El-Jamal v The State of Western Australia
[2013] WASC 184
•14 MAY 2013
EL-JAMAL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 184 | |
| Case No: | MBA:5/2013 | 19 MARCH, 28 MARCH, 4 APRIL, 29 APRIL & 3 MAY 2013 | |
| Coram: | CORBOY J | 14/05/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail refused | ||
| B | |||
| PDF Version |
| Parties: | HOUSSAM EL-JAMAL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail No new principles Turns on its own facts |
Legislation: | Bail Act 1982 (WA), s 14, sch 1 |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for bail - No new principles - Turns on its own facts
Legislation:
Bail Act 1982 (WA), s 14, sch 1
Result:
Application for bail refused
Category: B
Representation:
Counsel:
Applicant : Mr L M Levy SC
Respondent : Ms T Austin; Mr M A Holgate (29 April 2013)
Solicitors:
Applicant : AP Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99
1 CORBOY J: (These reasons were delivered orally and have been edited from the transcript.)
2 This is an application that the applicant be released on bail on such terms and conditions as the court considers appropriate. The application is made pursuant to s 14 of the Bail Act 1982 (WA). The application is supported by an affidavit made by the applicant on 21 February 2013 and an affidavit made by the applicant's solicitor, Ms Alana Mariamma Padmanabham, on 25 February 2013.
3 The State opposes the application and relies on the affidavits of Therese Austin made on 18 March 2013 and Russell William Oxford made on 27 March 2013. Ms Austin is a solicitor employed by the Director of Public Prosecutions. Mr Oxford is a detective inspector in the New South Wales police force. The State also relies on the prosecution brief.
4 The prosecution notices charge the application with 11 offences:
(a) four charges of being in possession of a firearm in circumstances of aggravation, contrary to s 19(1)(c) of the Firearms Act 1973 (WA);
(b) four charges of possession of ammunition without being a holder of the requisite licence or permit, contrary to s 19(1)(c) of the Firearms Act;
(c) one charge of possession a prohibited drug, testosterone, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA);
(d) one charge of possessing a prohibited drug, methylamphetamine, with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act1981 (WA); and
(e) one charge of having ready access simultaneously to both a dangerous weapon and a prohibited drug, contrary to s 68E(2) of the Criminal Code (WA).
5 The statement of material facts alleges that the applicant attended a residence in Bayswater at 5.45 pm on Thursday, 20 December 2012. The police were engaged in executing a search warrant issued under the Misuse of Drugs Act at that address when the applicant arrived. The police spoke to the applicant who advised that he had a handgun in his possession. The gun was held down the front of his pants. It was loaded, with the magazine containing two further rounds of ammunition. The applicant was carrying a black bag which was searched. Four wrapped packages containing a total of 111.15 g of methylamphetamine were located. A subsequent search of the applicant's home address located a set of scales and clipseal bags. It is also alleged that on his arrest the applicant had in his possession $810 in cash and a deposit slip recording a deposit of $5,000 in a bank account for that day.
6 The applicant advised the police that he had a further three firearms located at his home address. He consented to the police searching the premises and accompanied them to his home.
7 A video recording of the search disclosed that the applicant indicated to the police that the firearms were located in a Nissan motor vehicle parked in the garage of the house. The applicant removed the interior panel of a rear door to the vehicle and a sawn-off rifle and two handguns were located behind the panel. The rifle and the handguns were loaded. Three rounds of ammunition were also located in the door panel. The applicant directed the police investigators to a toolbox in the garage storeroom in which 293 rounds of ammunition were located. He also directed the investigators to the kitchen of the house where two vials of testosterone were recovered, together with the scales and clipseal bags.
8 The prosecution case against the applicant is strong. The applicant had the drugs and a handgun in his possession when he was searched at the residence in Bayswater. He advised the police of the location of the other guns and video footage showed him revealing their location at his residence. He has not provided any evidence to contest the matters alleged by the State in the statement of material facts.
9 The applicant would inevitably receive an immediate and substantial term of imprisonment if he was convicted of the charge of possessing methylamphetamine with intent to sell or supply. Section 34 of the Misuse of Drugs Act provides that a person who is convicted of a crime under s 6(1) of the Act is liable to a fine not exceeding $100,000, or to imprisonment for a term not exceeding 25 years, or both. Further, s 19(1ab) of the Firearms Act provides that a person who is guilty of a crime under s 19(1) of the Act committed in circumstances where the person was in possession of three or more firearms is liable on conviction to imprisonment for 10 years.
