Fr v The State of Western Australia
[2012] WASCA 160
FR -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 160 | |
| THE COURT OF APPEAL (WA) | 21/08/2012 | ||
| Case No: | CACR:135/2012 | 27 JULY 2012 | |
| Coram: | MAZZA JA | 27/07/12 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | FR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against refusal to grant bail to a child Whether primary judge failed to take into account that a child has a qualified right to bail Whether primary judge's decision to refuse bail plainly unreasonable or unjust |
Legislation: | Bail Act 1982 (WA), s 13A, s 15A(2)(a), s 15A(3), s 15A(4), s 15B(2), s 15B(3), s 17, sch 1 Young Offenders Act 1994 (WA), s 3, s 4 |
Case References: | House v The King [1936] HCA 40; (1936) 55 CLR 499 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FR -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 160 CORAM : MAZZA JA HEARD : 27 JULY 2012 DELIVERED : 27 JULY 2012 PUBLISHED : 21 AUGUST 2012 FILE NO/S : CACR 135 of 2012 BETWEEN : FR
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : REYNOLDS P
File No : CC 5417-5423 of 2011, CC 5871-5872 of 2011, CC 199-201 of 2012, FR 897-898 of 2011, CC 4725-4726 of 2011
(Page 2)
Catchwords:
Criminal law - Application for leave to appeal against refusal to grant bail to a child - Whether primary judge failed to take into account that a child has a qualified right to bail - Whether primary judge's decision to refuse bail plainly unreasonable or unjust
Legislation:
Bail Act 1982 (WA), s 13A, s 15A(2)(a), s 15A(3), s 15A(4), s 15B(2), s 15B(3), s 17, sch 1
Young Offenders Act 1994 (WA), s 3, s 4
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Ms M R Barone
Respondent : No appearance
Solicitors:
Appellant : Marilyn Loveday
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
House v The King [1936] HCA 40; (1936) 55 CLR 499
(Page 3)
1 MAZZA JA: On 27 July 2012, I heard the appellant's application for leave to appeal against a decision given by Judge Reynolds, sitting as the President of the Children's Court of Western Australia on 16 May 2012, refusing the appellant bail pending trial. Leave to appeal was refused and the appeal was dismissed. What follows are my reasons for those orders.
The alleged offences
2 The appellant, who was born on 21 March 1994 and is now 18 years of age, has pleaded not guilty to nine offences which allegedly occurred on 13 and 14 November 2011, at a time when he was 17 years old. The alleged offences are three counts of threatening to kill a person, and one count each of threatening to endanger a person, unlawful detention, breach of bail, breach of a violence restraining order, assault of a person over the age of 60 years of age and trespass. The trial for these offences is scheduled to commence on 11 September 2012 before his Honour.
3 The allegations against the appellant may be briefly summarised as follows. On 13 November 2011, the appellant had an argument with his girlfriend, with whom he was staying. As a result, she wanted him evicted. She enlisted the help of a neighbour who was at the time 69 years old. It is alleged that the appellant assaulted the man with a gardening implement. The police attended a short time later. The appellant was arrested, charged and soon released to bail with conditions, including that he not contact his girlfriend. Upon his release, it is alleged that he was driven by some friends to some bushland in the Midland area where he retrieved a sawn-off shotgun and cartridges. He told one of his friends that he wanted to kill his girlfriend's father and that he had the means to do it. Later that day it is alleged that the appellant telephoned a friend and made threats to injure that person.
4 Between 9.30 pm on 13 November 2011 and the morning of 14 November 2011, it is said that the appellant sent text messages to his girlfriend, contrary to the bail conditions which had been set on 13 November 2011.
5 On 14 November 2011, it is alleged that, in contravention of a violence restraining order protecting his mother and in an agitated state, the appellant went to her house. There it is said he committed several offences, including making threats to kill members of his family and depriving his mother of her liberty. He is accused of brandishing and threatening to use the sawn-off shotgun which was observed to be loaded. Eventually, the police came to the house, arrested the appellant and seized the weapon.
(Page 4)
The appellant's antecedents
6 The appellant was born in Afghanistan and had a turbulent upbringing in that country, during which his father was killed by the Taliban. His family fled Afghanistan and, after spending some time in Iran, arrived in Australia in 2007. Not long after his arrival in this country, his behaviour began to deteriorate and has continued to do so. He has been violent, particularly towards members of his family members. The cause of this behaviour is likely to be mental illness and illicit drug abuse. The appellant has been diagnosed as suffering from schizophrenia - paranoia subtype. In 2010, he had a psychotic episode for which he was hospitalised. There have been other periods where he has been hospitalised, including as an involuntary patient. The appellant has a history of disengagement from those who treat him and non-compliance with the medication prescribed to him for his illness.
