Fisher v The State of Western Australia
[2018] WASC 322
•23 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FISHER -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 322
CORAM: FIANNACA J
HEARD: 25 SEPTEMBER 2018
DELIVERED : 23 OCTOBER 2018
FILE NO/S: MBA 40 of 2018
BETWEEN: KEVIN FISHER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Nil
Legislation:
Bail Act 1982 (WA)
Result:
Bail refused
Representation:
Counsel:
| Applicant | : | Mr P Holmes & Mr G Massey |
| Respondent | : | Ms T J McArthur |
Solicitors:
| Applicant | : | Holborn Lenhoff Massey |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Firkins v The Director of Public Prosecutions (2002) 132 A Crim R 321
Hedgeland v The State of Western Australia [2011] WASC 181
Jones v The State of Western Australia [2014] WASC 234
Magistro v The State of Western Australia [2016] WASC 268
Mikhail v The State of Western Australia [2010] WASC 238
Milenkovski v The State of Western Australia [2011] WASCA 99
Oates v The Commonwealth Director of Public Prosecutions [2003] WASCA 329
Roberts v The State of Western Australia [2011] WASC 118
Saka v The State of Western Australia [2001] WASC 92
The State of Western Australia v Oats [2004] WASC 214
The State of Western Australia v Sturgeon [2005] WASC 256
Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303
FIANNACA J:
The application and its history
The applicant, Kevin Michael Fisher, has applied for bail in respect of a number of charges that are pending in the Magistrates Court. The application was heard on 7 and 25 September 2018. At the conclusion of the proceedings I refused the application and gave brief reasons, with written reasons to follow. These are my reasons.
Those charges and some relevant particulars, including procedural matters, are set out in the table below:
| Charge No. | Alleged date of offence | Description | Next appearance | Next appearance type |
| PE 6324/18 | 3.02.18 | Aggravated home burglary (committed stealing) | 26.9.18 | Mention |
| PE 6325/18 | 3.02.18 | Stealing | 26.9.18 | Mention |
| JO 5585/18 | 14.4.18 | Possession of a prohibited drug (methylamphetamine) | 26.9.18 | Mention |
| JO 7825/18 | 6.06.18 | Possession of a prohibited drug (methylamphetamine) | 26.9.18 | Mention |
| JO 9163/18 | 24.07.18 | Possession of a prohibited drug with intent to sell or supply to another (methylamphetamine) | 3.10.18 | Mention |
| JO 9162/18 | 24.07.18 | Possession of a prohibited drug (dexamphetamine) | 3.10.18 | Police committal mention |
| JO 9161/18 | 24.07.18 | Possession of a prohibited drug (cannabis) | 3.10.18 | Police committal mention |
| JO 9160/18 | 24.07.18 | Possession of a prohibited drug (methylamphetamine) | 3.10.18 | Police committal mention |
| JO 9159/18 | 24.07.18 | Possession of a drug paraphernalia in or on which there was a prohibited drug or plant | 3.10.18 | Police committal mention |
| JO 9158/18 | 24.07.18 | Possession of a drug paraphernalia in or on which there was a prohibited drug or plant | 3.10.18 | Police committal mention |
| JO 9157/18 | 24.07.18 | Possession of ammunition without licence | 3.10.18 | Police committal mention |
| JO 9156/18 | 24.07.18 | Having ready access to both weapons and illegal drugs | 3.10.18 | Police committal mention |
| JO 9155/18 | 24.07.18 | Possession of stolen/unlawfully obtained property ($710) | 3.10.18 | Police committal mention |
The applicant has not yet entered a plea to any of the charges. Charge JO 9163/18, which is a charge of possessing a prohibited drug with intent to sell or supply, can only be dealt with on indictment, because of the alleged quantity of the drug; so, in respect of that charge, the applicant will be committed eventually to the District Court. That is also the case for charge PE 6324/18, for the offence of aggravated home burglary.
