Dick v The State of Western Australia
[2021] WASC 292
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DICK -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 292
CORAM: FIANNACA J
HEARD: 17, 20 AUGUST 2021
DELIVERED : 24 AUGUST 2021
PUBLISHED : 24 AUGUST 2021
FILE NO/S: MBA 50 of 2021
BETWEEN: JAMES FLAVELL DICK
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail application - Exceptional Reasons - High Risk Serious Offender - Turns on its own facts
Legislation:
Bail Act 1982 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Bail refused
Representation:
Counsel:
| Applicant | : | Ms F R Veltman |
| Respondent | : | Ms M Hemsley and Mr F Cardell-Oliver |
Solicitors:
| Applicant | : | F R Veltman |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Atherton v Western Australia [2005] WASC 15
Chief Executive Officer of Department of Corrective Services v Dick [No 6] [2016] WASC 323 (Dick No 6])
De Faria v the Queen [2012] WASCA 256
Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC
Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357
Donaldson v Western Australia [2010] WASC 264
Ebner v Official Trustee in Bankruptcy [200] HCA 63; (2000) 205 CLR 337, 344
Jolly v The State of Western Australia [2014] WASC 118
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Roberts v The State of Western Australia [2011] WASC 118
Shrivastava v The State of Western Australia [2010] WASCA 96
The State of Western Australia v Dick [2009] WASC 275
Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303
YSN v The State of Western Australia [2017] WASCA 155
FIANNACA J:
A preliminary issue
Before the hearing of this matter, I raised with counsel for the applicant the fact that I had appeared as counsel for the Director of Public Prosecutions for Western Australia in proceedings against the applicant in 2012.[1] The applicant's counsel in these proceedings was also counsel for the applicant in those proceedings. I have previously also presided as a judge of this court over an application concerning the applicant, which related to amending the supervision order to which he has been subject.[2] In the latter proceedings no objection was taken by either party to my hearing the matter. Similarly, at the commencement of these proceedings, no objection was taken by the applicant to my hearing the matter. The applicant accepted that I am able to deal with the matter impartially. In those circumstances, notwithstanding my involvement as counsel in the matter in 2012, I was satisfied that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the questions I am required to decide in this application,[3] and, therefore, I did not consider it necessary to disqualify myself from dealing with the application.
[1] Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC.
[2] Chief Executive Officer of Department of Corrective Services v Dick [No 6] [2016] WASC 323 (Dick No 6]).
[3] Ebner v Official Trustee in Bankruptcy [200] HCA 63; (2000) 205 CLR 337, 344.
The application and its history
The application
The applicant, James Flavell Dick, has applied for bail in respect of an offence under s 80(1) of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The charge in respect of that offence, being PE 30526/2021, is pending in the Perth Magistrates Court. The charge, more specifically, is that, on 24 June 2021 at East Perth, the applicant:
being subject to a supervision order, without reasonable excuse, contravened a requirement of the order.
At the time this application was heard, the applicant's next appearance in the Magistrates Court in respect of the charge was on 20 August 2021. However, the applicant intended to adjourn that appearance to a time after I have given my decision in this application.
At the hearing of the application, on 17 and 20 August 2021, I received into evidence an affidavit of the applicant's counsel, Ms Veltman, sworn on 17 August 2021, with four annexures, and a number of other documents tendered by the parties, to which I will refer in the course of these reasons.
The charge to which the application relates was brought against the following background.
History of the supervision order
On 18 September 2009, the applicant was found to be a serious danger to the community under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) and was ordered by McKechnie J to be detained in custody for an indefinite period for control, care or treatment ('the continuing detention order').[4]
[4] The State of Western Australia v Dick [2009] WASC 275.
On 1 October 2013, after the fourth review of the continuing detention order, Hall J rescinded the order and made a supervision order in relation to the applicant under s 33(1)(b) of the DSO Act.[5] The order was made for a period of 10 years. The applicant was released on that order, which contained 44 conditions.[6] One of those conditions (condition 4) stipulated that the applicant must be under the supervision of a Community Corrections Officer (CCO) and comply with the lawful orders and directions of the CCO. The charge to which this application relates is in respect of an alleged contravention of that requirement of the supervision order.
Application of the HRSO Act and relevant provisions
[5] Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357.
[6] Three of the conditions were amended in 2016 (see Dick [No 6]), but those amendments are not relevant for present purposes.
The HRSO Act came into effect in separate parts on 9 July 2020 and 26 August 2020, the latter being the commencement day for most of the substantive parts of the HRSO Act.[7] Upon commencement of those parts of the HRSO Act, the DSO Act was repealed.[8] However, by s 125 of the HRSO Act, if an order made under the DSO Act was in effect on the commencement day (i.e. 26 August 2020), it continued in effect and is taken to have been made under the corresponding provision of the HRSO Act. The HRSO Act allows for the making of a restriction order, being a continuing detention order or a supervision order.[9] Therefore, the supervision order made in respect of the applicant under the DSO Act continues in effect as a supervision order under the HRSO Act.
[7] HRSO Act s 2(1)(c) and High Risk Serious Offenders Act 2020 Commencement Proclamation 2020, cl 2 (SL2020/131; Government Gazette, WA, 14 August 2020, p 2619).
[8] HRSO Act s 123.
[9] HRSO Act ss 3, 26, 27 and 48.
Section 80(1) of the HRSO Act provides:
An offender subject to a supervision order must not, without reasonable excuse, contravene a requirement of the order.
