walther .22 calibre semi‑automatic handgun and MDMA	5 years' imprisonment
MDA s 6(1)(a)	Possession of a prohibited drug with intent to sell or supply	Approximately 316 g of MDMA	$100,000 or 25 years' imprisonment or both
Firearms Act s 19(1)(c) and (1ac)	Possession of a firearm for which he was not the holder of a licence or permit, the firearm being a handgun.	Was in possession of a Walther .22 calibre semi‑automatic handgun and ammunition.	7 years' imprisonment
Offences alleged to have been committed on 28 October 2015
Code s 68D(2)	Without lawful excuse, having ready access simultaneously to a dangerous weapon and cash more than the prescribed amount	Had access to a Browning 9 mm semi‑automatic handgun and a semi‑automatic 12 gauge shotgun and $36,223 in cash.	5 years' imprisonment
Firearms Act s 19(1)(c) and (1ad)	Possession of a firearm for which he was not the holder of a licence or permit.	Was in possession of a Beretta semi-automatic 12 gauge shotgun.	5 years' imprisonment
Code s 417(1)	Possessing property reasonably suspected of being unlawfully obtained	$36,223 in cash	7 years' imprisonment
Firearms Act s 19(1)(c) and (1ad)	Possession of ammunition for which he was not the holder of a licence or permit	A magazine containing 11 live rounds of 9 mm ammunition	5 years' imprisonment

Firearms Act

s 19(1)(c) and (1ac)

Possession of a firearm for which he was not the holder of a licence or permit, the firearm being a handgun.

Was in possession of a Browning 9 mm semi‑automatic handgun.

7 years' imprisonment

It can be seen from the particulars that a number of offences relate to the same conduct which is the subject of other offences. For instance, the offences of possession of stolen or unlawfully obtained property and the offences of unlawful possession of firearms are also the basis of charges of having ready access to both weapons and cash. Nevertheless, the number of individual alleged infractions giving rise to the charges in September and October 2015 is significant.
The applicant was charged with the September and October offences on 28 October 2015. He is alleged to have committed those offences at the address where he was living on each occasion in Nautilus Crescent, Scarborough. He was a lessee of those premises.

Bail at the time of alleged offending

At the time the September and October offences are alleged to have been committed, the applicant was on bail for the April offences. The conditions were:
1.a personal undertaking of $10,000;
2.that he reside at the address in Nautilus Crescent, Scarborough; and
3.that he report to the Perth Police Station every Monday, Wednesday and Friday.

Outline of alleged facts

April offences

The facts alleged in respect of the April offences are that on 14 April 2015 the applicant was seen by police to ride a motorcycle in contravention of a red traffic light in Perth. The police officers followed him and caught up with him when he was stopped near a carpark. As they approached, he tried to drive off, but the police blocked his way. He was apprehended and the police asked why he had tried to run. He said he had a gun in his bag. He was carrying a backpack, which was removed from him. He said that there was a 'clip' in the gun, but there was no ammunition in the chamber. One of the officers searched his bag and found a 9 mm Desert Eagle handgun which contained a magazine with 10 rounds of 9 mm ammunition. The police also found $31,180 in cash and three mobile phones in the bag. Two of the mobile devices were encrypted. The applicant told police that the cash and mobile devices were not his.
The applicant was charged and released on bail, as described earlier in these reasons.

September offences

The facts alleged in respect of the September offences are that, in the late evening of 10 September 2015, Police Air Wing (PolAir) followed an unknown person, who appeared to be speeding on a motorbike, to the address in Nautilus Crescent, Scarborough, where the applicant was living. Police on the ground were directed to the address and arrived about one minute after the motorcyclist. By that stage the motorcyclist and his motorcycle had gone into a garage at the house, and the door of the garage was closed. After knocking and making their presence known, the police were eventually admitted into the house, after some delay, by a woman who occupied the house with the applicant. That person is Claire O'Hart.
The applicant left the house by a rear exit, to avoid the police. It seems he did this as the police entered the house. He scaled down a rear wall to make his escape. Either immediately before leaving the house, or as he was making his way from the house, the applicant disposed of three large plastic bags containing approximately 989 g of methylamphetamine in a neighbour's backyard. The bags were wrapped in articles of clothing. Although PolAir directed police on the ground to where the applicant was moving, the police eventually lost sight of him, and he was not apprehended.
The packages containing the methylamphetamine were located during a subsequent search by police. The average purity of the 989 g of methylamphetamine, on analysis, was found to be 80%.
After police had entered the house in Nautilus Crescent, they noticed drug related items. Although Ms O'Hart sought to withdraw her consent to the police being in her place at that stage, the house was declared a protected forensic area, a search warrant was obtained, and a search was conducted. During the search which followed, police found a total of $268,080 in cash in various places, including $69,700 hidden behind clothing in an upstairs laundry, more than $40,000 in a ground floor music room, and more than $150,000 in the garage. They also found a number of different prohibited drugs in various locations throughout the house. Relevantly, for present purposes, they included 30.4 g of methylamphetamine, contained in a number of clip seal bags within the house and in a container on an external wall, and approximately 316 g of MDMA (ecstasy), including 313 g at 84% purity in a clip‑seal bag in a backpack found in the garage.
The police also found, in an upstairs bathroom, next to the applicant's bedroom, a 0.22 calibre Walther handgun, which was loaded with 10 rounds of 0.22 calibre ammunition.
The State alleges that the accused was in possession of the cash, the drugs and the handgun and ammunition, and that he had access to those items simultaneously. It alleges that he can be connected to all of the items by circumstantial evidence other than, but in addition to, his occupancy of the house. I will return to the evidence later.

