Garstone v The State of Western Australia - [2016] WASC 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GARSTONE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 136

CORAM: SIMMONDS J

HEARD: 8 APRIL 2016

DELIVERED : 8 APRIL 2016

PUBLISHED : 29 APRIL 2016

FILE NO/S: MBA 8 of 2016

BETWEEN: DAVID SHOJI GARSTONE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application for bail - Application dismissed

Legislation:

Bail Act 1982 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms M R Barone
Respondent: Mr M G Hunter

Solicitors:

Applicant: Barone Criminal Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Green v The Queen (Unreported, WASCA, Library No 950592, 8 September 1995)
Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
Va v The State of Western Australia [2014] WASC 74
SIMMONDS J:
(This judgment was delivered extemporaneously on 8 April 2016 and has been edited from the transcript.)

This is an application for bail in relation to three charges pending in the Perth Magistrates Court (the present application). Three previous applications for bail to the Magistrates Court in Perth were unsuccessful.

Background

On 21 January 2016 the applicant applied for bail in the Magistrates Court in Perth. On 28 January 2016 Magistrate Randazzo refused bail.
On 28 January 2016 the applicant again applied for bail in the Magistrates Court in Perth citing new facts and circumstances. Magistrate Lawrence refused that application on 4 February 2016.
On 4 February 2016 the applicant again applied for bail in the Magistrates Court in Perth citing a change or changes in circumstances. Magistrate Gluestein refused that application on 3 March 2016.
I recite that history simply to ensure that I am aware of it. As will become apparent, my jurisdiction in relation to this matter is in no way affected by the determinations of the previous decision‑makers, the magistrates.
Bail was applied for on each of those three occasions in respect to the following three charges (the present charges):
(a)PE 3896/16: contrary to Criminal Code (WA) (the Code) s 401(2)(b) on 20 January 2016 the applicant was in the dwelling of Nadine Krokotsch without consent and committed an offence therein, namely, criminal damage valued at $10.
(b)PE 3897/16: contrary to Code s 444(1)(b) , the applicant wilfully and unlawfully destroyed two wine glasses the property of Nadine Krokotsch to the value of $10.
(c)PE3898/16: contrary to Code s 338B(a) , on 20 January 2016 the applicant threatened to unlawfully kill Nadine Krokotsch.
The statements of material facts in relation to the present charges set out allegations to the following effects. I emphasise that these are the allegations. They are not yet tested by trial process.
From between about 11.39 am and 5.40 pm on Wednesday, 20 January 2016 the applicant was at 6 Warren Avenue, Bayswater. That was the dwelling of Ms Krokotsch, the victim. As the result of a domestic dispute the applicant had sought entry into the victim's house.
The entry was ultimately gained through the window at the rear by the applicant drilling out the rivets holding the window. While in the house the applicant smashed two wine glasses belonging to the victim. Following a verbal argument between her and the applicant the victim left her home in her car. A short time later, the applicant also left the area in his vehicle.
The victim telephoned the applicant and accused him of entering her home and stealing an iPad from inside it, that call being made after the departure of both parties from the home. The applicant then started to abuse the victim verbally over the telephone. The applicant said:
I will fucking kill you. I will fucking kill you. You're fucking dead, cunt. I'm going to get you. You're setting me up.
The applicant said this to the victim in words that were heard over the speaker of her phone by police witnesses.
The victim was unsure whether the applicant would kill her. However, she was scared that he would at least have hurt her.
The present application is in relation to the present charges and is expressly made pursuant to Bail Act 1982 (WA) s 14(1). The present application is dated 29 March 2016.
Counsel for the applicant has sworn an affidavit in support of the present application with attachments of 29 March 2016 (the supporting affidavit).
I have a criminal record for the applicant compiled 16 February 2016 at 20:33:24 (the applicant's criminal history).
I also have information which the respondent provided for the initial hearing on 6 April 2016 concerning a 'risk assessment' done of the applicant. The information was in the form of an email from a person identified as an intelligence analyst in the Department of Corrective Services (the intelligence analyst) of 17 March 2016 (the email of 17 March 2016). The email of 17 March 2016 reports that the risk assessment was by an interview conducted by a 'psychologist' (it appeared that, in fact, it was done by a social worker) with the accused on 15 March 2016 (the interview of 15 March 2016). The respondent laid considerable emphasis on the interview of 15 March 2016 in its case against bail.
