Henare v The State of Western Australia - [2021] WASC 390

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HENARE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 390
CORAM:   FIANNACA J
HEARD:   4 NOVEMBER 2021
DELIVERED          :   4 NOVEMBER 2021
PUBLISHED           :   9 NOVEMBER 2021
FILE NO/S:   MBA 76 of 2021
BETWEEN:   TYREN JOHN HENARE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Matters pending in Magistrates Court - Bail not yet considered or determined in Magistrates Court - Whether appropriate to invoke Supreme Court's jurisdiction under s 14 of the Bail Act 1982 (WA) - Bail granted - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Bail granted

Category: B

Representation:

Counsel:

Applicant	:	Ms E Logan
Respondent	:	Mr N Fawkes

Solicitors:

Applicant	:	Legal Aid - Perth - Criminal Law Division
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

The application and its history

This is an application for bail in respect of seven charges that are pending against the applicant in the Magistrates Court.
The applicant is facing five charges of breaching an intensive supervision order (ISO), contrary to s 131(1) of the Sentencing Act 1995 (WA). Those offences are alleged to have been committed on 20 July 2021 and are all constituted by the same conduct, being a failure to attend to perform community work on that day. There are five charges because the ISO was imposed in respect of five separate offences for which the applicant was sentenced on 11 June 2021, being an aggravated assault occasioning bodily harm, two counts of reckless driving, an offence of driving while disqualified from holding a licence, and an offence of breaching a bail undertaking.
The applicant is also facing two charges of breaching a family violence restraining order (FVRO), contrary to s 61(1) of the Restraining Orders Act 1997 (WA). Those offences are alleged to have been committed on the one occasion on 27 October 2021 against his partner and her child.
The applicant was charged with the breaches of the ISO by a prosecution notice dated 28 September 2021, which was lodged with the Armadale Magistrates Court on 14 October 2021. He was required to appear in relation to those charges on 26 October 2021, but failed to appear. The court convicted him of the offences in his absence, pursuant to s 55 of the Criminal Procedure Act 2004 (WA). A bench warrant issued for his arrest. In the early hours of 27 October 2021, he was arrested at a hotel in Rockingham for the alleged offences of breaching an FVRO. He was charged with those offences at the Rockingham Police Station. Bail was refused by the police. The applicant appeared in the Rockingham Magistrates Court later that morning.
Although the earlier charges were in the Armadale Magistrates Court, the learned magistrate who dealt with the applicant on 27 October 2021 proceeded on the basis that she was seized of all the charges I have mentioned, and that the respondent was in custody on all those charges. Counsel for the applicant on that day informed the magistrate that the applicant was 'seeking to make a bail application.'[1] Without specifically stating that bail was opposed, the prosecutor said that she would be 'loath to agree to bail' because one of the offences for which the applicant had been sentenced to an ISO involved a domestic/family violence incident, the applicant had breached the FVRO (albeit in respect of another person), and the prosecutor questioned what other conditions could be put in place to keep safe the protected person under the FVRO.[2]