October offences

The facts alleged in respect of the October offences are as follows. The police returned to the Nautilus Crescent address on 28 October 2015 to execute a search warrant. On that occasion the applicant was present in the music room.
During the search, police found substantial amounts of cash in three locations within the garage, totalling $36,223. In the music room and in the walk-in robe of an upstairs bedroom, they found three clip-seal bags containing what is believed to be methylamphetamine, although there were no analyst's certificates available at the time of the hearing, and the prosecution notices on the prosecution briefs tendered at the hearing do not contain drug charges for 28 October 2016. The statement of material facts for this incident indicates that the total amount of methylamphetamine found was approximately one gram, and there was also a smoking implement located, so one would expect the charge would be for the summary offence of simple possession of a prohibited drug.
The police also found a Browning 9mm semi-automatic handgun, together with a magazine containing 11 live rounds. The weapon was hidden behind a panel under a cupboard in the walk-in robe of the applicant's bedroom. Also hidden in the same area was a dismantled Beretta semi-automatic 12‑gauge shotgun.

Evidence at the hearing

The affidavits tendered on the applicant's behalf were from:
1.his solicitor, Margot Sonja Perling;
2.his mother, Vicki Maree Thorpe;
3.his brother, Kaide Thorpe;
4.Claire Rose O'Hart, who was his co-tenant of the premises in Nautilus Crescent; and
5.Clint Douglas Smith, who owns a carpentry business operating from Meadow Springs.
The affidavits of Ms Thorpe, Mr Thorpe and Mr Smith go to matters relevant to the applicant's personal circumstances and the conditions that might properly be imposed if bail were to be granted. I will return to them in context.
In her affidavit, Ms Perling outlines the charges against the applicant and the history of the proceedings so far. On the basis of instructions from the applicant she also outlines the applicant's personal circumstances and what he has to say about the September and October incidents, including his proposed defence to a number of the charges. I will refer to the applicant's personal circumstances later in context.

Ms Perling's affidavit ‑ the applicant's account

The applicant's instructions to his solicitor in relation to the September 2015 charges are, in essence, as follows:
1.At the relevant time, he was at home with Ms O'Hart and a friend, who I will refer to as JD, who arrive around 9.30 pm. He and JD were in the lounge room on the first floor listening to music, and Ms O'Hart was upstairs in her room.
2.About an hour after JD had arrived, so about 10.30 pm, he heard someone drive down the driveway on a motorbike. He went downstairs, opened the roller door to the garage and saw that the person on the motorbike was a male person, who I will refer to as NJR. He had known NJR for about three years, although they were not friends and did not socialise together. The applicant was surprised to see NJR.
3.NJR pushed his motorcycle into the garage and then ran upstairs to the lounge room. He appeared to be panicking. The applicant followed him.
4.The applicant then looked at the vision from CCTV cameras at the front of the house, and saw there were police officers there.
5.NJR was carrying a backpack. He pulled something out of the backpack and carried 'these items' to the laundry, leaving the backpack in the kitchen. The applicant followed NJR and saw him wrap the items in some of the applicant's dirty clothes, which NJR removed from the laundry basket.
6.The applicant inferred that the items contained something illegal. He panicked, because he was on bail for other offences and did not want to be in more trouble. He told NJR he did not want that stuff there and to get it out. He then picked up the bundle of clothes in which the items were wrapped, and threw them out the laundry door over the neighbour's fence.
7.NJR ran back to the lounge room.
8.The applicant remained in the laundry until he heard police officers come inside. He then went out through the laundry door into the backyard, jumped the neighbour's fence and ran down the road to a friend's house.
9.He remained at this friend's house for one night, because he was worried that he was going to get into trouble for the items that NJR brought to his house.
10.He had no knowledge of the drugs found wrapped in his clothing in his neighbour's backyard, and he does not know who they belonged to.
11.He had no knowledge of the drugs found in various places in his home, and he does not know who they belonged to.
12.The large sum of cash found in his house belonged to a friend, who I will refer to as ST, who left it with the applicant to look after at the beginning of September 2015 as ST was travelling to Sydney.
13.In relation to the handgun and ammunition, the applicant was still considering his position pending disclosure of evidence.
The applicant's instructions to his solicitor in respect of the October 2015 charges are, in essence, as follows:
1.The $36,223 in cash belonged to another friend, who I will refer to as DM, who had left it at the applicant's house the night before, without the applicant's knowledge.
2.In relation to the one gram of methylamphetamine, the applicant was still considering his position pending disclosure of evidence.
3.In relation to the hand gun and ammunition, again the applicant was still considering his position pending disclosure of evidence.
4.In relation to the shotgun, he knew it was in his house, but it did not belong to him.

The applicant intends to maintain a plea of not guilty to the indictable offences.