7 His criminal history reveals prior convictions for violent offences, including common assaults, assaulting a public officer, aggravated assault occasioning bodily harm and damaging property. His response to community based orders has been unsatisfactory.
8 As I have already said, at the time of the alleged offences the appellant was living with his girlfriend. Once evicted by her, the appellant had nowhere to live. The violence restraining order prevents him from living with his family.
9 The appellant has, since 14 November 2011, remained in custody, either at the Rangeview Remand Centre or at the Frankland Unit at Graylands Hospital.
The reports before his Honour
10 His Honour had before him several psychiatric reports in relation to the appellant. Two of those were written by Dr Wojnarowska and are dated 26 February 2012 and 25 April 2012. Another report was written by Dr Schineanu and is dated 15 March 2012.
11 In Dr Wojnarowska's first report, she rated the appellant's risk of reoffending while his illness was active as 'very high'. She went on to find that his risk of reoffending remained high to moderate, even if his illness was successfully treated. Her opinion as to the appellant's risk of reoffending when his illness is active was significantly based on her erroneous belief that the appellant had been released from bail after his arrest and had offended in that time. The source of this mistaken belief
(Page 5)
- was the appellant. Dr Wojnarowska noted in her report of 25 April 2012 that the appellant's mental illness had stabilised. Dr Schineanu, in her report, made the same observation. Each made mention of a possibility that, if the appellant was released on bail, he may attend Teen Challenge, a long-term drug residential drug rehabilitation facility near Esperance.
12 On the information before his Honour, Teen Challenge was prepared to accept the appellant into its program. The evidence revealed that the program at Teen Challenge lasts for approximately 12 months and is conducted on strict terms. Teen Challenge was prepared to accept the appellant in the knowledge of his mental illness and with the assistance of the Esperance Mental Health Unit.
13 The appellant's counsel submitted, at the bail hearing before his Honour, that the appellant should be released on bail to embark upon the program at Teen Challenge. The respondent opposed bail on the basis that he posed a danger of reoffending and was a danger to the community.
His Honour's reasons
14 In his reasons for refusing bail, his Honour described the nature of the allegations against the appellant as 'extremely serious': ts 13, 16 May 2012. He acknowledged the length of time the appellant would be in custody before trial if not granted bail: ts 13, 16 May 2012.
15 His Honour expressed concerns about the appellant's ability to comply with the regime at Teen Challenge.
16 His analysis of the situation was encapsulated as follows:
In the final analysis summing everything up and taking everything into consideration, it's my view that the allegations in this case are just too serious and that in combination with the diagnosis of a major psychiatric disorder, schizophrenia, paranoid type, in combination with a history of disengagement with health professionals, in combination again in turn with a history of noncompliance with medication and the risk or risks that run with that and, again, in turn - all of that in combination with the risk of absconding leads me to the conclusion that even the Teen Challenge option is an unacceptable risk.
Given all of that in combination, I'm not prepared to grant bail: ts 13, 14, 16 May 2012
17 The 'unacceptable risk' was not precisely identified by his Honour in his reasons, but it is clear that, in context, he was referring to an unacceptable risk of the appellant reoffending or causing harm to others.
(Page 6)
The grounds of appeal and the right to appeal under s 15A of the Bail Act
18 The appellant's proposed grounds of appeal are as follows:
1. The presiding Judge erred in law by failing to approach the determination of the bail application in [the] manner required by Schedule 1, Part C, Clause 2 of the Bail Act.
2. The presiding Judge erred in law and fact by remanding the appellant in custody in circumstances where it was open to release the Appellant on bail.
19 The right of appeal to the Court of Appeal in respect of the President's decision to refuse bail is conferred by s 15A(2)(a) and s 15B(1) of the Bail Act 1982 (WA).
20 Section 15A(4) of the Bail Act provides that ss 27(2), (3) and (4) of the Criminal Appeals Act 2004 (WA) apply, with necessary modifications as if the appeal was an appeal under pt 3 of that Act. Section 27(2) of the Criminal Appeals Act states that the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. Section 27(3) of the Criminal Appeals Act provides that, if leave to appeal is not granted in at least one of the proposed grounds of appeal, the appeal is taken to have been dismissed.
21 Section 15B(2) of the Bail Act states that the Court of Appeal shall determine an appeal on the material and evidence that was before the primary judge.
22 Section 15B(3) requires that any decision of the Court of Appeal in relation to bail should be made in accordance with the relevant provisions of s 13A, s 17 and sch 1 of the Bail Act. Sections 13A and 17 are not material to this appeal. Part C, sch 1 sets out the manner in which the jurisdiction with respect to bail must be exercised. As I will shortly explain, sch 2 cl 2 gives a child a qualified right to bail. As the appellant was a child at the time of the alleged offences, he had that qualified right, even though at the time the bail decision was made he had turned 18: s 3 Bail Act when read with ss 3 and 4 of the Young Offenders Act 1994 (WA).
