Jeffery v The State of Western Australia
[2019] WASC 239
•4 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: JEFFERY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 239
CORAM: FIANNACA J
HEARD: 6 MAY 2019
DELIVERED : 6 MAY 2019
PUBLISHED : 4 JULY 2019
FILE NO/S: MBA 25 of 2019
BETWEEN: BRETT ALLAN JEFFERY
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail application - Home detention bail granted - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Bail granted
Category: B
Representation:
Counsel:
| Applicant | : | Ms A Rogers |
| Respondent | : | Ms T McArthur |
Solicitors:
| Applicant | : | Abigail Rogers Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
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:
Introduction
This is an application for bail in respect of charges pending in the Magistrates Court. The application was heard on 10 April 2019 and 6 May 2019. At the conclusion of the hearing on 6 May 2019 I granted the application and gave brief reasons, with detailed reasons to follow. These are my reasons for granting bail.
The application and its history
The applicant has applied for bail in respect of a number of charges that are pending in the Magistrates Court.
He is charged with an offence of home burglary, contrary to s 401(2)(b) of the Criminal Code (WA), and an offence of stealing, contrary to s 378 of the Criminal Code, both of which are alleged to have been committed on 10 January 2019 at Koondoola.
He is also charged with three offences alleged to have been committed on 29 November 2018 at Heathridge, namely possession of a controlled weapon without lawful excuse, contrary to s 7(1) of the Weapons Act 1999 (WA), possession of a prohibited weapon without lawful excuse, contrary to s 6(1)(b) of that Act, and forging a replica or imitation of a number plate other than the one issued for a particular vehicle, contrary to s 36(2)(b) of the Road Traffic (Administration) Act 2008 (WA).
Finally, he is charged with breaching bail without lawful excuse, by failing to appear in the Joondalup Magistrates Court on 30 January 2019, contrary to s 51(1) of the Bail Act 1982 (WA). The bail undertaking he is alleged to have breached was in respect of the Weapons Act offences.
The applicant has been remanded in custody in respect of all those charges to 4 November 2019 for a trial hearing in the Joondalup Magistrates Court.
The applicant was interviewed in relation to the Weapons Act and licence plate offences on 29 November 2018, when those items were located at his home. He was charged and summonsed to appear in the Joondalup Magistrates Court on 31 December 2018. On that date he was released on bail in respect of the Weapons Act offences to appear on 30 January 2019. When he failed to appear on that day, a bench warrant issued for his arrest.
In the meantime, the applicant had been arrested on 12 January 2019 in respect of the home burglary and stealing offences (alleged to have been committed on 10 January 2019). He was charged and remanded in custody until 14 January 2019, when an application for bail was to be made on his behalf. However, the prosecution discontinued the charges on that occasion pursuant to s 25 of the Criminal Procedure Act 2004, because there had been no complaint at that stage from any occupant of the premises alleged to have been burgled or from any owner of the property alleged to have been stolen. The applicant was discharged in respect of those matters at that stage.
On 31 January 2019, the applicant was arrested on the bench warrant that had issued in respect of the Weapons Act offences. By that stage a complaint had been made and a statement was provided by the occupant of the premises alleged to have been burgled. That complaint was made on 18 January 2019. As a consequence, the applicant was again charged with the home burglary and stealing offences. He was also charged with the breach of bail offence.
The applicant commenced a bail application in respect of all of the charges on 1 February 2019, but the application was adjourned until 11 February 2019 so that the applicant's counsel could view CCTV video footage in relation to the alleged burglary offence.
On 11 February 2019, the applicant's counsel acknowledged that there were factors that militated against a grant of bail, in that the applicant was on bail for other offences and also subject to a suspended imprisonment order and an intensive supervision order at the time of the alleged offences of home burglary and stealing. The application for bail relied predominantly on matters personal to the applicant, being significant health problems for which he had been receiving treatment, and emotional stress arising from the violent death of his brother and the impact it was having on the applicant's mother and another brother. Magistrate De Maio refused bail. Her Honour did not consider the serious medical issues to warrant a grant of bail. Her Honour considered that the prosecution case in respect of the home burglary and stealing offences was strong and there was a risk the applicant would commit an offence if he was not kept in custody. Her Honour was of the view that there were no conditions she could impose that would ensure the applicant did not commit further offences.
The application before this court was filed on 4 April 2019. It is brought under s 14(2) of the Bail Act (the Act). It invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act. It is not an appeal from the magistrate's decision refusing bail.
