Dickerson v The State of Western Australia
[2020] WASC 425
•18 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DICKERSON -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 425
CORAM: FIANNACA J
HEARD: 18 NOVEMBER 2020
DELIVERED : 18 NOVEMBER 2020
FILE NO/S: MBA 61 of 2020
BETWEEN: BELINDA DICKERSON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail application - Bail granted - Exceptional reasons - Nature of breach of protective bail condition - Strength of prosecution case - Engagement with rehabilitation - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Bail granted
Category: B
Representation:
Counsel:
| Applicant | : | E Svanburg |
| Respondent | : | T McArthur |
Solicitors:
| Applicant | : | Eva Svanberg Barrister And Solicitor |
| Respondent | : | Director of Public Prosecution (WA) |
Case(s) referred to in decision(s):
Atherton v Western Australia [2005] WASC 15
De Faria v the Queen [2012] WASCA 256
Donaldson v Western Australia [2010] WASC 264
Jolly v The State of Western Australia [2014] WASC 118
Magistro v The State of Western Australia [2016] WASC 268
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 Sturgeon [2005] WASC 256
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:
(These reasons were given extemporaneously and have been edited from the transcript)
The application and its history
The applicant, Belinda Dickerson, has applied for bail in respect of two charges pending in the Magistrates Court at Carnarvon. Those charges are in respect of one count of unlawful wounding, in circumstances of aggravation contrary to s 301(1) of the Criminal Code (WA), that is charge CA 664/2020, and one count of a breach of protective bail conditions contrary to s 51(2a) of the Bail Act 1982 (WA) (the Act), that is charge CA 1077/2020, which I will refer to as the protective bail breach offence.
Her next appearance is in the Carnarvon Magistrates Court for trial in respect of the unlawful wounding charge on 16 February 2021. She pleaded guilty to the protective bail breach offence and will be sentenced after the trial, in respect of the unlawful wounding charge, has been completed. The applicant has been in custody since 10 September 2020 when she handed herself in to the police in relation to the protective bail breach offence.
Both charges related to alleged offending against her ex‑partner, Mr N.
The unlawful wounding charge arises out of an incident on 26 June 2020. It is alleged that during an argument between the applicant and Mr N, she stabbed him in the shoulder with a broken beer bottle. The circumstance of aggravation is that they were in a family relationship. The applicant was arrested on that day.
The applicant appeared in the Carnarvon Magistrates Court in relation to the unlawful wounding charge on 13 July 2020. She pleaded not guilty and was released on bail to appear on 21 September 2020.
The bail conditions included protective conditions pursuant to cl 2(2)(c) or (d) of pt D, sch 1 of the Act. Clause 2(2) provides that any condition may be imposed under subclause (1) or (1a) to ensure that an accused (relevantly here):
(c)does not endanger the safety, welfare or property of any person; or
(d)does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person
The conditions which purportedly were protective conditions in respect of that grant of bail were that she:
(a)must not consume alcohol or be in possession of alcohol and must submit a sample of breath for analysis whenever requested by a Police Officer to do so, with any positive reading or a failure to comply with such a request to, being a breach of the protective condition (described as being a protective bail condition for the purposes of cl 2(2)(c) or (d), pt D, sch 1 of the Act);
(b)was not to enter or remain upon Mungullah Aboriginal Community, Greys Plain or be within 50 metres of the nearest external boundary of such premises (which was also described as a protective condition); and (which was in three parts);
(i)was not to communicate or attempt to communicate by whatever means (including Telephone, SMS, and Email or through another person) with the Protected Person; who was Mr N;
(ii)was not to approach within 50 metres of the protected person; and
(iii)was not to enter or remain upon an address which was specified or any premises where the protected person lived or worked or be within 15 metres of the nearest external boundary of such premises.
Somewhat oddly, the third condition, which clearly falls within the category of conditions referred to in cl 2(2)(c) or (d), was not expressly stated as a protective condition. However it was accepted on behalf of the applicant that the purpose of the condition was within cl 2(2)(c) or (d) of pt D of the Act and it ought properly to be regarded as having been a protective bail condition. The applicant pleaded guilty to the breach of that condition on that basis.
Having been released on bail on 13 July 2020, the applicant was arrested on 21 July 2020 for breaching the first and second of the purported protective bail conditions that I have referred to. It appears she was stopped by police in the Mungullah Aboriginal Community and, when breathalysed, returned a reading of 0.4% blood alcohol content.