In view of the form of the information in the email of 17 March 2016, and of the sharp disagreement by the applicant with the accuracy of that information, and with no objection by the applicant, I granted an adjournment to 8 April 2016 to allow the respondent an opportunity to gain further and better information as to the interview of 15 March 2016.
Prior to the resumed hearing on 8 April 2016 the respondent supplied further information for that hearing in the form of a witness statement of Ms Krokotsch dated 20 January 2016 (the witness statement of 20 January 2016), and an interim violence restraining order made on 18 April 2016 against the applicant naming her as the protected person (the violence restraining order of 18 March 2016).
At the resumed hearing on 8 April 2016 further information was supplied as to the interview of 15 March 2016 (the further information). The further information was that the report by the intelligence analyst in the email of 17 March 2016 was by the cutting and pasting of contents of a report by the person who conducted the interview of 15 March 2016. That person was a social worker in the Department of Corrective Services. That information had been provided to my chambers by email from the respondent the previous day.
For the applicant, information was provided to me in the form of the violence restraining order application which, in its details, indicates the date on which the application was made was some time after the incident in question, and in respect of what is referred to as a threat from jail to hurt the person applying for the violence restraining order, namely Ms Krokotsch, once the applicant is released on bail.
I also have statements of material facts for certain previous offending shown on the applicant's criminal history.
Turning to the approach as to the decision as to bail, there can be no contest as to the principles applicable to the present application. The Bail Act regulates it by s 14. My jurisdiction to grant bail is an original one. I am not engaged in a review of any of the three decisions of the magistrates to refuse bail.
The general approach to the grant of bail is determined by the Bail Act sch 1 pt C, cl 1 read with cl 3. Those provisions are to be approached as has been stated in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, on which see Va v The State of Western Australia [2014] WASC 74 [27] ‑ [29] (EM Heenan J) (adopting the summary in Quaid v The State of Western Australia [2013] WASC 228 [13] and following (Edelman J)), as follows:
In Milenkovski, at [31] - [45], McLure P set out extensively the now authoritative exposition of the significance of the Bail Act for present applications. I, of course, accept that and apply it accordingly. A summary of the effect of that decision was helpfully made by Edelman J in the recent case of Quaid v The State of Western Australia [2013] WASC 228, where his Honour said, at [13] and following, that the principles concerning the application of Sch 1, Pt C, cl 1 of the Bail Act, which applies by virtue of s 14 of that Act, can be summarised by the following points:
'1.The Bail Act is a Code in a sense that it is intended to displace the common law.
2.In circumstances such as those in this application, the text and purpose of the Bail Act is inconsistent with the common law approach in general and the requirement that the accused establish exceptional circumstances in order to obtain bail.
3.As to the general provision in cl 1 of pt C, that clause contains no express statutory presumption for or against the grant of bail. The only clauses of pt C, sch 1 of the Bail Act which provide for a (rebuttable) statutory presumption against the grant of bail are cl 3A, cl 3C and cl 4A.'
None of those clauses was relevant to the application before Edelman J, and as I have said, none is relevant to the present case. The only situation where there is a rebuttable statutory presumption in favour of bail is clause 2 of part C of schedule 1, which again does not apply:
'4.The Bail Act does not place any legal onus on any party to a bail application. However, in circumstances where a bail application is to be determined and under cl 1, the consequence of the structure of that clause is that bail would be granted if there is no material before the Court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required for provide proper foundation for refusing bail.