The application was initially heard on 10 April 2019. During the course of the hearing, counsel for the applicant submitted that, if I was not satisfied other conditions of bail would remove the risk of the applicant committing an offence if not kept in custody and failing to appear in answer to a bail undertaking, which had been raised by the respondent as real risks justifying a denial of bail, a home detention condition should address those concerns. The respondent acknowledged that such a condition might address the risk of the applicant committing an offence. I was of the view that such a condition might reduce the risks that had been identified to an acceptable level, such as to make a grant of bail appropriate. That would depend on the findings made by a Community Corrections Officer upon assessing the suitability of the applicant and the proposed residential premises for home detention. While the applicant's history in relation to bail and his placement on community based orders raised doubts in that regard, I concluded he should be given the opportunity of such an assessment in light of the matters that had been raised on the applicant's behalf, particularly concerning his health. Accordingly, I ordered a home detention assessment report. That report has now been received.
Before turning to the findings and recommendations in the home detention assessment report, I will outline the legal principles that govern this application and my findings in respect of the factors I must take into account, which provide the context for the suitability of home detention.
Legislative provisions
As the court's jurisdiction to grant bail arises by the operation of s 13 and sch 1 pt A of the Act, it must be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1.
Ordinarily, bail will be granted unless the court is satisfied that the accused should be kept in custody after considering the questions in cl 1 of pt C, having regard to the matters in cl 3 of pt C.[1] The specific questions in cl 1 are non‑exclusive, in that the clause provides that the court may take into account any other questions it considers to be relevant. The specific questions in cl 1 concern mandatory considerations which the court must take into account.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25] and [39] ‑ [41] (McLure P).
[2] Milenkovski v The State of Western Australia [24], [39], [42] (McLure P).
The questions in cl 1(a) include (i) whether the accused may fail to appear in court as required by his bail undertaking; (ii) whether he may commit an offence; (iii) whether he may endanger the safety or welfare of any person; and (iv) whether he may interfere with witnesses. The court is also required to consider, under cl 1(e), whether there are conditions that could reasonably be imposed which would 'sufficiently remove the possibility' of the accused doing those things. In answering those questions, the matters the court must take into account under cl 3 include: the nature and seriousness of the offence or offences and the probable method of dealing with the applicant if he is convicted; the accused's personal circumstances, including his character and antecedents, which include any previous convictions; the history of any grants of bail; and the strength of the evidence against him.
I note that cl 1(g) requires the court to consider whether the alleged circumstances of the offending amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. The respondent did not submit that the case falls into that category. In my opinion, it does not, so I put that provision to one side.
The proper approach to the questions and considerations in cl 1 and cl 3 was explained in YSN v The State of Western Australia [2017] WASCA 155 [15] ‑ [21]. The following principles extracted from that decision are relevant for present purposes:
(1)The risk or possibility referred to in cl 1(a) must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the judicial officer considers relevant;
(2)The court must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period;
(3)The reference in cl 1(e) to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced; and
(4)The possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
For convenience, I will refer to the question in cl 1(e) as whether the risk can be reduced to an acceptable level, which is to be understood in the context of the principles outlined in the preceding paragraph, in particular in points (3) and (4).
The evidence in the proceedings
The application was supported by an affidavit sworn by the applicant's counsel and solicitor, Ms A Rogers, which attached a number of documents to which I will refer in the course of these reasons. They included the transcript of proceedings before Magistrate De Maio on 11 February 2019. At the hearing on 10 April 2019, Ms Rogers also tendered a report dated 16 January 2019 from Dr Murdoch, a Respiratory Registrar at Sir Charles Gairdner Hospital (SCGH), to the applicant's general practitioner.
The respondent filed the applicant's criminal record and some of the disclosure materials, consisting of the complainant's statement, statements from the police officers who arrested the applicant on 12 January 2019 and 31 January 2019, photographs of items found in the applicant's vehicle on 12 January 2019 and stills from the CCTV footage from the complainant's home at the time the applicant is alleged to have committed the burglary at the premises.
Alleged facts of offences
It is necessary to provide a summary of the facts alleged against the applicant in respect of each charge, as those alleged facts are relevant to the considerations under cl 1 and cl 3.
The home burglary and stealing charges
The home burglary is alleged to have been committed on a house in Koondoola, which was the residence of KJK[3] and his family. At the time, KJK and his family were overseas on holiday.
[3] Initials will be used for the names of the complainant and another person referred to by the applicant.
It appears that the front of the house was under surveillance by a number of CCTV cameras attached to external walls. The cameras were connected to a hard drive recorder inside the house, in the kitchen area. KJK states that the hard drive was secured between the top of the kitchen cabinets and the roof space. He also states that, before leaving to travel overseas on 27 November 2018, he secured his house. He states that he did not allow any person to reside at or look after his house while he was away.
At or about 1.05 am on 10 January 2019, the applicant is alleged to have gone to the house in Koondoola. He can be seen on CCTV footage from the front of the house. He was wearing a hooded jumper and gloves, which it is alleged were intended to conceal his identity. It is alleged that he then entered the house without consent and stole a number of items of property, including the CCTV hard drive, suitcases, some electrical items, handbags and wallets (one or more of which contained plastic cards and identification documents for some of the occupants), various business documents, jewellery and what appear to be valuations for the jewellery. The photographs taken by the police of the property found later in the applicant's vehicle suggest that one of the CCTV cameras was also taken.
