Donaldson v Western Australia - [2010] WASC 264

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DONALDSON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 264

CORAM: MURRAY J

HEARD: 14 SEPTEMBER 2010

DELIVERED : 14 SEPTEMBER 2010

PUBLISHED : 30 SEPTEMBER 2010

FILE NO/S: MCS 50 of 2010

BETWEEN: JOHN RAWSON DONALDSON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail pending trial - Applicant in custody awaiting trial on two charges of aggravated stalking - Necessity to establish exceptional reasons to grant bail - Relevance of period otherwise to be served on remand

Legislation:

Bail Act 1982 (WA), Sch 1, Pt C, cl 3A

Result:

Bail granted subject to protective conditions

Category: A

Representation:

Counsel:

Applicant: In person
Respondent: Mr D J Krueger

Solicitors:

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

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

Jemielita v The Queen (1994) 12 WAR 362
Mikhail v State of Western Australia [2010] WASC 201
Milenkovski v State of Western Australia [2010] WASC 87
WCVB v The Queen (1989) 1 WAR 279

MURRAY J: This is an application for bail pending trial in respect of two charges of aggravated stalking, contrary to s 338E of the Criminal Code (WA).
The offences charged are serious. They involve an intent to intimidate the complainant. The circumstances of aggravation applicable to the offence charged are set out in s 221(1) of the Code. One such circumstance is that the conduct alleged to constitute the commission of the offence would be a breach of an order made or registered under the Restraining Orders Act 1997 (WA). That is the form of the charge in one case. The other charge alleges that the offence was committed in breach of protective bail conditions.
Stalking with intent, committed in circumstances of aggravation, is an indictable offence punishable, on indictment, by imprisonment for 8 years. Otherwise, the offence is punishable on indictment by imprisonment for 3 years. Such an offence may be tried summarily. If the accused is found guilty of the offence committed in circumstances of aggravation upon a summary trial, the maximum penalty is imprisonment for 2 years and a fine of $24,000. Otherwise if convicted summarily, the accused is liable to imprisonment for 18 months and a fine of $18,000.

The statutory framework

The applicant is to be tried for the two offences charged, in the Magistrates Court on 25 October. He has not been admitted to bail in that court. He applies to this court, pursuant to the Bail Act 1982 (WA), s 14(1)(a), (2) and (4)(a)(iii). One of the offences charged is a serious offence as that term is defined by s 3(1) of the Bail Act, and having regard to Pt 1 of Sch 2 to that Act.
So far as the grant of bail is concerned, cl 3A of Pt C of Sch 1 to the Bail Act provides that where an accused is in custody awaiting an appearance in court before conviction of a serious offence, and the serious offence is alleged to have been committed while the accused was on bail for another serious offence, the court shall refuse to grant bail unless the judge, 'is satisfied that there are exceptional reasons why the accused should not be kept in custody', and bail may properly be granted having regard to the provisions generally applicable to the grant of bail, cl 1 and cl 3 of Pt 3 of Sch 1.
I note in passing that it was not contended, in this case, that cl 3B of Pt C of Sch 1 to the Bail Act has any additional relevant contribution to make to the determination of the applications for bail made in this case. The onus is upon the applicant to establish exceptional reasons why he should not be kept in custody, and the term 'exceptional reasons', is not a term defined in the Bail Act.
As will be seen from the factual chronology which I am about to provide, that is strictly the position in respect of one of the two matters before the court. But I take the view that I should treat the applications for bail as one, and consider whether the application in each case should be granted on the basis that the applicant has demonstrated that there are exceptional reasons why he should not be kept in custody.