Legal principles

In this State, the subject of bail is governed by the provisions of the Act, which is intended to be a comprehensive code on the subject.[1] Any common law or inherent power to grant bail has been abolished.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [31].
[2] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [32].
The exercise of my discretion to grant bail in the present case is governed by cl 1 of pt C of sch 1 of the Act. That clause is subject to cl 3A and cl 3B of the same part. Neither of those clauses applies to the determination of this application.
Clause 3A applies where an accused is charged with committing a serious offence, as defined in the Act, while on bail for another serious offence. In those circumstances the court must not grant bail unless it is satisfied that there are exceptional reasons why the accused should not be kept in custody and is also satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3. Although some of the offences with which the applicant was charged in September and October 2016 were serious offences, as defined, the offences with which he was charged on 14 April 2014, and for which he was on bail, were not serious offences for the purposes of cl 3A.
Clause 3B applies where the offences charged are serious offences, as defined, and amount to a breach of a protective condition of bail that existed at the time the offences are alleged to have been committed. Again, while some of the offences with which the applicant was charged in September and October 2016 were serious offences, there was no breach of a protective bail condition. Accordingly, the applicant comes to be dealt with under cl 1, without qualification.
Clause 1 provides that the grant or refusal of bail to the applicant is in the judicial officer's discretion. It requires that the discretion be exercised having regard to questions posed by pars (a) to (g) of that clause, as well as to any others which the judicial officer considers to be relevant. For the purposes of this application, the following paragraphs are potentially relevant:
(a)whether, if the accused is not kept in custody, he may ‑
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence;
…
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
…
(e)whether there is any condition which could reasonably be imposed under Part D which would ‑
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
…
(iii)remove the grounds for opposition referred to in paragraph (c);
…
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
The matters specified in those paragraphs are non‑exclusive mandatory relevant considerations.[3] The word 'may' in paras (a) and (d) means the possibility of the relevant event occurring, as is apparent from cl 1(e)(i).[4] So, the question is whether, if the accused is not kept in custody, there is a possibility he would fail to appear in court in accordance with his bail undertaking or he would commit an offence.[5]
[3] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 106 [24].
[4] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [42].
[5] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [42].
The proper construction of cl 1 and the manner in which the discretion is to be exercised were elucidated by McLure P in Milenkovski, in the following terms:[6]
First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
[6] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 109 ‑ 110 [39] ‑ [41].
It follows that common law cases that required an applicant for bail to demonstrate exceptional reasons or circumstances for the grant of bail, where the offence charged was extremely serious, do not apply.[7] There are specific provisions in the Act which create a rebuttable presumption against the grant of bail, such as cl 3A referred to above.[8] They are not relevant in the present application. While para (g) of cl 1 is predicated on the assumption that the circumstances of an offence may be so serious that the grant of bail would be inappropriate, it does not create a presumption; rather, it is one of a number of positive grounds under cl 1 for refusing bail. When considering under cl 1(e) whether there is any condition that could neutralise the positive ground or grounds for refusing bail, the test is not whether such a condition constitutes an exceptional reason for the grant of bail. Similarly, in the balancing process inherent in the exercise of the discretionary power, which follows the finding of facts by answering the questions in paras (a) ‑ (g) of cl 1, the question is not whether there are exceptional reasons for the grant of bail.
[7] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [4] ‑ [45].
[8] See Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 109 [36], [37], [39].
As I noted earlier, the questions in cl 1(a)(i) and (ii) are potentially relevant in this case. Clause 3 of sch 1 pt C provides that, in considering whether the accused may do any of the things set out in cl 1(a), the judicial officer shall have regard to the following matters, as well as any other matters that the judicial officer considers relevant:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
Those matters are non‑exclusive mandatory considerations.[9]
[9] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 106 [25].
Where, under cl 1, the court considers there are positive grounds for refusing bail, one of the conditions that may be considered as potentially neutralising those grounds is home detention.[10] Part VIA of the Act contains specific provisions for the administration of home detention conditions, which give the chief executive officer of the Department of Corrections (the CEO Corrections) and Community Corrections officers various powers, including, in the case of the CEO Corrections, a power to revoke the bail. However, there are not two separate systems of bail, one operating under the general provisions, and the other operating separately under pt VIA. It is one system of bail that applies and, in particular, at the stage of a judicial officer considering an application for bail, a home detention condition is simply another condition that will be considered under cl 1(e) of pt C.
[10] See Bail Act 1982 (WA) s 17 and sch 1 pt D cl 3.

Application of the principles to this case

I turn to the factors that I need to consider under cl 1 of the Act.

Clause 1(a)(i) ‑ Whether the applicant may fail to appear in court in accordance with his bail undertaking if released on bail

The determination of this question is informed by a consideration of the matters listed in cl 3. I have concluded that, having regard to the nature and seriousness of the offences, in particular the September 2015 charge of possessing approximately 989 g of methylamphetamine with intent to sell or supply, the strength of the evidence against the applicant, and the means that may be available to him to abscond and avoid detection, there is a significant risk that the applicant may fail to appear in court in accordance with his bail undertaking if he is released on bail.

The nature and seriousness of the offences ‑ Clause 3(a)

All of the indictable offences are serious, and, having regard to the circumstances in which they are alleged to have been committed, are likely to attract terms of imprisonment, if the applicant is convicted. If he is convicted of all of them, the course of conduct would suggest a persistent involvement in drug dealing at a significant level, given the large amounts of cash that were found and the applicant's recourse to firearms. The likely total effective sentence for all of the offences would be a substantial term of imprisonment and, assuming he was made eligible for parole, the non‑parole period would far exceed the time he will have spent in custody awaiting his trial, about which I will say more, later in these reasons. The charge concerning the amount of 989 g of methylamphetamine (at an average purity of 80%), which the applicant is alleged to have possessed on 10 September 2015, alone would attract a sentence of that order.
The prospect of being sentenced to a very lengthy term of imprisonment is an obvious disincentive for an accused to answer bail.

Character, antecedents, etc ‑ Clause 3(b)

The applicant's personal circumstances

The applicant is 32 years old. He is not currently in a relationship and does not have any children.
His immediate family, with whom he is close, consists of:
1.his mother, who lives in Queensland and is the manager of a bed linen shop;
2.his sister, Bianca, who also lives in Queensland, is a manager in a finance company, is married and has three children;
3.his sister, Rachel, who lives in New South Wales, works as a service administration clerk, is married and also has three children; and
4.his half‑brother, Kaide Thorpe, who lives in Mandurah, Western Australia, and is employed as a heater technician.
The applicant completed school in Year 10 and then partly completed a bricklaying apprenticeship, before undertaking labouring work, including roof tiling and carpentry.
When he was 23 years old, he was convicted of possession of methylamphetamine with intent to sell or supply it to another. He was sentenced to 12 months' imprisonment. He served 6 months in prison before being released on parole. After he was released from prison in 2007, the applicant moved to Queensland to live with his sister, Bianca. While in Queensland, he worked as a removalist before gaining employment as a service crew member in the mining industry. Over the next few years, he progressed to the position of leading hand and then cable bolter.
In 2012, the applicant returned to Perth to help his mother care for his step‑father, who had become ill. He lived with his mother and step‑father until after his step‑father passed away. His mother then sold the family home and moved to Queensland. The applicant then lived in a rental apartment in the Perth CBD until he moved into the house in Nautilus Crescent, Scarborough in February 2015 with Ms O'Hart, as co‑tenant.
After returning to Perth in 2012, the applicant gained employment as a production driller and worked in that role until 2013, at which time he was made redundant. From 2013 until his arrest on 28 October 2015, the applicant continued to undertake work as a labourer on a casual basis. Mr Smith, who owns the carpentry business in Meadow Springs has attested that he has work available for the applicant, if he were released, and arrangements could be made to transport the applicant to and from work.
I was told that the applicant's family are hardworking and well‑respected within the community, which I accept. However, the good antecedents of the applicant's family have not prevented him from committing criminal offences in the past, including drug and weapons offences, or from finding himself in circumstances in which he has access to drugs, firearms and large sums of cash. Ultimately, it is necessary for me to focus on the applicant's antecedents in assessing the risk that he would fail to answer his bail.
The applicant's personal circumstances, as I have outlined them, do not suggest that he has ties to Perth that would provide a significant counterbalance to any incentive he may have to abscond. He has worked on a casual basis, although I accept he could have work available to him if released in bail. He does not have significant assets in Western Australia. He has one family member who lives in Western Australia, but his close family is otherwise in Queensland and New South Wales. He lived in Queensland for five years, from 2007 to 2012, so he has familiarity with that State should he choose to relocate in another jurisdiction.
It was submitted on the applicant's behalf that the fact he has relatives in the Eastern States should not be regarded as creating a temptation to the applicant to leave Western Australia, as he has not sought to live with them for some time. Of course, he has not previously been faced with charges of the degree of seriousness he now faces, with the potential consequences to which I have already referred.
In any event, the factors under consideration must be considered in combination, not on a piecemeal basis. It is both the relative lack of significant ties to Western Australia and the familial connection and familiarity with Queensland, together with the other considerations under cl 3, that inform the risk under cl 1(a)(i).