5.The grant or refusal of bail is at the discretion of the person vested with jurisdiction who is required to have regard to the questions in paragraphs (a) - (g) and to any other questions which the decision-maker considers relevant. The correct approach to the exercise of the discretion is sourced in and guided by the matters in paragraphs (a) - (g). The mandatory answers to the "questions" in those paragraphs and other relevant questions of findings provided the factual basis for the exercise of the discretion. The Court is required to consider an answer to mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
6.The Court is not required to consider questions directed to whether there are positive grounds for granting bail.
7.Paragraphs (a) and (d) of cl 1(a) are concerned with the possibility of the relevant event occurring. In answering that, and other questions in cl 1(a), the Court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C.
8.The seriousness of the offence does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The Court is required to have regard to all the questions in cl 1 and the matters in (c)(iii) in the exercise of the discretion to grant or refuse bail.'
And finally:
'9.It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the events and the probable consequences if the accused is convicted are sufficient to enable the Court to conclude that the accused may fail to appear in Court in accordance with his bail undertaking. The nature of the potential sentence imposed by the court, having regard to the answers to all the other mandatory questions in cl 1, may require or justify the refusal of bail.' [27] ‑ [29]
I note that in determining the present application I may receive and take into account such 'information' as I see fit 'whether or not the same would normally be admissible in a court of law': Bail Act s 22. The weight of such information, as indeed was emphasised strongly by counsel for the applicant, is a distinct consideration.
This allows for me to receive and take into account material in, but also going beyond, the material of the supporting affidavit: see Lai v The State of Western Australia [2010] WASC 334 [20] ‑ [25]. That includes matter in oral submissions at the bail hearing itself. However, such matter, when not supported by any evidentiary foundation, would likely be of diminished - sometimes substantially diminished ‑ weight.
I return to the information I have as to the interview of 15 March 2016 in these respects.
Matter may be received and taken into account, including material put before prior decision‑makers such as Magistrates Randazzo, Lawrence and Gluestein. However, I do not have the transcripts of the hearings before them.
The basis for the present application appears to be that on the information which I may take into account and properly weigh, the answers to the applicable questions from Bail Act sch 1 pt C, cl 1 read with cl 3, all either point towards the grant of bail or do not sufficiently point away from it.
I turn now to consider these matters. As to the questions in cl 1(a)(i) ‑ (iv), read with cl 3, I note the following.
Bail Act sch 1 pt C cl 3 directs me in considering whether the applicant may do any of the things mentioned in cl 1(a) to have regard to the matters listed in cl 3(a) ‑ cl 3(d).
As to cl 3(a), the burglary and threat to kill offences are of significant seriousness. However, I accept that sentences of immediate imprisonment would not necessarily, or perhaps even likely, result for them. This is on the basis that the accused's entry occurred in the context of domestic arrangements under which he had been living at the home off and on. It was the place where property for his work was located. The offence in the place involving the two wine glasses was the infliction of damage of very modest value, and the complainant herself indicated her uncertainty as to whether to take the threats made subsequently to the entry literally.
That matter, considered with cl 3(d), is relevant to the risk in cl 1(a)(i) of flight. However, I should immediately note that the respondent did not rely on cl 1(a)(i) in this case. Rather, the respondent relied on the risks in cl 1(a)(ii), (iii) and (iv), in respect of Ms Krokotsch in each case.
I consider that the matter described, considered with the strength of the evidence against the applicant and the domestic relationship aspect of the applicant's criminal history, is relevant to the risk contained in cl 1(a)(ii), (iii) and (iv). I return to that aspect of his criminal history and that strength shortly.
As to cl 3(b) the applicant's criminal history is made up, for the most part, of drug offences and most recently of assault, threats to injure and breach of violence restraining order offences. He has no custodial sentence in that history. The penalties most recently have been conditional release orders, fines and community‑based orders.
I have seen statements of material facts of offending in 2005, 2011 and 2014.