In respect of charges PE 6324/18 and PE 6325/18, the applicant was on bail from 4 February 2018 until 24 July 2018, when he is alleged to have committed the offences charged in JO 9155 - 9163/18. He has been remanded in custody in respect of the latter since 25 July 2018. His last appearance for the earlier charges (including JO 5585/18 and JO 7825/18) was on 15 August 2018. He has been remanded in custody in respect of those matters since that date, although counsel for the applicant was of the understanding that bail has been set for those charges.
As I will explain shortly, in respect of the charge of possession of a prohibited drug with intent to sell or supply (JO 9163/18), the applicant comes within the provisions of the Bail Act 1982 (WA) (the Act) which require the court to refuse bail unless the court is satisfied there are exceptional reasons why the applicant should not be kept in custody. That is because he is alleged to have committed the offence while on bail for the offence of aggravated home burglary (PE 6324/18).
The applicant applied for bail in the Magistrates Court on 25 July 2018. He sought to satisfy the learned magistrate that there were exceptional reasons, being the combination of the substantial delay before the charges for the indictable offences could proceed to trial in the District Court and a perception that the prosecution case is weak. His Honour rejected those arguments and refused bail. In relation to delay, his Honour considered that the likely delay until trial of 12 to 18 months was not exceptional, having regard to the usual delays experienced by the court, and was not disproportionate to any likely custodial sentence if the applicant were to be convicted. His Honour noted that if delays emerge in the course of the proceedings which are not the applicant's fault, the situation may change.
The application is brought in this court under s 14(2) of the Act. It invokes this Court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act. It is not an appeal from the magistrate's decision refusing bail.
Legislative provisions
As the court's jurisdiction to grant bail arises by the operation of s 13 and sch 1 pt A of the Act, it must be exercised subject to and in accordance with Pt III of the Act and the further provisions in pts B, C and D of sch 1.
Ordinarily, bail would be granted unless the court is satisfied that the accused should be kept in custody after considering the questions in cl 1 of pt C, having regard to the matters in cl 3 of pt C.[1] The questions in cl 1 include whether the accused may fail to appear in court as required by his bail undertaking and whether he may commit an offence. The court is also required to consider whether there are conditions that could reasonably be imposed which would remove the possibility of the accused doing those things. In answering those questions, the matters the court must take into account under cl 3 include the nature and seriousness of the offence or offences; the accused's personal circumstances, including his character and antecedents, which include any previous convictions; the history of any grants of bail; and the strength of the evidence against him.
[1] Milenkovski v The State of Western Australia [2011] WASCA 99 [41].
However, the approach is different when the provisions of cl 3A of pt C of sch 1 apply, as they do in this case.
Clause 3A provides relevantly that, notwithstanding cl 1 or any other provision of the Act, where ‑
(a)an accused is in custody ‑
(i)awaiting an appearance in court before conviction for a serious offence;
… and
(b)the serious offence is alleged to have been committed while the accused was ‑
(i)on bail for …
another serious offence,
the judicial officer … shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer ‑
(c)is satisfied that there are exceptional reasons why the accused should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; and
(d)is also satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 ...
'Serious offence' is defined in the Act to mean, relevantly, an offence described in sch 2.
The charge for the offence of possession of a prohibited drug with intent to sell or supply (JO 9163/18) is a serious offence under sch 2. The offence is alleged to have been committed while the applicant was on bail for the offence of aggravated home burglary charged in PE 6324/18, which is also a serious offence under sch 2. Therefore, cl 3A applies, and I must refuse bail unless I am satisfied there are exceptional reasons why the applicant should not be kept in custody. Even if I were satisfied exceptional reasons existed, before I could grant bail I would also have to be satisfied that bail could properly be granted having regard to the provisions of cl 1 and cl 3.
To the extent that is necessary to have regard to the questions and considerations in cl 1 and cl 3, the proper approach to those matters was set out in YSN v The State of Western Australia [2017] WASCA 155 at [15] - [21].