The factual chronology

On 8 March 2010, the applicant was charged with four offences of breaching the same violence restraining order, contrary to the Restraining Orders Act 1997 (WA), s 61(1). Although a simple offence, to be dealt with summarily, such an offence by no means lacks seriousness. It is punishable by a fine of $6,000 or imprisonment for 2 years or both.
On 9 July 2010, the applicant pleaded guilty to these offences. It seems that, having been charged, there was an initial period when the applicant was remanded in custody. He applied for bail and the application was heard by the Magistrates Court on 28 May 2010. Bail was granted upon his own undertaking, with a surety. The bail was subject to protective conditions that he was not to contact or attempt to contact any person protected by a violence restraining order made against him, and he was to refrain from any breach of any such order made against him. I will return to this aspect of the matter shortly.
Having pleaded guilty on 9 July, the applicant was remanded in custody for sentence on these four matters and other matters to be similarly dealt with. It seems that it was originally thought that sentencing proceedings would take place earlier, but a psychiatric report and psychological report had been ordered, and in the result, sentence was passed on 3 September.
In relation to each of the matters before the court, a sentence of 6 months and 1 day imprisonment was imposed, to be served concurrently, but service of the term of imprisonment was suspended for a period of 12 months. That period of suspension would date from 3 September 2010. The terms of imprisonment for 6 months and 1 day is a nod to s 86 of the Sentencing Act1995 (WA) which, except in limited circumstances, prevents a court from sentencing an offender, 'to a term of 6 months or less'.
Having been so sentenced, in relation to the other outstanding matters, the two stalking charges, the applicant remained in custody until I heard and granted his application for bail on 14 September 2010, by which time he had been continuously in custody since on or about 9 July, a period of just over 2 months.
The four offences of breaching a violence restraining order which I have mentioned thus far were committed on 17 January 2010. But before mentioning the circumstances of those offences, it is necessary to understand something of the background to their commission.
The principal protected person under the relevant violence restraining order was the applicant's former partner. Their relationship had lasted for some six years, during which time she had two children by the applicant. The relationship broke down and the parties separated in circumstances of some violence on 20 June 2009. As a result of what happened then, the applicant was charged with assault occasioning bodily harm, aggravated by the fact that it was committed within the context of that domestic relationship. On 16 November 2009, the applicant pleaded guilty in the Magistrates Court, and for that offence he was fined $1,000. The applicant was born on 26 September 1970, and so by this time, when his de facto relationship broke up, he was 38.
He had a criminal history dating back to January 1988, just before his 18th birthday. The offences were traffic offences, offences of public disorder in his younger years, and offences which were often alcohol or drug (cannabis) related. The assault occasioning bodily harm was his first violent offence committed in anything like comparable circumstances.
At the same time, on 16 November 2009, he was fined $200 for each of three offences, one of breaching protective bail conditions on 31 July 2009, and two of breaches of violence restraining orders, the first on 31 July 2009 and the second on 3 August 2009. I am not aware of the facts in relation to those matters, but I do not overlook their similarity to the matters which are currently relevant to the present application.
One of the offences for which the applicant was sentenced to suspended imprisonment was an offence of breaching a violence restraining order committed on 4 December 2009. This charge was not laid until 15 May 2010. Six telephone calls were made by the accused to his ex‑partner between the hours of 4.34 am and 4.58 am, in breach of the violence restraining order. I was not told what was said.
Then, as I have mentioned, there were the four offences committed on 17 January 2010. The complainant in relation to these matters, also a protected person, was the brother of the applicant's former partner. The first offence was a telephone call made at about 9.30 pm. The second offence was a brief call several minutes later, and the third and fourth offences were committed when the accused left voice messages on the complainant's answering machine.
On 17 May, the applicant was charged with two further offences. He was charged with breach of a violence restraining order by phoning the complainant at her place of work on 14 April. The complainant in this case was the sister of the applicant's estranged partner. It appears that he was seeking information about the children because, when interviewed about the matter, he said he was concerned for them. No more is known about the facts, but again, on 9 July, the applicant pleaded guilty and was sentenced to 6 months and 1 day imprisonment concurrent with the other sentences passed, and again suspended for a period of 12 months.
