Hosking v The State of Western Australia
[2020] WASC 167
•20 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HOSKING -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 167
CORAM: CORBOY J
HEARD: 6 & 11 MAY 2020
DELIVERED : 11 MAY 2020
PUBLISHED : 20 MAY 2020
FILE NO/S: MBA 15 of 2020
BETWEEN: CLINTON WADE HOSKING
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Whether risk of reoffending - Whether conditions could be imposed to sufficiently remove risk - Turns on its own facts
Legislation:
Bail Act 1982 (WA), s 14, pt C of sch1
Result:
Application granted subject to protective conditions
Representation:
Counsel:
| Applicant | : | P N Holmes |
| Respondent | : | J F Boots |
Solicitors:
| Applicant | : | Holborn Lenhoff Massey |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99
CORBOY J:
The application and the result
The applicant has been charged with four offences:
(a)On 16 February 2020, at Tapping, he, being a person bound by a police order, breached that order contrary to s 61(2a) of the Restraining Orders Act 1997 (WA) (RO Act).
(b)On 15 February 2020, at Tapping, he unlawfully assaulted Ryan Andrew Hosking in circumstances of aggravation (that he was in a family relationship with Ryan Hosking). The charge alleges an offence under s 313(1)(a) of the Criminal Code (WA).
(c)On 16 February 2020, at Tapping, he was armed with a dangerous weapon, namely a kitchen knife, in circumstances that were likely to cause fear. The charge alleges an offence under s 68(1) of the Criminal Code.
(d)On 16 February 2020, at Tapping, he unlawfully assaulted Rhiannon Lhys Hosking and thereby did her bodily harm in circumstances of aggravation (that he was in a domestic relationship with Ms Hosking). The charge alleges an offence under s 317(1)B of the Criminal Code.
As might be inferred from the charges, the applicant and Ms Hosking are husband and wife, having been married for approximately 11 years. They have three children who are aged between 2 and 10 years. Ryan Hosking is Ms Hosking's son from a previous relationship. At the relevant time, the applicant and Ms Hosking were living together at what I will refer to as the Protected Residence.
The applicant has pleaded guilty to the charge of breaching the police order and not guilty to the remaining charges. He is next to appear at a trial listing hearing in the Joondalup Magistrates Court on 1 October 2020.
The applicant first appeared in the Magistrates Court following his arrest on 17 February 2020. He was represented by duty counsel who applied for bail. The application was opposed on grounds that included the seriousness and nature of the applicant's alleged offending; the fact that the applicant had breached a police order shortly after it had been made; Ms Hosking's fear that the applicant would reoffend; and a concern by the police that the applicant posed a risk to Ms Hosking and the children. The application was refused.
The applicant again appeared in the Magistrates Court on 12 March 2020. Evidence was presented that Ms Hosking had visited the applicant while he was in custody. The presiding magistrate was prepared to 're‑open' the question of bail in light of that evidence, adding that the reconsideration was solely on the basis that the magistrate who had presided at the hearing on 17 February 2020 had been informed that Ms Hosking was terrified and would go into hiding if the applicant was released on bail. However, her Honour refused the application finding that the prosecution case was strong and that no conditions could be imposed that would ameliorate the risk of the applicant offending in a violent manner or interfering with witnesses.
By application dated 29 April 2020, the applicant applied to this court for bail. The application was opposed by the respondent. However, Ms Hosking made an affidavit in which she stated she wanted the applicant to be released on bail; she did not wish to reconcile with the applicant but was concerned that his continued detention would adversely affect his relationship with his children and make it more difficult for her to establish a new life following the breakdown of her marriage.
I had reservations about the change in Ms Hosking's attitude to the application but concluded that bail should be granted having regard to a number of factors: the accommodation and employment arrangements that had been made for the applicant; the time he would spend in custody prior to trial; the likely length of any sentence that might be imposed if the applicant was convicted of the offences with which he has been charged; the incentive the applicant has to abide by his bail undertakings given that proceedings are to be commenced in the Family Court for access to his children; the applicant's criminal record; the time since the relevant events; and Ms Hosking's attitude and her evidence concerning the applicant's behaviour at the time of those events.
The respondent opposed bail being granted on the ground that there was a risk the applicant would reoffend if released from custody - a risk that was to be assessed in the context of what was submitted to be a strong prosecution case (see cl 1(a)(ii) and cl 3 (d) of pt C, sch 1 to the Bail Act 1982 (WA)). However, a number of conditions were imposed on the grant of bail which, in my view, could reasonably be imposed and which would sufficiently remove the possibility of the applicant reoffending (cl 1(e), pt C of sch 1). These reasons more fully explain why the application for bail was granted.