When the contents of the CCTV hard drive were subsequently examined by the police, it was determined that the hard drive was disconnected at 1.58 am on 10 January 2019, so the accused is alleged to have been in the house for about an hour or more.
KJK states that he did not give permission to the accused or any person to enter his property and remove his (KJK's) personal belongings.
At 12.15 am on 12 January 2019, the applicant was stopped by police while he was driving a Honda Accord sedan in Girrawheen. The officers who intercepted the vehicle were Detective Griffiths and Constable Langlois of the Joondalup Detectives Office. According to Constable Langlois, the vehicle was stopped for a licence check. Detective Griffiths recognised the accused and questioned him about his driver's licence, the ownership of the vehicle and his reason for being where he was. Although Detective Griffiths does not state the basis of his questioning, I note that the applicant was on bail at the time in respect of the Weapons Act and number plate offences, for which he had been charged by officers from the Joondalup Detectives Office. He was also on a suspended imprisonment order and intensive supervision order.
In any event, Detective Griffiths noticed suspicious items within the vehicle, including a pair of gloves. That prompted a search of the vehicle. A suitcase was found in the boot. Inside the suitcase, which was one of the items stolen from the complainant's home, were a number of other items belonging to the complainant and his family. The applicant was arrested at that stage on suspicion of possessing stolen or unlawfully obtained property. Upon being informed that he was under arrest, the applicant is alleged to have said, 'It's not stolen mate. It belongs to an Indian bloke that lived with me at the Heathridge house.' He is also alleged to have said, 'They are on holidays at the moment.'
KJK was subsequently shown a photograph of the applicant. He states that he did not recognise the person in the photograph and had never seen him before.
After his arrest, the applicant was conveyed to the Warwick Police Station, and the arresting officers conducted further enquiries. It was at that stage that the CCTV hard drive was found within the suitcase, along with other stolen property. A number of the documents found in the suitcase contained names and addresses. The police were able to link all of those persons to the address in Koondoola.
Constable Langlois then ascertained that there had been a house fire at that address, which was reported to have occurred in the early hours of 11 January 2019, the day after the alleged burglary. When the officers attended the address, they noticed extensive fire damage to the house. They also noticed the CCTV cameras. That prompted enquiries to be made in respect of the CCTV hard drive that was found in the suitcase, and the identification of a person who appeared to match the applicant's appearance in the footage.
I note that the applicant has not been charged in respect of the fire at the premises on 11 January 2019, and the respondent does not submit that there is any evidence that links the applicant to the fire.
At 6.10 am on 12 January 2019, police conducted a search of the applicant's residence at an address in Heathridge. There they found other property alleged to have been stolen from the house in Koondoola, including another suitcase that contained electrical cables, a VHS player, a laptop and a mobile phone. The applicant's partner, Ms Norman, was present during the search.
After further enquiries, the applicant was charged with the home burglary and stealing offences. He was refused bail.
Weapons Act offences
The facts alleged in respect of the Weapons Act offences are as follows.
Early in the morning of 29 November 2018, police executed a search warrant at the applicant's residence in Heathridge. During the search, the police located, in the lounge room, a large compound bow, a number of arrows for the bow and other equipment associated with the compound bow. They also found a small compound bow with a number of arrows in the rear shed.
In a cabinet in the applicant's bedroom, the police found a button activated metal switch blade knife with a wooden handle.
The applicant took part in a video recorded interview in which he made admissions in relation to the weapons that were found. In relation to the compound bows and arrows, he said that he did not realise he could not have them.
The compound bows and arrows are controlled weapons for the purposes of the Weapons Act. The switchblade knife is a prohibited weapon. The applicant is alleged to have been in possession of the compound bows and arrows without reasonable excuse. He is alleged to have been in possession of the switchblade knife when he was not exempted from the prohibition.
Road Traffic (Administration) Act offences
The facts in relation to the offence of forging a replica or imitation of a number plate other than the one issued for a particular vehicle are as follows.
During the search of the applicant's residential premises on 29 November 2018, the police located a Subaru Impreza motor vehicle bearing the registration number 1GML 646. It appears the registration number matched the description of the vehicle in the police records. However, upon checking the Vehicle Identification Number (VIN) on the vehicle, and conducting inquiries in relation to that number, it became apparent that the original registration number plate for the vehicle was different and that the vehicle was reported stolen in July 2015.
Upon removing the clear registration number plate covers from the front and rear of the vehicle, police discovered that the plate depicting 1GML 646 was a scanned laminated piece of paper, which was attached to a registration plate bearing a number that was different to both the scanned number and the number of the original registration plate for that car. The laminated piece of paper had been secured within the plate covers by being attached to the other registration plate.
The applicant took part in a video record of interview in which he admitted generating the false registration plate and affixing it to the vehicle.