The second offence which was the subject of the prosecution notice dated 17 May 2010, was one of the two stalking offences to which the applicant pleaded not guilty on 9 July, and in respect of which the bail application is made. The charge is of stalking with a circumstance of aggravation, the alleged breach of a violence restraining order, and in this case the protected person is the applicant's former partner.
The statement of material facts which has been served alleges that between 14 and 27 April 2010, the applicant contacted the complainant on 94 separate occasions by telephone to the complainant's work address and by mobile phone to her personally. Emails were sent to her personal email address. It is alleged that on 26 April 2010 the applicant made 38 calls to the complainant over a period of 10 hours, continuing into the early hours of the morning of 27 April.
When interviewed by the arresting police, the applicant said that he was worried about and wished to talk about the children. The calls were made for that purpose he said. That would appear to be borne out, if there is available evidence, by the fact that it is alleged that predominantly the calls made to the complainant and the attempts to contact her were concerned to tell her that the applicant wanted her to remove the violence restraining order and to let him have the children back, 'otherwise the calls will not stop'.
Unsurprisingly, the complainant has become fearful for her safety and the safety of the children. It is difficult to discern how strong the prosecution case may be, but if the facts referred to above can be proved, the case for conviction would appear to be quite strong. The intention to intimidate may well be established, although it would appear that no threat of violence directed towards the complainant or the children was made.
As I have mentioned, the applicant having been arrested when charged with these matters, he was initially remanded in custody. He was admitted to bail on 28 May, subject to the protective conditions to which I have previously referred. On 8 July, he was arrested and charged, yet again, with two offences. The first charge was of a breach of his bail undertaking, and the second was the second charge of aggravated stalking. On this occasion, the offence was alleged to be aggravated by the circumstance that there was a breach of protective bail conditions. The offences were allegedly committed on the night of 7 to 8 July.
When the applicant was brought before the Magistrates Court on 9 July, he pleaded guilty to breaching his bail, and yet again was sentenced to 6 months and 1 day imprisonment concurrent, the service of the term being suspended for a period of 12 months. To the aggravated stalking charge, the applicant pleaded not guilty and, as I have mentioned, this and the other such charge have been set down for trial on 25 October.
It was a condition of the grant of bail that the applicant should have no direct or indirect contact with his estranged partner. On the night in question, the applicant is said to have made 16 telephone calls to the complainant's mobile phone between 11.39 pm on 7 July and 12.58 am on 8 July. Six voice messages were recorded. In the statement of material facts, it is said that the content of those messages was 'derogatory'. The complainant felt they were threatening messages. When interviewed by arresting police on 8 July, the applicant said that he must have had too much to drink on the previous night. He could not remember making the calls.
Again I have been provided with no particulars about what was said, but I presume that there is a record, at least of the voice messages. If they were indeed messages of a threatening kind, the intention to intimidate would appear to be capable of being established, and the prosecution case might well, again, be a case of some real substance.
The applicant's argument in support of his application for bail was presented in his supporting affidavit. His case may be summarised in the following way. He says that apart from the incident upon his separation from his partner on 20 June 2009 which resulted in the assault occasioning bodily harm upon her, for which he was fined $1,000, he is not a violent person. He says that on occasions the violence restraining orders obtained by his former partner have not been followed through. One was obtained in November 2009 and cancelled in January 2010 during the period of its operation. After Christmas 2009, the applicant says that he and his former partner were in contact and he had contact with the children.
He says that he is concerned about his children and he has complained about his fears that in their current situation they may be subject to sexual abuse. He becomes frustrated at times by his incapacity to have meaningful dialogue with his partner about his concerns. His offending behaviour has, on occasions, arisen when he has added to his frustration by the over‑consumption of alcohol.