Exceptional reasons
The question of what constitutes 'exceptional reasons' was considered by Murray J in Tieleman v The Queen.[2] His Honour said:[3]
"Exceptional" is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.
[2] Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303.
[3] Tieleman v The Queen [15].
There is no closed list of exceptional reasons.[4]
[4] Roberts v The State of Western Australia [2011] WASC 118 [9] (Murray 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 The State of Western Australia v Sturgeon.[5] EM Heenan J noted that, 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, particularly if it happens repeatedly. The risk that the person may commit offences if released on bail is given prominence as a factor that tells against release on bail.
[5] The State of Western Australia v Sturgeon [2005] WASC 256 (EM Heenan J).
As will appear below, the applicant submitted that hardship to his family and arising from the financial impact of his remand in custody, together with the likely delay in the matter proceeding to trial, amounted to exceptional reasons for a grant of bail in this case.
Hardship to an accused's family can, in some circumstances, amount to exceptional reasons. However, the impact that the remand of an applicant will have on his family must rise to an exceptional level of hardship before it would constitute an exceptional reason why he should not be kept in custody.
Delay can be a basis for concluding there are exceptional reasons not to keep an accused in custody on remand when to do so would result in an injustice in the event he were to be acquitted or sentenced to a term that is significantly less than the time he has spent in custody.[6]
[6] I have previously outlined some of the relevant authorities and principles in Magistro v The State of Western Australia [2016] WASC 268 [42] - [45]. See Saka v The State of Western Australia [2001] WASC 92; Outman v The Queen [2001] WASC 162; Firkins v The Director of Public Prosecutions (2002) 132 A Crim R 321; Oates v The Commonwealth Director of Public Prosecutions [2003] WASCA 329; The State of Western Australia v Oats [2004] WASC 214. See also The State of Western Australia v Sturgeon [2005] WASC 256; Hedgeland v The State of Western Australia [2011] WASC 181; Mikhail v The State of Western Australia [2010] WASC 238 and Jones v The State of Western Australia [2014] WASC 234.
Even where an individual factor may not, alone, constitute an exceptional reason for the grant of bail, a combination of factors might do so.
The evidence in the proceedings
The application is supported by an affidavit sworn by the applicant on 23 August 2018. Annexed to that affidavit are the transcript of proceedings before the magistrate on 25 July 2018; the statements of material facts in respect of the alleged offences; a copy of the applicant's criminal record; financial documents relating to the applicant's home mortgage; and documents concerning his business as a mechanic.
I have also been provided with the prosecution notices for all of the pending charges. Each of the prosecution notices shows the applicant's history of appearances in respect of the charge or charges in the notice, including any grant or refusal of bail and the terms of bail where it was granted.
At the initial hearing of this application, on 7 September 2018, the State tendered the following documents which are to be included in the prosecution brief:
(1)A screenshot from a mobile telephone alleged to belong to the applicant which contains first names alongside the numbers 600, 400 and 200, which the State will submit constitutes a 'tick list' of the kind notoriously kept by drug dealers; in other words, a list of sums of money owing by individuals for drugs that have been supplied;
(2)A certificate of an approved analyst in which a quantity of powder alleged to have been in the applicant's possession on 24 July 2018 was found to weigh 13.3 grams and to be 71% methylamphetamine;
(3)Downloaded message threads from a mobile telephone alleged to belong to the applicant, which include messages which the State will submit are consistent with drug dealing; and
(4)Photographs of items found during the search by police of the applicant's bedroom on 24 July 2018.
Alleged facts of offences
Offences alleged to have been committed on 24 July 2018
The facts in respect of the offences alleged to have been committed on 24 July 2018 are as follows.
On Tuesday, 24 July 2018, at 8:20 am, police executed a Misuse of Drugs Act search warrant at the applicant's home in Pearsall. The applicant was in the master bedroom, seated at the end of his bed.
