Finlay v The State of Western Australia [No 2] - [2013] WASC 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: FINLAY -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASC 139

CORAM: SIMMONDS J

HEARD: 12 APRIL 2013

DELIVERED : 12 APRIL 2013

FILE NO/S: MBA 7 of 2013

BETWEEN: MICHAEL JAMES FINLAY
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Home detention conditions - Report that offender not suitable for bail with home detention conditions - Whether court satisfied of such suitability

Legislation:

Bail Act 1982 (WA), sch 1, s 22, s 50L

Result:

Application for bail refused

Category: B

Representation:

Counsel:

Applicant: Mr S F Rafferty
Respondent: Mr J L C Rivalland

Solicitors:

Applicant: Mr S F Rafferty
Respondent: Director of Public Prosecutions (WA)

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

Nil

SIMMONDS J: This matter has come back to me under the Bail Act 1982 (WA) sch 1, pt D, cl 3(2)(a) ‑ (c), by virtue of the determination that I made on 27 March 2013, for reasons given then and made available to both parties, that I would not be in a position to grant bail, save on home detention terms. Both parties before me today accepted that that was the basis upon which the matter had come back to me.
As the provision in Bail Act sch 1, pt D, cl 3(2)(a) indicates, I am required to consider whether or not I am satisfied
after considering a report from a community corrections officer about the accused and his circumstances, that the accused is suitable to be subject to a home detention condition.
This matter is clearly separate from the question whether the place where the condition would operate, the home for the purpose of the condition, is a suitable place. That is clear from the structure of cl 3(2), because that is the subject of par (b) under that subclause.
And of course I have already dealt with par (c).
The Community Justice Services officer concerned, Ms Lovelock, provided a three page report which was endorsed in accordance with the procedures of the Community Corrections office by her team leader.
The report is in significant detail. It has two principal conclusions. One is that the proposed address where Mr Finlay would live is a suitable place for a home detention condition and he would live there with both of his parents and two siblings. As I understood the report, the partner of Mr Finlay would also attend the home on a regular basis and indeed, I am prepared to assume that she would in fact live there, even if she does not live there now, at least on some occasions. The other conclusion is that Mr Finlay is not currently considered suitable for a grant of bail with home detention conditions.
It is the case that the mother of Mr Finlay was described to me as a person who had clear and clearly expressed views of which her son could have no doubt, that she disfavoured the negative associations of the kind that Mr Finlay may have had or thought he had in the past; that she strongly disfavoured drug use of any kind, in particular of the kind that Mr Finlay had admitted that he had had in the past and indeed, in respect of which it appears he has a serious drug habit - what his counsel referred to as an entrenched habit, or at least one that had aspects of that character; and finally that she would simply not permit inappropriate behaviour more generally, whether that was behaviour that was illegal, unlawful or otherwise. And it was put to me, and I accepted, that this was of significance because the mother would be a surety in the amount of $50,000 and her withdrawal from that would of course mean that bail would cease to be capable of operation.
Ms Lovelock gave evidence at my request and was questioned by both counsel in significant detail, if I may say that. In that questioning it became evident to me that Ms Lovelock had not taken account in making her initial assessment of the mother's position as a surety, because Ms Lovelock was unaware of it.
She was asked whether that knowledge, that the mother was a surety with attitudes of that kind and with the potential consequences were the norms the mother insisted upon broken, would change Ms Lovelock's assessment that Mr Finlay is not currently suitable for home detention bail. Ms Lovelock indicated, admittedly with very little time to reflect on the matter, that no, she did not think it would.
Ms Lovelock was also asked questions about whether she had, in coming to her view, specifically addressed her mind to the confidence with which it could be determined that Mr Finlay would comply with the rules of the Chief Executive Officer of the community department concerned, referred to in s 50L of the Bail Act, that would apply to Mr Finlay were he to be on home detention bail.
I was told that those rules would likely go to wearing or otherwise having in place electronic monitoring devices so the movements of Mr Finlay could be followed and in addition, to undergoing urinalysis, including on a very frequent basis.