I note that in respect of the Weapons Act and Road Traffic (Administration) Act offences the applicant was summonsed to appear in court.
Consideration of Clause 3 matters
I turn then to consider the matters under sch 1, pt C, cl 3 of the Act.
Nature and seriousness of the offences and probable disposition
The maximum penalty for the home burglary offence is 18 years' imprisonment.[4] Upon summary conviction, the maximum sentence the Magistrates Court can impose is 3 years' imprisonment or a fine of $36,000.[5] However, the applicant comes within the meaning of a 'repeat offender' under s 401B of the Criminal Code, and therefore, if he is convicted, the court must impose a term of imprisonment of at least 2 years.[6]
[4] Criminal Code s 401(2)(b).
[5] Criminal Code s 401(2)(b).
[6] Criminal Code s 401(4)(b)(i). It was in dispute in the application that the applicant is a repeat offender, in that he has at least two prior convictions for home burglary offences. In fact he has four prior convictions for that offence.
The maximum penalty for the stealing offence is 7 years' imprisonment,[7] although upon summary conviction, as the alleged value of the property stolen does not exceed $1,000, the maximum penalty that can be imposed by the Magistrates Court is a fine of $6,000.[8]
[7] Criminal Code s 378.
[8] Criminal Code s 426(4). The charge alleges the value of the property to be $400.
The Weapons Act offences carry maximum penalties of 2 years' imprisonment and 3 years' imprisonment. Although the circumstances of the alleged offences are not such that a term of imprisonment would inevitably follow upon conviction, a conviction for either offence would mean that the applicant would be liable to be dealt with for a breach of a suspended imprisonment order imposed on 9 October 2018 (see below) for offences that included a burglary offence.[9] The court dealing with him for that breach would be required to impose the total sentence of 12 months' imprisonment that was suspended, unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.[10]
[9] Sentencing Act s 80(1). That is because the statutory penalty for each of the Weapons Act offences includes imprisonment and the offences are alleged to have been committed during the suspension period of the suspended imprisonment, being a period of 12 months from 9 October 2018.
[10] Sentencing Act s 80(1) and (3).
The maximum penalty for the offence under the Road Traffic (Administration) Act 2008 is fine of $2,500 (50 penalty units).
The maximum penalty for the Bail Act offence is imprisonment for a term not exceeding 3 years.[11] If convicted, there is a prospect that he will be sentenced to a term of imprisonment, as he has several prior convictions for breaches of bail, for some of which he was sentenced to imprisonment. In any event, a conviction would also render him liable to be dealt with for a breach of the suspended imprisonment order, as discussed at [50] above.
[11] Bail Act s 51.
It is obvious that the most serious of the offences with which the applicant is charged is the home burglary. If he is convicted, a term of imprisonment will be inevitable, and it will be a term of at least 2 years. Further, the circumstances of the offending are serious, in that it involved a degree of planning and the removal of incriminating evidence. If convicted, the applicant would also become liable to be dealt with for the breach of the suspended imprisonment order, as discussed at [50] above. If the applicant were then to be required to serve the term that had been suspended, and that term were ordered to be served cumulatively upon the sentence for the home burglary offence the subject of this application (as it would be open for the court to do), the applicant would be sentenced to at least 3 years' imprisonment.
Strength of the evidence against the applicant
As the most serious offence, which will inevitable result in a term of imprisonment, is the home burglary, I will confine the assessment of the strength of the case against the applicant to that offence.
The context for assessing the strength of the evidence against the applicant (under cl 3) is the consideration of whether there is an actual or real risk that the applicant will fail to answer his bail and the extent of that risk. Obviously, when combined with the probable disposition of a substantial term of imprisonment in the event of a conviction, the stronger the case, the greater the risk that an accused may abscond to avoid a trial. The assessment I am required to make is not of the likelihood of conviction.
The strength of the case is also relevant to the assessment of the risk that the applicant will commit an offence if not kept in custody. That is particularly so when the alleged offending is of a similar kind to offending of which the applicant has been convicted previously. The strength of the case against him is capable of affecting logically the determination of whether there is a real risk that he will offend again in a similar manner.
Prima facie, the case against the applicant is strong. He does not deny entering the house and taking property, including the CCTV hard drive, from the house. It is open to conclude from the CCTV footage that the applicant was behaving in a clandestine manner, and his removal of the hard drive is consistent with an attempt to conceal an offence.
The applicant gave an explanation to the police for the circumstances in which he is alleged to have committed the offence. The video record of interview with the applicant is not in evidence in these proceedings. However, evidence of his statements to the police when he was arrested is in the materials produced by the respondent. Further, the defence case was outlined by the applicant's counsel in the Magistrates Court proceedings and again in these proceedings. While that explanation has not been given by the applicant on affidavit, I can take it into account pursuant to s 22 of the Act[12] in considering whether, notwithstanding a prosecution case that prima facie is strong, any motivation on the part of the accused to avoid a trial is mitigated by a desire to present his defence.
