Dey v The State of Western Australia

[2016] WASC 400

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DEY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 400

CORAM:   MARTINO J

HEARD:   7 DECEMBER 2016

DELIVERED          :   7 DECEMBER 2016

FILE NO/S:   MBA 40 of 2016

BETWEEN:   JOHN CHARLES DEY

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail

Legislation:

Bail Act 1982 (WA)

Result:

Bail granted

Category:    B

Representation:

Counsel:

Applicant:     Mr T F Percy QC

Respondent:     Mr J G Nicholls

Solicitors:

Applicant:     Timpano Legal

Respondent:     Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia (2011) 42 WAR 99

MARTINO J: 

(These reasons have been edited from the transcript).

1. The applicant applies under s 14 of the Bail Act 1982 (WA) for bail to his next appearance in the Magistrates Court, which is listed on 5 January 2017. In determining the application, I exercise the discretion to grant or refuse bail having regard to the questions set out in cl 1 of pt C of sch 1, as well as any other questions which I consider relevant. In considering whether the applicant may do any of the things mentioned in cl 1(a) of pt C of sch 1, I am to have regard to the matters set out in cl 3 of pt C of sch 1.

2. That is, in considering whether if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking or commit an offence or endanger the safety, welfare or property of any person or interfere with witnesses or otherwise obstruct the course of justice, I am to have regard to the nature and seriousness of the offences with which he has been charged and the probable method of dealing with them if convicted, the character, previous convictions, antecedents, associations, home environment, background, place or residence and financial position of the applicant, the history of any previous grants of bail to him and the strength of the evidence against him.

3. On 28 September 2016, the applicant applied for bail in the Magistrates Court.  His application was not successful.  Bail was refused.  The applicant does not need to demonstrate that there has been an error in the Magistrates Court in refusing bail. 

4. 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.  As McLure P said in Milenkovski v The State of Western Australia (2011) 42 WAR 99 [41]:

   The Bail Act does in terms not place any legal onus on any party to a bail application. However, … as a practical matter, it will be often left to the State to provide the material required to provide a proper foundation for refusing bail.

5. The application for bail is opposed and the prosecution points to two risks:  a risk of flight and a risk of reoffending if granted bail.

6. The charges against the applicant and the factual allegations made by the prosecution are as follows. 

7. On 22 September 2016, police officers executed a search warrant at the applicant's home.  They seized items found at his home.  The applicant became ill while the search warrant was being executed and he was required to be taken to hospital.  The search continued after he was taken to hospital.  The next day, the applicant was released from hospital.  He was not then under arrest.  In the course of  the day, he went to the police station at the request of police officers and he was arrested.  He has been in custody since then.

8. He was charged on that day, that is, on 23 September 2016, with five offences.  The charges were possession of a prohibited drug, namely, cannabis, with intent to sell or supply; possession of a prohibited drug, namely, cocaine, with intent to sell or supply; possession of a prohibited drug, namely, methylamphetamine, with intent to sell or supply; possession of cash reasonably suspected to have been unlawfully obtained; and possession of a .22 calibre rifle while not holding a licence or permit entitling him to do so.

9. On 26 October 2016, the applicant was charged with further charges.  All of the offences with which he has been charged are alleged to have been committed on 22 September 2016.  It is not alleged that the applicant has committed further offences since he was charged following the execution of the search warrant on 22 September 2016. 

10. The charges with which the applicant was charged on 22 October 2016 were a charge of making an explosive substance, namely, explosive honky nuts in circumstances giving rise to a reasonable suspicion that he was not making it for a lawful object; five charges of possession of things capable of being stolen that were reasonably suspected to have been unlawfully obtained; a charge of possession of a controlled weapon without lawful excuse, two charges of possession of a firearm while not holding a licence or permit entitling him to do so; a charge of possession of drug paraphernalia; and a charge of possession of ammunition while not holding a licence or permit entitling him to do so.

11. The applicant has not entered pleas to any of the charges. 

12. The prosecution case is that the only occupants of the applicant's home are the applicant and his wife.  As I have said, the applicant was home when the search warrant was first executed.  He left for good reason, to go to hospital, but he was there when the police officers arrived to execute the search warrant.  His wife was not.  The prosecution case is that during the search of the premises, police officers located approximately 151.8 grams of cannabis, approximately 11.8 grams of cocaine, approximately 25.6 grams of methylamphetamine, and the other items he was charged with possessing, including approximately $40,000 in cash.

13. The police officers also found 200 small unused clip‑seal bags, three or four electronic scales, six working mobile phones, a tick list, and CCTV cameras throughout the house.  The prosecution case is that recordings made by CCTV cameras show that on 31 December 2015, the applicant was having a discussion with another person about matters that could be regarded as drug transactions. 

14. While the police officers were executing the search warrant, the applicant admitted to possession of some methylamphetamine and some cannabis but did not admit an intention to sell or supply.  He admitted possession of the cash and said that he needed the money back as he owed a lot of money. 

15. The applicant is 61 years old.  He has been married to his present wife for approximately seven years.  His wife is from overseas and she has limited support in this State.  The applicant is a self‑employed cleaner and he intends to return to that work if he is released from custody. 

16. He requires surgery on his collarbone and he intends to have that surgery if he is released from custody. 

17. He does have a relevant record of offending.  He has several convictions for possession of drugs.  In August 2015, he was convicted of cultivating cannabis with intent to sell or supply, for which he was sentenced to 12 months' imprisonment suspended for 18 months.  In March 2012, he was convicted of possession of cannabis with intent to sell or supply, and attempted possession of MDMA with intent to sell or supply.  He was sentenced to a total of 2 years' imprisonment conditionally suspended for 18 months.  On 26 March 2013, he was convicted of breaching the conditionally suspended imprisonment order and the orders that were made on that breach allowed him to continue on suspended imprisonment.  The applicant has no record of breaching bail. 

18. I regard the prosecution case in relation to alleged possession of drugs with intent to sell or supply as being a strong case.  The State's case that he was in possession of those drugs is strong, and there are a number of indicators such as weapons, clip‑seal bags, scales, tick list and mobile phone to support an inference of possession with intent to sell or supply or, more correctly, to suggest that the applicant will not be able to rebut the inference that is likely to arise once the weight of the drugs is known.

19. If the applicant is convicted of the offences of possession of the cocaine and the methylamphetamine, it is extremely likely that he will be sentenced to terms of imprisonment.  It may be that even if he were to be convicted of the possession of the cannabis with intent to sell or supply alone he would be sentenced to a term of imprisonment. 

20. There is, therefore, having regard to the matters personal to the applicant, to which I have referred, and the strength of the case against him, a risk of him failing to appear in court and the risk of him committing an offence.   That risk of committing an offence is increased by the apparent position that he owes people money and there may be a strong incentive for him to engage in criminal activity to enable him to pay those debts. 

21. However, the issue remains whether there is any condition that could reasonably be imposed which would sufficiently remove the risks of him failing to appear in court in accordance with his bail undertaking or committing an offence.  It is my view that having regard to his record of complying with bail, the fact that significant personal undertaking and surety can be imposed and appropriate other conditions can be imposed, that there are conditions that can be reasonably imposed that will sufficiently remove those risks.  The type of conditions that I have in mind are his passport to remain held by police and not to apply for any further passport, not to approach within a point of departure from the State, a residential condition and reporting conditions.  However, I will hear from the parties as to the detail of the proposed terms.