While searching the walk-in-robe of the master bedroom, police found four clip seal bags hidden inside the pocket of a jacket, which was hanging in the row. Each clip seal bag contained approximately 3.5 g of methylamphetamine. Upon subsequent analysis, the combined total weight was found to 13.3 g, and the drug was found to be approximately 71% methylamphetamine. The weight of each bag, equating to approximately one quarter of an ounce, is a common amount in which methylamphetamine is sold. The methylamphetamine found in the pocket of the jacket is the subject of the charge of possessing a prohibited drug with intent to sell or supply (JO 9163/18).
During the search, police also found in various locations throughout the bedroom:
(1)several clip seal bags containing a total of 6 g of methylamphetamine;
(2)several concealed bags containing cannabis, the total weight which was approximately 73 g;
(3)26 dexamphetamine tablets in the top drawer of a tall boy;
(4)four glass smoking implements containing trace elements of methylamphetamine;
(5)two plastic smoking implements containing trace elements of cannabis, which were at the top of the walk-in-robe; and
(6)two machetes, which were behind the master bed, within reach of the applicant.
In various locations elsewhere in the house, police found ammunition of various calibres. The applicant was not the holder of a license or permit for the ammunition.
Inside the master bedroom, police located the applicant's wallet, which contained $710 in cash. In another bedroom, they found a set of scales.
The police also seized the applicant's mobile telephone. Counsel for the State at the hearing of the application said the evidence will be that the telephone was either on the applicant's person or near him, and that he provided the pin code for access to the contents. This was not disputed on behalf of the applicant, except that he said the telephone was found on the coffee table in the applicant's bedroom. Counsel for the State also pointed out that a number of the messages saved in the telephone were addressed to 'Kev', being an abbreviation of the applicant's first name.
The data observed on the mobile telephone and downloaded from it included the list to which I referred earlier, alleged to be a 'tick list'. The data also included text messages from which the inference may be drawn that the applicant was engaged in drug dealing. The applicant's connection with the messages, apart from his possession of the telephone, arises from the context of the messages.
It is not necessary to say anything further about those items of evidence, as it is not now maintained on behalf of the applicant that the case against him lacks strength. Prima facie, the case in fact appears to be a strong one in respect of the most serious charge of possession of methylamphetamine with intent to sell or supply.
The items found during the search on 24 July 2018 form the bases of charges numbered JO 9155 ‑ 9162/18.
Offences alleged to have been committed on 3 February 2018
The facts in respect of the alleged aggravated burglary and stealing on 3 February 2018 are that the applicant went with two other males to a residential address in Alkimos. He went there on his motorcycle, while the other two arrived in a panel van. In brief, it is alleged that the applicant kept watch while the other two broke into the house and stole various items of property, to the value of $4,000, which they commenced to load into the panel van, which was backed up to the garage. Before commencing to take property, the two other males disabled a CCTV security system at the house. The female occupant of the house, who was at home with her female boarder and the boarder's three week old baby, took refuge in a cupboard and called police. Police attended while the offence was being committed. The two males who were stealing the property took flight. One was apprehended soon after. The other escaped. The applicant, who was still at the front of the property, was arrested.
Offence alleged to have been committed on 14 April 2018
The facts in respect of the alleged offence of 14 April 2018 are that the applicant was stopped by police in the suburb of Hocking while he was driving when disqualified from holding a driver's licence. As he got out of the vehicle, he dropped a small clip seal bag onto the road. The bag was found to contain 1.5 g of methylamphetamine.
Offence alleged to have been committed on 6 June 2018
The facts in respect of the alleged offence of 6 June 2018 are that the applicant was stopped by police in the suburb of Pearsall while he was driving. Police conducted a search of the vehicle and of the applicant. Inside a pocket of his pants they located a clip seal bag, which contained 0.3 g of methylamphetamine.