Ms Lovelock indicated that those matters had indeed been addressed as part of her assessment, as I had expected she would say.
Ms Lovelock, in the course of questioning, indicated that her assessment was based upon the data and information she had acquired, which was necessarily historical data, with this important point to bear in mind. That historical data concerned, as I understood her answers, very largely the criminal history of the applicant, Mr Finlay - not on the charges which he presently faces, in respect of which of course he is entitled to the presumption of innocence - as well as his history under supervision, which is problematic in the ways which I indicated in my own bail reasons, based upon which histories, independently, Ms Lovelock came to the assessment she did. She also based that assessment on the matter of a specific assault on Mr Finlay he had suffered while in custody, as well as the history of negative associations, to which I have referred.
However, Ms Lovelock was not aware of, and accordingly had not utilised in any way in arriving at her assessment, a specific threat of harm to Mr Finlay currently operative. By such a threat I would understand a communication to Mr Finlay or to anyone else that Mr Finlay was a target, a person who was likely to receive, or might well receive or might receive, to state the matter at different levels of likelihood, specific threats of violence.
Rather, Ms Lovelock had relied upon the historical matters that I have referred to, including the specific assault but the others as well, for the concern about risk to the community that she described. That was a risk that included Mr Finlay as a member of the community, outside a controlled environment where he had already sustained an assault in a controlled environment. But that was also a risk of what I call, perhaps infelicitously, 'collateral damage', by which I mean the way in which harm directed at Mr Finlay on that assumption would affect other persons and other property, at least in proximity to Mr Finlay at the time.
I should note in passing that an assessment of the kind that a Community Corrections officer is required to make, given the kind of time frame involved here, and the kinds of case loads that I am aware Community Corrections officers carry, is necessarily of the character described.
Indeed, it is hard to image how it could be otherwise save, as counsel for Mr Finlay pointed out, that there might be additional information, intelligence in the military sense, to be derived from face to face contact with a person in Mr Finlay's position. And Ms Lovelock conceded she had not had any such face to face contact but relied on the historical matters described as well as a phone conversation with Mr Finlay.
I accept, indeed, that it is difficult for a person in my position to do otherwise, in assessing the veracity of statements made by a person in Mr Finlay's position, that the ability to make such an assessment without person to person contact is inferior to the position that would be occupied were person to person contact possible. I do not consider there is any fault, blame or other comment in respect of the lack of such person to person contact. The time frames involved here, it seems to me, would readily account for why such contact was not possible. I accept that that is a matter which affects the weight I should assign to the view of the Community Corrections officer.
However, with that lengthy preliminary I now describe my conclusion and why I have arrived at it. I need to do so because, as again was accepted by both counsel, and must be accepted on the legislation, the final determination is mine.
The determination by the Community Corrections officer is to assist me, if it does assist me. But it is hardly determinative.
In fact I think this can be expressed quite strongly in the following way. The fact that a Community Corrections officer is satisfied that a person is a suitable candidate for home detention bail does not determine the issue for a judicial officer, who might come to the conclusion, despite that satisfaction by a Community Corrections officer, that a person is not suitable.
Conversely, a determination by a Community Corrections officer that a person is not suitable does not mean that a judicial officer could not arrive at the opposite conclusion that the person is suitable.
In this case however, I agree, if that is the correct language - but rather the better language is I am satisfied - on all the circumstances and information that I have, drawing on s 22 of the Bail Act, that the applicant here is not a suitable person for home detention bail. I do that giving significant weight to Ms Lovelock's opinion, but at the same time weighing additional matters, as I will indicate.
Taking the first of the three matters counsel for Mr Finlay addressed to me, which I think correctly, as confirmed by Ms Lovelock, underlay Ms Lovelock's view, and which usefully organise my deliberations without exhausting the relevant considerations or even the way necessarily they should be approached, was the ability of the applicant, Mr Finlay, to refrain from using drugs and the possibility of conditions to address that.
