DSJ v The State of Western Australia - [2015] WASC 344

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DSJ -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 344

CORAM: MARTINO J

HEARD: 8 SEPTEMBER 2015

DELIVERED : 8 SEPTEMBER 2015

FILE NO/S: MBA 29 of 2015

BETWEEN: DSJ
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr J T Fisher
Respondent: Ms T Hollaway

Solicitors:

Applicant: Justine Fisher Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

Case referred to in judgment:

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
MARTINO J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

The applicant applies, under s 14 of the Bail Act 1982 (WA), for bail for his appearance in the Magistrates Court on 9 October 2015. I am required to consider the application in accordance with the provisions of sch 1 to that Act. Clause 1 of pt C of sch 1 requires me to exercise the jurisdiction to grant bail having regard to the following questions as well as any others which I consider relevant:
(a)whether, if the accused is not kept in custody, he may:
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under pt D which would:
(i)sufficiently remove the possibility referred to in paras (a) and (d); or
(ii)obviate the need referred to in para (b); or
(iii)remove the grounds for opposition referred to in para (c);
(f)where the accused is charged with an offence which is alleged to have been committed in respect of a child, whether a condition should be imposed under pt D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstance of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Clause 3 of pt C of sch 1 provides:
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant ‑
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The applicant has obtained a transcript of a hearing in the Magistrates Court on 14 May 2015 in which he was refused bail. A copy of that transcript is annexed to the affidavit of his solicitor in support of his application. The applicant does not need to demonstrate that there has been any error in the Magistrates Court in refusing bail. This hearing is a fresh application for bail to be determined in accordance with the provisions of the Bail Act.
In Milenkovski v The State of Western Australia,[1] McLure P said that:
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [41].
The State opposes the application for bail.
The applicant is in custody on six charges:
1.Charge Midland 3963 of 2015 is a charge of aggravated burglary of a place of human habitation;
2.Charge Midland 3964 of 2015 is a charge of criminal damage;
Both of those offences are alleged to have been committed on 8 April 2015. The remaining four offences are alleged to have been committed on 9 April 2015.
3.Charge Midland 3965 of 2015 is a charge of aggravated burglary of a place of human habitation;
4.Charge Midland 3966 of 2015 is a charge of being armed in a way that may cause fear;
5.Charge Midland 3967 of 2015 is a charge of aggravated common assault; and
6.Charge Midland 3968 of 2015 is a charge of common assault.
The complainant in Midland charge 3963 and 3964 of 2015 is the former wife of the applicant. They have three children, a son who is aged 21, a daughter who is aged 18, and a son who is 14 years old.
The facts alleged by the prosecution are that, on Tuesday, 7 April 2015, the divorce between the applicant and his ex-wife was finalised. The applicant did not attend the Family Court on that day.
At around 2.35 pm on Wednesday, 8 April 2015, the applicant went to his ex-wife's home. The State's case is that he was armed with an axe and a knife. He walked to the back of the home and into the house through the unlocked laundry door. He did not knock or announce himself. The State's case is that he did not have consent to enter the home.
His daughter was at home. She saw the applicant enter through the laundry door, and she asked what he was doing at the house. The applicant muttered something vague and walked past her into his ex-wife's bedroom. He used the knife to stab the mattress and cut the sheets.
His daughter yelled at him to stop. She attempted to take the axe off him. The applicant said to his daughter that he did not want her to be there and that he was sorry that she was there while he did what he was doing.
The applicant kicked at a standing mirror in the bedroom, causing it to shatter. The applicant and his daughter moved into the hall towards the kitchen. The applicant pulled the axe out of his daughter's hand and swung it onto counter shelves which gave way, causing the glasses that were standing on the shelves to smash.
His daughter ran to her bedroom, got her mobile phone and climbed out of her bedroom window. She could hear more smashing inside the house while she was getting her phone. She called police as she ran down the street and then called her mother.
After police had arrived at her house, the applicant's ex‑wife returned to the house. She saw that the lounge suite had been slashed. The TV had been smashed. Two mirrors in the lounge room had been smashed. The dining room table had been broken in half, with axe marks on the table. The chairs to the dining set had been smashed. The dishwasher and microwave oven appeared to have been hit by an axe. A wooden dresser in the kitchen had been broken, along with all the glasses that had been on it. The washing machine and the clothes dryer had been broken, with the doors pulled off and the tops busted in. The mirror in her bedroom had been broken, along with two bedside cabinets. The mattress had been slashed, and an outside glass table had been smashed.