10 Mr Levy SC quite properly informed the court that he had been advised that the State intended to amend the charge relating to the handgun that was apparently in the applicant's possession when he was arrested in Bayswater. It will be alleged that s 19(1ab) of the Firearms Act provides that a person who is guilty of a crime under s 19(1) of the Act committed in those circumstances is liable to imprisonment for a maximum term of 14 years.
11 It is likely that the applicant would receive a term of imprisonment that was at least partly cumulative with any term of imprisonment imposed on conviction for the possession offence, if he was convicted of the firearm offences. Mr Levy accepted that the sentencing range on conviction for all of the offences was 6 to 8 years.
12 The applicant is 31 years of age. He was born in Australia and grew up in Sydney. He stated in his affidavit that he moved to Western Australia in 2008 for a change of life and for better employment opportunities. He is in a de facto relationship and states that he intends to continue residing in Western Australia. At the time of his arrest he was living in rented premises, subject to a 12-month lease. He would return to reside at those premises if released on bail.
13 The applicant was employed at the time that he was arrested. He has been informed that he could return to his former employment if he was released on bail. The court has received a letter indicating that employment would be available.
14 Mr Levy has advised that the applicant's parents have travelled from Sydney to temporarily reside in Perth. They would continue to do so for the period prior to the applicant's trial. The applicant's parents and partner have attended each of the hearings in the application.
15 The applicant committed four offences of armed robbery in New South Wales in 2003. He was sentenced in 2004 to an effective sentence of 5 years with a non-parole period of 3 years. The offences involved the applicant holding up small retail businesses in company and while armed with a handgun. No shots were fired and no actual violence was used. The offences were committed at a time when the applicant was addicted to cocaine.
16 The applicant travelled to Western Australia while still on parole. That constituted a breach of his parole and a warrant was issued for his arrest. While in Western Australia the applicant committed five offences of causing a detriment to a person by fraud, contrary to s 409(1)(d) of the Criminal Code. The offences involved the fraudulent use of a credit card. He was sentenced in the District Court on 7 April 2009 to an effective sentence of 18 months' imprisonment, commencing on 31 March 2009.
17 The applicant returned to New South Wales following his release from prison and served 25 outstanding parole days.
18 I was provided with a transcript of the applicant's sentencing in the District Court for the fraud offences. As I have indicated, the offences were committed while the applicant was on parole in respect of the armed robbery offences committed in New South Wales.
19 It was said on behalf of the applicant that he had been kidnapped while living in Sydney; that following the kidnapping he descended into a significant dependency on cocaine; that towards the end of the period of his parole on the armed robbery offences, the applicant 'slipped back into substance abuse'; and that as a consequence, he accumulated debts that he could not pay. He committed the fraud offences to repay those debts.
20 Counsel for the applicant emphasised during her address on sentencing that the fraud offences did not involve any element of violence. It was submitted on behalf of the applicant that he had made a conscious decision to obtain money by fraud, rather than commit further armed robberies. In that context the applicant's counsel further submitted that:
I don't submit this as an excuse for the behaviour and certainly Mr El-Jamal accepts responsibility for what he has done and understands that it's made more serious by the fact that he was on parole and takes full responsibility, but my submission ultimately is that Mr El-Jamal has learnt, to his credit, that violent crimes are simply unacceptable and he has demonstrated that he's not willing to participate in those types of crimes and at least the court can be confident of that, if nothing else.
21 He was sentenced by Goetze DCJ on that basis.
22 It was also submitted that the applicant had established a new life in Western Australia and that he was committed to that life as demonstrated by, for example, voluntary participation in drug counselling. Those matters were also taken into account by his Honour in sentencing.
23 Detective Inspector Oxford stated that he had commanded a series of investigations between 2003 and 2006 as part of a taskforce established to investigate serious gun-related crime in Sydney. He identified a number of shootings that he stated had been associated with disputes between two families. I will refer to one of those families as Family B. Detective Inspector Oxford also identified in his affidavit a number of witnesses to whom the police had spoken as part of their investigation, and who had provided witness statements. The witnesses included four members of a particular family. I will refer to those members as the A Brothers. The A Brothers are currently living in an undisclosed location under new identities.
24 Detective Inspector Oxford further stated that:
(a) The applicant's brother had been charged with a murder alleged to have been committed in 2004. He was acquitted at his third trial in February 2009. A brief history of the criminal proceedings involving the applicant's brother was provided to the court in a letter from his solicitor to Ms Padmanabham.
(b) The A Brothers had given evidence on many occasions, including at the first trial of the applicant's brother.
(c) Detective Inspector Oxford was aware of a history of animosity between the A Brothers and the applicant and the applicant's brother.