Penalty for this subsection: imprisonment for 3 years.
The penalty stipulated in s 80(1) is the relevant penalty for the offence to which this application relates.
Section 10 of the HRSO Act provides, in effect, that the Bail Act 1982 (WA) (Bail Act) applies to a person detained under the HRSO Act if the person is charged with, and is in custody in relation to, an offence under s 80 and is not detained under the HRSO Act for some other reason. The applicant is in custody only in relation to the offence charged under s 80, so the Bail Act applies.
Relevant Bail Act provisions
By s 13(1) of the Bail Act, jurisdiction was vested in the magistrate presiding at each of the applicant's appearances in the Magistrates Court. Section 13(1) provides that the jurisdiction 'shall be exercised subject and in accordance with Part III and the further provisions in Parts B, C and D of Schedule 1' of the Bail Act.
Clause 3D of sch 1 pt C of the Bail Act provides:
3D. Bail in cases under High Risk Serious Offenders Act 2020 section 80(1)
(1)In this clause -
section 80 offence means the offence under the High Risk Serious Offenders Act 2020 section 80(1) of contravening a requirement of a supervision order;
victim has the meaning given in the High Risk Serious Offenders Act 2020 section 3.
(2)This clause applies where an accused is in custody -
(a)awaiting an appearance in court before conviction for a section 80 offence; or
(b)waiting to be sentenced or otherwise dealt with for a section 80 offence of which the accused has been convicted.
(3)Despite clause 1, 2 or 4 or any other provision of this Act, where this clause applies the judicial officer or (if section 16A does not apply) the authorised officer in whom jurisdiction is vested must refuse to grant bail for the section 80 offence unless the judicial officer or authorised officer -
(a)is satisfied that there are exceptional reasons why the accused should not be kept in custody; and
(b)is satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
(4)The judicial officer or authorised officer must in making any decision for the purposes of subclause (3) -
(a)have regard to -
(i)any history of proven or alleged contraventions of supervision orders by the accused; and
(ii)any adverse effect that a grant of bail to the accused would have on a victim of the accused;
and
(b)[not applicable]; and
(c)consider whether the conduct alleged to amount to the contravention in itself appears to be minor or trivial.
(5)Subclause (4) does not limit the matters that the judicial officer or authorised officer may take into account for the purposes of subclause (3).
(6)Despite section 7(1), where an accused is refused bail under subclause (3) for an appearance for a section 80 offence the accused's case for bail need not be considered again under that subsection for an appearance for that offence unless the accused satisfies the judicial officer who may order detention that -
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or
(b)the accused failed adequately to present the case for bail on the occasion of that refusal.
(7)[Not applicable].
The applicant comes within cl 3D(2)(a). The magistrate was required to refuse bail unless she was satisfied that there were exceptional reasons why the applicant should not be kept in custody, and that a grant of bail was proper having regard to the provisions of clauses 1 and 3 of sch 1 pt C and having regard to the factors set out in cl 3D(4).
The potential for contravention proceedings
Before turning to the history of the bail application, it is relevant to note that the HRSO Act provides, by s 51, a process by which a person who has contravened, or is likely to contravene, a condition of a supervision order may be brought before the Supreme Court on an application by the State for an order under s 55 of the HRSO Act and an order that the person be detained in custody while proceedings on the application for an order under s 55 are pending ('contravention proceedings'). The orders that a court may make under s 55 are an order rescinding the supervision order and making a continuing detention order in relation to the offender, an order amending the conditions of the supervision order or extending the period of the order, or an order affirming the supervision order without amendment or extension.
It is also relevant to note that the objects of the HRSO Act are stated to be:[10]
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
[10] HRSO Act s 8.
By virtue of the fact that the applicant is subject to a supervision order that continues in force under the HRSO Act, he is to be taken to be a high risk serious offender, which is to say that the supervision order has been made to ensure adequate protection of the community against an unacceptable risk that the applicant will commit a serious offence.[11] Having regard to the history underpinning the supervision order in this case, the risk posed by the applicant is that he will commit a sexual offence against a child. The conditions of the supervision order were formulated to enable the authorities to monitor and manage the applicant's risk within the community, and to attenuate that risk by psychological and medical treatment. Condition 4 of the supervision order is concerned with the monitoring and management of the applicant's risk by a CCO in supervision sessions.
[11] See definition of 'high risk serious offender' in s 7(1) of the HRSO Act.
It is the court's experience that contravention proceedings will be brought where a person's contravention of a requirement of a supervision order is thought to indicate an elevation of the person's risk or to compromise the manageability of that risk.
Counsel for the respondent in these proceedings informed the court that a decision has not been made at this stage as to whether the State will bring contravention proceedings in respect of the applicant.
History of the bail application
The applicant was charged with the offence the subject of this application on 19 July 2021. The applicant has been in custody since that date.
The applicant appeared in the Magistrates Court on 20 July 2021. The record of those court proceedings shows that the applicant was remanded in custody and that bail was not considered. In fact, an application for bail was made, but (as the record also shows) the applicant was 'to provide further evidence in support of exceptional reasons to be granted bail'.
The applicant appeared in the Magistrates Court again on 23 July 2021, at which time the additional evidence was presented and bail was considered. Bail was refused on the basis that no exceptional reasons were established.