The applicant was charged with an offence of breaching a condition of her bail, she pleaded guilty to that charge and was convicted of it on 21 July 2020. She was fined $750 and the magistrate reinstated bail on the same terms as had applied earlier. The applicant claimed she had misunderstood the extent to which the condition continued to apply, and believed that it had ceased upon her previous appearance. It seems the magistrate either accepted that explanation, or in any event, did not consider that her breach on that occasion was sufficient to justify a refusal of bail in the terms that had applied previously.
On 5 September 2020 the applicant again breached a protective bail condition, namely the third condition that I referred to above which was in three parts and concerned contact with Mr N. On that occasion, she was in company with Mr N, contrary to that condition. The applicant handed herself in to police on 10 September 2020 when it became apparent they were looking for her in relation to that particular breach. She was charged with breaching the protective bail condition on 10 September 2020. As I said earlier, she has been in custody since the time she was charged with that offence.
The fact that the applicant was subject to, and has breached, a protective bail condition brings her within the provisions of cl 3A of sch 1 pt C of the Act. That clause provides that, where an accused is in custody awaiting an appearance in court before conviction, or waiting to be sentenced or otherwise dealt with, for a serious offence of which the accused has been convicted and the serious offence is alleged to have been committed while the accused was on bail for another serious offence, the court must refuse to grant bail for the later offence unless it is satisfied there are exceptional reasons why the accused should not be kept in custody, and is also satisfied that a grant of bail would otherwise be proper, having regard to other factors the court must take into account under cl 1 and cl 3 of sch 1 pt C of the Act.
In relation to the protective bail breach offence, the applicant was awaiting an appearance in court before conviction for that offence when bail was first considered. She now comes within the second category, awaiting sentence.
'Serious offence' is defined in s 3(1) of the Act to mean an offence under s 51(2a) of the Act and an offence described in sch 2 of the Act. The protective bail breach offence, with which the applicant was charged on 10 September 2020, is an offence against s 51(2a) of the Act. The offence of unlawful wounding in a circumstance of aggravation (whether or not committed in a circumstance of aggravation) is an offence described in sch 2 of the Act. The offence under s 51(2a) is alleged to have been committed by the applicant while she was on bail for the unlawful wounding offence.
Therefore, the provisions if cl 3A apply and the court must refuse to grant bail under that clause for the protective bail breach offence unless satisfied there are exceptional reasons why the applicant 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 sch 1 pt C.
If bail is refused in respect of the protective bail breach offence, that decision in effect determines the application in respect of the unlawful wounding charge for which the applicant is awaiting trial, in that the applicant would not be able to avail herself of bail in respect of the other charge, even if bail could properly be granted.
By s 10 of the Act, the applicant's right to have bail considered in respect of the unlawful wounding charge, and the court's duty to consider bail in respect of that charge, does not arise if the applicant is in custody for some other offence or reason. It is a relevant consideration in this case that the magistrate determined that he would not sentence the applicant in respect of the protective bail breach offence. Had he dealt with the applicant in respect of that offence, the only matter that would remain for consideration for bail would be the unlawful wounding charge. Clause 3A would then not apply. Nevertheless I must deal with the matter according to its current status before the Magistrates Court. That means I must deal with the question of whether bail ought properly to be granted in respect of the protective bail breach offence for which the applicant is awaiting to be sentenced. The outcome in respect of that matter may then have a bearing upon whether bail is granted in respect of the unlawful wounding charge.
The applicant initially pleaded not guilty to the protective bail breach offence. She did so, it appears, on the basis that she had committed the breach under duress, in that Mr N had compelled her to get into the vehicle, which resulted in her being in contact with him in circumstances where she was prohibited from having contact with him. In essence, the applicant's submission in respect of that matter is that it was Mr N who initiated the contact and that she was complying with his request in circumstances where there was a history of violence between them. From the applicant's perspective, it was a history that involved Mr N inflicting violence upon her.
All of those matters will be relevant now in mitigation, given that the applicant has pleaded guilty to that offence.
The applicant was refused bail in the Carnarvon Magistrates Court on 11 September 2020 in respect of both offences, on the basis that the matters submitted on her behalf in support of the application did not amount to exceptional reasons for the grant of bail. The learned magistrate was of the view that the matters that were relied upon were routine matters that did not fall within the description of exceptional reasons. The magistrate took into account that the applicant had previously breached a protective bail condition on 21 July 2020. He was also of the view, in any event, that he could not be satisfied there were any conditions that he could impose with which the applicant would comply.
In the present case, the context of the consideration of whether bail would otherwise be appropriate, having regard to cl 1 and cl 3 of sch 1 pt C of the Act, is that there is a risk the applicant would commit a further offence if not kept in custody. That is the only risk that is said to exist if the applicant is not kept in custody, and which is said to justify a refusal of bail, if there are exceptional reasons. It has not been suggested by the prosecution in the Magistrates Court or in these proceedings that there is a risk that the applicant would fail to appear if she were granted bail.