Entrenched drug habits, aspects of which it is clear Mr Finlay is subject to, can press towards breaches of conditions of the greatest strictness, and indeed one subject to supervision by loved ones of the kind a mother would offer, as well as government departments would provide. The past history of Mr Finlay is instructive in this way, without it being determinative of the matter.
It seems to me, allowing for the fact that Ms Lovelock did not speak personally to Mr Finlay, in person that is, and given my own assessment as expressed in my original views, as well as Ms Finlay's experience with respect to the way in which home detention bail operates, that her opinion has the weight that I have described and accords with the view that I have arrived at also.
As to negative peer safety, much the same set of considerations applies with account also being taken of the prior assault, singular it may be, instructive, it seems to me, it is, in the context of the negative peer associations that Mr Finlay has had, his continued methylamphetamine use at least up to custody and after allowing for the restrictions on, or allowing for the matters of weighing, Ms Lovelock's views as I have done.
Finally, as to the prospect of committing further offences, something upon which I spent some considerable time in my bail determination to which I have referred to, again, similar considerations operate with respect to the prior history. This allows for the strength of the position of the mother but also particularly for the history of behaviour under prior orders that I have described. I am drawing as well, with the weight indicated, on the opinion of someone with experience - Ms Lovelock - in home detention bail condition operation that she has.
Now, there is a further and important consideration, one Ms Lovelock did not use and could not be expected to use and was not asked, herself, to reflect upon. And quite properly so. This is the matter of delay. Delay is a concern in this case, as I indicated in my original bail determination. The minimum delay in this case has now come into greater focus. It is at least 12 months.
Mr Rafferty spent some time suggesting to me that such an assessment is - and this was not Mr Rafferty's language but language which I think does not do a disservice to his submission - simply an unrealistic assumption otherwise than that the assumption, if one must be made, the prediction, if one must make it, is that that delay is more in the order of 15 months. I would imagine Mr Rafferty would not shy away from 15 months plus.
Now, it is clear that courts are concerned about custody for periods of that length or longer. The concern may be greater when the only risk is one of flight, as opposed to reoffending. I am of the view, with Mr Rivalland for the state, that there are variations in the intensity of the concern depending upon the nature of the risk arising out of release of an accused into the community. But nonetheless, whether it is a risk of reoffending or a risk of flight, the concern is engaged.
However, I do not - notwithstanding what Mr Rafferty strongly put to me - think that I can, at this point, assume that 15 months is the minimum period or, indeed, the likeliest period that this accused faces.
Further, it seems to me there is some reason to believe that there is a likelihood - likelihood being something above possibility, but less than probability - that trial will occur within or about 12 months from entry into custody. Now, that itself raises the concern but not at the level that 15 months, let alone more than 15 months, would engage.
It will follow, I hope, from what I have just said that I have weighed delay and it seems to me delay has a role to play, at least in very close cases, where considering the suitability question. I consider this is a close case. Whether it is a very close case is a much harder call. In my view, it is not a very close case, but it is undoubtedly a close one.
Delay has a role but the delay in this case does not play a sufficient role to disturb the conclusion or assessment I would otherwise arrive at that, the accused is not suitable to be subject to a home detention condition at this time. I refer to, 'at this time', for deliberate and important reasons.
It seems to me that Bail Act sch 1, pt D, cl 3(2)(c) is an assessment as at a particular time. It must be because assumptions are affected by history and history does not stand still. Circumstances can change.
A number of circumstances might, in this case, change or they might not. But on the circumstances as I have them now and the information about the accused and his circumstances that I do have now, including the report from the Community Corrections officer to which I have made reference, I have made the determination I have described.
Accordingly, now I would dismiss the bail application.