[12] Section 22 provides that a judicial officer considering bail may 'take into account such information he thinks fit whether or not the same would normally be admissible in a court of law.'
I note that it is not the task of the court to determine the veracity of any explanation put forward on behalf of the applicant. Questions of credibility and reliability will be for the trial court to assess at trial in the event that the applicant gives evidence and is cross‑examined. Nevertheless, it may be necessary to make some assessment of the weight that can be given to assertions made by the applicant when assessing the strength of the evidence against him, for the purposes of cl 3, as was done by Magistrate De Maio in this case.
As argued on the applicant's behalf in these proceedings, the applicant will not deny that he was the person seen on the CCTV footage outside the house that was burgled. He will not deny that he removed from the house the CCTV hard drive or the other property belonging to the complainant which was found in his vehicle. The issue will be in respect of whether he had consent to be in the place and whether he had a fraudulent intent in removing property from the house. The applicant's defence is that he reasonably believed that he had permission to enter the house and to remove certain items of property, including the CCTV hard drive. His case is that he was instructed to do so by an acquaintance, AG, who he believed was also acquainted with the complainant, the owner and occupant of the house, and had been asked by the complainant to arrange for the items to be removed. As counsel for the applicant put it, it appears, on his case, that he was used as a 'pawn' by AG.
Detective Griffiths, in his statement, says that after he and other officers had searched the applicant's residence and had returned to the Warwick Police Station, he was informed that the applicant's partner, Ms Norman, was outside the station with a male who claimed to have given the applicant consent to enter the premises in respect of which the applicant was under investigation. Detective Griffiths went outside and met with Ms Norman and the male, who identified himself as AG. He states that after speaking with AG he was 'not satisfied that [AG] knew particulars about the address/owners and did not have any authority to provide consent to the [applicant]'.
The respondent notes that when the property belonging to the complainant was found by police in the applicant's vehicle, the applicant's immediate explanation was a lie, in that it was untrue that the property belonged to 'an Indian bloke' who had lived with him in Heathridge and the applicant knew it was untrue. The complainant has said he did not know the applicant, and in any event, the applicant has not maintained in these proceedings that he had dealt with the complainant directly. It is not apparent from the materials and submissions before me whether the prosecution intends to rely on the alleged lie as evidence of guilt on the basis that it evinces a consciousness of guilt in respect of the offence charged, or whether it will be relied on as evidence undermining the credibility of the applicant's explanation as outlined in this application. In either case, it is evidence that a trial court could regard as being inconsistent with an innocent explanation for the applicant entering the house and taking the complainant's property.
Further, even if the applicant's explanation, as outlined in these proceedings, were considered to be reasonably possible, the reasonableness of his belief that he had consent would need to be considered in light of his removal of the CCTV hard drive and his apparent failure to enquire why that would be necessary and why AG was not removing the property from the premises if he had permission. It would also need to be considered in light of the fact that the applicant remained in possession of the property taken from the complainant's home.
In the course of argument, the applicant's counsel suggested a possible explanation why AG would have the applicant remove the CCTV hard drive, namely to 'conceal what someone had planned to do the day later',[13] being a reference to the fact that the house was subsequently set on fire. Counsel submitted the applicant had been involved 'inadvertently' in that concealment. Of course, the applicant is not charged with any other offence suggested by that theory, whether arson or fraud. The argument is put in the context of dealing with the strength of the evidence against the applicant in respect of the home burglary and stealing offences. In that context, it is the applicant's failure to question the need to remove the CCTV hard drive, on the explanation he puts forward, that in my view is of significance in assessing the weight to be given to the explanation for present purposes.
[13] ts 16, 10/4/19.
Taking all of those matters into account, in my opinion the applicant's proposed defence, as explained by counsel, does not alter the conclusion that the evidence against him in respect of the home burglary and stealing charges constitutes a strong case.
Applicant's character and antecedents
The applicant is 48 years old. He is has been in a relationship with Ms Norman, to whom I referred earlier, for over 13 years. He previously worked in the brick paving and concreting industry, but has been unfit for work for some time.
I was informed that, prior to some of the alleged offending, the applicant had suffered stress as a result of tragedy in his life and unresolved issues arising from his grief. He had a daughter who died in 2011 at the age of 8 years from cancer. His younger brother was killed, allegedly by his partner, on 19 December 2018. On 31 December 2018, the applicant and his older brother were involved in the preparation of the body for the funeral. The funeral was held on 3 January 2019. The deceased was buried next to the grave of the applicant's daughter, who would have turned 16 on 4 January 2019.
The applicant had been assisting with support and care of his older brother, who had 'struggled to deal with the death of their younger brother'.[14] I was informed that, after the applicant was remanded in custody, his older brother was hospitalised after an attempted suicide. In a letter to the Magistrates Court in February 2019,[15] the applicant's mother said she needed the applicant at home to help with his brother. However, she does not provide particulars and the evidence does not rise to the level of disclosing hardship.