[1] Ts 2, 27/10/21.
[2] Ts 3 - 4, 27/10/21.
The learned magistrate was of the view that a bail risk assessment report should be ordered. Such a report may be requested by a judicial officer who is called upon to consider a case for bail, and may be requested from the police or a community corrections officer in respect of any matter which the judicial officer must take into account in considering bail under pt C of sch 1 of the Bail Act 1982 (WA) (the Act). It may be inferred from the discussion that took place that her Honour intended to request the report from a community corrections officer. Her Honour indicated, in speaking directly to the applicant towards the end of the proceedings, that she was requesting the report to obtain the views of the victims, which appears to be a reference to the protected persons under the FVRO.[3]
[3] Ts 7, 27/10/21.
Counsel for the applicant, at the hearing on 27 October 2021, sought to make submissions in support of a grant of bail that day, to the effect that the applicant's circumstances had changed and there were conditions that could be imposed to justify a grant of bail.[4] However, the magistrate stopped counsel from developing her submissions, indicating that she needed the report and could not consider bail without it.[5] Her Honour was concerned that if counsel completed her submissions and the matter was adjourned for a bail risk assessment report in any event, the bail application would need to come back before her Honour, and there might be additional delay.[6] Consequently, her Honour did not consider the applicant's case for bail on 27 October 2021. The application for bail was adjourned for hearing on 17 November 2021 and the applicant was remanded in custody in respect of all the charges to that day. It was anticipated by her Honour that all the charges would then be remanded to the Armadale Magistrates Court on 19 November 2021, as had been requested by the applicant's counsel, whether or not the applicant is granted bail on 17 November 2021.
[4] Ts 5, 27/10/21.
[5] Ts 5, 27/10/21.
[6] Ts 5 - 6, 27/10/21.
Therefore, the applicant's next appearance in respect of all the charges I have mentioned is in the Rockingham Magistrates Court on 17 November 2021. On that day, he will also appear on another charge, which is not the subject of this application, namely, possessing ammunition whilst not being the holder of a firearm's licence or permit entitling him to do so, contrary to s 19(1) of the Firearms Act 1973 (WA).
The application before this court was filed on 28 October 2021. It is brought under s 14(2) of the Act and seeks to invoke the jurisdiction of this court under s 14(1), by which the court may exercise the jurisdiction to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act.
Where the jurisdiction has been exercised in the Magistrates Court, and a decision as to bail has been made, an application under s 14 is not an appeal from the magistrate's decision. It requires this court to exercise the discretion afresh, 'subject to and in accordance with [Part III of the Act] and the further provisions in Parts B, C and D of [sch 1 of the Act]'.[7]
[7] Section 13(1) of the Act.
In this case, the jurisdiction in respect of bail has been engaged in the Magistrates Court, but the magistrate has not considered the application, let alone made a decision as to bail.