Bail history
After his arrest on 3 February 2018, the applicant was released on bail in respect of the aggravated burglary offence. He was released on a personal undertaking of $5,000 and a surety in the same amount. He was also subject to a number of protective conditions. His bail was renewed on each of six appearances in the Joondalup Magistrates Court between then and 24 July 2018. His last appearance before that date was on 18 July 2018.
The offences of 24 July 2018 are alleged to have been committed, therefore, while the applicant was on bail for the serious offence of aggravated burglary, alleged to have been committed on 3 February 2018.
Significantly, the State relies on text messages sent from the applicant's mobile telephone on 19 July 2018 in which the sender states:
(a)'Hey I've got heat on me at the moment so I'm doing nothing for a while. I'm shutting down. Il (sic) contact you in a couple of weeks'; and
(b)'I'm shutting down for a while. To (sic) much heat by coppers.'
Further there is a message from the telephone which asks the recipient, 'How much did you give me today mate?' There is a response to that message in which the other person states, 'I gave u 2700 and owed 300 yesterday so I owe 400 stil (sic) which rhys has for u …'
Those messages are alleged to disclose drug dealing by the applicant only a few days before the search of 24 July 2018, although he was stating that he was 'shutting down' because of 'heat' from the police.
While on bail for the aggravated burglary offence, the applicant was also charged with possessing a prohibited drug on two occasions, being on 19 March 2018 (possession of methylamphetamine) and 6 April 2018 (two counts, being for possession of methylamphetamine and cannabis). The applicant pleaded guilty to those offences on 18 April 2018 and 21 May 2018 respectively and was fined for each of them. Those pleas were admissions, of course, that he was committing offences while on bail.
Therefore, while the applicant has not previously breached bail by failing to appear as required by his undertaking, he has breached the trust placed in him when he was released on bail by committing offences.
The applicant's submissions
Exceptional reasons
The essential argument put by the applicant is that his family and financial circumstances, in combination with the likely delay before the indictable charges can proceed to trial, amount to exceptional reasons why he should not be kept in custody, and he should be released on strict conditions.[7] The applicant is prepared to be subject to home detention conditions if the court considered that necessary.
[7] ts 3.
The applicant's personal circumstances, as disclosed in his affidavit, are as follows:
(1)The applicant has lived in Western Australia for the whole of his life;
(2)He has business and family ties in this jurisdiction;
(3)He has four children;
(4)The two oldest boys are employed, but earn a 'very low wage' (which the applicant has not specified). They live with the applicant, who provides them with accommodation and meals and tops up their wages when they are running low on money;
(5)He pays maintenance of $200 per month for another son, pursuant to an informal arrangement with the child's mother;
(6)He is required to pay $200 per month maintenance for a 12‑year‑old daughter pursuant to an informal arrangement with that child's mother (although the applicant does not say he has been making those payments);
(7)The applicant has a mortgage over his home in the sum of $420,000 and is behind in his payments. He states that he has been paying $2,800 per month in an endeavour to 'catch up', the required monthly payments being $2,149;
(8)He has lived in his home for three years;
(9)The applicant works in his own mechanical business, which he operates from leased premises. He has an apprentice. He is $15,000 behind in his rent, and has been behind for five to six months. He claims to have been evicted from the business premises while he has been in custody. He states that the first thing he would need to do if released on bail is to find new business premises; and
(10)The applicant is solely responsible for the survival of the business. He has 'a substantial amount of work coming up', which he claims will enable him to make a profit in excess of $9,000. Apart from the mechanical side of his business, there is also a fabrication side, in which he states he has a job installing long-range tanks, a bull bar and a roof rack for someone who requires the work to be done in a hurry.