The evidence presented in the application
The application was supported by affidavits sworn by the applicant on 29 April 2020 and 4 May 2020; an affidavit sworn by the applicant's brother, Shannon Hosking on 14 April 2020; an affidavit made by Mark Gregory Bowden on 5 May 2020 and an affidavit made by Kim John Hosking on 6 May 2020. The prosecutor, Senior Constable Pease, made an affidavit on 5 May 2020 and Ms Hosking made an affidavit on 8 May 2020.
The allegations made against the applicant
Ms Pease's affidavit attached the prosecution brief for the charges alleged against the applicant.
The prosecution brief incorporated a statement of material facts which, in summary, alleged that:
(a)At about 3.30 pm on 15 February 2020 there was an altercation between the applicant and Ryan Hosking at the Protected Residence in the course of which the applicant pushed Mr Hosking to the chest causing him to stumble backwards. He then punched Mr Hosking with a clenched fist to the left side of his face. Mr Hosking felt pain and tenderness in the area of his left cheek. It is not alleged that Mr Hosking suffered bodily harm.
(b)The applicant was served with a 72‑hour police order following the incident with Mr Hosking. The order prohibited the applicant from entering or remaining within 10 metres of the Protected Residence. The order also prohibited the applicant from going within 10 metres of Ms Hosking or from acting in a violent or intimidating manner towards her.
(c)At about 11.00 pm on 16 February 2020, the applicant went to the Protected Residence. He banged on the window and entered the house through a rear laundry door. Ms Hosking was home at the time. There was an altercation during which the applicant pushed Ms Hosking to the ground and punched her several times to the head using his fists and kneeing her to the head and body. She subsequently required medical attention.
(d)Mr Jacob Ledgerton was at the Protected Residence. He intervened to prevent the applicant from further attacking Ms Hosking. Ms Hosking left the house and the applicant armed himself with a kitchen knife and went out to the front drive. Neighbours had come out into the street on hearing the disturbance and the applicant threatened Mr Ledgerton and one of the neighbours, Mr Bradley Coulson, with the knife.
(e)The police were called and the applicant was arrested and taken to the Perth Watch House.
The evidence in the application
In summary, the evidence presented on behalf of the applicant was that:
(a)The applicant had pleaded guilty to the charge that he breached the police order by going to Protected Residence on 16 February 2020. However, he stated that he went to the Protected Residence out of concern for the safety of Ms Hosking and his children - he believed that people had come to the Protected Residence armed with baseball bats.
(b)The applicant denied assaulting Ms Hosking and said he had only armed himself with a knife at one point to defend himself against others who were armed with baseballs bats.
(c)The applicant accepted that his marriage with Ms Hosking had ended and he had applied to the Family Court for interim access to his children. The incidents, so it was submitted, occurred in a particular context - a dynamic between the applicant and Ms Hosking that no longer prevailed as the applicant accepted that their relationship was at an end so that the risk of reoffending was significantly diminished.
(d)The applicant's brother and father were supportive of the applicant. The applicant's brother would provide the applicant with accommodation if bail was granted.
(e)The applicant had a long work history and prior to his arrest he had operated a gym business. That business had closed as a result of the applicant's arrest and the effect of COVID‑19 restrictions. However, the applicant had an offer of work from Mr Bowden. Mr Bowden operates a recruitment agency specialising in supplying workers to the mining industry. Mr Bowden stated that the applicant had previously worked for his business as a heavy‑duty fitter and work was available for him in that capacity.
(f)The applicant was born on 8 November 1981. He has a criminal history. However, he was last convicted of a criminal offence in November 2008. He was fined $250 for trespass; the offence was committed in November 2007. He was also convicted in March 2008 of driving without a driver's licence. He was convicted in 2003 and 2004 of two assault offences and has two convictions in 2002 and 2004 for disorderly conduct and one conviction from the same period for threatening words or behaviour.
(g)The charges were unlikely to be listed for trial this year and there was a real risk that the applicant would spend time in custody that was disproportionate to any sentence that might be imposed should he be convicted of the charges.
(h)Ms Hosking had visited the applicant with two of their children while he had been held in custody. Further, she had sent a text message to the applicant's father expressing a wish for the applicant to be granted bail.
As previously mentioned, Ms Pease attached the prosecution brief to her affidavit. The brief contains statements made by Ms Hosking, Ryan Hosking, Mr Ledgerton, Mr Coulson and various police officers who attended at the Protected Residence on 15 and 16 February 2020. The statements contained in the prosecution brief were consistent with the statement of material facts summarised above.
