Di Fazio v The State of Western Australia
[2016] WASC 273
•24 AUGUST 2016
DI FAZIO -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 273
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 273 | |
| Case No: | MBA:24/2016 | 18 & 23 AUGUST 2016 | |
| Coram: | MARTINO J | 24/08/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | GIACOMO DI FAZIO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail |
Legislation: | Bail Act 1982 (WA) |
Case References: | Hedgeland v The State of Western Australia [2011] WASC 181 Jones v The State of Western Australia [2014] WASC 234 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Roberts v The State of Western Australia [2011] WASC 118 The State of Western Australia v Sturgeon [2005] WASC 256 Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail
Legislation:
Bail Act 1982 (WA)
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Mr R Williamson
Respondent : Ms Z M M Jenkins
Solicitors:
Applicant : Rhett Williamson Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hedgeland v The State of Western Australia [2011] WASC 181
Jones v The State of Western Australia [2014] WASC 234
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Roberts v The State of Western Australia [2011] WASC 118
The State of Western Australia v Sturgeon [2005] WASC 256
Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285
1 MARTINO J: This is an application under s 14 of the Bail Act 1982 (WA) for bail to the applicant's next appearance in the Magistrates Court.
2 There are six charges on which the applicant is in custody. There is a seventh charge on which the applicant has been granted bail and so it is not the subject of the application.
3 By prosecution number PE 9467/16 the applicant was charged that on 18 February 2016 he, not being a person authorised to do so, drove a motor vehicle on a road. By prosecution number PE 9468/16 he was charged that on the same day he drove that vehicle while it had on it a number plate other than the one issued for the vehicle.
4 By prosecution number PE 9464/16 the applicant was charged that in the period 17 to 18 February 2016 he stole a number plate. By prosecution number PE 9465/16 the applicant was charged that on 17 February 2016 he stole an Apple iPod, alcohol and a tip jar containing Australian currency, the property of The Boatshed Restaurant. By prosecution number PE 9466/16 he was charged that on 17 February 2016 he committed a burglary of The Boatshed Restaurant in company.
5 By a prosecution number FR 2347/16 the applicant was charged that on 2 February 2016 he stole a Volkswagen Golf motor vehicle.
6 The charge on which the applicant has bail is prosecution number PE 26847/16. On that prosecution he is charged that on 12 February 2016 he stole a Mazda 3 motor vehicle. Charge PE 26847/16 was referred to from time to time on the hearing of the application for bail. However the applicant's counsel did not have instructions on that charge and so was not able to make full submissions on the facts of that charge.
7 The application for bail was listed on 18 August 2016. At that hearing there was uncertainty as to whether or not the applicant was on bail for stealing a Volkswagen Golf motor vehicle at the time that he is alleged to have committed the offence of aggravated burglary. To enable that issue to be clarified I adjourned the application to 23 August 2016. In submissions filed on 22 August 2016 the applicant's counsel conceded that the applicant was on bail for that offence at the time that he is alleged to have committed the offence of aggravated burglary.
8 As the applicant was on bail for the serious offence of stealing a motor vehicle when he allegedly committed the serious offence of aggravated burglary on 17 February 2016 I need to be satisfied that there are exceptional reasons why he should not be kept in custody and that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act before I can grant bail on the charge of aggravated burglary: cl 3A pt C sch 1 Bail Act.
9 The applicant proposes to plead guilty to PE 9467/16, the charge of driving a motor vehicle on a road while not authorised to do so. He maintains his plea of not guilty to all of the other charges.
10 The applicant has deposed that the charge of stealing a number plate is listed for trial on 26 August 2016, that the charges of burglary of The Boatshed Restaurant in company and the associated stealing are listed for trial on 17 November 2016 and the charge of stealing a motor vehicle on which he is in custody is listed for trial on 15 December 2016.
11 The applicant is 32 years old. He was born and raised in Perth. All of his family live in Perth. Prior to being arrested he lived with his father. If granted bail he would return to live at that address.