In respect of his business, the applicant claims that he is in a precarious financial position, being unable to carry on his business while he is in custody on remand, and that, if he is kept in custody, his business will fail completely, his apprentice will be without work and the applicant will be left with a substantial debt, including the cost of storage of his equipment. It was submitted on his behalf that clients do not want to deal with the apprentice, who requires supervision in any event. It was submitted that the applicant hopes to trade out of his precarious situation.
However, it was not submitted on the applicant's behalf that I should have regard to the impact on third parties, such as the apprentice or potential clientele. Presumably the services offered by the applicant can be obtained from other providers. As for the apprentice, I have been provided with no evidence about his previous or current circumstances.
The applicant's argument in respect of hardship to others is really confined to the impact on his family if his business fails completely. In essence his argument is that his younger children will not receive maintenance payments and his older children may be left without a home because the bank will repossess his house if he does not make the mortgage repayments.
In respect of the mortgage, the applicant annexed to his affidavit three letters from the Westpac Bank, dated 15 November 2017, 6 February 2018 and 22 February 2018. The letters inform the applicant of the default in repayments. The most recent letter demands payment of the whole balance of $417,364.10. In the alternative, it allows for payment of the overdue payments of $12,623.41 within 7 days, provided payments are then made in accordance with the contract. The letter also offers the applicant the opportunity to discuss his situation if he is experiencing difficulties. Finally it refers to the bank's right to commence legal proceedings without notice and demand payment of the full account balance. None of the letters refer to 'repossession' of the property.
The applicant has provided no evidence of what steps he has taken since November 2017 to deal with the overdue payments. He sates in his affidavit that he has been paying $2,800, but there is no documentary evidence in that regard, or indeed of his financial accounts. Further, there is no evidence of the bank having taken any further action since 22 February 2018.
In relation to the applicant's two younger children, there is no evidence before me about their mothers' financial circumstances. There is a text message from the mother of the male child (message number 427) which suggests the applicant had been helping financially since he had started his 'second job lately', but goes on to ask for the applicant to pay child support. However, the tenor of the message is that, apart from some specific items for which she is asking payment, she is leaving the amount of any contribution to the applicant's discretion, depending on his means.
In respect of the older children, the applicant concedes that they are not dependent on him.
In respect of potential delay, between the first and second hearing dates of the application, the applicant's legal advisers obtained information from the District Court which suggests that trial dates could be available by June 2019, given that the matter is expected to progress to the District Court by February 2019. It was conceded on behalf of the applicant, that the length of the delay before trial may not be as great as had initially been thought, but it was submitted nevertheless that, in combination with the other factors, it was still a significant factor.
At the time of making the application, the applicant submitted that the prosecution case was not strong. That submission was not maintained in light of the materials that were tendered by the state on the application, to which I have referred.
Other matters
The applicant is 44 years of age. He has a lengthy criminal history from 2002, but it was pointed out on his behalf that all of the prior convictions are for summary offences. Of course, the fact that he has not previously faced charges as serious as the present charges tends to render his past compliance with bail undertakings, in terms of answering bail, of less weight.
The applicant's recent offending while on bail has been in respect of possession of prohibited drugs. It was submitted the offences were consistent with drug use, and that conditions could be imposed to reduce his risk of committing such offences, in particular a requirement that he subject himself to random urinalysis testing for prohibited drugs.
The State's submissions
The State submitted that the prosecution case against the applicant on the most serious offence, being the possession of methylamphetamine with intent to sell or supply, was strong. The State will rely on where the drugs were located and the presence of indicia of drug dealing, including the weapons, scales, the alleged 'tick list' and the messages on the mobile telephone, to establish the applicant's possession of the methylamphetamine and his intention to sell or supply the drug.
The State submitted that the reference in the text message from the mother of the male child to the applicant's 'second job' could only be construed as a reference to drug dealing, as the applicant did not refer to a second job in his affidavit. If that is correct, then the applicant's financial assistance to his child was from an illicit source, and the Court should give little weight to his argument that his incarceration will cause hardship to his family.