On 1 October 2020, both charges were adjourned to 16 February 2021 for trial. On 8 October 2020, the applicant's lawyer filed a Form 6 seeking an early listing of the matters for a change of plea in relation to the protective bail breach offence.
On 19 October 2020, the applicant appeared and pleaded guilty to the protective bail breach offence. The charge of unlawful wounding was again adjourned to 16 February 2021 for trial.
A further application was made for bail, but the magistrate again declined to grant bail, again coming to the view that there were no exceptional reasons. As I explained earlier, the context of that decision was that his Honour declined to sentence the applicant for the protective bail breach offence, so that it was necessary to consider whether she should be released on bail in respect of that offence. Apart from coming to the view that exceptional reasons had not been demonstrated, the magistrate again expressed the view that he did not consider there were any conditions he could impose that would ensure that the applicant would not commit a further offence.
On that occasion (19 October 2020) it was submitted on behalf of the applicant that the complainant, Mr N, had left Carnarvon and was then located in Karratha.[1] It was submitted that the applicant would live with her mother who had a violence restraining order against Mr N, so there was no risk that the complainant would come into contact with Mr N. It was also submitted that the applicant intended to maintain her plea of not guilty in respect of the unlawful wounding charge and would be relying upon self‑defence. It was also put on her behalf that her mother had the care of the applicant's young child, and that she needed the applicant's assistance. Finally, it was put that the applicant had been undergoing counselling with an alcohol and drug rehabilitation program prior to being incarcerated and, indeed, had continued to have contact with that program by telephone after she was incarcerated, so that she was taking steps to address her alcohol use, which was a factor that was relevant to her past offending.
[1] It seems that he may now be in Hedland, according to the evidence before this court.
The question of delay before the applicant would be brought to trial was also raised, but the magistrate did not consider that to be a matter of any significant weight, as he did not consider the delay to be of a duration that would result in any significant injustice to the applicant.
The present application is brought under s 14(2) of the Act, and invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred by s 13 and sch 1 pt A of the Act on the magistrate who refused bail in this case. It is not an appeal from the magistrate's decision. The application was filed on 2 November 2020.
The legal framework
I will state briefly the relevant legal framework.
The issues to be determined
Clause 3A creates a rebuttable statutory presumption against the grant of bail.[2] 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 accused should not be kept in custody. The second is that bail may properly be granted, having regard to the provisions of cl 1 and cl 3 of sch 1 pt C of the Act. In Milenkovski, McLure P referred to the two elements in reverse order and said that:[3]
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.
[2] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 (Milenkovski) [36].
[3] 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,[4] the approach that had been taken in cases before Milenkovski tended to put the consideration of whether there were exceptional reasons first. That has been the case in a number of first instance considerations of bail since Milenkovski as well. Simmonds J took that approach in Jolly, partly in deference to the fact that counsel had argued the matter in that way. I too have taken that approach previously.[5]
[4] Jolly v The State of Western Australia [2014] WASC 118 (Jolly).
[5] Magistro v The State of Western Australia [2016] WASC 268.
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, 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?
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.[6] There is no closed list of exceptional reasons.[7] What might constitute exceptional reasons will depend upon the facts in each particular case.[8] 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.[9]
[6] 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].
[7] Roberts v The State of Western Australia [2011] WASC 118 [9] (Murray J).
[8] Donaldson v Western Australia [2010] WASC 264 (Murray J).
[9] Atherton v Western Australia [2005] WASC 15 (Blaxell J).
The policy behind the requirement for exceptional reasons where an accused is charged with committing a serious offence while on bail for another serious offence was discussed in Sturgeon.[10] Although an accused is presumed innocent of any charge unless and until found guilty, there is obvious community concern when someone is charged with a serious offence or offences alleged to have been committed while on bail for one or more other serious offence. The risk that the person may commit offences if released on bail is given prominence as a factor that tells against release on bail.
Clauses 1 and 3
[10] The State of Western Australia v Sturgeon [2005] WASC 256 (EM Heenan J).
The second requirement under cl 3A requires consideration of whether bail may properly be granted having regard to the provisions of cl 1 and cl 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 this case, as I said earlier, the issue is not whether the applicant will appear at a future court date. The concerns are in respect of whether she would commit an offence or would interfere with witnesses or obstruct justice, more particularly, whether she might interfere with Mr N, as the complainant in the unlawful wounding charge.
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 she is convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to her; and (d) the strength of the evidence against her.