The applicant relied on several factors in support of his argument that there are exceptional reasons why he should not be kept in custody. They were in similar terms to the factors relied upon in these proceedings, and I will refer to them later in these reasons. One factor that was not relied upon in the Magistrates Court was the prospect of inordinate delay before the charge can proceed to trial. However, it was submitted in the Magistrates Court (and again in this court) that the applicant is not likely to receive a custodial sentence if he is convicted, so that any time in custody is likely to occasion an injustice to the applicant.
The learned magistrate was not satisfied that any of the factors upon which the applicant relied, either individually or collectively, amounted to exceptional reasons for the purposes of cl 3D(3).[12] Her Honour noted that, apart from the particulars of the factors relied upon by the applicant, she also had to take into account other factors, such as the applicant's criminal record, which indicated that the applicant has 'quite a lengthy prior history' of breaching his supervision order, and the fact that the applicant was at that stage subject to a further police investigation for another similar breach.[13]
[12] Exhibit 2 (Transcript of proceedings in the Magistrates Court on 23 July 2021), p 8.
[13] Exhibit 2, p 8.
The present application is brought under s 14(2) of the Bail 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 Bail Act on the magistrate who refused bail. It is not an appeal from the magistrate's decision. The application was filed on 6 April 2020.
The legal framework under the Bail Act
The issues to be determined
Clause 3D creates a rebuttable statutory presumption against the grant of bail.[14] As I said earlier, there are two elements about which the judicial officer must be satisfied before bail can be granted. The first is that there are exceptional reasons why the applicant should not be kept in custody. The second is that bail may properly be granted, having regard to the provisions of clauses 1 and 3 of sch 1 pt C of the Bail Act. In Milenkovski, McLure P referred to the two elements in reverse order and said that:[15]
If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are exceptional reasons.
[14] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 (Milenkovski) [36], dealing with cl 3A, which applies where a person is charged with having committed a serious offence while on bail for another serious offence. Clause 3A requires such an accused to establish exceptional reasons, in similar terms to cl 3D.
[15] Milenkovski [37].
That approach reflects the possibility that, if there are exceptional reasons, they may not be relevant to or inform the answers to the mandatory questions the court must consider in cl 1(a) to (g) of sch 1 pt C. However, as Simmonds J noted in Jolly,[16] the approach that had been taken in cases before Milenkovski tended to put the consideration of whether there were exceptional reasons first. Given that both elements are necessary conditions of which the court must be satisfied under cl 3A before bail can be granted, it does not matter in which order they are considered. If either condition is not satisfied, it would not be necessary to go on to consider the other. In the present case, the application was argued on the basis that I should first consider whether there are exceptional reasons for the grant of bail. I will take that approach. However, in the context of this case, some of the considerations that are relevant to deciding whether there are exceptional reasons, as argued by the applicant, are also relevant to the question whether a grant of bail would otherwise be appropriate.
What are exceptional reasons?
[16] Jolly v The State of Western Australia [2014] WASC 118 (Jolly).
The use of the word 'exceptional' denotes something which is unusual, out of the ordinary, in some way special or an exception to the general run of cases.[17] There is no closed list of exceptional reasons.[18] What might constitute exceptional reasons will depend upon the facts in each particular case.[19] As with bail applications generally, it is necessary to look at the circumstances as a whole, weighing competing factors in determining whether exceptional reasons have been established.[20]
[17] Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303 [15] (Murray J); Shrivastava v The State of Western Australia[2010] WASCA 96 [28] - [32] (Mazza JA); De Faria v the Queen [2012] WASCA 256 [13].
[18] Roberts v The State of Western Australia [2011] WASC 118 [9] (Murray J).
[19] Donaldson v Western Australia [2010] WASC 264 (Murray J).
[20] Atherton v Western Australia [2005] WASC 15 (Blaxell J).
The policy behind the requirement for exceptional reasons before bail can be granted in respect of an offence under s 80(1) of the HRSO Act is readily ascertainable from the objects of the HRSO Act and the purpose of a supervision order. The fact that a person is subject to a supervision order means that a determination has been made that there is an unacceptable risk that the person will commit a serious offence in the absence of such an order, and that the order is necessary to ensure the adequate protection of the community against that risk.[21] In determining which restriction order to make, the paramount consideration is to ensure the adequate protection of the community.[22] The conditions (or requirements) of a supervision order are intended to serve that purpose. A contravention of a requirement of a supervision order gives rise to the concern that the community may no longer be adequately protected against the risk posed by the person who is subject to the order. Having regard to the objects of the HRSO Act, the need to guard against that possibility is given priority over the ordinary presumption of innocence, by the requirement that the person charged must establish exceptional reasons why he should not be kept in custody, even though the charge has not been proved. That requirement for the court to be satisfied of the existence of exceptional reasons when considering bail appears to be a corollary of the need for the court to be satisfied on the balance of probabilities that the person will substantially comply with the standard conditions of a supervision order, before the court can make such an order.[23]
[21] HRSO Act s 7.
[22] HRSO Act s 48(2).
[23] HRSO Act s 29(1).