Financial position and other resources relevant to risk of flight

The respondent relies on the applicant's apparent ability to access large amounts of cash as indicative of his capacity to abscond and be self‑sufficient. In essence, the respondent argues that, whether the cash found in his possession or on his premises has been from the applicant dealing in drugs or entrusted to him by others, it nevertheless shows that he has the ability to come into possession of more than $30,000 on each occasion in April and October 2015, and more than $268,000 in September 2015.
In respect of the latter, the applicant's instructions to his solicitor (as noted above) acknowledge that the money was in his possession, claiming that it was left with him for safekeeping by a friend. The respondent also points to the fact that, of that sum, $8,800 in cash was found in the applicant's backpack on 11 September 2015, together with his passport. It refers to the fact that the applicant has travelled overseas in recent years and submits there is a risk he will do so again.
Finally, the respondent also refers to the fact that, during the search of the applicant's house on 11 September 2015, police found a NSW driver's licence with the applicant's photograph on it in the name of Kyle Adams. They also found a Medicare card and ANZ bank card in the same name. The respondent submits that these demonstrate the applicant's ability to obtain false identification which would facilitate a move to another jurisdiction within Australia where he could live undetected.
On the applicant's behalf, it was submitted that his passport was seized, which detracts from the submission that he is a risk of fleeing overseas. The applicant also points to the fact that all of the amounts of cash found by the police were seized, as were a number of household goods (such as televisions and other electronic equipment) that supposedly pointed to a wealthy lifestyle, notwithstanding that he was working as a labourer. Although it was not specifically mentioned, the driver's licence and card in the name of Kyle Adams were also seized by the police. It was submitted that the suggestion that the applicant might now have the resources to flee flies in the face of those facts. However, the respondent's argument was not predicated on presently available resources, rather on a demonstrated ability on the applicant's part to obtain such resources and the risk that the he would do so, if at large, to abscond and be undetected and self‑sufficient in another jurisdiction. There is no reason to think at this stage that he would not still have the means to obtain such resources if he were at large.
In my opinion, while it is unlikely the applicant would abscond overseas, given that his passport has been confiscated, the evidence does suggest he has the capacity to obtain false identifying documents to enable him to live in another Australian jurisdiction and avoid detection, and he at least has connections through whom he could obtain large sums of money to facilitate a move and perhaps be self‑sufficient for a period of time. Of course, it would not be necessary for the applicant to leave Western Australia to go into hiding. His capacity to gain access to substantial sums of money and false identifying documents, which the evidence demonstrates prima facie, would equally facilitate his going into hiding and sustaining himself within this State.

Prior criminal record

The applicant has a prior criminal record, which his counsel acknowledged was 'poor'. Most notably, he has a prior conviction in 2007 for possession of methylamphetamine with intent to sell or supply. He received a sentence of 12 months' imprisonment. He also has convictions for drug, weapons, dishonesty and traffic offences.
The convictions for drug offences, especially the possession with intent to sell or supply, are relevant in at least three respects. First, if the applicant were to be convicted of the offences of possession, with intent to sell or supply, of the large amounts of methylamphetamine and MDMA found by the police on 10 September 2015, he would not have the mitigating benefit of good antecedents, and personal deterrence would be a relevant factor, which would have a bearing on the sentencing disposition. Secondly, the State has foreshadowed an application to adduce evidence of the prior offence as propensity evidence in respect of the pending charges. It is relevant, therefore, to the strength of the State's case. Thirdly, it is relevant to the possibility that the applicant would commit an offence if not kept in custody.
The applicant's convictions for weapons and ammunition offences are relevant in considering whether there may be an innocent explanation for the weapons found in his possession or on his premises in the present case. That, in turn, is relevant to my assessment of the strength of the case against the applicant on the weapons charges and the possibility that he would come into possession of firearms if not kept in custody.

History of previous grants of bail ‑ Clause 3(c)

The applicant has previously breached bail on an unrelated matter. He was convicted of a breach of bail in 2006. On that occasion, he failed to appear in court as required by his bail undertaking and was arrested by police about six weeks later. He was fined $200. Senior counsel for the applicant submitted that the police statement of material facts in respect of that breach supports the conclusion that it was not an egregious breach. The applicant told police that someone was supposed to pick him up, but failed to do so, and he slept in and failed to comply with his undertaking. He then did not know what to do, and that apparently explained his failure to appear. In any event, senior counsel submitted that the penalty imposed indicates that it was not regarded as a particularly serious breach.
It was submitted on behalf of the applicant that his continued compliance with the reporting conditions of his bail for the April 2015 charges and the fact that he continued to reside at his home, even after he knew that his home had been searched by the police and incriminating items had been found on 10 September 2015, indicate that he would be willing to comply with any conditions the court might impose now, and that the court should have confidence that he will comply.
In my opinion, and with all due respect to senior counsel's submission, the other obvious explanation is that the applicant did not want to draw attention to himself, thinking he could get away with the fact he had avoided the police during the search on 10 September, and knowing that, if he failed to report, there was the prospect that his bail would be cancelled and he would remain in custody, if apprehended. The point is that, while commendable, the applicant's continued compliance with his bail conditions at that stage is a neutral fact, in my opinion, in assessing his likely compliance now, having regard to the multiplicity of charges and the significant escalation in seriousness.
Returning to the breach of bail in 2006, if it were only that matter that I were taking into account, I would not have regarded it as being of such significance as to refuse the grant of bail, but it is nevertheless a matter that I have regard to amongst the other factors that I am taking into account.