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 cl 1 and cl 3 is well known and was explained in Milenkovski[11] and YSN.[12] 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 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 she is ultimately acquitted of the charged offence after being held in custody for a lengthy period. In this case, that only arises in respect of the unlawful wounding charge.
[11] Milenkovski [24] - [25] and [39] - [41] (McLure P).
[12] YSN v The State of Western Australia [2017] WASCA 155 (YSN) [15] - [21].
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.
Although in this case, in relation to the protective bail breach offence, there is no risk of the applicant having been detained for an offence of which she has not been convicted and is presumed to be innocent. There is a question as to whether that particular breach will attract a term of imprisonment, having regard to the plea in mitigation that will be made on her behalf. The question is live, of course, as to whether the applicant will have spent time in custody in respect of the unlawful wounding charge in circumstances that would result in an injustice if she is acquitted of that particular offence.
It will be obvious that the circumstances which bring this application within the provisions of cl 3A will also be relevant to a number of the factors to be considered under cl 1 and cl 3 as I explained earlier.
Clause 3B
Before turning to the merits of the application, I note that, as the serious offence to which cl 3A applies (being the protective bail breach offence) involves a breach of a protective bail condition, cl 3B also applies. That clause requires that, before making a decision that there are exceptional reasons for the purpose of cl 3A(1)(c), the court must give the person for whose benefit the protective condition was imposed a reasonable opportunity to give evidence relating to the protective condition, and the court must give such evidence due weight as well as taking into account other factors stipulated in cl 3B(4).
I was informed by counsel for the respondent that the protected person, Mr N, has not been contacted. That appears to be the result of this matter having been brought on at relatively short notice. In any event, as counsel for the respondent quite properly acknowledged, there does not appear to be any suggestion that he has any concerns about his welfare or about the prospect of the applicant interfering with him as a witness in respect of the unlawful wounding charge.
The indications in the materials before me are that Mr N has in fact sought to contact the applicant while she has been in custody, that she has refused to accept the calls he has made and, as will appear shortly, has in fact taken steps to prevent him from having any further contact with her. In those circumstances I do not consider that it is necessary for me to adjourn the proceedings to have regard to what Mr N may have to say about the matter.
The basis of the application
The applicant argues that there are exceptional reasons why she should not be kept in custody pending her trial in respect of the unlawful wounding offence and sentencing for the protective bail breach offence. Those reasons can be summarised as follows:
(a)She will have been in custody for just over 5 months by the time of her trial and there is a risk that she will have suffered an injustice if she is acquitted of the unlawful wounding charge and it is found by the Magistrates Court that a non-custodial sentence is the appropriate sentence in respect of the protective bail breach offence.
(b)She has been moved to the Perth Metropolitan area where it is difficult for her to have contact with her family, in particular her young child. Her family is located in the Canarvon region. The length of time before trial is a factor that tends to exacerbate that hardship that has resulted from her being moved to Perth.
(c)On 3 October 2020, the applicant was granted a Family Violence Restraining Order (FVRO) protecting her from Mr N. The magistrate accepted that the applicant had been the victim of acts of violence, committed by Mr N upon her in the past, and that Mr N had been trying to contact her at Greenough Prison since her remand in custody. The magistrate considered that, although custody afforded the applicant some protection in the short term, that would not be the case perpetually. The FVRO will reduce the likelihood of the applicant breaching any condition that she is not to have contact with Mr N as he will not be able to approach her.
(d)The applicant has shown a commitment to changing her lifestyle by engaging with the Community Alcohol and Drug Service in Carnarvon.
(e)The applicant's defence in respect of the unlawful wounding charge is such that it could not be said that the prosecution case against her in that case is a strong case. In some circumstances, the weakness of the prosecution case can be an exceptional reason why a person should not be kept in custody or, in combination with other factors, may amount to an exceptional reason.
The applicant submits it is the combination of the factors that I have just referred to that constitute exceptional reasons in this case why she should not be kept in custody and why the court should exercise its discretion in respect of bail at large.
It is also a significant factor on which the applicant relies that the breaches of the protective bail conditions (including the purported protective bail condition preventing her from consuming alcohol), did not defeat the purpose of the conditions under cl 2(c) and (d) of pt D of sch 1 of the Act.
That is because on neither occasion was there any allegation that the applicant endangered the safety, welfare or property of Mr N, or that she engaged in any form of interference with him as a witness in respect of the unlawful wounding charge.
The applicant submits that, if I am satisfied there are exceptional reasons why she should not be kept in custody, then a grant of bail would be proper, as there are conditions that could be imposed that would sufficiently reduce the risk to which the protective bail conditions were directed.
Evidence in the proceedings
The application is supported by an affidavit of the applicant's counsel, Ms Svanberg, and an affidavit of the applicant's mother, Ms Taylor.