There are proceedings on foot, presumably in respect of the children and their placement, in the Family Court. The applicant hopes for a favourable outcome whereby, by supervised access to the children, he may be able to have increasing access, 'once I have gained the confidence of the court in that regard'. He appended to his affidavit a report by the Children's Contact Service of Anglicare, with whom it was apparently arranged that the children, who are both very young, should have supervised visits with their father.
The report, apparently provided in late January 2010, relates to visits from 28 November 2009 to 23 January 2010. It will be recalled that much of the offending behaviour, apart from two later incidents or periods, occurred during this period.
And yet the reporting counsellor from the Children's Contact Service reports that the contact visits were happy occasions when the children were obviously pleased to be with their father. His estranged partner, their mother, was said to be 'supportive of the visits at all times'. On the last occasion reported, she permitted the children to be taken home by their father instead of herself collecting them from the contact centre. The report closes as follows:
It is highly recommended visits progress to unsupervised visits, initially with visits commencing as day visits, and later progressing to overnight stays.
A psychiatric report was provided to the Magistrates Court when the applicant was sentenced to suspended imprisonment for the offences to which he had pleaded guilty. I obtained and perused a report dated 17 August 2010 made by the consultant psychiatrist, Dr Febbo. I need not describe in any detail the history provided by the applicant to Dr Febbo in relation to the offences he had committed. He had no history of psychiatric disorder, but on examination Dr Febbo found that the applicant was preoccupied with the notion that since the break‑up of the relationship with his partner, his children may have been sexually abused by members of her family.
When speaking to me, the applicant conceded that there had been a police investigation which found no evidence to support this view. But to Dr Febbo, in the evidence of what he said when speaking to persons protected by violence restraining orders, and in the messages he left, there is certainly evidence to bear out Dr Febbo's conclusion. The evidence supports the view that this contributed to the applicant's offending behaviour, particularly when under the influence of alcohol, an intoxicant which the applicant habitually uses. Dr Febbo considered that the applicant thought his concerns about the children largely justified his actions.
Dr Febbo considered that he was displaying significant depressive symptoms, resulting from the stress of his probably paranoid ideas about the children, his estrangement from them, legal issues in respect of again making contact with them, and financial pressure.
Dr Febbo recommended active psychiatric treatment, and he suggested this should be undertaken immediately while the applicant was in prison on remand. That happened. Antidepressant medication was prescribed, and was being taken, to good effect.
The applicant was not clear whether the antipsychotic medication recommended by Dr Febbo had been prescribed. But it had been suggested to the applicant that he should submit himself as a voluntary patient at Perth Clinic for aggressive treatment. He was keen to take up that recommendation. In Dr Febbo's view, unless the applicant was effectively treated and responded to treatment, 'there is a significant risk of reoffending and this includes the possibility of physical violence'.
The applicant, of course, disagrees. He points out that, apart from the assault occasioning bodily harm on the break‑up with his partner, his offending behaviour has not involved any violent episode. He asserts that he is again in control of his emotions and he is keen to undertake the treatment to resolve any personality disorder and to enable him to demonstrate that he is, once again, a loving father who should have regular access to his small children.
The other report provided to the sentencing court was a lengthy and very comprehensive report by Ms Sampson, a clinical and forensic psychologist. The report is dated 22 August 2010. Her report expresses views which are consistent with those contained in Dr Febbo's report. Ms Sampson expressed the view that although there was no evidence of current mood disorders or intellectual problems, it was likely that the applicant had what she described as a borderline personalty disorder, marked by instability of interpersonal relationships, mood fluctuations and a tendency to impulsive behaviour.
When she tested him for depressive disorder, his results were within what she described as, 'the normal range for depression, anxiety and stress'. However, she thought his offending behaviour was quite possibly a reflection of a personality disorder, poor emotional regulation, little resilience to stress, disinhibition as a result of alcohol consumption, and a fixation upon his concerns about his children.
She too suggested consideration of medication and treatment focused upon resolving any personality disorder. The treatment process might be assisted by attendance at a substance use program. She expressed reservations about his capacity to respond to that treatment, and expressed the view on that basis that the prospect of his reoffending was moderate to high.