Preliminary issue

An issue arises in the circumstances of this case as to whether it is appropriate for the applicant to invoke the jurisdiction of this court under s 14(1) of the Act. It is necessary to consider relevant aspects of subsections (1) and (2) of s 14.
Subsection (1) states, relevantly:
A judge may, in accordance with this Act -
(a) exercise a power to grant bail which is conferred upon any other judicial officer or any authorised officer by this Act …
When read with s 14(4)(iii) and the provisions of sections 7 and 13 and pt A of sch 1 of the Act, s 14(1)(a) confers power on a Supreme Court judge to exercise jurisdiction in respect of bail in relation to an appearance by an accused on charges pending in the Magistrates Court.
Section 14(2) provides relevantly:
Subject to subsection (2a), the jurisdiction of a judge under subsection (1) in respect of an appearance by an accused may be invoked by application made by either the prosecutor or the accused, and whether or not any other judicial officer has ‑
(a) previously granted, refused or dispensed with bail …
in respect of that appearance.
Subsection (2a) is not relevant for present purposes.
As I construe s 14(2), having regard to the ordinary meaning of its language and its context, when an application for bail is made in this court in respect of a charge pending in the Magistrates Court, this court has jurisdiction under s 14(1) even if a decision has not been made in relation to bail concerning that charge in the Magistrates Court.
However, while this court has jurisdiction to hear the application in such circumstances, it does not follow that the court must exercise that jurisdiction when it is 'invoked' by a party. The wording of s 14(1) is consistent with the exercise of the jurisdiction being in the court's discretion. To construe the provision otherwise would mean that any application for bail in the Magistrates Court could be made to the Supreme Court in the first instance, and the court would be obliged to hear the application. That cannot be what the legislature intended. The role of the Supreme Court under s 14 has been regarded customarily as a supervisory role, usually enabling the further consideration of bail when bail has been refused in the lower court.
The fact that the jurisdiction in respect of bail has not yet been exercised by the Magistrates Court is a relevant consideration in determining whether this court should exercise the jurisdiction under s 14.
Further, the procedure under s 14 is not intended as a review process in relation to alleged procedural error by the Magistrates Court in respect of the issue of bail (for instance, by failing to afford procedural fairness) when that court's jurisdiction in respect of bail has not been exercised.
Ordinarily, it should not be regarded as appropriate to bring an application in this court under s 14 of the Act simply because the magistrate has adjourned consideration of bail to obtain more information to determine whether bail should be granted. To invoke this court's jurisdiction when the Magistrates Court is seised of the matter, and has not yet determined the issue, may be perceived as subverting the distinction between the jurisdiction of this court and the jurisdiction of the Magistrates Court. This is particularly so, given that the jurisdiction in relation to bail for charges pending in the Magistrates Court is vested in that court in the first instance, by s 13 and sch 1 pt A of the Act, in respect of any adjournment of charges in that court, and there are procedures available for seeking bail in that jurisdiction, including on an urgent basis.
In the present case, the arguments made by the applicant as to why this court should exercise its jurisdiction under s 14 of the Act were more apt to an application for a review order under s 36 of the Magistrates Court Act 2004 (WA). To the credit of counsel for the applicant, I was informed that consideration will be given in future to whether it is appropriate to invoke this court's jurisdiction in circumstances of this kind.
However, the respondent has indicated that it does not oppose bail being granted by this court on the conditions proposed on behalf of the applicant. In light of that indication, and having regard to this court's supervisory role, to which I have referred, I have determined that it is in the interests of justice for the court to exercise its jurisdiction under s 14 of the Act.
This should not be regarded as a precedent for invoking the court's jurisdiction in circumstances in which the Magistrates Court has not yet considered bail or determined an application for bail. The ordinary expectation will be that the Magistrates Court will have exercised its jurisdiction in respect of bail for a charge pending in that court before this court will exercise its jurisdiction under s 14 of the Act in respect of such a charge.
In my opinion, it would be an exceptional case in which this court would exercise jurisdiction under s 14(1) if the Magistrates Court has not yet considered or determined an application for bail. I am prepared to make that exception in this case.

Evidence in these proceedings

The evidence submitted in the application consists of:
(1)an affidavit of Kym Michelle Rimmer, the applicant's duty counsel at the hearing on 27 October 2021, sworn and filed on 28 October 2021;
(2)an affidavit of Emily Mika Logan, a solicitor of Legal Aid Western Australia, sworn and filed on 28 October 2021 with annexures; and
(3)an affidavit of Nathan Peter Fawkes, counsel for the respondent instructed by the Director of Public Prosecutions for Western Australia (DPP), sworn and filed on 3 November 2021, with annexures.
It is sufficient for present purposes to describe the annexures in general terms. The annexures to Ms Logan's affidavit include the applicant's criminal history, the statement of breach facts relating to the alleged breaches of the ISO, the statements of material facts in relation to the alleged breaches of the FVRO, and the prosecution notices in relation to the charges before the court.
The annexures to Mr Fawkes' affidavit included the statements of material facts in relation to the offences the subject of the ISO, to which I have already referred, and a police incident report in relation to the alleged breach of the FVRO.
I note that there is no evidence directly from the applicant, nor is there any direct evidence from the adult protected person under the FVRO.
The respondent, which is represented by the DPP, does not oppose the grant of bail.