I have also received, as attachments to the affidavit of Ms Svanberg, a letter from the Midwest Mental Health & Community Alcohol & Drug Service signed by a social worker, also described as a Senior Treatment Officer, dated 30 September 2020, which confirms that the applicant has been a client of the service since she self‑referred on 7 September 2020. It indicates that she has attended appointments on 7, 9 and 10 September 2020 and by telephone on 18 September and 30 September 2020. I will come back to the contents of that letter shortly.
There is a further letter from the Aboriginal Biodiversity Conservation Foundation, referred to as the ABC Foundation signed by the general manager and dated 8 September 2020, which purports to be a letter of support for the applicant. It confirms that she had recently commenced casual employment with the foundation as a kitchen hand in the Food for the Mob program in Carnarvon. The general manager indicates that since the applicant commenced to work with the Foundation, she had been making positive life changes for herself and her family, which she had shown through her commitment and dedication, for the benefit of her family.
Ms Svanberg's affidavit refers to information in respect of the applicant's personal circumstances, the history of the charges and the proceedings in the Magistrates Court. However, I now have the transcript of the proceedings on 11 September and 19 October 2020 which provide further detail.
The State has provided the court with a copy of the applicant's criminal history.
By s 22 of the Act, I may receive and take into account such information as I think fit, whether or not that information would normally be admissible in a court of law.
The case against the applicant
The issues to be decided require consideration of the facts that are alleged against the applicant in respect of each of the offences. I have already referred to those facts in brief. It is sufficient to add the following.
Aggravated unlawful wounding
In respect of the aggravated unlawful wounding offence, Mr N and the applicant have been in a family relationship for a number of years. They have a 4‑year‑old son together. The applicant was aged 29 years at the time the offence is alleged to have occurred, which is on Friday 26 June 2020.
At about 7.10 pm the applicant and Mr N were drinking at a house in Greys Plain.
They became involved in an argument which became physical. It is alleged that at some stage during the altercation, Mr N threw an object, believed to be a can or a bottle, at the applicant, striking her on the left cheek, which caused minor swelling.
Ms Svanberg refers to information provided by the police which tends to confirm that the applicant suffered an injury of that kind. She submits that, in due course, it will be argued in the trial for the unlawful wounding charge that the injury is consistent with the applicant's account that the complainant, Mr N, used violence first by throwing the can at her and striking her with it, and she then acted in self‑defence.
What is alleged is that the applicant picked up a broken beer bottle and stabbed the victim in the shoulder and arm causing a deep wound which bled heavily. Witnesses took Mr N to a nearby house where police and ambulance were called and attended.
Mr N was conveyed to hospital where he received medical treatment.
The applicant was arrested at 7.35 pm that evening and taken to Carnarvon Police Station. She declined to take part in a record of interview.
As I stated before, she was charged with the aggravated unlawful wounding as a result of those circumstances and released on the bail conditions which I described at the start of these reasons.
Breach of protective bail offence - 21 July 2020
In relation to the breach of bail that occurred on 21 July 2020, the applicant was stopped in the Mungallah Village. She was breathalysed and gave a reading of 0.4%.
The fact that she had consumed alcohol when the bail conditions prevented her from doing so was clearly a breach of bail. However, it seems to me that that the condition was not one that served a purpose of a protective bail condition. On the other hand, the condition that prevented her from being in the Mungullah Village did serve such a purpose, and she was in breach of that particular condition.
As I explained earlier, she was fined $750 after she pleaded guilty to that breach of bail. Bail was reinstated on the same terms. It follows that the magistrate did not consider the breach to be of such a nature as to make a further grant of bail inappropriate.
Breach of protective bail offence – 5 September 2020
As for the breach on 5 September 2020, the facts in respect of which the applicant has pleaded guilty are that she was present in a vehicle with Mr N on Babbage Island Road in Brockman at about 1.00 am. This breached her bail condition which prevented her from having any contact with Mr N, or from approaching within 50 metres of him.
However, it is submitted on behalf of the applicant that what will be put in mitigation, as I noted earlier, is that it was Mr N who attended at the address where she was staying in Brockman and required her to get into the vehicle. The applicant has instructed her counsel that she felt threatened by Mr N and felt she had no choice but to go with him.
The applicant was in the vehicle with Mr N, their son and the applicant's mother (Ms Taylor). It was Ms Taylor's vehicle. During the drive that ensued, an argument occurred between Mr N and Ms Taylor, as a result of which, Ms Taylor demanded that he get out of the vehicle. Following that, damage was caused to the vehicle at a location where police then attended. It appears Mr N has been charged in respect of a damage offence relating to the damage to that vehicle.