In response, counsel for the applicant submitted that the reference to a 'second job' in the message could have been a reference to the fabrication work, which the applicant referred to in his affidavit, as it could properly be described as a second job. The difficulty with that proposition is that the applicant appears to have described the fabrication work as prospective, rather than something he had already done to generate income from which he had paid child support. Further, it is open from the wording of the text, particularly in the context of a later message, that the author is being guarded about the nature of that 'job'. In any event, in light of the conclusion I have come to generally in relation to the issue of hardship, it is not necessary to make any finding about that matter.
More generally, in relation to the applicant's financial circumstances, the State submitted that they had been dire for some months, so that the potential failure of his business could not be attributed to his continued detention in custody on remand. As for the problems with the applicant's mortgage, it was submitted they have been long-standing, so that the risk of foreclosure while the applicant is in custody cannot be regarded as an exceptional reason for the grant of bail, either alone or in combination with other factors.
Conclusions
I accept that the applicant is at risk of financial ruin if he remains in custody on remand. However, it is apparent from the materials that the applicant was in a parlous financial situation well before his remand in custody. The difficulties he faces now, both in respect of his business and the mortgage on his home, could not be attributed to his remand in custody. His hopes of trading out of his financial circumstances are at best speculative and at worst fanciful, in light of the financial history presented on the application. There is a dearth of evidence to indicate the applicant has any real hope of financial recovery if he were on bail. In any event, the potential for an accused's business or other financial interests to suffer if he is remanded in custody in circumstances mandated by cl 3A is neither unexpected nor unusual. I am not satisfied that the impact on the applicant's business or his capacity to retain his home as a result of being remanded in custody constitutes an exceptional reason for the grant of bail.
Similarly, in light of the lack of evidence in respect of the welfare of the applicant's children or the support (or lack of support) available to them, the applicant has not established that his remand in custody will result in hardship to dependents of an exceptional kind.
As for delay, the period which is likely to elapse before the most serious charges proceed to trial is not of an exceptional length. Of course, an accused would be aggrieved, understandably, in relation to any period in custody pending trial if the accused is ultimately acquitted. As the authorities make clear, that is a price that Parliament has mandated as necessary where an offender is charged with serious offences while on bail for serious offences. As I noted in dealing with the relevant principles, in such circumstances, the risk that the accused may commit further offences if released on bail is given prominence as a factor that tells against release on bail.
In the event that the applicant were convicted of the charge of possession of methylamphetamine with intent to sell or supply, he could expect to receive a substantial term of imprisonment, given the amount of the drug, such that the likely non-parole period would exceed the period of custody on remand.
I am not satisfied that the time the accused is likely to remain in custody on remand before trial is sufficient to constitute an exceptional reason.
Finally, in my view, none of the reasons proffered by the applicant are of sufficient weight that in combination they would constitute exceptional reasons, when individually they do not.
Therefore, I am not satisfied that there are exceptional reasons why the applicant should not be kept in custody.
Had it been necessary to consider cl 3A(d), which requires that the court be satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of sch 1 pt C, if the court is satisfied there are exceptional reasons for the purposes of cl 3A(c), a significant factor militating against the grant of bail would have been the fact that the applicant has previously committed offences while on bail, and that the offences alleged to have been committed on 24 July 2018 are also alleged to have been committed by the applicant while on bail. The nature of his offending while on bail (as indicated by the convictions to which I referred earlier), and the circumstances in which the offences of 24 July 2018 are alleged to have been committed, give rise to significant reservations about whether any reasonable condition could be imposed that would reduce the risk of the applicant offending while on bail to a level where keeping him in custody would no longer be warranted.
However, it is not necessary to resolve that issue, in particular whether a report should be obtained as to the appropriateness of home detention as a possible condition. As I am not satisfied there are exceptional reasons for the purposes of cl 3A, the application for bail must be refused.
Therefore, the application for bail is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE FIANNACA
23 OCTOBER 2018
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