Background - ISO

I turn, then, to the circumstances in which the applicant came to be on the ISO in respect of the earlier offences. Those circumstances have a bearing on the submission that has been made in respect of the likely outcome of further proceedings against the applicant in relation to his breach of the ISO.
The ISO remains in force. It was made on 11 June 2021, as I noted earlier, for a period of 12 months with supervision and programme requirements, and a requirement that the applicant undertake 75 hours of community service. I referred earlier to the specific offences to which the ISO relates.
The charge of aggravated assault occasioning bodily harm related to acts of violence perpetrated by the applicant against his partner at that time, not the protected person under the FVRO. On 15 January 2021, while he was 18 years of age and the victim was 17 years of age, the applicant punched the victim a number of times to the top of the head and kicked her whilst she was on the ground. He also grabbed her in a manner that resulted in bruising. The applicant was arrested and charged by police in respect of that matter on 25 January 2021.
He was released after entering into a bail undertaking on 26 January 2021. He was required to appear at the Mandurah Magistrates Court on 23 February 2021. He failed to appear as required and did not give an explanation for not attending, when he was subsequently arrested on 8 March 2021. That is the offence of breaching his bail undertaking.
The reckless driving offences concern incidents on 17 and 19 February 2021, in which the applicant rode an unlicenced off-road motorbike through busy intersections on Pinjarra Road in Mandurah and Coodanup, and performed reckless stunts on the motorcycle. Apart from anything else, the applicant was not wearing a helmet.
The offence of driving when disqualified from holding a driver's licence concerned an incident on 7 April 2021, in which the applicant was stopped while driving a motor vehicle on Tonkin Highway in Hilbert while he was disqualified from holding or obtaining a driver's licence.

The facts of the alleged offending

Breach of ISO

The charges of breaching the ISO that was imposed in respect of those offences arose in the following circumstances, which are derived from the Adult Community Corrections (ACC) Statement of Breach Facts (SBF), dated 9 September 2021. The SBF describes a history of failure by the applicant to report to ACC, as required by the ISO, and as directed by his Community Corrections Officer (CCO).
The applicant was required to report to ACC on 24 June 2021, on which date he telephoned his CCO to advise that he was unable to attend, because he was unwell. He was instructed to provide a medical certificate, but he failed to do so. He next telephoned ACC on 28 June 2021 and advised the person he spoke to that he could not attend community service, nor report for supervision, because his partner had suffered a miscarriage and he was 'struggling to be around people' at that time. He was directed to report for supervision on 9 July 2021. He failed to do so, but he was granted an authorised absence on that occasion. The applicant was contacted by telephone on 13 July 2021 and was directed to report for supervision on 20 July 2021. Again, he failed to do so, despite a telephone reminder the day before. As at 9 September 2021, the applicant had made no further contact with ACC. The SBF notes that, given his poor compliance with the ISO, the applicant's treatment needs remain unaddressed. Those treatment needs, no doubt, relate to the factors that had contributed to his offending, for which he was convicted and placed on the ISO.
Pursuant to the ISO, the applicant was required to undertake community service, as I mentioned earlier. He was assigned community service work on 14 June 2021. He was required to attend for 12 hours per week on Tuesdays and Thursdays until he had completed the required 75 hours. He was granted a period of authorised absence between 29 June 2021 and 15 July 2021 for COVID-19 lockdown reasons, personal issues and homelessness. In total, the applicant attended for community service work only on one occasion, completing six hours of work on 17 June 2021. The applicant failed to recommence or re-engage in the community service work on 20 July 2021 as he was required to do. He has 69 hours of outstanding community service to complete under the ISO. In light of his failure to attend for community service work on 20 July 2021, he was charged with the offences of breaching the ISO.
Although the breach charges arise from that failure, the fact that the applicant failed to engage with his CCO as required on numerous occasions, failing to attend for supervision, is obviously a relevant consideration when determining both what the appropriate outcome may be for the offences of breaching the ISO, in the event that he is convicted of those offences, and whether he would be compliant with any order made by the court.

