Gummow v The Queen - [2003] WASC 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GUMMOW -v- THE QUEEN [2003] WASC 269

CORAM: SCOTT J

HEARD: 20 NOVEMBER &
18 DECEMBER 2003

DELIVERED : 18 DECEMBER 2003

PUBLISHED : 23 DECEMBER 2003

FILE NO/S: INS 223 of 2003

BETWEEN: MICHELLE ANNE GUMMOW
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Jurisdiction - Practice and procedure - Bail - Application for bail pending trial - Applicant on bail for earlier offences when alleged offence occurred must demonstrate exceptional circumstances - Home detention bail unsuitable

Legislation:

Bail Act 1982, Sch 1 Pt C, cl 1(a)(i), cl 1(a)(ii), cl 1(a)(iii), Pt D, cl 3(2)(a)

Result:

Bail not granted at this time
Application adjourned sine die

Category: B

Representation:

Counsel:

Applicant: Mr B G Illari
Respondent: Mr M Mischin

Solicitors:

Applicant: Bruno Illari
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

SCOTT J: On 18 December 2003 an application by the applicant was adjourned sine die and I indicated I would later provide reasons for having taken that course. These are those reasons.
The applicant applied for home detention bail. For that reason a home detention bail assessment report was ordered, as required by cl 3(2)(a) of Sch 1 Pt D of the Bail Act 1982. That clause provides:
"3.Home detention condition may be imposed
(1)A judicial officer may, subject to this clause, impose a home detention condition as a condition on a grant of bail.
(2)A home detention condition shall not be imposed unless the defendant is over the age of 17 years and the judicial officer is satisfied -
(a)after considering a report from a community corrections officer about the defendant and his circumstances, that the defendant is suitable to be subject to a home detention condition;
(b)that the place where it is proposed the defendant will remain while subject to the home detention condition is a suitable place; and
(c)that unless a home detention condition is imposed, the defendant will not be released on bail."
The report dated 17 December 2003 concludes in the summary that the applicant failed to comply with a home detention bail condition during 2002‑2003 and that her risk factors include her unresolved drug use which was a causal factor in her past offending. The report says that the applicant was unable to desist from drug use when last on home detention bail and failed to comply consistently with the condition requiring her to submit to urine analysis.
The report also refers to the applicant's past history of violent offending and her arrest in October 2002 and then May 2003 on allegations of violent offending which, the writer said, caused him concern. In conclusion, the report said that the applicant was assessed as unsuitable for a home detention bail condition.
By an indictment dated 11 June 2003 the applicant was charged in the District Court with assaulting a public officer, who was performing a function of his office, by kicking him. Further, by means of violence and with intent to facilitate the flight of another after the commission of an indictable offence, namely, assaulting a public officer who was then performing a function of his office, she attempted to render that person incapable of resistance by spraying him with a pepper spray.
The applicant was released on bail in relation to those charges in the District Court and was on bail when, it is alleged, she committed the offence the subject of the Supreme Court indictment.
The Supreme Court indictment dated 3 November 2003 alleges that the applicant and another stole from Marnee Jeffs, with violence, a Rolex watch, Chubb safe keys, a pair of Kyoto binoculars and Volvo car key, the property of Keith Edward Stones, and that at the time she was armed with a dangerous weapon, namely, a broken glass window louvre, and that she was in company with another and that she did bodily harm to Marnee Jeffs.
As I understand the applicant's submissions, bail had not been reset on the District Court matter and it was proposed to apply for bail in that Court once the question of bail was resolved in this Court.
It is common ground that the applicant needs to demonstrate exceptional circumstances for bail to be granted because of the provisions of cl 3(a) of Sch 1 of the Bail Act 1982.
The applicant contends that there are two exceptional circumstances in her case:
(1)She is at risk of physical harm in the prison; and
(2)She has taken significant steps towards her own rehabilitation.
Dealing with each of those matters, in relation to the first, the applicant deposes to the fact that she was the victim of a rape offence and, as a result of her complaint, the offender was convicted and imprisoned. She deposes that the offender had strong criminal connections, particularly with women imprisoned in the same prison where she is presently incarcerated. She says that, as a result, she has been threatened verbally and physically and intimidated by other prisoners. Those matters have not been reported to prison authorities because, she says, that would make her situation worse. The applicant says that she has been stood over in prison and there has been an attempt to obtain money from her. It is not necessary to descend into any greater detail because the evidence from the applicant as to the attacks upon her within the prison system have not be disputed.
The applicant says that she has the opportunity of going into protection within the prison system, but, she says, to do so would make her prison life even worse in many ways because she would lose many of the privileges available to other prisoners.
As to the second matter, it is clear that the applicant has taken some steps towards her rehabilitation and those steps are referred to in the home detention bail assessment report and in more detail in the psychological report from the psychologist, Cinzia Zuin, in the report of 16 December 2003 which I took into account. The psychological report was of particular assistance. It is not necessary to repeat the contents of that report in any detail in these reasons, but there are some positive factors referred to in that report and, in particular, it contains the suggestion that the applicant is genuinely motivated to abstain from drugs and taking some steps towards her rehabilitation in that regard.
The evidence indicates that the applicant is likely to have her trial in the District Court on 15, 16 and 17 March 2004, as trial dates have been fixed. The trial in the Supreme Court is, however, unlikely to occur until later in the year 2004.
In assessing the application for bail, the matters referred to in Pt C of Sch 1, cl 1(a)(i), cl 1(a)(ii) and cl 1(a)(iii) were taken into account. It was conceded that the applicant did not represent a flight risk, but counsel for the respondent opposed bail on the basis that there was a real risk that the applicant may commit further offences, particularly if she reverts to her drug use. Because of that risk, the safety, welfare or property of the public may be at risk. There is no suggestion that the applicant may interfere with witnesses or obstruct the course of justice.
In my view, the primary considerations in this case were:
(a)the fact that the applicant must demonstrate exceptional circumstances for bail to be granted in all the circumstances; and
(b)the applicant's continued offending and the risk to the public should she be released on bail.
In all of the circumstances, I was not persuaded that the applicant had demonstrated sufficiently exceptional circumstances to justify the grant of bail at this time. The application was adjourned sine die so that the applicant can have the opportunity to demonstrate her resolve to remain drug‑free. If after her District Court trial, bail is still applicable, then the question of bail may be reconsidered by a judge of this Court, depending upon the circumstances as they then exist.
For these reasons the bail application was adjourned sine die, but bail was not granted at this time.