In my opinion, having regard to the language, context and purpose of cl 3D of sch 1 pt C of the Bail Act, in determining whether there are exceptional reasons why the person charged should not be kept in custody, it is relevant to consider whether or not the alleged contravention indicates that the capacity of the supervision order to provide adequate protection of the community has been compromised. It seems to me that it is in that context that cl 3D(4)(c) requires the court to consider whether there is any history of proven or alleged contraventions of supervision orders by the person and 'whether the conduct alleged to amount to the contravention in itself appears to be minor or trivial'. Having regard to the structure of cl 3D, each of those matters is a mandatory consideration in determining whether there are exceptional reasons. Each of those considerations goes to the efficacy of the supervision order as a means of ensuring the adequate protection of the community. However, the second consideration also goes to whether it is just to remand the accused in custody. If an alleged contravention is minor or trivial, that may point to the likelihood of a non-custodial sentence on conviction, in which case an injustice could be occasioned if the accused were detained in custody, particularly for a significant period, pending trial.[24] That may constitute an exceptional reason why he should not be kept in custody. However, as I noted above, it is necessary to look at the circumstances as a whole, weighing competing factors.
[24] Whether or not it is unjust for the accused to be remanded in custody in such circumstances will depend also on whether a grant of bail is proper having regard to the provisions of clauses 1 and 3, which require consideration of questions such as whether the accused is likely to appear in accordance with a bail undertaking.
I would also observe that, if the State considers that a supervision order may no longer be effective to provide adequate protection of the community against the risk posed by the person subject to the order, the proper process to litigate that issue is a contravention proceeding, as discussed above. In such proceedings, the State may seek an interim detention order. The difficulty for the court on a bail application is that it is unlikely to have all the relevant information necessary to assess the impact of the alleged contravention on the efficacy of the supervision order. Nevertheless, in my opinion, in the absence of contravention proceedings, such an assessment may be relevant in determining whether there are exceptional reasons for a grant of bail, for the reasons I have stated above.
Clauses 1 and 3
The second requirement under cl 3D requires consideration of whether bail may properly be granted having regard to the provisions of clauses 1 and 3. The provisions of cl 1 are in the form of questions which address, firstly, whether there are grounds to refuse bail, and secondly, whether there are any conditions that the court can impose which would remove the reasons for refusing bail.
The first category of questions requires consideration, relevant for this application, of whether the applicant will appear at a future court date, will commit an offence, will endanger the safety or welfare of others, or will interfere with witnesses or obstruct justice.
In considering those questions, the court must have regard to the factors set out in cl 3 of sch 1 pt C, which include (a) the nature and seriousness of the offence and the probable method of dealing with the applicant for it if he is convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to him; and (d) the strength of the evidence against him.
The second category of questions in cl 1 requires consideration of conditions that may alleviate the risks that would otherwise justify a refusal of bail.
The approach to be taken when considering the factors or questions in clauses 1 and 3 is well known and was explained in Milenkovski[25] and YSN[26]. It is sufficient to note for present purposes that there must be an actual risk or possibility that the accused will do one of the things referred to in [33] above, and the court must consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail, having regard to the matters set out in cl 3(a) - (d) and any other matters the court considers to be relevant. That requires weighing the risk that such conduct would pose to the integrity of the criminal justice process and community safety, against the potential injustice to the accused if he is ultimately acquitted of the charged offence after being held in custody for a lengthy period. The assessment is made in the context that an accused person is presumed to be innocent. Where the nature and extent of the risk provides a proper ground for refusing to grant bail, the next question is whether conditions of bail could reasonably be imposed that would sufficiently reduce the risk, so that the remaining risk no longer warrants the detention of a person who has not been convicted and is presumed to be innocent.
[25] Milenkovski at [24] - [25] and [39] - [41] (McLure P).
[26] YSN v The State of Western Australia [2017] WASCA 155 at [15] - [21].
It will be obvious that the circumstances which bring this application within the provisions of cl 3D will also be relevant to some of the factors to be considered under clauses 1 and 3.
Circumstances of the alleged offence
It is necessary to have regard to the circumstances of the alleged offence, to which this application relates, when considering both the question of whether there are exceptional reasons why the applicant should not be kept in custody and the factors in clauses 1 and 3.
The alleged facts are as follows.
On 25 September 2018, the applicant was served by his CCO with a written lawful instruction in accordance with condition 4 of his supervision order. The instruction included, as the first instruction:
Not delete any data from any computer or electronic storage device in your possession that you use without prior permission from your SCCO or WA Police.
'SCCO' is the abbreviation for Senior CCO. It may be assumed that the applicant's CCO was an SCCO.
At relevant times, the applicant had installed on his mobile telephone, and used, the Facebook Messenger chat application, which enables the user to communicate by text with other users of the application. Between 21 and 24 June 2021, the applicant engaged in a Facebook Messenger Chat conversation, under the username 'James Dick', with another user, who was using an account in the name of 'Samantha Barrett'. Screen shots of relevant messages on 24 June 2021 are attached to the Statement of Material Facts prepared by the police in respect of the offence.[27] The screen shots were obtained by police from the mobile telephone of the other user during the course of their inquiries in relation to the alleged offence.
[27] Exhibit 3.
The screen shots show that the conversation was started by the other user, who claimed to be the applicant's son, and that, generally, the messages sent by that user were abusive towards the applicant. It may be inferred from the context that the messages were referring to the applicant's history of sexual offending. Further, when the applicant at one point said, 'Oh that's right[,] you still angry at me for some reason, oh well[,] stay angry', the other user said, 'Maybe for fucking my life[,] cunt'. Subsequent messages from the applicant's account berate his son for failing to take responsibility for the failures in his own life. At a stage when the messages purporting to be from the applicant's son cease, there are further lengthy messages from the applicant's account. The first, at 10.08 am on 24 June 2021, is, in its terms, directed at his son, accusing him of having destroyed their relationship. The message also appears to contain denials of the applicant's sexual offending. It is, in turn, abusive towards his son. Three subsequent messages, commencing at 6.55 pm the same day, one of which is lengthy, appear to be intended for the account user. The applicant states, 'I am sorry if this is upsetting you[,] but it is through your phone that I was contacted.' He then purports to give his perspective, denying having caused harm to his son, and suggesting that his children have been lied to about his conduct.