[14] Affidavit of Abigail Sian Rogers sworn 2 April 2019, [30].
[15] Dated 10 February 2018 in error.
The applicant suffers from a number of ailments, consisting of a heart condition, nerve damage to his feet and hands (which causes him pain), severe reflux, hernias in his chest and groin, and depression. The medical documents annexed to Ms Rogers' affidavit include a discharge summary from Royal Perth Hospital which reveals that the applicant was admitted to hospital on 23 September 2018 with acute asthma and was treated with antibiotics and steroids. It also reveals that he had been admitted to the Intensive Care Unit (ICU) two weeks earlier with 'acute asthma/pneumonia' and that he had been well since discharge, but had noted increased reflux symptoms the night of 22 September 2018. He admitted to 'poor compliance with inhalers'. He also admitted using methamphetamine three days before his admission. He was advised to ensure he used his inhalers and to attend for a lung function test in around six weeks.
The applicant's medical conditions and their impact on his functioning are otherwise set out in Dr Murdoch's report of 16 January 2019. His main problem appears to be asthma and 'severe active symptoms of gastro‑oesophageal reflux disease' which he continues to suffer despite taking medication twice daily and which is 'likely a major contributing factor to recurrent exacerbations of asthma'.
It was submitted on the applicant's behalf that his health problems cannot be monitored as well in custody as they are by his general practitioner. In a letter to the Magistrates Court in February 2019, the applicant's partner, Ms Norman, suggested the applicant was not receiving his correct medications while in custody. The applicant has not obtained medical records from Hakea Prison, where he has been held. It was submitted on his behalf that it can be difficult to obtain such records. There is no evidence before me of that, and I do not consider that Ms Norman's letter is a sufficient basis to conclude that the applicant is not receiving adequate medical treatment while on remand. The court must proceed on the basis that prison authorities will provide adequate medical treatment to the applicant as required, consistent with their duty of care.
The applicant has an extensive history of criminal offending commencing in 1990, when he was 19. It is sufficient to say that he has some 15 prior convictions for burglary offences, a number of which were home burglaries, and one for attempted burglary. He has also been convicted of various dishonesty offences, including stealing. He also has a number of convictions for drug offences and for breaches of bail.
The applicant also has convictions for willfully misleading police, providing a false name or refusing to give his name to police, failing to stop when called upon and obstructing police.
The applicant's criminal history also shows that he has used numerous aliases in the past with varying dates of birth.
The applicant has been sentenced to terms of imprisonment on a number of occasions. He has also been placed on community based orders and sentenced to suspended imprisonment. He has previously breached a suspended imprisonment order by further offending and was required to serve a term of imprisonment.
As I noted earlier, at the time of the alleged offences the subject of this application, the applicant was on a suspended imprisonment order, being a total effective term of imprisonment for 12 months suspended for 12 months, that was imposed on 9 October 2018 for offences of burglary and driving while not authorized to do so (because his licence was suspended). At the same time he was also placed on an intensive supervision order for 12 months for an attempted burglary offence.
History of prior grants of bail
The applicant has been convicted of breaching bail as follows:
(1)8 November 2000 – 3 offences, for which he was sentenced to a total of 3 months' imprisonment;
(2)20 December 2007 – breach of protective bail conditions (committed in February 2007), for which he was sentenced to 3 months' imprisonment;
(3)9 March 2011 – breaching a bail undertaking by failing to appear in March 2009, for which he was fined $200; and
(4)20 April 2011 – 2 offences of breaching an undertaking by failing to appear on separate charges in April and June 2010, for which he was fined $400 on each count.
It also appears from the applicant's criminal history that he has previously committed offences while on bail.
Although the last of the breaches occurred nearly 9 years ago, the burglary and stealing offences the subject of these proceedings are alleged to have occurred when the applicant was on bail entered into by him on 31 December 2018 in respect of the Weapons Act and number plate offences. Further, he failed to appear in the Joondalup Magistrates Court in answer to that bail on 30 January 2019.
In relation to the alleged breach of 30 January 2019, the applicant has filed (with Ms Rogers' affidavit) a copy of an email sent under his name to the Joondalup Magistrates Court on 30 January 2019, bearing the time stamp 12:34 am in which he sought an adjournment. The applicant has also filed a copy of an 'Email Delivery Advice' from the Joondalup Court acknowledging receipt of his email.
In his email to the Joondalup Magistrates Court, the applicant asked the court to accept his apologies for 'not being able to attend court' in respect of the charges as he was 'unwell'. He asked for the matters to be adjourned for a further four weeks for legal advice. He attached a medical certificate dated 29 January 2019 from a medical practitioner at a practice in Yanchep which stated: 'Mr Brett Jeffery suffers from an ongoing medical condition and will be unfit to attend court on 30/01/2019'. Such a certificate, which fails to state the condition or how it renders the person unfit to attend court, is inadequate to explain a person's failure to appear in answer to bail. However, it would appear that the applicant will rely on medical unfitness as the reasonable cause for his failure to appear. As I noted earlier, he was arrested on 31 January 2019 pursuant to the warrant that issued on 30 January 2019. There is no evidence in the proceedings as to his state of health at that time.