Strength of the evidence against the applicant ‑ Clause 3(d)

It is not my function at this stage to form any view about the accused's guilt, and I have not done so. Further, as the applicant correctly submitted, it is not the role of the court hearing a bail application to resolve any conflicts in the evidence or to determine issues of credibility. However, as I noted earlier in discussing the legal principles, the strength of the evidence against the applicant is a mandatory consideration. The authorities recognise that, when combined with the potential consequence of a lengthy term of imprisonment upon conviction, a strong prosecution case may cause an accused to abscond because of fear of the outcome of a trial. Conversely, a weak prosecution case would create no such incentive, and may indeed be an incentive for an accused to appear at his trial in the expectation of a favourable outcome.
It is necessary, therefore, for me to assess the strength of the case against the applicant, and to do so by analysing and evaluating the evidence available on the prosecution brief, in light of matters put on the applicant's behalf. However, the applicant has not provided his account on affidavit, and it was accepted on his behalf that I could not give the hearsay account contained in his solicitor's affidavit, reflecting his instructions, the same weight that might be given to a direct account from the applicant. In my opinion, there are some specific reasons why little weight can be given to his instructions at this stage.
The first is that, in the Magistrates Court, counsel appearing for the applicant on that occasion (not senior counsel who appeared on the present application) informed the court that the applicant denied that he was the person who scaled the wall of his premises and jumped over the neighbour's fence on 10 September 2015. That, of course, is different to what he has instructed his solicitor in the present application. His instructions to his solicitor for this application are that there was a misunderstanding on the part of counsel in the Magistrates Court. While that may be so, it highlights the potential unreliability, and therefore the undesirability, of such factual matters being put forward on a hearsay basis as instructions received from the applicant. The alternative to the explanation that there was a misunderstanding, of course, would be that the applicant has been inconsistent in his accounts.
The second reason affecting the weight to be given to the applicant's account is that there is direct evidence in the form of a signed statement from NJR, with the appropriate declaration as to truth at the end, that contradicts the account put forward on behalf of the applicant, whereby he suggests that NJR brought the drugs into the house on 10 September 2015.
A third reason is that the plausibility of certain aspects of the account put forward on behalf of the applicant might be regarded as questionable, without further explanation.
Finally, the indication that the applicant is still considering his position in respect of certain matters, such as the possession of the handguns, means that there is no denial, at this stage, of the allegations in respect of those matters, so my assessment of the strength of the case against him is limited to the evidence on the prosecution brief.
I have had regard to the affidavit of Ms O'Hart, which was intended to provide some support for the account put on behalf of the applicant, suggesting NJR was the person who was pursued by police to the applicant's house on the evening of 10 September 2015 and that he brought to the house the items that the applicant subsequently threw into the neighbour's backyard. Although she refers to the person by his first name only, I will assume she is, in fact, referring to NJR, because the latter was at the house when the police conducted their search. Ms O'Hart has deposed that at or about 10.45 pm, she heard a motorbike pull up in the driveway and, soon after, she saw NJR enter and run up the stairs. He was wearing a backpack and appeared distressed. She says she then went upstairs and saw NJR remove something from his backpack, but she could not say what it was. She says that, soon after, she heard a doorbell and, when she then opened the garage door, police were in the driveway. The police said they were looking for the rider of a motorbike, and entered the house.
Ms O'Hart is also charged in respect of items found during the search on 10 September 2015. Although I do not have details of the charges against her, both parties accepted she is a co‑accused of the applicant in respect of certain charges arising on 10 September 2015. That, of course, is a matter that affects the weight I can place on her affidavit. In any event, her account only goes as far as NJR removing something from his backpack, without being able to describe it further, and she does not say NJR then did anything with it. In my view, it does not assist in the assessment of the strength of the evidence against the applicant in respect of the various charges.

April offences

The affidavits tendered on behalf of the applicant do not disclose his response to the April 2015 charges. Prima facie, the evidence in respect of them is very strong. The statements of the two police officers who apprehended the applicant support the conclusion that the applicant had knowledge of the handgun in his backpack and the fact that it was loaded with a magazine containing live ammunition, and that it was his. He was in physical possession of more than $31,000 and three mobile devices, two of which were encrypted. His claim to the police that the cash and mobile devices were not his does not detract from the fact he was in possession of them, or from the suspicion that the cash was unlawfully obtained property.