On 30 June 2021, the applicant had a regular appointment with his CCO, during which the CCO checked the contents of his mobile phone. The CCO could find no record of the Facebook Messenger chat conversation.
Police conducted inquiries and obtained copies of the messages, by way of screenshots, from the person using the name 'Samantha Barrett'.
On Monday, 19 July 2021,[28] the applicant was arrested at his home and conveyed to the Sex Offender Management Squad (SOMS) office, where he participated in an electronic record of interview. The applicant made some admissions, stating he was a party to the conversation, but he was unable to offer any explanation as to how the contents of the chat had disappeared from his devices. The applicant was charged that day with the offence the subject of this application.
[28] The Statement of Material Facts (Exhibit 3) wrongly states that the applicant was arrested on 19 March 2021, which is not possible, as the offending occurred on 24 June 2021. The prosecution notice is dated 19 July 2021.
Although it is not specifically stated in the statement of material facts, it is evident from the contents that the particulars of the charge of contravening a requirement of the supervision order, without reasonable excuse, are that the applicant deleted data from an electronic storage device in his possession that he used, without prior permission from his SCCO. The data alleged to have been deleted are the messages exchanged on 24 June 2021, referred to above.
I note that Ms Veltman's affidavit refers to the fact that 'the other party to the message[s] said he did not delete the messages'. This is based on information provided to Ms Veltman by the prosecution. Although it is not referred to in the statement of material facts, and I do not have any other evidentiary material in relation to the charge, it was accepted at the hearing that I should proceed on the basis stated in Ms Veltman's affidavit.
The applicant's argument as to exceptional reasons
The applicant submits that there are several matters that individually or collectively, constitute exceptional reasons why he should not be kept in custody.
In her affidavit, Ms Veltman states that the accused denies the charge. At the hearing, she said that the matter will proceed to trial, although at this stage, as I noted earlier, the applicant has not entered a plea to the charge in the Magistrates Court.
Strength of the prosecution case
It was submitted on behalf of the applicant that the case against him is not a strong case. Initially this was put forward as an exceptional reason, but ultimately it was accepted on the applicant's behalf that this is not a case in which the prosecution case is inherently weak to such an extent as to constitute an exceptional reason. Rather, it was submitted that the evidential issues affecting the prosecution case are relevant to the submission that there is a real prospect that the applicant will suffer an injustice if he is kept in custody on remand pending his trial on the charge.
The applicant submits that there is no direct evidence that he has deleted the messages. The prosecution relies on the fact that the messages are missing from the applicant's electronic device and the fact that the other party involved in the conversation has stated that he did not delete the messages. In her affidavit, Ms Veltman states that messages sent via the application 'can be deleted by either party and presumably through [M]essenger glitch' and submits that deletion of the messages by the applicant 'does not seem to be the only reasonable inference that could be drawn'.[29] There is no expert evidence before me about the means by which messages can be deleted in Facebook Messenger. However, in the absence of any objection, I am prepared to accept that deletion of messages might occur in the ways identified by Ms Veltman (including the method based on presumption). It was submitted on behalf of the applicant that the prosecution will need to negate as a reasonable hypothesis that the messages were deleted by either of those means. Ms Veltman said that it will be necessary for the defence to obtain expert evidence about those matters.
[29] Exhibit 1 [8] & [9].
The reasonableness of the defence hypotheses will need to be weighed, in due course, against the apparent lack of disclosure by the applicant to his CCO that the Facebook Messenger conversation had taken place. It may be that such lack of disclosure would be regarded as consistent with a desire to conceal the conversation, which would provide a motive for deleting the text messages. These are matters for determination at trial. It is neither possible, nor appropriate, to make a meaningful assessment of such issues on a bail application, particularly when the only materials before the court are the statement of material facts and the attached screenshots. It follows that I am not prepared to draw any conclusion about the strength of the prosecution case on the materials presented in the bail application.
Likely disposition and potential injustice
The applicant's next submission is that there is a real prospect that, if the applicant is convicted of the offence charged, it may not result in a sentence of immediate imprisonment for the applicant. In fact it was submitted that it is likely he would not receive a custodial term. It was submitted that there is a real prospect, therefore, that requiring the applicant to remain in custody on remand until the conclusion of a trial in respect of the charge will result in an irremediable injustice to the applicant. The applicant's submission is predicated on the proposition that the alleged offence ought to be regarded as being minor or, at least, at the lower end of the scale of seriousness for offences of contravening a condition of a supervision order.
It may be readily accepted that the alleged offence is not at the higher end of such offending, where conviction will almost inevitably result in a sentence of immediate imprisonment. Such cases tend to involve contraventions that indicate an elevation of the risk that the offender will commit a serious offence, or a decline in the efficacy of the supervision order to manage and control the offender's risk. Examples include the offender interfering with the GPS monitoring device they are obliged to wear, an offender who has been convicted of child sex offenders approaching children, and an offender whose risk is associated with substance abuse reverting to the use of illicit substances or alcohol. However, identifying such examples of offending under s 80(1) that is at a more serious level than the alleged offence in this case does not mean that the alleged offence ought not to be regarded as being serious. If the applicant is convicted of the offence, he will have been found guilty of engaging in deceptive conduct to conceal an aspect of his behaviour that is indicative of his attitude towards his sexual offending. It might be thought that deception in that regard, associated with a lack of disclosure of the Messenger conversation to his CCO, has the capacity to reduce the manageability of his risk under the supervision order.