25 Detective Inspector Oxford outlined in his affidavit various matters relating to possible relationships between the applicant and members of his family and, at least, one member of the B Family and the A Brothers. In summary, Detective Inspector Oxford stated that:
(a) In January 2009 he had received information that the applicant had approached a relative of the A Brothers seeking to speak to one of the brothers about the upcoming murder trial of the applicant's brother. Detective Inspector Oxford travelled to Western Australia and spoke to the applicant about that matter. The applicant denied that he had made contact with any relatives of the A Brothers.
(b) The applicant's brother and father had brought an action against two of the A Brothers alleging that the applicant's brother had been kidnapped and robbed by them. A member of the B Family attempted to enter the court during the hearing of the claim but was denied access.
(c) In January 2011, the applicant swore an affidavit in proceedings in the New South Wales Court of Criminal Appeal in support of an appeal by one of the members of the B Family. The affidavit contained allegations against two of the A Brothers.
(d) Detective Inspector Oxford had received information that the applicant had approached a relative of the A Brothers in June 2011. It was alleged that he was in the company of a member of the B Family.
(e) Detective Inspector Oxford had also received information in September 2012 that several shots had been fired into a motor vehicle belonging to a relative of the A Brothers who resided in Perth. It was alleged that the applicant had fired the shots.
(f) Detective Inspector Oxford stated that the presence of the applicant in the company of a member of the B Family raised suspicions and concerns to him. He stated that he had also spoken to one of the A Brothers immediately prior to making his affidavit and that brother had stated that he was still in fear of the applicant.
26 A further hearing of the application for bail was convened to enable the applicant to respond to the matters raised by Detective Inspector Oxford in his affidavit. Mr Levy submitted at the resumed hearing that:
(a) It was not alleged that the applicant was involved in any of the shootings investigated by the taskforce that had operated under Detective Inspector Oxford's command.
(b) Two of the A Brothers were charged with offences relating to the kidnapping of the applicant and with stealing motor vehicles from a panel beating business conducted by the applicant's family. The brothers were indemnified by the New South Wales Director of Public Prosecutions from prosecution in relation to those offences in return for giving evidence in respect of various matters, including evidence at the first trial of the applicant's brother.
(c) The dispute between the A Brothers and the applicant and his brother was effectively put at an end when the applicant's brother was acquitted of the charge of murder. Detective Inspector Oxford had stated in his affidavit that the A Brother to whom he had spoken had acknowledged that the applicant had not attempted to contact him.
(d) The applicant had no recollection of having spoken to Detective Inspector Oxford in January 2009. The applicant denied any attempt to approach any relative of the A Brothers.
(e) The applicant was not involved in any action commenced against any of the A Brothers, and he was in custody in Western Australia in September 2010.
(f) The applicant denied having approached anyone in relation to the A Brothers and he denied seeking information concerning their whereabouts. He also denied shooting at any motor vehicle.
27 Mr Levy also emphasised the hearsay nature of the allegations made by Detective Inspector Oxford. However, s 22 of the Bail Act provides that a judicial officer or authorised person may, in considering any case for bail, receive and take into account such information as he or she thinks fit, whether or not the information would normally be admissible in a court of law.
28 I note that the applicant's instructions as conveyed by Mr Levy denied any attempt to contact either the A Brothers or relatives of the A Brothers but did not expressly deny the statements made by Detective Inspector Oxford regarding contact between the applicant and a member of the B Family.
29 The applicant contends that bail ought to be granted as he is able to provide a substantial surety, has genuine and strong ties to Western Australia and is able to comply with stringent bail conditions such as home detention. It is submitted that the charges are not so serious as to make the grant of bail inappropriate.
30 The respondent opposes bail on the grounds that there is a significant risk that the applicant, if granted bail, would not answer his bail and/or would commit further offences. It is contended that there are no conditions that could be placed on the applicant's bail that would sufficiently reduce those risks.
31 The principles to be applied to an application for bail were stated by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99:
(a) The Bail Act was intended to contain a comprehensive code on the subject of bail.
(b) The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may be properly granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 to the Bail Act.
(c) Clause 1 of pt C contains no express statutory presumption for or against the grant of bail. Rather, the judicial officer is required to exercise the discretion having regard to the questions contained in pars (a) to (g), and to any other question that the decision-maker considers relevant. That is, the correct approach to the exercise of the discretion is sourced in and guided by the matters referred to in pars (a) to (g).
(d) The court is required to consider and answer the mandatory questions before commencing the balancing process inherent in the exercise of the discretionary power to grant bail. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion.
(e) All of the mandatory questions, with the exception of the question posed in par (e), are directed to whether there are positive grounds for refusing bail. The matters referred to in par (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
(f) The Bail Act does not place a legal onus on any party to the application. However, the structure of cl 1 of pt C is such that bail will be granted if there is no material before the court providing a proper foundation for refusing bail. Consequently it will often be for the State to furnish the material required to provide a proper foundation for refusing bail.