The particular 2005 offending, PPH002693 of 2006, was possession of an unlicensed firearm. The statement of material facts indicates the firearm was seized as a result of a violence restraining order being served on the applicant. The penalty was that forfeiture together with a fine of $300.
The particular 2011 offending was aggravated assault occasioning bodily harm, PBM002502 of 2011, obstructing public officers, PBM002504 of 2011, threats to injure, endanger or harm any person, PBM00205 of 2011, common assault aggravated, PBM002503 of 2011, another offence of threats to injure, endanger or harm any person, PBM002505 of 2011 and another offence of common assault aggravated, PBM002503 of 2011. Statements of material facts for these offences indicate they arose out of domestic disputation between the applicant and his then de facto partner. The penalty in each case was a 12 month community‑based order.
The particular 2014 offending was five breaches of a violence restraining order naming an Amanda Jane Thompson, who was a former partner of the applicant, as the protected person. These were the subject of MC Per 028037 to 028041 of 2015 respectively. The breach in each case was the sending of an email to the protected person. The penalty in each case was a conditional release order of 6 months.
That, it must in my view be accepted, was a relatively minor criminal history, albeit one characterised by a significant incidence of offending arising out of a troubled domestic relationship or relationships.
The present alleged offending in relation to the burglary and the threats to kill also arose out of a troubled domestic relationship. Further, in the first of those two, the alleged burglary, represents the most serious charge the applicant has faced. Those matters, in my view, are relevant to the risks in Bail Act sch 1 cl 1(a)(ii) ‑ (iv).
Also as to cl 3(b), the supporting affidavit indicates that the applicant has been employed as a welder in Broome, Port Hedland and most recently in Perth. He has the possibility of employment as a driver on a truck for a construction firm on his release from incarceration. He has a number of younger children from previous relationships for whom, prior to his incarceration, he had provided.
While in custody thus far the applicant has successfully completed a two day program in preparing for change, communication skills and support services available from Outcare, a program provided by that organisation, as well as a number of competency courses forming part of certificate 1 in entry to general education.
I note that the matters that I have just recited, when taken together with the fact of the time that the applicant has spent in custody in the present matter, being since his arrest the day after the offending, are relevant to the risk in cl 1(a)(ii) ‑ (iv) in the sense they go to the incentives for the applicant not to pursue, and his capacity to control, any remaining anger he may feel towards, Ms Krokotsch on release. Particular stress was laid on that capacity by counsel for the applicant.
However, I must also note in that regard the information I have as to the interview of 15 March 2016 which I detail below in connection with sch 1 pt C cl 1(b).
In the present connection I was also referred by counsel for the applicant to the fact that the applicant had on or about 14 February 2016 terminated his relationship with Ms Krokotsch who had, in fact, continued to visit him in prison and provide credit for his prison account up until that termination. This, I consider, goes to the risk in Bail Act cl 1(a)(ii), (iii) and (iv), in the sense that it points to a preparedness of Ms Krokotsch to deal with the applicant even after the incidents in question.
However, I must note at the same time those dealings were in a prison setting. Further, it seems to me that this goes to the circumstance stressed by counsel for the applicant today that there was the delay in applying for a violence restraining order to some time after the incidents in question.
As to cl 3(c), I was not provided with any information as to the history of any previous grants of bail to the applicant and I set that aside.
As to cl 3(d), it seems to me that the case against the applicant is strong, but it is not an overwhelming one on the considerations I have previously described.
In particular, I note what I was told by counsel for the applicant that the domestic relationship context to the offending meant that there was expected to be a real contest over the question of consent notwithstanding some of the language in the video recorded interview on which the respondent relied as an admission of lack of consent, notwithstanding some of the terms of the witness statement of 20 January 2016 and notwithstanding the violence restraining order of 18 March 2016.