As I have noted, it was against the background of those reports that the applicant was sentenced in the Magistrates Court for the offences to which he pleaded guilty, to imprisonment for 6 months and 1 day suspended for 12 months, on and from 3 September 2010.

The applicant's case for bail

I have mentioned that the applicant had been in custody on remand for a little over 2 months by the time he came before me to present his application for bail on 14 September 2010. I heard the matter fully argued, including the submissions of the applicant and by way of the affidavit upon which he relied. I made my own inquiries, and was able to obtain copies of the reports by Dr Febbo and Ms Sampson. Bail was opposed by the State.
Of course, the question whether bail should be granted pending the applicant's attendance before the Magistrates Court for trial on the two stalking charges is a twofold question. At the first level, I had to be satisfied that there were exceptional reasons why the accused should not be kept in custody, and if I took that view I was only to grant bail if, in the exercise of my discretion, I concluded that bail might properly be granted, having regard to the considerations ordinarily governing that decision as set out in cls 1 and 3 of Pt C of Sch 1 to the Bail Act.
Having heard full argument I granted bail in respect of each of the charges pending the applicant's appearance in the Magistrates Court on 25 October. I granted bail, in each case, on the applicant's personal undertaking in the sum of $2,500, a total of $5,000. I required, in each case, a surety undertaking in the sum of $2,500; again, a total surety undertaking in the sum of $5,000.
I thought it unnecessary to impose residential or other conditions directed to ameliorating any flight risk. I found there was no such risk that the applicant would not attend for his trial. But I imposed a condition directed to preventing any possibility of further offending during the period in question. I ordered that the applicant was to have no contact, directly or indirectly, with the complainant in respect of the matters which were for trial, his former partner. I allowed an exception to that order if orders were made in respect of contact with the children and the complainant by the Family Court, in which case I imposed the requirement that those orders should be strictly complied with.
Further, I ordered that the applicant should, without fail, continue with the treatment which had been commenced by continuing the course of prescribed medication. I left to him whether he would voluntarily undertake any further treatment or counselling in respect of the possible personality disorder (because there was no firm diagnosis) and in respect of substance use.
As I have said, the legislation (perhaps wisely) provides no definition of the concept of 'exceptional reasons why the accused should not be kept in custody'. However, cl 3C of Pt C of Sch 1 employs the concept as a test for the grant of bail where an accused is in custody before conviction, or after conviction and while awaiting sentence, for the crime of murder.
Further, the concept is a test in respect of the grant of bail to a convicted person who has appealed, unless the appeal is under Pt 2 of the Criminal Appeals Act 2004 (WA) following the applicant's conviction by the Magistrates Court. In the latter case, such a person is deemed to be awaiting an appearance in court before conviction of an offence, and the reason why that is so is, in my view, significant for present purposes.
I take it that in such a case the legislature was concerned that a person should not, as a general rule, except in exceptional cases, serve a substantial period in time in prison where it might be the case that, on appeal, the conviction would be quashed and/or the sentence set aside, and the applicant might be re‑sentenced to imprisonment for a shorter period or to a punishment other than imprisonment.
This court has not given any decision which attempts a definition of the term, 'exceptional reasons why the accused should not be kept in custody'. Nor, in my respectful opinion, would it be wise to do so. The combination of facts and circumstances which might work upon a judge considering an applicant's case for bail may form a complex mix of factors bearing upon the decision to be made.
But this court has long since, in cases of murder and in cases where an applicant for bail has been charged with a serious criminal offence, required compelling reasons for the grant of bail, for the simple pragmatic reason that the more serious the crime charged and the more likely the prospect of conviction, the greater is the incentive for the applicant for bail to abscond, or at least to breach protective conditions of bail. Further, the more serious would be the harm done by further serious offending, the greater is the imperative for the court to consider carefully the need to protect members of the community from that prospect.
That has been the view applied long before cls 3C and 4A were inserted into the schedule by amendment in 2008, amendments which became operative on 1 March 2009 (Government Gazette, 27 February 2009, 511). Reference may be made to such cases as WCVB v The Queen (1989) 1 WAR 279; and Jemielita v The Queen (1994) 12 WAR 362. These principles of the common law have been applied upon consideration of the relevant provisions of the Schedule: eg, most recently by Blaxell J in Milenkovski v State of Western Australia [2010] WASC 87.
In other words, the more compelling are the considerations which militate against the grant of bail, the more powerful must be the reasons why the accused should not be kept in custody. It is a matter of balance, weighing competing considerations in the interests of justice, and there is no closed category of considerations which may constitute exceptional reasons why the accused should not be kept in custody.