12 He has a lengthy record of offending which includes offences of breach of bail, an offence of breaching a protective bail condition, offences of breaching conditional release orders or community based orders, offences of burglary and offences of stealing a motor vehicle. He has also breached a suspended imprisonment order. He was released from his last term of imprisonment on 11 January 2016.
13 The applicant applied for bail in the Magistrates Court on 18 March 2016 and 16 June 2016. On each occasion bail was refused. The applicant does not need to demonstrate that there has been an 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.
Whether exceptional reasons exist
14 As I have said, I need to be satisfied that there are exceptional reasons why the applicant should not be kept in custody before I can grant bail on the charge of aggravated burglary.
15 In Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285[15] Murray J said:
'Exceptional' is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.
16 There is no closed list of exceptional reasons: Roberts v The State of Western Australia [2011] WASC 118 [9] (Murray J).
17 Delay can constitute exceptional reasons, either alone or in combination with other factors: The State of Western Australia v Sturgeon [2005] WASC 256; Hedgeland v The State of Western Australia [2011] WASC 181; Jones v The State of Western Australia [2014] WASC 234.
18 The applicant submits that the following factors in combination constitute exceptional reasons: delay, the weakness of the prosecution case on the charges that he faces and the likely disposition of the prosecution if the applicant is convicted.
19 The facts alleged by the prosecution on the charge of stealing the Volkswagen Golf motor vehicle are that between 11.00 pm on 20 January 2016 and 1.00 pm on 21 January 2016 a burglary occurred at a house in Peppermint Grove. The Volkswagen Golf was stolen in the burglary. At approximately 5.30 pm on 2 February 2016 the applicant was driving the stolen Volkswagen Golf. He parked the car at the Bunnings car park in Port Kennedy, next to a car of an off duty police officer who was inside the car. The off duty police officer knew the applicant. On 3 February 2016 the Volkswagen Golf was found abandoned in Rockingham.
20 On 12 February 2016 the applicant was arrested. He participated in an interview by police officers. He told the police officers that a friend of his had brought the car to his house and so his fingerprints may be located on the car. He denied stealing the car and denied driving the car in Port Kennedy.
21 In support of his submission that the prosecution case on the charge of stealing the Volkswagen Golf is weak the applicant's counsel has submitted that the applicant's fingerprint found on the exterior of the vehicle is entirely consistent with the applicant’s explanation that a friend had brought the car to his house and that the identification evidence is weak. He points to the fact that the applicant volunteered in his interview by police officers that his fingerprint might be on the car before the interviewing police officers suggested that his fingerprints might be on the car. He submitted that the police officer who claims to have recognised the applicant at the Bunnings car park had only three previous dealings with the applicant, twice in 2009 and once in 2014. Counsel for the applicant also submitted that the police officer had also had dealings with the applicant's brother and it is possible that he had confused them when he identified the applicant as the person in the Volkswagen Golf. The applicant's counsel submitted that in the interview of him the police officers told the applicant that they would check the CCTV footage at Bunnings on 2 February 2016. However there does not appear to be any CCTV footage from Bunnings showing the applicant.
22 The facts alleged by the prosecution on the charge of stealing a number plate are that between 4.00 pm on 17 February 2016 and 7.15 am on 18 February 2016 number plates were stolen from a car in Coogee. At approximately 12.40 pm on 18 February 2016 the applicant was driving a Ford Falcon with registration plate 1CDF 393 fixed to the front of the car and one of the stolen number plates fixed on the rear. The applicant was spoken to by police officers. He said that he had borrowed the car from a friend and he had been in possession of it for several days.
23 The facts alleged by the prosecution on the charges of aggravated burglary of The Boatshed Restaurant and stealing from that restaurant are that between 4.35 am and 4.40 am on 17 February 2016 the applicant and co-offenders went to the restaurant. The applicant removed the floor bolts from a gate at the front of the restaurant and forced them open. A co-offender then forced open the restaurant's doors. The applicant and the co-offenders then entered the restaurant and stole the Apple iPod, alcohol and a tip jar. They left in a Ford Falcon registration 1CDF 393. On 18 February 2016 police officers stopped the Ford Falcon and spoke to the applicant who declined to participate in a police interview.