It was submitted on behalf of the applicant that he has always denied his guilt of the sexual offending of which he has been convicted. Therefore, if that is what his deception (if proved) establishes, it could not be regarded as increasing the applicant's risk of sexual reoffending. Again, these are matters for consideration at the appropriate juncture of the criminal justice process, if the case reaches that point. However, as the respondent submitted, the seriousness of the alleged offence, for the purposes of sentencing, will need to be assessed having regard to the following additional matters. First, the applicant has a significant history of contravening the requirements of his supervision order, which indicates a need for personal deterrence. Secondly, the applicant's conduct will need to be considered in the context that he is alleged to have committed another contravention of his supervision order in close proximity to the offence to which this application relates.
As to the first of those matters, the applicant has eight previous convictions for contravening a requirement of his supervision order without reasonable excuse, commencing in October 2015 and in each year after that until 2019.[30] On each occasion the applicant has been fined, the largest of those fines being $2,000.
[30] Exhibit 5 (applicant's criminal history compiled 19 July 2021).
As to the second matter, since making this application for bail, the applicant has been charged with another alleged contravention of his supervision order. The Statement of Material Facts in relation to that alleged offence was tendered by the respondent, and was received as exhibit 4. The alleged facts in respect of that charge are as follows.
During the applicant's regular appointment with his SCCO on 30 June 2021, after it was discovered that messages were missing from his Facebook Messenger account on his mobile telephone, the deletion of which had not been authorised by the applicant's SCCO (see above in respect of the current alleged offence), the applicant's mobile telephone was seized. Further inquiries were conducted into messages on the applicant's Facebook Messenger account, and it was ascertained that messages and images were missing from a chat log in relation to a chat between the applicant and user 'Tia Lewis', who has been identified to be the applicant's daughter Lertia Lewis.
It was ascertained that, on 22 June 2021, Ms Lewis sent the applicant three ultrasound images of Ms Lewis's unborn child (the applicant's grandchild). Between 23 and 26 June 2021, Ms Lewis and the applicant exchanged 10 intermittent messages on Facebook Messenger. The images and messages are attached to exhibit 4, as labelled screenshots from Ms Lewis's Facebook Messenger chat log on her mobile phone. Further, there were three automated messages, also found in Ms Lewis's chat log, which read, 'James unsent a message'. When the respondent's mobile telephone was examined, there was no record of the ultrasound images, the messages or the unsent messages. It is alleged that the applicant deleted the messages, including the images.
The applicant had been warned by his SCCO, at a meeting on 31 May 2021, about having ultrasound images of his unborn grandchild. In other words, he was told that he was not to have such images on his telephone. It is not readily apparent why that would be the case.
On 28 July 2021, the applicant was interviewed by police at Hakea Prison, where he was being held on remand in relation to the charge the subject of this application. In the video recorded interview, the applicant denied any knowledge of the deleted text messages or the unsent messages. The applicant claimed (and maintains in these proceedings) that he deleted the ultrasound images from his mobile phone whilst in the company of his SCCO at a scheduled appointment. In her affidavit, Ms Veltman states that the applicant informed her that the deletion occurred in the presence of the SCCO 'or SOMS' on two occasions.[31] At the hearing on 17 August 2021, Ms Veltman said that the applicant had 'given his phone over so the SOMS officer could delete them'.[32] The Statement of Material Facts (exhibit 4) notes that enquiries with the applicant's SCCO indicate that the deletion did not occur in the presence of the SCCO. The SCCO keeps detailed logs of the SCCO's appointments with the applicant, and there is no mention in the logs of deleting images from the applicant's mobile phone. One would have thought that, given the significance of the issue, the SCCO would be unlikely to forget if the images were deleted during a meeting. It appears, therefore, that there will be a contest of credibility at the trial in respect of that charge. However, I note that the Statement of Material facts does not address whether an officer from SOMS might have been involved in deleting the images. That would appear to be because it was not known that the applicant was asserting such an officer was involved.
[31] Exhibit 1 [11].
[32] Ts 6, 17/8/21.
In any event, if the alleged offence related only to the deletion of the ultrasound images, then, assuming the applicant deleted them when not in the presence of his SCCO, it could readily be accepted that the offending is at the lower end. It was a contravention of the direction given to him by his SCCO under condition 4 of the supervision order, prohibiting him from deleting data from his electronic devices, but it was committed in a context in which it appears the ultrasound images were sent to him unsolicited, and he had been told by his SCCO that he was not to have such images on his phone.
However, on the prosecution case, the deletion of the images occurred in the context of the applicant also deleting the text messages he had exchanged with his daughter. Most of the deleted messages related to a conversation about the applicant's son, which were related to the circumstances of the offence the subject of the present application. On the prosecution case, the applicant's deletion of the messages can be inferred to be part of a course of conduct to conceal the applicant's Facebook Messenger exchanges with his son, albeit those exchanges commenced with an unsolicited message from the applicant's son.