(g) The word 'may' in pars (a) and (d) of cl 1(a) means the possibility of the event occurring. So, for example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility that he would fail to appear in court in compliance with his bail undertaking.
(h) It may be that having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused for and upon conviction are sufficient to enable the court to conclude that the accused may fail to appear in court in compliance with his bail undertaking and the existence and extent of that possibility may, having regard to the answers to all the other mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach (for or against bail) is inconsistent with the approach required under the Bail Act.
32 The parties' submissions in the application expressly raised the questions posed in cls 1(a), 1(c), 1(e) and 1(g) of pt C of sch 1. I formed a preliminary view during the hearing of the application that it was likely that home detention was the only condition on which bail might be granted: cl 1(e).
33 Accordingly, I ordered a home detention assessment report in respect of the residence in which the applicant proposed to reside if released on bail. The assessment report advised that the proposed residence was suitable for the purpose of detention. However, the report did not support a home detention order being made having regard to the applicant's history of poor compliance with community supervision in the past. That was a reference to the fact that the applicant had travelled to Western Australia while on parole in New South Wales for the purpose of committing offences, and had in fact committed offences while in Western Australia. It was also noted that the applicant had been refused release to parole on the sentence imposed by the District Court and that most of the applicant's family ties were in New South Wales.
34 I have concluded that, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking. I have reached that conclusion having regard to:
(a) the seriousness of the offences alleged and the lengthy term of imprisonment that would be imposed on conviction;
(b) the apparent strength of the State's case and the absence of any apparent defence;
(c) the nature of the offences alleged - the offences alleged involved a very large quantity of methylamphetamine with a substantial street value and the applicant apparently had in his possession four guns and a large quantity of ammunition;
(d) the circumstances of the alleged offending - it was submitted, in effect, on behalf of the applicant when he was sentenced in April 2009 that he did not present as a risk for violent offending in the future; however, he is now charged with very serious firearm offences;
(e) the fact that the applicant's ties to Western Australia are limited - he has a partner in this State and he was employed at the time of his arrest; the court has been provided with a letter indicating that he could be provided with employment if released; however, the applicant owns no property in Western Australia, his family reside in New South Wales and that is where the applicant has spent most of his life;
(f) the fact that the applicant has in the past breached the terms of his parole.
35 I have also concluded that if the applicant is not kept in custody he may commit an offence and/or endanger the safety, welfare or property of any person and/or obstruct the course of justice having regard to:
(a) The nature of the offences alleged. The applicant was armed when arrested by the police. The gun was loaded. He had other firearms hidden in a motor vehicle at his residence. He had a substantial quantity of ammunition. That ammunition was also stored at his residence. The guns that were either in his possession or located in the motor vehicle were loaded. He had a very large quantity of methylamphetamine in his possession.
(b) The matters stated by Detective Inspector Oxford in his affidavit. I accept that some of those matters were hearsay; however, they were stated by a senior police officer who was apparently well placed to assess the quality of the information that he had received, given his involvement in commanding the task force that had investigated the shootings that he had identified in his affidavit.
(c) The previous serious breach of the applicant's parole by travelling to Perth specifically for the purpose of committing offences. The genesis of those offences was his substance abuse. The current charges again involve drugs.
(d) The apparent strength of the State's case.
36 I have given careful consideration to whether home detention bail could sufficiently remove those possibilities and remove the grounds for the State's opposition to the application. The home detention bail assessment report was not supportive. I accept that the applicant had proposed conditions that were intended to address the flight risk, in particular, the possibility of home detention and the proposal that his father reside with him and enter into a surety. The proposals are not, perhaps, fully addressed in the assessment report. Similarly the report focused on a matter that had already been addressed in the application: the applicant's breach of his parole.
37 However, the report obtained was an assessment by a senior community corrections officer. The discretion to grant bail is, of course, vested in the court. However, the community corrections officers are experienced in providing such assessments and their role and expertise in making assessments is properly recognised in the Bail Act and also, in the Sentencing Act 1995 (WA).
38 The matters identified in the assessment report are relevant to the question posed by cl 1(e) of pt C. The nature and seriousness of the offences alleged, the circumstances in which it is alleged that the offences were committed, the apparent strength of the State's case and the matters stated by Detective Inspector Oxford are also directly relevant.
39 I have concluded that there is no condition that could be imposed on a grant of bail that would sufficiently remove the possibilities referred to in cl 1(a) of pt C and/or remove the grounds of the State's opposition having regard to all of those matters. The applicant is to remain on remand in custody. The application is dismissed.
0
1
1