24 In support of his submission that the prosecution case on those charges is weak the applicant's counsel has referred to CCTV footage from a camera showing a well lit area outside the front of the restaurant. I have watched that CCTV footage. It shows a male person approach the gates outside the restaurant. That person is wearing red shorts and a dark t-shirt. The person forced the gates open. He then went to the front doors of the restaurant and looked through them while shining a torch he held in his right hand. It is possible to see his right arm below the elbow on the footage. There do not appear to be any tattoos visible on the arm. The male walked away for a short period. Another male approached the window and looked through it. The male in red shorts joined him. The male in the red shorts took off his t-shirt. The other male forced the door open and the two entered the restaurant. A third person entered the restaurant a short time later. The male in the red shorts left the restaurant, still not wearing a shirt. It is possible to see his back, chest and arms on the footage. There do not appear to be any tattoos visible on his body or arms.
25 Photographs of the applicant attached to his affidavit show that he has tattoos on his neck, chest, back and arms. The applicant was wearing red shorts when he was arrested on 18 February 2016. He has deposed that at the time he was living at his father's house with his brother, with whom he regularly shared clothes, including the red shorts he was wearing when he was arrested.
26 The applicant's counsel submits that the prosecution case is that the applicant was the person shown wearing red shorts in the CCTV footage from the front of the restaurant and that person could not be him because that person did not have any tattoos.
27 The applicant's counsel also submitted that no forensic evidence links the applicant with the burglary, that none of the stolen property was found in the Ford Falcon or in the possession of the applicant and that it was significant that the other adults in the Ford Falcon with the applicant on 18 February 2016 were not connected with the burglary.
28 The applicant's counsel has submitted that if the applicant is not released to bail by the time the charge of stealing the Volkswagen Golf gets to trial on 15 December 2016 the applicant will have been in custody for 10 months and that this is approximately the non-parole period to which he is likely to be sentenced if convicted of the offences with which he has been charged.
Conclusion as to strength of prosecution cases
29 The most serious charges on which the applicant is in custody are the charges of stealing the Volkswagen Golf motor vehicle and aggravated burglary. In my view the prosecution case on the charge of stealing the Volkswagen Golf cannot be described as weak. It will turn on the assessment of evidence given at trial. It is not possible for me to say that the identification evidence of the police officer will not be accepted. The absence of CCTV footage from Bunnings showing the applicant means that the prosecution does not have evidence of that type to support its case. The absence is not positive evidence that the applicant was not in the Bunnings car park.
30 Nor do I regard the prosecution case on the charge of aggravated burglary of the restaurant as being weak. As I have said, I have seen the footage from outside the restaurant. It is not possible to see tattoos on the body of the person who, on the State's case, was the applicant. I have also seen still photographs taken from that footage and also from CCTV footage from inside the restaurant. The still photographs were provided by the prosecution on the hearing of this application. The still photographs and CCTV footage from outside the restaurant are in colour. The still photographs taken from the CCTV footage inside the restaurant are in black and white. On one of the still photographs from inside the restaurant there appears to be a mark on the upper back/neck area of the person who could be the applicant which could correspond with a tattoo that the applicant has in the same position. On still photographs from outside the restaurant there appear to be marks on the arms and back of the applicant, which I could not see on the moving CCTV footage, which could correspond with tattoos that the applicant has. I do not regard the fact that it is not possible to see the tattoos on the moving CCTV footage leads to a conclusion that the prosecution case is weak. It is possible that a tribunal of fact could conclude that the quality of the footage, the lighting and the nature of the tattoos have combined to result in the tattoos not being visible, even though the person shown was the applicant.