The point of this analysis is that the seriousness of the applicant's offending, if he is found guilty of the charges, must be assessed contextually, and, in the respondent's submission, the possibility of an immediate term of imprisonment cannot be excluded. Even so, the applicant submits that, having regard to the circumstances of the alleged offending, any term of immediate imprisonment would be towards the lower end of the range, noting that the maximum penalty is 3 years' imprisonment.
Likely delay before trial
Ms Veltman asserted that it is unlikely that the charge the subject of this application could proceed to trial within the next 12 months. Her estimation is that it would be significantly longer than that. Apart from the usual trial listing practice in the Magistrates Court, which has been affected by delays resulting from the COVID-19 pandemic, Ms Veltman said that the defence will likely call expert witnesses about the 'what Facebook Messenger does with apps', and 'the defence is likely to be a very technical and complicated kind of defence',[33] which may extend the period before the matter can proceed to trial.
[33] Ts 10, 17/8/21.
There is no evidence before me about any of those matters. I accept that it may take some time before the matter can proceed to trial, but there is no evidence of any enquiries having been made with the Magistrates Court about the earliest available trial dates, or whether the expedited trial dates could be obtained if the applicant remains in custody. Nor is there any evidence about how long it would take for expert reports to be obtained. As I have already noted, the applicant has not yet entered a plea in the Magistrates Court.
It was also submitted on behalf of the applicant that he may be hampered in his defence of the case if he is in custody. Again there is no evidence to support that proposition, and no details have been provided about the way in which he might be hampered. The factual allegations are not complicated. To the extent that the defence might be technical and complicated, it is not readily apparent what role the applicant will have in that aspect of the defence, given the indication that expert witnesses are to be engaged.
It was submitted on behalf of the applicant that, if he is kept in custody, in circumstances in which he may well spend more time in custody on remand than the length of any immediate term of imprisonment he might receive, the applicant may be put under undue pressure to plead guilty in order to obtain an early resolution of the charge and potentially receive a non-custodial disposition, despite maintaining his innocence. I accept that such an eventuality is a relevant consideration in determining whether significant delay before trial might constitute an exceptional reason why an accused should not be kept in custody. However, the applicant has chosen not to enter a plea at this stage, and it is not appropriate for the court to speculate about the applicant's intentions.
Personal matters
There are four personal matters advanced by the applicant as constituting exceptional reasons either individually or in combination, although ultimately it was accepted on behalf of the applicant that none of the matters could amount to an exceptional reason individually. The applicant relied on the combined weight of the matters, together with the submissions to which I have already referred concerning the strength of the prosecution case, likely disposition and time in custody.
Health issues
The applicant has health issues. He has a heart condition for which he receives medication. He also suffers from narcolepsy, for which he requires medication. Two medical reports annexed to Ms Veltman's affidavit confirm the medical conditions, but provide no information about ongoing treatment, other than the medication prescribed to the applicant, or the potential consequences of not taking the medication. Ms Veltman stated in her affidavit that she has been informed that the medication the applicant requires to treat his narcolepsy is prohibited in prison because it is a stimulant. The source of the information has not been identified. With respect, in my view this is a matter about which direct evidence, including a medical opinion, is necessary if the unavailability of medication is going to be regarded as a factor contributing to establishing exceptional reasons for the grant of bail. Custodial services would be expected to provide proper medical care to the applicant. I am not satisfied that any issue in respect of the applicant's health has been demonstrated to be an exceptional reason.
The second matter is that the applicant has been appointed by the State Administrative Tribunal to be the plenary administrator of the estate of a woman with a disability, and to be her limited guardian. The relevant order is attached to Ms Veltman's affidavit. The order states that it was to be reviewed on 15 June 2021, but I was informed at the hearing that the review is to take place on 26 August 2021. I was also informed that an objection has previously been raised to the order by the Department of Justice because the applicant is subject to a supervision order under the HRSO Act. There is no evidence before me about that objection.
The applicant is also the 'plan nominee' for B under a National Disability Insurance Scheme (NDIS) plan for her benefit. Although the letter appointing the applicant, dated 22 July 2020, is attached to Ms Veltman's affidavit, the supporting documentation setting out the terms and conditions of the applicant's appointment is not attached. Again, it is not possible for me to draw any conclusions about the impact of the applicant's remand in custody upon the delivery of the plan. There is no evidence to suggest that B will not be provided with any services to which she is entitled. Presumably, contingency arrangements exist to deal with the eventuality of a nominee becoming unavailable.
Returning to the order of the State Administrative Tribunal, the applicant's submission is that he is unable to perform his functions as plenary administrator and guardian while he is in custody, and he may be hampered in his ability to present his case to the State Administrative Tribunal at the review hearing while he is in custody. The respondent submitted that the applicant should be able to appear at the Tribunal by telephone or by video link. Although I do not have any evidence in that regard, I am aware that such facilities are ordinarily available for litigants to appear in the Tribunal and have been utilised in most court facilities during periods of restriction due to the COVID-19 pandemic. In any event, there is insufficient information before me to determine that the applicant will be adversely affected in his presentation of his case in the Tribunal. As for his inability to perform his functions as plenary administrator and guardian, there is no evidence before me about the level of functioning of the protected person or the manner or extent to which she has been or will be affected as a result of the applicant being in custody.
Although hardship to a third person can be a relevant factor in deciding that there are exceptional reasons why an accused should not be kept in custody, the hardship must be of an exceptional nature and must be based in fact, not presumed. I am not satisfied that the materials produced on behalf of the applicant rise to that level.