Witnesses advised the police that Mr N, the applicant and their son had walked away from the scene.
The applicant was not at the scene when the police arrived. However, she was subsequently informed the police were looking for her and she gave herself up to the police.
The affidavit of Ms Taylor deposes that the applicant seemed very quiet in the vehicle, that Mr N started arguing with Ms Taylor and she told him to get out of her car. Mr N then told the applicant to get out of the car and said something like, 'You'd better get out Belinda or I'll flog you,' and Ms Taylor deposes that the applicant then got out of the car.
That scenario, it is submitted on behalf of the applicant, is consistent with what will be put on her behalf in mitigation, namely that she went in the vehicle with Mr N because she felt threatened and that the contact on that occasion was initiated by Mr N, not by the applicant. It is also submitted, consistently with what Ms Taylor has said in her affidavit, that there is no suggestion that the applicant exhibited any violence or aggression during the time that she was in the vehicle with Mr N, or that she attempted to interfere with him in any way as a witness in the unlawful wounding charge.
The applicant's personal circumstances
The applicant is 30 years of age and her ties are mainly with the Carnarvon and Exmouth areas. As I said earlier, she has a 4‑year‑old son with Mr N. The child is currently in the care of her mother.
The applicant has been moved from the Greenough Prison to Melaleuca Prison in the metropolitan area. As I explained earlier, this means that she is not able to have contact with her family in person or on a regular basis.
The applicant has said that her relationship with Mr N had been volatile for a number of years and that she had experienced verbal and physical abuse on a daily basis. Ms Taylor has said that she has seen Mr N assault the applicant in the past.
The applicant has an extensive criminal history commencing when she was a juvenile. It is not necessary for me to go through that history in any detail. It is important to note that there are a number of breaches of bail, including breaches of protective bail conditions and breaches of a violence restraining order. There are also breaches of community-based orders that were imposed for other offending. The applicant has previously served a term of imprisonment for an offence of dangerous driving causing grievous bodily harm, which appears to have been committed at a time when she was affected by alcohol, and she was also convicted of an offence of driving a motor vehicle under the influence of alcohol at the same time. That offence occurred in August 2016, and the applicant was sentenced on 7 December 2017.
Prior to her remand in custody, the applicant was working as a casual employee for the ABC Foundation, as I noted earlier.
It is of some significance, in my view, that the applicant had commenced to engage in alcohol and drug rehabilitation with the Midwest Mental Health and Community Alcohol and Drug Service from 7 September 2020. As I said earlier she had been to three appointments including on the day on which she was charged with the breach of bail condition, being 10 September 2020, and subsequently engaged in two appointments via telephone after she was remanded in custody. Importantly, she commenced attending the service for treatment after the breach of the protective bail condition on 5 September 2020.
The letter from the service states as follows:
Belinda has been eager to engage and has remained open and honest through her appointments, with an enthusiasm to make changes.
Belinda acknowledges the mistakes she has made in the past and has been working really hard on improving her health and wellbeing. Belinda has identified her relationship with [Mr N] as being on of a toxic nature with long-term family and domestic violence.
It then refers to previous incidents where she had been the victim of alleged domestic violence inflicted by Mr N, stating that there has been a number of reported incidents. It goes on to say that the applicant is:
Very remorseful for her actions, and acknowledges that the violence she has been victim to does not excuse the assault she has committed.
The letter further states that:
It is Belinda's current goal to raise her young son as a single mother with his safety at the forefront of her mind, and continue working for the ABC Foundation.
Whether there are exceptional reasons
I come to consider then whether there are exceptional reasons why the applicant should not be kept in custody.
In my view, it is a relevant consideration that the reason the applicant fell within cl 3A and was refused bail on the basis that there were no exceptional reasons was that she has yet to be dealt with for the protective bail breach offence, but the circumstances of that offences are not such that it would necessarily follow that she would receive a custodial sentence.
Time in custody in Perth
Notwithstanding that view, I do not consider that the time that the applicant will have spent in custody before her trial in respect of the unlawful wounding would itself amount to an exceptional reason why she should not be kept in custody. That is so, even having regard to the fact that it means she will not have contact of the kind she would like with her 4‑year‑old son until then. However, that hardship is a relevant consideration when weighed with other factors to which will come shortly.
Strength of the prosecution case
The argument in respect of the strength of the prosecution case is not such, in my view, as to lead to the conclusion that, on its own or in combination with other factors, it ought to be regarded as an exceptional reason.
It is a matter that is relevant to the question of whether bail is otherwise appropriate if I am satisfied that there are exceptional reasons, and that is because it does go to the question of the likelihood of the applicant having to serve a custodial sentence in the event that she is convicted. The strength of the prosecution case is obviously a relevant consideration in that regard.