The respondent submitted that there was a strong case against the applicant on each of the charges to which he had pleaded not guilty. Self‑evidently, the ability of a court to assess the strength of a prosecution case in a bail application is limited. However, I accepted the respondent's submission for the purpose of the application having regard to the material contained in the prosecution brief. It is not necessary to further summarise that material in light of the finding I made about the strength of the prosecution case and the conclusion I reached on the application after considering each of the questions posed by cl 1, pt C of sch 1 to the Bail Act.
I also do not propose to summarise the detail of Ms Hosking's affidavit. There are a number of matters that are frankly stated but which she would, no doubt, regard as personal to her and which do not need to be fully disclosed publicly in order to explain the reasons why the application for bail was allowed subject to strict conditions.
However, there are four aspects of Ms Hosking's affidavit that I particularly noted:
(a)Ms Hosking did not resile from any of the allegations made in the statement she provided to the police which forms part of the prosecution brief.
(b)Ms Hosking alleged that the applicant engaged in controlling and other behaviours that had caused her emotional distress during their marriage. She further alleged that the applicant had repeatedly telephoned her while in custody and that the telephone calls had caused her stress. The conditions that were imposed on the applicant's bail were intended to regulate his contact with Ms Hosking in a way that minimised the risk of causing her further distress but which also took into account her desire that he continue to have contact with his children.
(c)Ms Hosking described the applicant's alleged conduct during the incidents on 15 and 16 February 2020 as out of character. She stated that the applicant behaved in a way she did not recognise and there was no evidence that the applicant had been previously physically violent towards Ms Hosking or Ryan Hosking.
(d)Ms Hosking wished the applicant to be granted bail for two reasons. First, she was concerned that a prolonged period in detention would adversely impact on his relationship with their children. Second, she felt it was necessary for the applicant to be released on bail to enable her to take the steps necessary to establish her new life following the breakdown of her marriage.
There is always a concern that a person who has been allegedly subjected to domestic violence may find it difficult to assert their independence by, for example, reporting the violence to the police or remaining separate from the perpetrator. However, Ms Hosking firmly expressed her wish that the applicant be released on bail provided that suitable protective conditions could be imposed. She expressed that wish in a text to the applicant's father and subsequently, in an affidavit.
Disposition
The principles to be applied to an application for bail were stated by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99. It is not necessary to set out the detail of the principles identified by the Court of Appeal. However, I note that:
(a)The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may be properly granted having regard to the provisions of cl 1 and cl 3, pt C of sch 1 to the Bail Act.
(b)Clause 1 of pt C contains no express statutory presumption for or against the grant of bail. Rather, the judicial officer is required to exercise the discretion having regard to the questions contained in pars (a) to (g), and to any other question that the decision‑maker considers relevant. That is, the correct approach to the exercise of the discretion is sourced in, and guided by, the matters referred to in pars (a) to (g).
(c)The court is required to consider and answer the mandatory questions before commencing the balancing process inherent in the exercise of the discretionary power to grant bail. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion.
(d)All of the mandatory questions, with the exception of the question posed in par (e), are directed to whether there are positive grounds for refusing bail. The matters referred to in par (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
It was not suggested that the applicant would not appear in court according to his personal undertaking or that he would act in a way that would obstruct the course of justice or prejudice the proper conduct of a trial of the charges made against him. Although reference was made in the Magistrates Court to the possibility that the applicant would seek to interfere with witnesses, the respondent did not make that submission in this application. Rather, the issues raised in the application were whether the applicant might reoffend if not kept in custody and whether there were conditions which could be reasonably imposed on a grant of bail that would sufficiently ameliorate that risk.
I earlier identified the factors that, in my view, favoured granting the applicant bail. I considered that the combined effect of those matters was that the risk of the applicant offending if released from custody was significantly less than immediately following the events the subject of the charges and that there were conditions that sufficiently removed the risk. Those conditions included:
(a)curfew and reporting conditions;
(b)conditions to protect Ms Hosking, Ryan Hosking, Mr Ledgerton and Mr Coulson from contact with or by the applicant;
(c)conditions regulating the applicant's contact with his children to ensure that he does not harass Ms Hosking under the guise of contacting his children.
There were two further matters that were relevant to the application. First, it was submitted that it was possible the applicant would only receive a suspended term of imprisonment if convicted of all of the offences with which he has been charged. I express no view on that possibility. However, in determining the application I took into account that the applicant would be held in custody awaiting trial for a period that was disproportionate to the likely non‑parole period of any sentence of imprisonment that he might be required to immediately serve if convicted of the three charges to which he has pleaded not guilty.
Second, and related to the first matter, the respondent accepted that it was not likely that a trial of the charges made against the applicant would be held this year.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Corboy20 MAY 2020
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