Di Fazio v The State of Western Australia

[2013] WASC 82

DI FAZIO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 82

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 82
Case No:	MBA:3/2013	Heard:	5 MARCH 2013
Coram:	HALL J	Delivered:	5/03/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	GIACOMO DI FAZIO THE STATE OF WESTERN AUSTRALIA
Catchwords:	Bail Application for review under s 13 Bail Act 1982 (WA) Schedule 2 Bail Act Whether exceptional circumstances established
Legislation:	Bail Act 1982 (WA), s 13, s 14, sch 1 cl 3A
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DI FAZIO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 82 CORAM : HALL J HEARD : 5 MARCH 2013 DELIVERED : 5 MARCH 2013 FILE NO/S : MBA 3 of 2013 BETWEEN : GIACOMO DI FAZIO

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail - Application for review under s 13 Bail Act 1982 (WA) - Schedule 2 Bail Act - Whether exceptional circumstances established

Legislation:

Bail Act 1982 (WA), s 13, s 14, sch 1 cl 3A

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Ms G M Cleary

Solicitors:

Applicant : In person
Respondent : Director of Public Prosecutions (WA)

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

Nil

(Page 3)

HALL J:

(This decision was delivered orally and has been edited from the transcript).

1 This is an application for bail under s 14 of the Bail Act 1982 (WA). Such an application is not an appeal but rather a reconsideration of bail in the exercise of original jurisdiction of this Court. Mr Di Fazio originally filed appeal papers under the Criminal Appeals Act 2004 (WA). However, that was in error. No such appeal was open and I made orders converting his application into one under s 14.

2 The factual background is as follows. On 11 November 2012 the applicant was arrested and charged with an offence of burglary. He was released on bail with a curfew condition. On 28 November 2012 the applicant was arrested and charged with six further offences of burglary, or aggravated burglary. Those offences are alleged to have been committed between 26 November and the early hours of the morning of 28 November 2012.

3 Because the six charges preferred on 28 November 2012 allege offences committed whilst on bail, and both the original and later offences are serious offences under sch 2 of the Bail Act, sch 1 cl 3A of the Bail Act applies. Accordingly, bail must be refused unless there are exceptional reasons why the accused should not be kept in custody and bail would otherwise be appropriate having regard to cl 1 and cl 3 of sch 1.

4 On 21 December 2012 an application for bail was made to a magistrate who refused it. At that time there were submissions made in regard to the applicant's personal circumstances and there was reference also made to an allegation that he had breached the curfew condition on 13 November 2012. No other information is available to me in that regard and I place no reliance on that allegation of a breach of curfew.

5 The applicant is self-represented. He has tendered an affidavit in these proceedings. It is brief, but in essence his grounds for seeking bail are that, first, his children have behavioural problems and need his guidance; secondly, his parents, in particular his mother who has diabetes, need him to care for them; thirdly, the evidence against him is, he alleges, weak other than in respect of one charge to which he has entered a plea of guilty; and fourthly, that he has been in custody since 28 November 2012 and the likely delay before the charges are dealt with in the Magistrates Court will be substantial.

(Page 4)

6 As to the applicant's children, he says in submissions today that they are presently in detention. Their mother is said to have problems of her own which compromise her ability to be a carer. However, there is no evidence to support these claims and whilst I am not bound by strict laws of evidence, on an application of this type (s 22 of the Bail Act) there needs to be some basis for supporting the conclusion that the applicant's children and his parents need him. I could not conclude that no other carers are available on the available information.

7 As to the strength of the case, the applicant has admitted to one offence. He entered a plea of guilty but has not yet been sentenced, presumably because that sentencing exercise is awaiting the outcome of the other charges. The likely outcome in respect of that offence to which the applicant has pleaded guilty, given the limited information available and his lengthy past record, is a sentence of imprisonment. As to the other charges, he maintains his innocence and asserts that the prosecution case is entirely circumstantial.

8 A disclosure brief has not yet been prepared. A disclosure hearing is to be held on 27 March 2013. I understand that all of the charges are to be dealt with in the Magistrates Court, so after the disclosure hearing there will at some stage, if the plea of not guilty to other charges is maintained, be a hearing. It is impossible at this stage to make any realistic assessment of the strength or weakness of the prosecution case in the absence of any prosecution statements. However, the onus is on the applicant to establish exceptional circumstances and he has not done so. This may change of course when the prosecution brief is disclosed and he can make more meaningful submissions on the strength or otherwise of that case.

9 As to delay, the applicant has been in custody since 28 November 2012. As I have said, there is a disclosure hearing to be held on 27 March 2013. The trial is unlikely to take place until at least May or June or possibly later. However, no trial dates have been set down. It is very difficult to determine what the length of the delay will be. No information about the Magistrates Court lists has been provided on this application, nor is there any information or as to any likely hearing dates.

10 A delay can amount to exceptional circumstances where it is particularly long, having regard to the nature of the offences. The applicant says that by the time that he is dealt with he may well have served at least seven or eight months in custody awaiting his trial. He says that even though he has pleaded guilty to one charge, such time in

(Page 5)

custody is likely to equate with or exceed the minimum term of any sentence imposed for that offence. However, it cannot be assumed that he will necessarily be acquitted of the other charges and I cannot make that assumption on this application. In those circumstances the delay is not yet at that stage where I am satisfied that it would constitute an exceptional circumstance.

11 Exceptional circumstances not being established, this application must fail. In any event, I should add that I am not satisfied that bail would be appropriate having regard to the seriousness of the offences, the risk of reoffending and the prior history of the applicant. The application is refused.