September offences

The facts alleged by the State in respect of these offences are outlined above. The evidence establishes that the house in Nautilus Crescent, Scarborough, to which the motorcycle was followed by the PolAir helicopter, was leased to the applicant. Ms O'Hart was his co‑tenant. The police found various documents in the applicant's name at that address. He had been bailed to that address and he gave that address as his residential address during a subsequent search on 28 October 2015.
The State does not allege that the applicant was the motorcyclist who was followed by PolAir to the house in Nautilus Crescent. However, it submits that, on the available evidence, the motorcyclist was not NJR. If NJR were to give evidence in accordance with his statement, and that evidence were accepted, then he could not have been the motorcyclist, as he says he had been at the house for about 30 minutes when the police arrived. There are also handwritten notes concerning NJR that suggest he arrived at the house by a private taxi service.
The PolAir officers observed the motorcycle arrive at the house at 10.43 pm. Two police officers arrived at the house by car at 10.44 pm. One of the officers rang the intercom button on the front gate several times and knocked on the garage door. Constable Jordan says that the garage door opened after about three minutes, and access to the house was granted by Ms O'Hart. The officers told Ms O'Hart they were looking for the rider of the motorcycle. There were two motorcycles in the garage and the officers observed that the engine of one of them was hot when they touched it.
I earlier described what happened once the officers entered the house and noticed drug‑related items. I also referred to the applicant's departure from the house through a rear exit and down a wall. His actions in fleeing from the house were captured by a CCTV camera at the rear of his house (at 10.50 pm) and by a camera on the PolAir helicopter which, at 10.51 pm, recorded him jumping over a rear fence and escaping on foot through a neighbouring property. He was followed by the helicopter for a short time before the police lost sight of him.
Constable Jordan conducted a search of the neighbouring property, over the rear fence that had been scaled by the applicant, and found a pair of pants that contained two large bags of methylamphetamine, which were inside a pair of rugby shorts inside the pants. Nearby, Constable Jordan found another large clip‑seal bag of methylamphetamine. That bag was on the ground near another pair of shorts. When the substance in the three bags was analysed by an approved analyst subsequently, it was confirmed to be methylamphetamine and was found to weigh 989 g. It had an average purity of 80%.
The pants found by Constable Jordan were 3 m away from the external wall of the applicant's house. The location of the items found by Constable Jordan was consistent with the drugs having been thrown out of either the bathroom window or the laundry window or door of the applicant's house. The evidence is capable of supporting the inference that the applicant threw the items from one of those windows when the police entered the house, and that he then fled. As I noted earlier, the applicant, in his instructions to his solicitor, has admitted throwing the clothing in which the bags were wrapped over the neighbour's fence when he became aware the police were at the house. I have outlined his explanation.
The clothing found in the neighbour's property was tested for DNA. The rugby shorts that contained the two large clip‑seal bags produce a mixed DNA profile on the inside. Mixed DNA profiles were also recovered from the blue pants (in which the rugby shorts were found) and the black shorts that were found nearby. The preliminary results show that the applicant was a contributor to the mixed profiles found on each of the shorts and the evidence also supports that he was a contributor to the mixed profile found on the pants. The evidence supports the conclusion that he had been in contact with the three items of clothing associated with the 989 g of methylamphetamine. Of course, that would not be surprising if the clothing belonged to the applicant and came from his laundry. His version of events, provided through his solicitor, would account for the DNA, even though on that account the drugs were not his. It would appear from the preliminary DNA report that the DNA profiles recovered from the items of clothing were not compared with a DNA profile from NJR.
There is no evidence of any DNA having been recovered from the plastic bags containing the drug. Assuming none was recovered, that would be a neutral finding.
When the police searched the upstairs laundry area, they found $69,700 hidden behind clothing. They also found more than $40,000 in the ground floor music room, which was used by the applicant (as is apparent from the presence of his property in there and the fact that he was located in there subsequently on 28 October 2015). They also found more than $150,000 in the garage.
The evidence on the prosecution brief in respect of the police search and the subsequent forensic analysis of items found supports the conclusion that police found illicit drugs, including methylamphetamine, in various locations around the house. In the ground floor music room, they found several clip‑seal bags containing methylamphetamine, a bag of cannabis, two clip‑seal bags containing ecstasy, one clip‑seal bag containing cocaine, and two MDA tablets. Inside the garage they found methylamphetamine and a large quantity of ecstasy powder (313 g at 84% purity). The police also found 8.17 g of methylamphetamine in a container on an external wall of the property.
Inside the music room, where most of the illicit drugs were found inside the house, police found the motor vehicle driver's licence with the accused's photograph and false name, together with the Medicare card and ANZ bank card in the same name, to which I have previously referred. Furthermore, it was in that room that the police found the backpack containing the applicant's passport and $8,800 in cash. Inside the backpack, they also found ammunition and the slide sight for a 0.22 calibre Walther handgun. That handgun was found in the third floor bathroom. It was loaded with 10 rounds of 0.22 calibre ammunition. The applicant's bedroom was next to that bathroom. The Walther handgun was tested for DNA. The preliminary results show that a mixed DNA profile was recovered and that the applicant has been identified as a contributor to that mixed profile. The evidence supports that neither NJR nor Ms O'Hart were contributors to that mixed profile, although there is limited evidence that another occupant of the house was a contributor.
The 313 g of ecstasy powder found in the garage was in a clip‑seal bag in a backpack. Inside the backpack was a receipt made out to the applicant for the purchase of some weights. Also inside the backpack were some Polaroid photographs which depicted various things, including the applicant's distinctive left leg tattoo and large sums of money. There were also photographs of what appears to be the Walther 9‑mm handgun on top of a very large bundle of cash (consisting of numerous secured bundles of $50 notes). As the State submitted, the photographs tend to establish a connection between the applicant, large amounts of cash and a weapon. The proximity of the photographs to the large amount of ecstasy also tends to connect the applicant to that drug.
The respondent submitted that the prosecution case against the applicant in respect of the charges arising from the search on 10 September 2015 is overwhelming. The applicant's submission in response is summarised in the following passage from senior counsel's oral argument:[11]
In order to make that case, it is incumbent on the State to show that there is no other rational hypothesis inconsistent with guilt open on the evidence and that will include that the others were not part of the drug milieu, that will include that the motorcyclist didn't, in effect, try to set him up, that will include that he might have an involvement with portions of the drugs but not others, that may or may not have anything to do with the guns which may have nothing whatsoever to do with the case ‑ though, the State may assert they do ‑ but all of that indicates that this is not a matter that is as easy of resolution as simply to say, as the submissions do say, there is an overwhelming case, and, particularly, in relation to the 900+ g, the ‑ nearly a kilogram, as the State puts it.
[11] ts 18 ‑ 19.
The reference to 'others' was a reference to the other persons who were in the house when the search was conducted, being Ms O'Hart, NJR and JD. In light of the view I have taken about the weight I can give to the applicant's version of events as conveyed in his solicitor's affidavit, and to Ms O'Hart's affidavit, there is no evidentiary basis at this stage for the proposition that the applicant was, in effect, set up by the motorcyclist. In fact, it is not possible, on the available evidence, to identify who the motorcyclist was.
In any event, it is not correct, with respect, to say that the State will need to prove that others in the house 'were not part of the drug milieu'. The State will not be required to prove that the applicant had exclusive possession of the drugs, cash and weapon, but it will need to prove that he exercised dominion over those items. In relation to the 989 g of methylamphetamine thrown into the neighbour's yard, the possession that the applicant would appear to admit is of a very different kind to what is alleged by the State, in that it involved a temporary exercise of dominion over the items wrapped in the clothing, and it was for the purpose of disassociating himself from those items. However, if a jury were to be satisfied beyond reasonable doubt that he was in possession of the drug, then, given the presumption of intention to sell or supply arising from the amount of the drug (see s 11 and sch V of the MDA), the question would be whether the jury is satisfied on the balance of probabilities that he did not have that intention.
It is important also to bear in mind that the jury will be directed that it must consider the circumstantial evidence in combination, not in a piecemeal fashion.
In my view, in light of the evidence I have outlined, there is a strong prima facie case in respect of the charges involving possession of the Walther handgun, the cash found in various places in the house and the ecstasy found in the backpack in the garage, and the associated charges of simultaneous access to those items. Apart from the evidence connecting the applicant to the handgun, the cash in the backpack (which contained his passport) and the ecstasy (in a backpack with photographs depicting the applicant), the photographs found in the backpack are capable of demonstrating the link between the applicant, large amounts of cash and firearms more generally. That is also supported by the circumstances of the offences alleged to have been committed in April 2015. Although senior counsel for the applicant indicated a severance application may be made, I must, at this stage, consider the strength of the prosecution case on all charges on the basis that they will proceed on the one indictment, the evidence in respect of each set of charges being admissible in respect of the other sets of charges.
The Walther handgun was loaded with ammunition, as was the handgun in the applicant's possession in April 2015. The loaded firearms, large amounts of cash and false identification, together with the presence of other drugs in the music room, may be regarded by a jury as indicia of drug dealing by the accused. All of that evidence will be relevant to the jury's consideration of whether the applicant's association with the 989 g of methylamphetamine was innocent. In my opinion, when one has regard to all of the circumstantial evidence, there is a strong prima facie case in respect of the charge of possession of that drug with intent to sell or supply.