The prosecution alleges that on 9 April 2015 at around 10.40 pm, the applicant went to the home of his ex-wife's partner. The applicant was armed with an axe. He walked up to the front lounge room window and knocked. The applicant's ex-wife, her partner, the applicant's daughter, the applicant's 14‑year‑old son, a boy aged 13 and another boy aged 14 were inside the home.
The applicant's daughter saw that the applicant was knocking on the window. She grabbed her brother and went to the bedroom where the applicant's ex‑wife and her partner were sleeping.
The applicant entered the house through the unlocked front door. The State's case is that he did not have consent from any person to enter the home. He went to the bedroom still holding the axe. The applicant's 14‑year‑old son grabbed the applicant to try to prevent him from entering any further into the bedroom. The applicant yelled, 'Get off me. I want to get to mum.' He also said, 'Don't call police.'
The applicant's ex-wife's partner went up to the applicant. He pointed out that there were children in the house, which the applicant acknowledged. The applicant said to him, 'You're dead, you cunt.' The applicant's ex-wife approached the applicant. He said to her, 'You knew what would happen if you called police.' He punched her to the left side of her face. The applicant's ex‑wife's partner grabbed hold of the axe and tried to wrestle it off the applicant. The applicant's 14‑year‑old son was still holding the applicant. The applicant's ex-wife picked up a cricket bat and walked towards the applicant. He then ran out the front door of the house, leaving the axe behind.
The applicant is 51 years old. His only record of an offending is an offence of receiving stolen property for which he was sentenced to a good behaviour bond in 1983. He lives with his mother.
When he was informed by his mother that police wished to speak to him, he handed himself in to police on 14 April 2015 on returning from a trip to Walpole that had been planned previously. He has been in custody since then.
He has a good work history and there is work available to him if he is released on bail.
The State's case seems to me to be strong, particularly on the charge of aggravated burglary on 9 April 2015, criminal damage and being armed in a way that may cause fear.
Identification will not be an issue.
While there may be an issue as to whether the applicant had, or believed that he had, consent from an adult child to enter the home of his ex-wife, there would not seem to be an issue as to the lack of consent to the entry into the home of his ex‑wife's partner; nor does there seem to me to be any real issue as to the damage caused by the applicant.
The questions in cl 1 of pt C of sch 1 to the Bail Act that seems to me to require close consideration in considering this application for bail are: (1) whether, if granted bail, the applicant may commit an offence against his ex‑wife and her partner or endanger their safety, welfare or property; and (2) whether there is any condition which could reasonably be imposed under pt D of the schedule which would sufficiently remove the possibility of him doing so.
The behaviour on 8 and 9 April 2015 seems to be out of character. As I have mentioned, the applicant has no relevant record and he went to a police station when he knew that police wished to speak to him. However, the behaviour alleged on both days was serious, frightening criminal behaviour.
The offending behaviour alleged on 9 April was even more serious than the offending behaviour on the previous day. It involved the entry into a home without consent at night‑time while the applicant was armed with an axe and the physical confrontations had the risk of causing serious injury. Once inside the house, the applicant knew that children were present, but this did not stop him pursuing the confrontation.
The offending behaviour was preceded by the divorce being granted on 7 April, but that does not seem to provide any reason for the behaviour. In fact, the behaviour seems inexplicable. In the absence of any understanding of why the offending behaviour occurred, it seems to me that there is a significant danger that, if granted bail, the applicant may commit similar offences against his ex-wife and her partner. For the same reason, it seems to me that there are no conditions that could be imposed that would sufficiently remove that risk.
In making that assessment, I have regard to the facts that, on 9 April 2015, the applicant knew that the police had been informed of his conduct on the previous day and he knew that children were present in the home. He still engaged in the conduct. In the circumstances, it seems to me that no condition would sufficiently remove the risk of him engaging in similar conduct if he were to decide to do so while on bail.
In the course of submissions today, counsel for the applicant submitted that, if necessary, I should request a home detention bail report. I am not going to do so. For the reasons I have expressed, even if the proposed home ‑ which is the applicant's mother's home ‑ were a suitable home, it is my view that home detention bail would not sufficiently remove the risk of the applicant engaging in similar offending behaviour to what he engaged in on 9 April 2015 if he were to decide to do so.
For those reasons, the application for bail is refused.