For example, in the recent case of Mikhail v State of Western Australia [2010] WASC 201, the reasons in which were published on 4 August, Blaxell J, in respect of an accused person in custody awaiting trial on two charges of murder, found exceptional reasons why the accused should not be kept in custody in the prosecution's delay in concluding its DNA investigation and in disclosing the resulting evidence, seriously delaying the trial.
The reference in cl 3A to the decision‑maker needing to be satisfied that not only are there exceptional reasons why the accused should not be kept in custody, but also that bail may properly be granted having regard to the ordinary discretionary considerations set out in cls 1 and 3 of Pt C of the Schedule, make it clear that what is being done in a provision such as this is to provide guidance to the court in the exercise of its discretionary judgment.
I think the law may be stated in the following terms. In a case such as this where cl 3A applies, the grant or refusal of bail remains a matter for the court's judgment in the exercise of discretion. The court is to have regard to all the factors which, in the case before the court, bear upon the decision to be made, whether they tend for or against the grant of bail. However, where a clause such as cl 3A applies, bail will be refused unless there are found to be exceptional reasons why it should be granted.
Those are not reasons different in character from the considerations which would ordinarily affect the exercise of the discretion to grant bail. They are the same considerations, but their exceptional nature lies in their power to overcome the considerations which tend toward a decision that bail should be refused. The reasons favouring the grant of bail will not be 'exceptional', only because they are rarely encountered. Their exceptional quality is derived from their persuasive power in favour of the grant of bail in the particular circumstances of the case before the court.
In this case, my reasoning was as follows. The two offences for which the applicant is awaiting trial are serious offences. They are offences of stalking in circumstances of aggravation. If they were to be dealt with on indictment, substantial punishment might be inflicted. That is less the case if, as appears likely, they are tried and dealt with summarily.
I do not attempt a judgment as to whether the applicant may be convicted. But as I have said, each of the cases against him is a case of some power which may well result in conviction. If convicted, the applicant will have been convicted of two offences which are the most serious of the series of offences committed by him. Their seriousness will be marked, not so much by the intention to intimidate, but by the applicant's willingness to flout the law and disregard the dictates of a violence restraining order and of the grant of bail made in his favour.
However, the alleged circumstances of the offences do not make them so serious as of themselves to make the grant of bail inappropriate. They appear to have involved no direct threat of violence, although they may have been expressed in intimidatory terms.
It is not clear that if convicted the accused would inevitably be punished by terms of imprisonment to be immediately served, particularly having regard to the suspended imprisonment imposed for the other offences breaching violence restraining orders and bail, to which the applicant pleaded guilty. If after trial he was to be dealt with otherwise than by the imposition of such a term of imprisonment, he would have been in custody unnecessarily for a substantial period if bail was to be refused.
There is no danger, I think, that the applicant would abscond. I am satisfied that he will attend on the appointed day to take his trial. The danger is that if granted bail he may offend in the same way as is alleged against him, and therefore that he might harm his former partner, who is entitled not to be pressured by the applicant in the way that is alleged. There is a danger that the applicant might endeavour to lean on the complainant to interfere with the course of trial. He has not previously shown a willingness to accept and be bound by violence restraining orders and bail conditions which, in the applicant's view, impede his capacity to restore and maintain an acceptable level of contact with his children.
However, there is evidence that in those respects the position has changed. The applicant has received medical advice. He has been prescribed medication. He is taking that medication. He asserts, and I accept, a genuine willingness to undertake further treatment. He says he understands the error of his past behaviour, and he wishes now only to reassert his credentials as a good father who should be afforded contact with his small children, with whom it is clear he has a close bond.
Accepting as I do that the legislative guidance in relation to the exercise of the discretion tends with some force in this case against the grant of bail, nonetheless, in my view, there are compelling reasons, exceptional reasons, why the accused should not be kept in custody. He will not abscond, and he should be afforded the opportunity to re‑establish his credentials in relation to access to his children.
There are reasons to suppose that he now understands the error of his ways which produced his offending behaviour. There is reason to suppose that the danger of re‑offence is reduced. The applicant should have the opportunity to pursue treatment in the community and to present himself to the court of trial for sentencing purposes, if that should be necessary, as a person who has seen the error of his ways and has embarked upon a process of rehabilitation.
It was for those reasons that, in this case, I granted bail upon the terms to which I have referred above.