Home detention bail report
It was proposed that, if he were to be released on bail, including home detention bail, the applicant would reside at the address in Heathridge where he was living at the time the offences are alleged to have been committed. It is the address where police found some of the property that had been taken from the complainant's home, as well as the weapons the subject of the Weapons Act charges and the vehicle bearing the forged number plate. Those circumstances raise concerns about the appropriateness of the premises for home detention. On the other hand, it appears to be the place where he is most likely to receive support to enable him to comply with the conditions of home detention, including attending appointments with a Community Corrections Officer and for urinalysis testing. That is because it is the home of his friend of over 20 years, Ms D, and it is also where Ms Norman is living. Ms D has indicated she is prepared to be the applicant's sponsor for the purposes of home detention bail.
The author of the Bail Assessment Report identifies a number of matters in the applicant's history which weigh against a grant of bail on home detention conditions and generally. They include his previous breaches of bail and breaches of community based orders, including suspended imprisonment. However, she notes that the applicant had generally been compliant with the requirements of his most recent Intensive Supervision Order and had 'continued to engage' with the order until his arrest on 13 January 2019, when he was first remanded in custody for the home burglary and stealing charges.
The author states that in discussion with the applicant he indicated that he was willing to abide by the requirements of home detention, including random urinalysis testing and 'programmatic intervention'. Such programmes may include counselling. He indicated a desire to re‑engage with the psychologist he had previously been seeing.
The property in Heathridge and the sponsor (Ms D) were considered by the author of the report to be suitable for the purposes of home detention. Ms D demonstrated an awareness of the applicant's alleged offending and his 'previous struggles with illicit substance use'. She informed the author that 'there would be no negative peers allowed to visit their home'. Although she is on a disability pension, she said she was willing to assist the applicant by driving him to any appointments, and she indicated she considered that programmes and counselling would benefit the applicant.
Of course, on the prosecution case in the charges brought against the accused, any pro‑social support for the applicant from Ms D and Ms Norman did not prevent him from committing the alleged offences or from storing stolen property at the house. Their lack of knowledge that he was in possession of stolen property on the premises, if that is established, might suggest a lack of the vigilance that would be necessary if they are to contribute to the effectiveness of home detention. Nevertheless, the charges are allegations at this stage, and overall, the report is favourable in respect of the suitability of home detention bail.
If released on home detention, the applicant would be required to wear a monitoring device which would alert the authorities that he was in breach of bail if he left home without permission from his Community Corrections officer.
The applicant's submissions
In summary, the applicant's ultimate submission is that, notwithstanding the previous breaches of bail, the applicant has not been on home detention bail previously and I can be satisfied that the conditions of such bail will adequately reduce the risk of the applicant failing to appear or committing an offence as to make a grant of bail appropriate, having regard to the principles I outlined earlier.
It was initially the applicant's argument also that the case against him in respect of the home burglary and stealing offences is weak. However, I have already indicated that I reject that argument.
The applicant submits that, while his health problems, the grief issues and the family's desire that he be available to assist his brother do not constitute grounds which individually or in combination would warrant a grant of bail if I did not consider that adequate conditions could be imposed, in determining the adequacy of home detention bail, I should take those matters into account as factors that are likely to motivate the applicant to comply with the conditions of bail.
The respondent's submissions
The respondent opposes bail. It submits that there is a real risk that the applicant will not comply with his bail undertaking, having regard to his history (including previous breaches of bail), the inevitability of a term of imprisonment, if the applicant is convicted, and the fact that the offences are alleged to have been committed while the applicant was on an intensive supervision order and a suspended imprisonment order.
The respondent also submits that there is a real risk that the applicant would commit an offence if he is not kept in custody, given his history and the fact that the offences with which he is charged are alleged to have been committed at a time when the applicant was under supervision on an intensive supervision order and also subject to a suspended imprisonment order, aware that he was liable to be imprisoned if he offended during the suspension period.
The respondent submits that the assessment of both risks should be made in the context that the prosecution case on each of the charges, and in particular on the home burglary charge is strong.
The respondent submitted, initially, that there were no conditions that could sufficiently reduce the risk that the applicant would fail to appear or would commit an offence if he were on bail. However, at the resumed hearing, counsel for the respondent acknowledged that home detention may adequately reduce those risks, in particular the risk of the applicant committing an offence.