Further, I was told that it was expected the response of Ms Krokotsch, in the context of her having made the accusation she did, which I was told (it was common ground) was incorrect, to the language relied on as threats to kill would be relied on to show the words were uttered in the 'heat of the moment in extreme emotional circumstances as part of a stream of abuse where they have no meaningful content': Green v The Queen (Unreported, WASCA, Library No 950592, 8 September 1995) 8 ‑ 9 (Ipp J, Franklyn & Anderson JJ agreeing).
In reply, the respondent referred me to Ms Krokotsch's witness statement of 20 January 2016 and the interim violence restraining order, as well as her indication of concern that she would be hurt and the information I have as to the interview of 15 March 2016 which I detail below.
I am not in a position to express any concluded view on all of these matters, save this. It is the one I have previously described. The case against the accused, while strong, is not, on the information I have, overwhelming.
I turn then to the question in cl 1(b). This is the question whether the applicant needs to be held in custody for his own protection. For this purpose the respondent referred me to information received as to the interview of 15 March 2016 in which, inter alia, the applicant had indicated he would take his own life after release, as well as that he would also 'sort her out', referring to Ms Krokotsch.
The further information was that the interview of 15 March 2016 was conducted by a social worker, extracts from the report of whom were quoted by the cutting and pasting in the email of 17 March 2016 by the intelligence analyst.
The counsel for the applicant, quite correctly, stressed that I do not have that report, and that therefore I do not have other matter that may appear in that record including matter which might, at least on one view of it, qualify what appears in the cut and pasted extracts.
All of that having been allowed for, however, I note that the contemporaneity of the email of 17 March 2016 and the record of which it was a statement, with the interview of 15 March 2016, the readily inferable natures of the positions and duties of the authors of both the email of 17 March and the record and the derivation of the matter in the email of 17 March 2016 from the record by cut and paste, allowing for the extracted character of it, together cause me to give significant weight to the information in the 17 March 2016 email. It is, of course, not inapt to refer for this purpose to Evidence Act 1906 (WA) s 79C read with s 79D.
Turning to the question in cl 1(c), this is the question whether the prosecutor has put forward grounds for opposing the grant of bail. I have already indicated what those grounds are.
The question in cl 1(d) does not arise, which takes me to cl 1(e). This is the question whether there is any condition which could reasonably be imposed under Bail Act sch 1 pt D which would sufficiently remove the possibility referred in cl 1(a) and cl 1(d), which would sufficiently remove the possibility referred to in cl 1(a) and cl 1(d), obviate the need referred to in cl 1(b) or remove the grounds for opposition referred in cl 1(c).
The supporting affidavit indicates that the following conditions are proposed: (1) reside with the uncle of the applicant at an address near Perth, (2) provide a surety from the father of the applicant or the uncle of the applicant, as appropriate, (3) report to police as often as required and (4) abide by any other condition the court may impose. One such condition would undoubtedly, it seems to me, be a personal undertaking.
I do not have any information in the supporting affidavit as to the ability of the applicant to meet the personal undertaking, or to put it in another way, what assets of the applicant would be at risk from such an undertaking, other than the possibility of employment on his release, to which I have referred. I do, however, have uncontested information from counsel for the applicant - I have already referred to this - that there were tools of the applicant's work which were in the home of Ms Krokotsch and apparently are still there, as well as a utility vehicle, being the vehicle the applicant used, I take it, to drive away from the home on the occasion in question.
At the hearing of 6 April 2016 it was indicated that the applicant would abide by further conditions of a protective kind for the benefit of Ms Krokotsch, including conditions that would prevent him seeking to obtain the tools I have referred to from Ms Krokotsch's property himself.
The respondent for its part did not accept that there were conditions that could reasonably be imposed under the Bail Act that would sufficiently address the questions against the grant of bail under cl 1(a), cl 2, cl 3 and cl 4. The respondent for this purpose relied on the criminal history I have referred to, as well as the interview of 15 March 2016. I would likewise take account of those for that purpose.
The question in cl 1(f) does not arise, which finally takes me to the question in cl 1(g). This is the question whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. It is not altogether clear what this provision means and I have not yet seen as decision which relies solely upon that basis for the refusal of bail.
I have already in other decisions of mine indicated my own views about its meaning. However, I do not have to go into those matters any further because I am not satisfied this is the kind of case to which cl 1(g) relates. It was not contended by counsel for the respondent otherwise.
This then leaves me with other questions, from clause 1 opening words, which not infrequently are put to a court in terms of the anticipated delay before the charges in respect of which bail is sought might be dealt with. No such submission was put to me in this case and so I put that aside.
I have now considered the answers to the questions applicable in this case, from Bail Act sch 1 pt C, cl 1 read with cl 3.
In determining how I would exercise my discretion I must now engage in the weighing or balancing referred in Milenkovski. In my view, having regard to those answers, I would not grant bail as I have indicated. For that purpose I particularly take note of the history of the applicant, from his criminal history involving partners, or the partner, there referred to, the evidence of recent expressions of anger against his immediate past partner and the context to all of that of prior breaches of violence restraining order in respect of the partner before this prior partner and the matters contained in all of the information I have as to the interview of 15 March 2016. All of this, it seems to me, points to bases for concern about the applicant's compliance with court orders such as those represented by conditions on bail, notwithstanding the efforts he has made while in custody to address concerns of that kind.
I would refuse the present application.