Breach of FVRO

The facts in respect of the alleged breaches of the FVRO are as follows.
As at October 2021 the applicant had been in a relationship with Ms [redacted] for approximately six months. Ms [redacted] obtained an FVRO against the applicant. It was served on him by police on 2 October 2021. The incident report that is annexed to the affidavit of Mr Fawkes indicates that, at least as at 28 September 2021, Ms [redacted] was frightened of the applicant, because of threats that had been made by the applicant to her in the past. There was also a suggestion of threats having been made to members of her family. The FVRO extended to protect Ms [redacted]'s young daughter.
The FVRO included a condition that the applicant was not to approach within 50 metres of Ms [redacted] or her daughter.
At 4.25 am, on 27 October 2021, police attended the Leisure Inn in Rockingham and located the applicant in room five, in company with both Ms [redacted] and her daughter. The room had been booked by the applicant. Male clothing and shoes were found in the room, and a vehicle parked out the front was registered in the name of the applicant's father.
I should note that, according to Mr Fawkes' affidavit, Senior Constable Fiona Kane advised that, when police attended at the room on the first occasion, the applicant was not there. When they attended the hotel room a second time, the applicant was apprehended whilst trying to leave through a rear door. As I said earlier, the applicant was arrested on 27 October 2021 and police bail was refused.

The incident report for the matter notes that Ms [redacted] denied that any offence had taken place. It also states that a smoking implement with a very small amount of cannabis on it was seized.
There was a suggestion from the investigating officer that Ms [redacted] may have consented to the applicant being with her and her child at the relevant time. A submission was also made on behalf of the applicant that that was the case. As I indicated during the hearing, I am not prepared to rely on hearsay and vague information of the kind provided by the investigating officer in respect of that issue, and I am not prepared to rely on statements made by the applicant by way of instructions to his counsel, when those matters are not in a proper evidentiary form. Although under s 22 of the Act I am entitled to take into account such information as I think fit, whether or not the same would normally be admissible in a court of law, I am of the view that in circumstances of this kind, evidence relating to matters concerning the circumstances of the offence should be in evidentiary form.
It is also apt to note that it seems the reason the learned magistrate considered it necessary to obtain a bail risk assessment report in relation to the views of the protected person under the FVRO, namely Ms [redacted], was because of a lack of information available when her Honour was considering the question of bail. It seems to me that her Honour's approach was wholly appropriate in the circumstances. However, as I will indicate in due course, the respondent has now put before the court additional information, which, in my opinion, obviates the need to obtain further information directly from Ms [redacted].

The legal framework

I turn briefly to the principles relevant to the exercise of the jurisdiction in respect of bail under s 14 of the Act. I have already discussed relevant aspects of s 14 and do not propose to say anything further about those matters.
It is sufficient to say that the principles relevant to the exercise of the jurisdiction under s 14 of the Act are well known and are set out in Milenkovski v The State of Western Australia[8] and in YSN v The State of Western Australia.[9]
[8] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25] and [39] ‑ [41] (McLure P).
[9] YSN v The State of Western Australia [2017] WASCA 155 (YSN) [15] - [21].
For present purposes, I note that, although there is no presumption for or against bail (apart from in specified circumstances that do not apply in this case), if bail is to be refused, there must be an actual risk or possibility that the applicant will do one of the things referred to in cl 1 of sch 1 pt C, and the court must consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail, having regard to the matters set out in cl 3(a) to (d) and any other matters the court considers to be relevant. The questions in cl 1 that are relevant for the purposes of this application are whether the applicant may fail to appear in court as required by his bail undertaking, whether he may commit an offence if not kept in custody, and whether he would endanger the safety or welfare of any person, in particular, in this case, Ms [redacted], if he is not kept in custody.
That assessment requires weighing the risk that such conduct would pose to the integrity of the criminal justice process and community safety against the potential injustice to the applicant if he is ultimately acquitted of the breaches of the FVRO, after being held in custody for a lengthy period. It is also relevant to consider whether there would be a potential injustice to the applicant if he is ultimately convicted but receives a sentence that does not involve an immediate term of imprisonment.
The assessment that has to be made in accordance with the principles discussed in YSN must be made in the context that an applicant is presumed to be innocent.
Where the nature and extent of the risk provides a proper ground for refusing to grant bail, the next question is whether conditions of bail could reasonably be imposed that would sufficiently reduce the risk, so that the remaining risk no longer warrants the detention of a person who has not been convicted and is presumed to be innocent. The same considerations apply, in my opinion, in the case of a person against whom the evidence appears to be compelling, but where there is a real chance that, if convicted, the person will not be sentenced to a term of immediate imprisonment.