October offences

I outlined the facts in respect of the October charges above. The evidence that would establish those facts consists of the statements of police officers who were involved in the search and the video recording of the search, as well as the physical exhibits that were seized.
Again, the sum of money found in cash ($36,223) was significant. Again, firearms were found in a location connected with the applicant, namely under a cupboard in his bedroom. The magazine containing 11 rounds of live ammunition, which was found next to the Browning semi‑automatic handgun, was tested for DNA. A DNA profile that matches the applicant's DNA profile was identified in DNA recovered from the magazine.

Conclusion as to the strength of the prosecution case

For the reasons I have outlined, I am of the opinion, for the purposes of cl 3(d) of sch 1 pt C of the Act, that the evidence against the applicant is strong in respect of each set of offences. It certainly could not be said that the case against him in respect of any of the charges is weak. In my opinion, the cogency of the evidence is such that it gives rise to the possibility that the accused would have a strong incentive not to answer his bail, if bail were granted.

Clause 1(a)(ii) ‑ Whether the applicant may commit an offence if released on bail

The evidence I have outlined in respect of each set of charges is also relevant to the question whether the applicant may commit an offence if he were not kept in custody. His access to firearms is a matter of particular concern, especially as, on each occasion that firearms have been found in the applicant's possession or in his home, either they were loaded or there was ammunition in close proximity, which would indicate that there was a capacity to load the firearm quickly, if necessary.
On 28 October 2015, two firearms, a handgun and a dismantled shotgun, were found in the applicant's bedroom, behind a panel under his wardrobe. It is significant that this was at a time after the applicant had been charged with the offences on 14 April 2015, and after he knew that there had been a search of his premises on 10 September 2015. On the account that he has given to his solicitor, he accepts that it was he who jumped from the premises into the backyard of the adjoining premises and took flight on that occasion, so he was aware that the police were searching his premises. There does not seem to be any explanation at this stage why he would continue to be in possession of those firearms on 28 October 2015 in those circumstances. Prima facie, it would seem implausible that he was not aware the firearms were there, yet, in light of all that had happened, he had made no effort to dispose of or surrender those firearms.
The offences that are alleged to have occurred on 10 September 2015 and 28 October 2015 occurred when the applicant was on bail for the offences of 14 April 2015.
I accept that these are all matters that ultimately may be questions of fact for a jury to determine, but, at this point in time, the evidence that is on the prosecution brief tends to establish, prima facie, that the applicant has had the capacity to gain access to firearms and points to the possibility that he would continue to do so. It also points to the applicant being in possession of drugs.
In answering this question (under cl 1(a)(ii)), I have regard also to the applicant's prior convictions.
In all those circumstances, I am satisfied that, if he were not kept in custody, there is a possibility the applicant may commit an offence, in terms of unlawfully possessing firearms and ammunition and possessing illicit drugs.

Clause 1(e) ‑ Are there conditions that could neutralise the grounds for refusing bail?