(Page 7)
Ground 1
23 Ground 1 alleged that his Honour made an express error in that he failed to take into account that, as a child, the appellant had a qualified right to bail.
24 This right is expressed in cl 2 of pt C sch 1 of the Bail Act in these terms:
(2) Subject to subclause (3), a child accused who is in custody awaiting an appearance in court before conviction for an offence has a right to be granted bail unless -
(a) in the opinion of the judicial officer or authorised officer in whom jurisdiction is vested -
(i) one or more of the questions set out in clause 1(a), (b), (d) and (g) must be answered in the affirmative; and
(ii) there is no condition which he could reasonably impose under Part D which would satisfy the relevant provision of clause 1(e);
(b) there is no responsible person willing to enter into an undertaking of the kind described in subclause (3)(c),
and if the child is refused bail he shall be dealt with in accordance with section 19(2) of the Young Offenders Act 1994.
25 This clause operates as follows, in the present case.
26 Clauses 1(b), (d), (g) and subclause 3 are not relevant. The questions contained in cl 1(a)(ii) and (iii) are relevant. They required his Honour to consider whether, if not kept in custody, the appellant may commit an offence or endanger the safety, welfare or property of any person.
27 If his Honour answered either of these questions in the affirmative, he was obliged to consider whether any condition could be imposed which removed the possibility that the appellant may commit an offence or endanger the safety, welfare or property of any person. If no condition could be imposed which sufficiently removed those possibilities, the appellant's conditional right to bail would not apply.
28 It is true that nowhere in his Honour's reasons does he refer to the appellant's qualified right. However, that failure does not mean that
(Page 8)
- his Honour did not take this factor into account. As the appellant's counsel acknowledged in oral submissions before me, his Honour, as the President of the Children's Court since 2004, can be taken to be familiar with the basic principles of the law relating to bail for children. Thus, it is difficult to accept that his Honour overlooked the provision.
29 In any event, even if his Honour had made the alleged error, having regard to the reasons why his Honour refused bail, the appellant's qualified right to bail could not have prevailed. This is because, on a fair reading of his Honour's reasons, he found that the appellant posed a risk of reoffending or causing harm to others and that the proposed condition that he undertake treatment at Teen Challenge did not sufficiently remove the possibility of those risks.
30 In truth, any prospect of success this appeal had turned on whether his Honour erred in his assessment of the risks posed by the appellant, and his view that the proposed bail condition did not sufficiently remove those risks. His Honour's decisions on these matters were challenged in ground 2.
Ground 2
31 Ground 2 alleged implied error on the part of his Honour. As the appellant's counsel acknowledged, the principles which must be applied are well known and are set out in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In essence, the appellant could not succeed on this ground unless it is demonstrated that the decision to refuse bail was unreasonable or plainly unjust.
32 There can be little doubt that the allegations against the appellant are very serious. There is no need for me to expand in detail upon this conclusion. It is sufficient to refer to the alleged facts and note, in particular, that the appellant had access to a loaded sawn-off shotgun which he allegedly used to threaten members of his family.
33 The appellant's antecedents revealed:
(a) a consistent course of prior offending, including for offences involving violence;
(b) failures to comply with court orders designed to facilitate his rehabilitation and other orders, including a violence restraining order; and
(Page 9)
- (c) that the appellant had on occasions disengaged from treatment for his mental illness and had a history of non-compliance with his medication.
34 Having regard to the alleged offending, and his antecedents, it was well open to his Honour to conclude that the appellant may commit an offence or endanger the safety, welfare or property of any person.
35 There remains the issue of whether imposing a condition upon the appellant that he reside at and obtain treatment from Teen Challenge would sufficiently remove the risk that he may commit an offence or endanger others. While Teen Challenge is a considerable distance from Perth and the regime is strict, it was not unreasonable, having regard to the factors that I have already mentioned, for his Honour to conclude, in effect, that a condition that he reside at Teen Challenge and obey its regime was not sufficient to remove the possibility of further offending and that he may endanger others.
36 I am mindful of the fact that the appellant has been in custody since his arrest. For anyone, this is a long time; for a child, it is particularly long. I note in passing that this appeal has not been conducted expeditiously and that it was this court, of its own motion, that had this application for leave to appeal listed. I further note that the appellant's trial is imminent.
37 Having regard to all of the circumstances of the case, I am unable to conclude that his Honour's decision to refuse bail was unreasonable or plainly unjust.
Conclusion
38 In my opinion, neither proposed ground of appeal had any reasonable prospect of succeeding. Accordingly, the appeal was dismissed.
0
1
0