Consideration of relevant factors

Nature and seriousness of the offences, probable disposition and strength of evidence

I have already outlined briefly the alleged facts of the offences of breaching an FVRO.
It was submitted on behalf of the applicant that, if convicted of the two charges which arise out of the one incident, the applicant is unlikely to receive a custodial sentence.[10]
[10] The offence under s 61(1) of the Restraining Orders Act 1997 carries a maximum penalty of a fine of $10,000 or imprisonment for 2 years, or both.
The offending in respect of the breach of the FVRO is at the lower end of the scale of seriousness, having regard to the respondent's concession that it did not involve any violence or threat to the protected person. It appears that the protected person has not asserted that there was any threat at the time in question.
I do not give any significant weight to the fact that the protected person may have consented to the applicant being with her and her child at the relevant time. As I noted earlier, I do not have any direct evidence in relation to that, but even if it were correct, there may be any number of reasons why a person in the position of the protected person does not make a complaint when the person against whom she has obtained an FVRO comes into contact with her. It would not mean that the offending is not serious. It provides no significant mitigation, in my view, for the conduct of the applicant. As I noted during the hearing, the obligation was on the applicant to comply. It is no answer to say that the protected person consented to his breach of his obligation to stay away from her. There are good reasons to ensure that FVROs are properly enforced, and that persons who breach them are punished for their conduct. If the protected person wishes to have the FVRO removed or wishes to have contact with the person who is subject to the FVRO, then steps should be taken to have the FVRO removed.
That was not what happened on this occasion. In fact, the breach happened within a relatively short period of time after the applicant had been served with the FVRO and a relatively short period of time after the protected person had indicated to the police, towards the end of September 2021, that she was fearful of the applicant.
In any event, notwithstanding those concerns, I accept that the circumstances of the breach are such that it is not inevitable that the applicant would be sentenced to a term of imprisonment. It was submitted on his behalf that he has no prior convictions of breaching a violence restraining order or a police order. It will be submitted on his behalf, in the event that he is convicted of the charges, that a financial penalty is appropriate. I make no comment as to what might be the appropriate penalty. That is a matter for the magistrate dealing with the matter. However, I accept that there is a real possibility that the applicant would not recieve a custodial sentence.
In relation to the breaches of the ISO, the respondent submitted that, while the applicant may well face a term of imprisonment if, as a result of the breaches, he is resentenced for the offences in respect of which the ISO was imposed,[11] it is not inevitable that such a term would be ordered to be served immediately, particularly given the applicant's youth. On behalf of the applicant, it was submitted that ultimately a fine could be appropriate in respect of the breaches, particularly as the breaches consisted of failures to comply with the requirements of the ISO. It was submitted that, the applicant's circumstances having changed, the submission that will be made on his behalf when he is dealt with for the breaches will be that he should be granted a further opportunity to comply with the ISO.
[11] Under s 132 of the Sentencing Act 1995, in dealing with the applicant for the breaches of the ISO, the Magistrates Court may impose a fine of not more than $1,000 and may make an order under s 133 of the Sentencing Act 1995. Under s 133, the court may confirm the ISO, amend the ISO or cancel the ISO and sentence the applicant for the offence or offences for which the ISO was imposed.
I note that, if the applicant is convicted of the offences of breaching the FVRO, he will also have breached the ISO by committing those offences. However, the charges that have been brought against him in relation to breaching the ISO particularise the breach in terms of his failure to attend to perform the community service work. In any event, I do not consider that it would make any difference to the outcome of this application if the applicant were to be dealt with in the Magistrates Court on the basis that he breached the ISO by reoffending.
In summary, I accept that it cannot be said, at this stage, that the prospect of the applicant being sentenced to an immediate term of imprisonment is such that, of itself, it justifies detaining the applicant in custody pending sentencing for those matters, the applicant having been convicted in his absence under s 55 of the Criminal Procedure Act 2004 (WA).