However, I am of the view that there are a number of matters relied upon by the applicant that do amount to exceptional reasons in this case.
Nature of breach
The first is that the circumstances of the breach on 21 July 2020 and the breach on 5 September 2020 are not such as to suggest that the applicant was endeavouring to inflict violence upon the protected person, Mr N, or to interfere with him as a witness, or to obstruct justice in any other way. As I said earlier, the fact that the applicant was granted bail again after pleading guilty to the breach on 21 July 2020 suggests that it was not regarded by the magistrate as being such as to put her at risk of not complying with bail conditions thenceforth.
So far as the breach on 5 September 2020 is concerned, the information before me, including the affidavit of the applicant's mother, suggests that it ought to be regarded as being towards the lower end of seriousness for offending of that kind. That is particularly so if it is accepted, in due course, that the applicant felt under pressure to go with the complainant. It was, in any event, the complainant who initiated the contact on that occasion.
As I said in outlining Ms Taylor's evidence in her affidavit, there is no suggestion that the applicant did anything during the time that she was in the vehicle to indicate that she was violent or intending in any way to interfere with the complainant as a witness in the unlawful wounding proceedings.
The nature of the actual breach constituting the protective bail breach offence is of significance in this case. On its own, it may not have been sufficient to amount to an exceptional reason, but it is a relevant factor when weighed with the other matters that I am now going to discuss.
Engagement with rehabilitation
The first of those matters is that, it seems to me the applicant has demonstrated a concerted effort to engage in rehabilitation since the date of the protective bail breach offence. She has attended on three occasions for counselling and has then engaged in further counselling by telephone on two occasions after she was remanded in custody. The letter from the community alcohol and drug service is in very positive terms, as I have indicated.
There is no reason to doubt the genuineness of the applicant's commitment to engage in rehabilitation. Whilst it does occur from time to time that persons in the applicant's situation engage in rehabilitation of their own accord, it is nevertheless in my view a somewhat exceptional situation, particularly given that it followed upon her having been charged with the breach of bail as a result of having consumed alcohol.
Contact with Mr N
The other matter that in my view is of particular significance is that the applicant has refused to take calls from Mr N while she has been in custody when, assuming that she was able to take those calls, she would not have been in breach of any condition if she had done so. It is an irony in matters of this kind that a person who is remanded in custody for having breached a condition that prevented contact with a complainant is not prohibited from having contact with the complainant once they are in custody.
Of course, in circumstances in which the applicant is well aware that she may put her prospects of being released on bail at risk if she were to have contact with the complainant, one might understand that she would exercise caution in that regard. However, the applicant has gone further. She has made an application and been granted the FVRO to prevent the complainant, Mr N, from having contact with her or approaching her. In other words, she has taken positive steps to give effect to the purpose to which cl 2(c) and (d) of sch 1 pt D of the Act are directed. That, it seems to me, is an unusual situation which, in combination with the applicant's steps towards rehabilitation and the hardship that she will be required to endure if she remains in custody in the metropolitan area while her mother and her young child remain in Carnarvon, does amount to exceptional reasons why the applicant should not be kept in custody.
Conclusion as to exceptional reasons
In summary, for the reasons I have given, I am satisfied that the combined effect of the matters I have outlined amounts to exceptional reasons why the applicant should not be kept in custody, provided a grant of bail is otherwise appropriate.
That requires consideration of the matters in cl 1 and cl 3 of sch 1 pt C of the Act. All of the matters to which I have referred are relevant again in considering whether the applicant is likely to commit an offence or interfere with a witness or endanger a witness, which were the matters that were relevant in determining whether a grant of bail would otherwise be appropriate. As I noted earlier, there is no suggestion that she will pose a risk of failing to appear.
Proposed bail conditions
A number of conditions have been proposed. They include a requirement that there be a surety. The applicant's mother, Ms Taylor, has indicated that she would be prepared to provide a modest surety for the applicant. She is not a woman of significant means. It seems to me, nevertheless appropriate that there be someone else who has responsibility for ensuring the applicant does comply with her conditions, and so I consider that it would be appropriate to have Ms Taylor as a surety.
It is also proposed that the applicant reside with Ms Taylor at her home address in Greys Plain. Again, that seems to me to be an appropriate condition which would add a level of protection in terms of preventing a situation arising in which the applicant would be in breach of her bail by either committing an offence or being in contact with Mr N. As I noted earlier, Ms Taylor has a restraining order against Mr N. The applicant has also now obtained an FVRO preventing him from having contact with her.