31 There are other aspects of the circumstantial prosecution case that a tribunal of fact could conclude strengthen the prosecution case. The person who the prosecution contends was the applicant is shown on the CCTV footage as wearing a black bum bag. A black bum bag was found in the Ford Falcon on 18 February 2016. There was a mobile phone inside it. Messages on the mobile phone indicate that it was used by the applicant.
32 I have referred to the facts that the applicant was wearing red shorts when he was arrested on 18 February 2016 and that he has deposed that, at the time, he was living in his father's house with his brother, with whom he regularly shared clothes, including the red shorts. These are matters that would be considered by a tribunal of fact. However, the fact that the person who the prosecution contends was the applicant was wearing shorts at the time of the burglary which appear to be the same as the shorts that the applicant was wearing on 18 February 2016, could be regarded, along with all the other evidence, as supporting the prosecution case.
33 The facts that no forensic evidence links the applicant with the burglary and that none of the stolen property was found in the Ford Falcon or in the possession of the applicant means that the prosecution case is not strengthened by such evidence. It does not seem to me to weaken that case. I do not regard the fact that other people in the car on 18 February 2016 were not associated with the burglary as weakening the prosecution case, having regard to the fact that there was a period of over 24 hours between the burglary in the early hours of 17 February 2016 and the applicant's arrest on 18 February 2016.
Conclusion as to likely disposition if convicted
34 As I have said, the most serious charges on which the applicant is in custody are the charges of stealing the motor vehicle and aggravated burglary. The other charges on which the applicant is in custody, on their own, would be unlikely to result in a sentence of imprisonment to be served.
35 The applicant's record would not attract any mitigation. If the applicant were convicted of those two offences then, in my view, it is very likely that he will be sentenced to terms of imprisonment to be served. It is also my view that if the applicant were made eligible for parole, the time spent in custody until trial would not be a period substantially in excess of a likely non parole period if it was in excess at all.
Conclusion as to whether exceptional reasons exist
36 The delay until the trials, being approximately 10 months from arrest, is not in my view exceptional. In my view having regard to all these matters I do not regard the delay, the strength or weakness of the prosecution case or the likely disposition of the prosecutions if convicted, either alone or in combination, as being exceptional. I am not satisfied that there are exceptional reasons why the applicant should not be kept in custody on the charge of aggravated burglary.
Whether bail could properly be granted if exceptional reasons existed
37 As I have heard submissions on whether bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 to the Bail Act I will give my reasons on whether bail may properly be granted.
38 If the discretion arose, I would be required to 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 to be relevant.
39 In considering whether the applicant may do any of the things mentioned in cl 1(a) of pt C of sch 1, I would have regard to the matters set out in cl 3 of pt C of sch 1, namely the nature and seriousness of the offences with which the applicant has been charged (including any other offences for which he is awaiting trial) and the probable method of dealing with the applicant for them, the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant, the history of previous grants of bail to the applicant and the strength of the evidence against the applicant, as well as to any other matters that I consider relevant.
40 In Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [41] McLure P said that the Bail Act does not 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.
41 I have referred earlier in these reasons to the applicant's record. It demonstrates a history of offending and of failing to comply with conditions imposed by courts. The applicant was released from custody on 11 January 2016. He is alleged to have committed these offences very soon after his release. He proposes to plead guilty to the charge that on 18 February 2016 he drove a motor vehicle when not authorised to do so. He therefore admits that on that day, following his release from prison in the previous month, he was prepared to drive without a licence. It is my view that having regard to the nature and seriousness of the aggravated burglary and stealing a motor vehicle offences with which the applicant has been charged, the probable method of dealing with the applicant for those charges, the character, previous convictions and the history of previous grants of bail to the applicant there is a significant risk that if granted bail the applicant would fail to appear in court and he may commit other offences of the kind of which he has been convicted. In my view there is no condition that could reasonably be imposed, including a home detention condition, which would sufficiently remove that risk. The applicant's record demonstrates that he is willing to disregard orders of the court. I have concluded that bail could not properly be granted to the applicant even if there were exceptional reasons why he should not be kept in custody on the charge of aggravated burglary.
42 The application is dismissed.
0
6
1