The third matter on which the applicant relies is that his wife, for whom English is a second language, has difficulty communicating in English, and is reliant on the applicant in some aspects of day-to-day life. Again, there is no evidence about those matters, or about any actual hardship she has endured or is enduring without the applicant's assistance. The applicant has been in custody for several weeks. If significant difficulty had been experienced by his wife during that period, evidence could have been produced about that matter.
Finally, in terms of the conduct that has resulted in the charge that is the subject of this application and the other pending charge, the applicant has said, through his counsel, that he intends to delete the Facebook Messenger application from his electronic devices, with permission from his SCCO, so that there can be no opportunity for any future contravention in manner alleged. Putting to one side the fact that (as with many of the other assertions relied on by the applicant) any such assertion would be expected to be the subject of an affidavit from the applicant, rather than a submission from counsel, it is not an exceptional reason either alone or in combination with other factors why he should not be kept in custody.
Conclusion in relation to whether there are exceptional reasons
For reasons I have outlined in dealing with each of the personal factors relied on by the applicant, I am not satisfied that there is sufficient evidence to conclude that the applicant's incarceration at this stage is creating hardship of an exceptional kind, whether the factors are considered individually or in combination. Even if the evidence supported the propositions advanced in respect of the personal factors, they would not necessarily amount to exceptional reasons, but it is sufficient to deal with the matter at this stage on the basis that the evidence falls well short of establishing the propositions underpinning the purported exceptional reasons.
The prospect that the applicant may spend a period of time in custody in excess of any custodial sentence that may be imposed on him, if he is convicted of the charge the subject of this application, is concerning. Some weight was placed by the respondent (and by the magistrate who refused bail) on the fact that the applicant has a significant history of convictions for offences of contravening a requirement of the supervision order without reasonable excuse. He received significant fines for several of the breaches, suggesting they were not regarded to be minor infringements. However, he has not previously been sentenced to imprisonment for such offending, and the offending has not prompted the State to bring contravention proceedings, which would have facilitated a review of the efficacy of the supervision order to manage the respondent's risk. It must be assumed that the State considered previously that, despite the contraventions, the applicant's risk could still be managed, and the community protected adequately, by the continuation of the supervision order. In these proceedings, counsel for the respondent informed me that the HRSO team in the State Solicitor's Office had not yet received instructions to commence contravention proceedings, and it was simply not known whether the Corrective Services section of the Department of Justice was considering commencing contravention proceedings or had made a decision not to do so. In those circumstances I make no assumption about the attitude at this stage of those responsible for managing the applicant's risk as to whether the applicant's alleged contraventions are considered to affect the capacity of the supervision order to adequately protect the community.
The respondent submitted that, while the alleged offending is not at the higher end of the scale of seriousness, a custodial sentence would be open, given the applicant's antecedents, if he is convicted of the offence the subject of this application. The respondent further submitted that the court is also entitled more generally to have regard to the applicant's antecedents and the other pending charge in assessing the risk to the community and deciding whether to grant bail. That is so, but, as I have explained above, the proper process for considering the risk to the community within the broader context of the HRSO Act, invoking the procedures which would allow for a review of the applicant's risk by an expert psychiatrist or psychologist, is the contravention proceeding. As I noted earlier, the limited information available on a bail hearing is not apt to allow for meaningful conclusions to be drawn in that broader context.
However, parliament has created a rebuttable presumption against the grant of bail when a person is charged with an offence under s 80(1) of the HRSO Act. I am not satisfied that the presumption is rebutted at this time on the materials presented in this application. While the alleged offending is not at the higher end of the scale of seriousness, I do not consider it to be minor or trivial. The history of proven contraventions of the supervision order by the applicant militates against a finding that there are exceptional reasons why he should not be kept in custody.
The most significant concern is that he may spend more time in custody on remand than any custodial sentence he may receive. However, in my opinion, in the absence of evidence about trial dates, the making of enquiries about a possible expedited trial, and the time required to obtain expert reports, it is premature at this stage to conclude that the applicant is likely to suffer an injustice if he is kept in custody pending trial, such as to establish an exceptional reason why he should not be kept in custody. The circumstances may change if firm information becomes available about these matters that supports the conclusion that an injustice may result because of delay and the time the applicant will have spent in custody pending trial. In my opinion, it would also be a relevant consideration, in those circumstances, if the State has decided not to bring contravention proceedings.
At this stage, however, I am not satisfied that there are exceptional reasons why the applicant should not be kept in custody. Accordingly, bail must be refused.
Clause 1 matters
In light of my conclusion in relation to the issue of exceptional reasons, it is strictly not necessary to deal with the factors in clauses 1 and 3 of sch 1 pt C of the Bail Act. However, I note that the respondent did not submit that the applicant poses a risk of failing to appear. There is no evidence to suggest such a risk exists.
While the alleged offending and the applicant's antecedents suggest that he may pose a risk of re-offending, in terms of contravening the supervision order, and that it may be difficult to formulate conditions that would sufficiently reduce that risk, given the onerous conditions of the supervision order that are already in place, on balance, I would not have regarded that risk to be such as to refuse a grant of bail. There is no suggestion in the materials that the applicant, at this time, poses a risk of committing other types of offences. The real issue is whether the alleged contraventions demonstrate a decline in the manageability of his risk. As I have said, that requires expert assessment that is not within the scope of this application.
Conclusion
For the reasons I have given, the application for bail is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Fiannaca
24 AUGUST 2021
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