The previous bail conditions included a condition that the complainant not enter or remain upon a particular address and not to enter the Mungullah community, which is where her mother's address is situated. The purpose of that condition appears to have been to prevent the applicant from going to the address where the unlawful wounding is alleged to have occurred. It seems that the address is where the applicant's brother lives. It is submitted on behalf of the applicant that it is not necessary now to prevent her from attending that address, as the evidence before me indicates that Mr N has moved away from Carnarvon and is not living at that address.
In any event, it seems to me that there is no need for a condition preventing the applicant from entering the Mungullah community or being at the address where her brother lives. If an issue were to arise in that regard, it would be a matter that could be addressed in further proceedings.
The conditions, otherwise, would include a protective condition as applied previously, preventing the applicant from having contact with Mr N. Given that she has taken positive steps towards preventing that from occurring, it seems she should have no difficulty with complying with that condition, and it would be appropriate and would provide the necessary protection that the conditions previously endeavoured to achieve.
A condition preventing the applicant from consuming alcohol and requiring her to submit to a breath test, which also provides that a positive test would constitute a breach of the bail condition, would also be appropriate.
It is evident, as I noted earlier, that the applicant's history of offending, lengthy as it is, has largely been related to her problem with drinking and in that regard, it would also be appropriate, as was proposed on her behalf, that she continue to engage with the Community Alcohol and Drug Service. A condition requiring her to do so as directed by an officer of the community Alcohol and Drug Service would be appropriate to ensure that she continues to engage in rehabilitation as she has been doing.
It was submitted on behalf of the applicant that she would also be prepared to abide by home detention bail conditions. It seems to me that, having regard to all of the circumstances, it is not necessary to impose such a condition. There would be a further positive aspect to allowing the applicant to have some freedom within the community, in that she would be able to pursue her previous employment, which it seems is still available to her. That would be an additional protective measure against further offending by her.
Another condition that was proposed, and which I consider to be appropriate and necessary, is that the applicant report to the Carnarvon Police Station on a daily basis.
Whether it is appropriate to grant bail
It seems to me that the combination of conditions of the kind I have outlined would be adequate to guard against the risk that the applicant would commit a further offence or would either endanger or interfere with Mr N as a witness in these proceedings,[13] so that it would no longer be appropriate to keep her in custody, pending her sentencing in respect of the protective bail breach offence and her trial in respect of the unlawful wounding offence.
[13] There is no suggestion that she would interfere with any other witness.
The outcome of the application in respect of the protective bail breach offence means that that bail can be granted in respect of the unlawful wounding offence. Notwithstanding the applicant's history, it had previously been determined that it was appropriate to grant her bail in respect of the aggravated unlawful wounding offence. It seems to me that was appropriate, and it continues to be appropriate that she be granted bail in respect of that charge.
Order
Accordingly, the application is granted, and the applicant will be released on bail to appear at her next hearing, which will be on 16 February 2021 in the trial court at the Carnarvon courthouse at 9.30 am.
It is necessary to stipulate the conditions on which the applicant will be released on bail.
Bail conditions
Bail is granted on the following conditions, namely that:
(1)The applicant is to reside at 33 Acacia Way, Carnarvon;
(2)The applicant is to report daily to the Carnarvon police station;
(3)There is to be a surety, approved in a manner provided for in the Bail Act 1982 (WA) for the sum of $500;[14]
[14] At this stage it will be appropriate in light of the information before me, that Ms Taylor will be approved as the surety.
(4)The applicant is not to contact or attempt to contact Mr N directly or indirectly by any means, including electronic means, which is a PROTECTIVE BAIL CONDITION for the purposes of Sch 1 Pt D cl 2(c) and (d) of the Bail Act 1982 (WA). PROVIDED THAT the applicant may have contact with Mr N through a third party for the sole purpose of making arrangements to enable Mr N to have access to his child;
(5)The applicant is not to approach Mr N or come within 100 metres of his residence, or within 100 metres of his person, which is a PROTECTIVE BAIL CONDITION for the purposes of Sch 1 Pt D cl 2(c) and (d) of the Bail Act 1982 (WA);
(6)The applicant must not consume alcohol or be in possession of alcohol and must submit a sample of breath for analysis whenever requested by a Police Officer to do so, with any positive reading or a failure to comply with such a request to, a breach of this condition;
(7)The applicant is to attend the Midwest Mental Health & Community Alcohol & Drug Service program for treatment as directed by an officer of that service and is to provide the Magistrates Court with a letter from that service at her next appearance to confirm her attendance for treatment; and
(8)The applicant is not to be released until arrangements are in place for her to travel directly to Carnarvon.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca24 NOVEMBER 2020
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