Applicant's character and antecedents

Turning to the applicant's personal circumstances, he is now 19 years of age.
His father has provided a letter that was annexed to one of the affidavits, indicating his support for the applicant, that the applicant will be able to reside with him if he is released on bail, and that the applicant will have full time employment as a bobcat operator in his father's limestone business.
The location where the applicant will be residing with his father is in Barragup. It is some distance from where Ms [redacted] is known to be residing. The respondent accepts that the prospect of inadvertent contact is relatively small. The accommodation is described as stable accommodation, and it is submitted that the applicant would be well supported by his father, who would assist him to comply with his bail obligations.
It is said on the applicant's behalf that these personal circumstances are different to the circumstances in which the applicant came to offend originally and, it seems, at the time of the alleged breach of the FVRO, because he was previously couch surfing, having left the accommodation that had been available to him.
The applicant has a criminal history that is largely comprised of traffic offences, but he also has convictions for other offences, including convictions for criminal damage and drug-related offences. There is also a conviction for providing false personal details to police. Matters of that kind are of concern, in terms of the applicant's respect for authority and whether he would be compliant with obligations placed upon him under a bail undertaking.

History of any previous grants of bail to the applicant

As I noted earlier, the applicant does not have any prior breaches of violence restraining orders or police orders. However, he does have a conviction for a breach of bail on 23 February 2021. As I noted earlier, this involved his failure to appear in the Magistrates Court on that date. It gives rise to a concern that he may not appear at his next hearing in the Magistrates Court.
However, as was submitted on behalf of the applicant, it is significant that there has been a change in his circumstances, in particular, that he will have stable accommodation and employment if released on bail. It was also submitted on his behalf that his experience in having been charged and denied bail by the police, and having been remanded in custody while the Magistrates Court sought a bail risk assessment report, has brought home to him the potential consequences of any further breach of a bail undertaking. In particular, he realises that if he breaches conditions of his bail undertaking, especially if he were to breach a protective bail condition, he may well be remanded in custody until the matters that are pending in the Magistrates Court are finally determined, irrespective of what the likely outcome may be in those matters.