I have given consideration to whether there is any condition which could reasonably be imposed under pt D of sch 1 of the Act which would sufficiently remove the possibility that the applicant would fail to appear in court in accordance with his bail undertaking and would also remove the possibility that he would commit an offence if he were released on bail.
The following conditions were proposed on behalf of the applicant:
(a)The applicant provide a personal undertaking as deemed appropriate by the court.
(b)The applicant's mother provide surety in the sum of $200,000, or any other reasonable amount as deemed fit by the court.
(c)The applicant reside with his brother, Kaide Thorpe, at his home (the address of which was specified).
(d)The applicant abide by a curfew and be at the nominated residential address between the hours of 8.00 pm and 6.00 am each day, and present to police upon request.
(e)The applicant report every day to the officer‑in‑charge of the nearest 24‑hour police station.
(f)The applicant surrender his passport and not apply for a passport.
(g)The applicant not approach within 1 km of any point of domestic or international departure.
(h)The applicant abide by any other condition of bail as may be seen as appropriate by the court.
The applicant's mother, Ms Thorpe, has deposed that she is prepared to provide the proposed surety and that she has the means. However, I do not have any confidence that the surety she is prepared to provide would be a sufficient incentive for the applicant to comply with his bail undertaking. Given that Ms Thorpe is in Queensland, it is difficult to see how she would be in a position to ensure the applicant did not abscond or did not commit an offence. The submission put on the applicant's behalf was to the effect that the applicant would feel morally compelled to comply with his undertaking in order to avoid his mother having to forfeit the surety sum. There is no evidence from the applicant to that effect. In any event, the prima facie evidence shows that he has been able to gain access to substantial sums of money in cash, so that any moral compulsion to avoid financial loss to his mother might be offset by the potential that he could compensate her. That is no reflection on Ms Thorpe. It is an assessment of the weight that I can give to the applicant's submission about his incentive to comply with a bail undertaking, having regard to his background and the circumstances of the alleged offences.
I do not consider a curfew would avoid the risk of the applicant committing an offence. While the September 2015 search occurred in the late evening, the offences alleged to have been committed in April and October 2015 occurred in the afternoon. Furthermore, the evidence does not permit of a conclusion as to when the various items found on 10 September 2015 were acquired.
Similarly, a reporting condition does not prevent the commission of an offence. Nor would it prevent the applicant from absconding. A failure to report will put the police on notice and may improve their prospects of apprehending the applicant if he were to abscond, but flight and concealment can be achieved in any number of ways that could thwart the effectiveness of a reporting condition.
As I said earlier, the concern in respect of flight is not necessarily a departure overseas, so conditions addressing that potential avenue do not overcome the concern.
I requested a home detention bail assessment. The report that was received was favourable to the applicant. It indicated that the premises at which he intended to stay, Mr Thorpe's home, would be suitable for home detention. The applicant was also considered to be suitable for home detention, and Mr Thorpe and his partner, Ms Dawe, were considered by the community corrections officer who prepared the report to be suitable persons for the applicant to reside with. Mr Thorpe has deposed that he and his partner are prepared to accommodate the applicant.
The suitability of the premises was subject, of course, to confirmation that the installation of monitoring equipment could be facilitated. On the one hand, it might be thought that the kind of monitoring that would be involved with home detention might be a sufficient way in which to overcome the concerns or, in the terms of cl 1(e), sufficiently remove the possibility of the applicant failing to appear in accordance with his bail undertaking or committing an offence, but it is no guarantee.
Monitoring does not guarantee that an accused will appear to answer his bail, even when under strict home detention conditions: see, for example, The State of Western Australia v Hinton.[12] In that case, the ankle bracelet that was used for monitoring purposes was removed by the person who was on bail. Moreover, the monitoring would not disclose whether the applicant may be meeting with someone at the premises where he is staying for the purpose of making arrangements to abscond or to engage in conduct constituting an offence. It has not been suggested that Mr Thorpe or Ms Dawe would be there at all times, and that would not be a reasonable expectation. Further, the monitoring would not alert the authorities if the applicant was engaging with others by mobile telephone to make arrangements to abscond or to commit an offence.
[12] The State of Western Australia v Hinton [2015] WASC 288.
Having regard to the degree of risk that the applicant may fail to comply with a bail undertaking or may commit an offence, I am not satisfied that home detention would sufficiently remove those possibilities or remove the grounds that have been put forward by the prosecutor, which I have accepted.

Whether delay in getting to trial will result in an injustice

That brings me to the question of the time that the applicant would have spent in custody before he comes to trial.
In Milenkovski, McLure P noted that the court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.[13] Having considered and answered the mandatory questions, there remains the exercise of discretion. Notwithstanding that the factors considered so far may militate against the grant of bail, there may be other factors that may weigh the exercise of discretion in favour of a grant. A relevant factor may be the delay before the applicant can be brought to trial.
[13] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 109 [39].
It was submitted on behalf of the applicant that:[14]
the Act does not produce a system of presumptive punishment based on the asserted strength of the prosecution case at such a time well before trial as would mean that a substantial period of time, up to years, might be served before acquittal.
[14] ts 10.
While time spent in custody on remand will be taken into account in the event that an accused is ultimately convicted of the offences on which he has been remanded, the remand of an accused in custody is not intended to be punishment. Nor could it fairly be said that having regard to the strength of the prosecution case as a factor in refusing bail renders the system one of presumptive punishment. Nevertheless, a lengthy period in custody, particularly when it approaches the length of a sentence that might be imposed for the alleged offences, would understandably be regarded by the accused as punitive.
It is still a matter of striking the right balance between ensuring that an accused will attend for his trial and protection of the community on the one hand, and avoiding the injustice, on the other hand, of an accused having spent a significant period in custody while presumed innocent if he is ultimately acquitted, or convicted of offences attracting a lesser sentence.
It is of concern that the applicant will have spent some 18 months in custody on remand if his trial proceeds in March 2017. It would have been of even greater concern if the trial could not proceed until later that year. I had formed the view previously that if the delay was going to be of the order of 20 months to two years, then that matter would have to weigh against the factors I have identified that militate against the grant of bail, and perhaps then greater weight could be given to the potential for home detention to overcome the concerns that I have in respect of the grant of bail.
However, I am not satisfied that a delay until March 2017 is of sufficient magnitude as to weigh sufficiently against the concerns that I have expressed, so as to justify the grant of bail. The matters I have identified in answering the mandatory questions remain of sufficient weight to conclude that bail should not be granted.
When I gave my decision, the applicant was due to appear again in the Magistrates Court on 8 July 2016. It was expected that he would then go to a hearing in the District Court in October 2016, at which time one would hope that trial dates could be set and that any dates for any pre‑trial hearing would be allocated at the same time. Of course, if, once the applicant is committed to the District Court, it appears that his trial will not be held until much later than March 2017, that would be a change of circumstances from those which I have considered. Such a change might justify an application for bail on the basis of changed circumstances, and a reconsideration of whether the applicant should be released on bail.

Conclusion

However, on the basis of the information that was before me, I concluded that bail should be refused.

Publication

Publication of these reasons will be suppressed until the trial of the charges against the applicant has been concluded.