Whether a grant bail is appropriate

Having regard to those changes in the applicant's circumstances, the indication that he appreciates the consequences in light of what has happened on this occasion when he allegedly breached the FVRO, and the respondent's concession that a grant of bail is appropriate, I have come to the conclusion that I should grant the applicant bail.
I do not consider that there is any significant risk that he would fail to appear, even though, his breach of his bail undertaking previously does give rise to a concern in that regard. However, I do consider that there is a real risk that he may commit an offence, or that he may endanger the safety or welfare of Ms [redacted]. However, I am satisfied that there are conditions that can be imposed, including a protective bail condition, that would sufficiently reduce that risk.
In considering the question of whether the applicant would comply with a protective bail condition, I have not ignored his alleged breaches of the FVRO. I have had regard to the fact that he allegedly breached the FVRO within a relatively short period of time after he was served with that order.
However, it remains appropriate to impose a protective bail condition in this case for two reasons. First, it is not clear that there does not remain a risk to Ms [redacted] from the applicant, because there is no evidence directly in relation to that. Secondly, Ms [redacted] may be a witness in relation to the breach of FVRO offences and it is appropriate that the applicant should have no contact with her until such time as those charges have been dealt with.
By cl (2a) of pt D of sch 1 of the Act, before imposing a condition on a grant of bail for a purpose that involves the protection of a person from the danger that might be posed to them by the applicant, I am required to consider whether that purpose will be better served, or could be better assisted, by a restraining order under the Restraining Orders Act 1997 (WA), or by a combination of conditions for those purposes, and a restraining order, as envisaged by (a) which is a restraining order under the Restraining Orders Act 1997 (WA).
I have come to the view that it is appropriate to include a protective bail condition to augment the continuing FVRO, not only because, in the context of this application it serves the purpose of preventing the applicant from having contact with Ms [redacted] and, potentially, interfering with her as a witness,[12] but also because of the consequences that would flow from any breach of a protective bail condition. As the applicant's counsel pointed out, if he were to breach such a condition, he understands that he would then need to show exceptional reasons why he should not be kept in custody on any further application for bail. It would be a significantly higher hurdle for him to overcome to obtain a grant of bail. That would not be the case, necessarily, if he were charged with a breach of the FVRO in the absence of a protective bail condition.
[12] Although no evidence has been put before me to suggest, at this stage, that there is a real risk of such interference, I accept that the risk does exist, based on the fact that Ms [redacted] obtained an FVRO against the applicant, and my finding that there is a real risk that he may endanger the safety or welfare of Ms [redacted].
I am satisfied that, as the applicant is aware of that potential consequence, the imposition of a protective bail condition at this stage would be expected to have a greater deterrent effect than the FVRO did previously. To put it another way, I am satisfied that the applicant is likely to comply with such a condition because of the consequences of a breach, notwithstanding the fact that he is alleged to have committed the breach of the FVRO previously.
Other conditions have also been proposed. The first, apart from a personal undertaking and a surety (which I consider to be sufficient to overcome any concern about the risk that he may not appear), is that he is to reside with his father at Barragup, and is to report to the officer in charge of the Mandurah Police Station twice a week, which would enable the police to monitor his whereabouts and would give the applicant cause to think about his behaviour.
I also agree with a proposed bail condition that the applicant be subject to a curfew from 9.00 pm to 5.30 am. It is noteworthy that, although the alleged offending in respect of the breach of the FVRO may have commenced well before 9.00 pm, the applicant was apprehended in the early hours of the morning trying to leave the hotel room where Ms [redacted] and her young daughter were located.
Together with the protective bail condition, I am satisfied that those conditions would sufficiently reduce the risk of the applicant committing a further offence of the kind with which he has been charged, and would sufficiently reduce the risk of him endangering the welfare or safety of Ms [redacted] or her child.
In those circumstances, it is no longer appropriate to keep the applicant in custody, pending the determination of his matters in the Magistrates Court.
Having reached those conclusions, I want to make it clear that my decision is not a reflection upon the appropriateness of the course adopted by the learned magistrate in seeking the bail risk assessment report, particularly given the reasons for which she sought the report, namely, to obtain the views of Ms [redacted]. The information before me now satisfies me that it is not necessary to obtain that report in order to be able to make a decision in respect of bail.

Orders

There will be a non-publication order in relation to the names of the protected persons, [redacted] and [redacted].
The application is granted on the following conditions, namely that the applicant must:
(1)provide a personal undertaking of $1,000;
(2)provide a surety who is approved in a manner provided for in the Act and is prepared to enter into an undertaking in the sum of $1,000;
(3)reside at [redacted];
(4)report to the officer in charge of the Mandurah Police Station twice a week, on Mondays and Fridays;
(5)be subject to a curfew from 9.00 pm to 5.30 am each day; and
(6)not contact or attempt to contact by whatever means, directly or indirectly [redacted] or [redacted] and is not to approach or remain within 50 metres of [redacted] or [redacted] (being a Protective Bail Condition imposed for a purpose mentioned in cl 2(2)(c) or (d) of pt D of sch 1 of the Act).

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Fiannaca
9 NOVEMBER 2021