Conclusions
Risk that applicant will fail to appear
I am satisfied that there is an actual or real risk that the applicant may fail to appear to answer the charges if not kept in custody. The extent of the risk is significant, having regard to the applicant's prior history of breaching bail, the strength of the case against him, in particular in respect of the home burglary offence, and the inevitability of a term of a significant term of imprisonment if he is convicted of that offence. The fact that the applicant faces the real prospect of having to serve the term of imprisonment that was suspended, in the event that he is convicted of any of the offences for which the statutory penalty is imprisonment, further heightens the risk that he would fail to appear.
I take into account the fact that the applicant's failure to attend court on 30 January 2019 was in circumstances in which he informed the court by email that he would not be attending because he was medically unfit, and he sought an adjournment. He was arrested the following day. While those matters do not necessarily amount to a reasonable cause for his failure to appear, they tend to lessen the weight that should be given to that incident in assessing the risk that he would not comply with his bail undertaking if released on bail now. However, the applicant's apparent willingness to appear at an adjourned hearing, as evinced in his email to the Magistrates Court, was at a time when the home burglary and stealing charges had been discontinued, as I explained earlier, so that the potential consequences of conviction in respect of those offences would not have been a consideration. They are now a consideration that, in my view, provides the applicant with a significant incentive not to comply with a bail undertaking.
Risk that applicant will commit an offence
I am also satisfied, for the reasons submitted by the respondent (see [92] above), that there is an actual or real risk that the applicant may commit an offence if he is not kept in custody. I am satisfied it is a significant risk, given the applicant's history.
The applicant's submissions appeared to suggest at one point that his ailments are likely to prevent him from offending if he were released on bail. To the extent that the applicant relies on such a submission, it must be rejected. It is obvious that the applicant's ailments have not prevented him from doing the physical acts alleged to constitute the offences. The question in relation to the home burglary and stealing offences will be whether he honestly and reasonably believed he had consent to enter the house and whether he acted with fraudulent intent.
Whether conditions can reduce the risks to an acceptable level
The question is whether there are conditions that can be imposed that would sufficiently reduce the real risks I have identified to the point where the remaining risk no longer constitutes a proper ground for refusing bail.
A number of conditions were proposed on behalf of the applicant. It is sufficient to say that, short of home detention bail, the combination of conditions would not have been adequate, in my opinion, to reduce either the risk of the applicant failing to answer his bail or the risk that he may commit an offence to an acceptable level. However, in light of the positive factors identified in the Bail Assessment Report, as discussed above, I am satisfied that the conditions of home detention bail in combination with the other conditions stipulated below would sufficiently remove the risks to an extent that they no longer constitute proper grounds for refusing bail.
Given the applicant's medical conditions, I do not consider that the risk that he may fail to answer his bail will involve absconding; rather it will be a failure to appear to avoid the trial. Of course, any failure to appear for trial will result in disruption and frustration of the administration of justice, even if the applicant were to be apprehended soon after. But if that were to occur, the applicant would have no prospect of being released on bail again pending trial at an adjourned date. Having regard to all of his circumstances, I am satisfied that the strict conditions of home detention bail, including monitoring, in combination with the interest expressed by his sponsor to ensure he complies with his undertaking, will provide an adequate measure for ensuring the applicant will attend for his trial.
Similarly, given the nature of the most serious of the alleged offences the subject of this application, I consider that the constraints on the applicant's movements and the capacity to monitor his location will be sufficient to reduce the risk that he may commit an offence to an acceptable level.
A home detention condition will require the applicant to 'remain at and not leave the place specified in the bail record form and in the bail undertaking … until the time specified … in the bail undertaking except:
(i)to work in gainful employment approved by a community corrections officer; or
(ii)with the approval of a community corrections officer, to seek gainful employment; or
(iii)to obtain urgent medical or dental treatment for the accused; or
(iv)for the purpose of averting or minimizing a serious risk of death or injury to the accused or to another person; or
(v)to obey an order issued under a written law (such as a summons) requiring the accused's presence elsewhere; or
(vi)for a purpose approved of by a community corrections officer; or
(vii)on the direction of a community corrections officer.'[16]
[16] Bail Act 1982 sch 1, pt D, cl 3(3)(a).
It will also preclude the applicant from leaving the State, and will require him to comply with every reasonable direction of a community corrections officer.[17] The applicant will be required to wear a monitoring device which will enable the authorities to monitor whether he has left his residential address and his location if he has.
[17] Bail Act 1982 sch 1, pt D, cl 3(3)(b) and (c).
While the conditions of home detention bail, and monitoring in particular, cannot guarantee that an accused will not commit an offence or that he will attend court in answer to his bail, they do provide measures to reduce the risks. In my opinion, they provide scope for giving greater consideration to the factors concerning the applicant's personal circumstances referred to at [67] to [71] above than would otherwise be the case. Those factors are relevant to the assessment of whether the remaining level of risk that the applicant will fail to appear or will commit an offence is such that it no longer constitutes a proper basis for refusing bail. I have come to the conclusion that the conditions of bail outlined below will remove the risks to an acceptable level.
Bail granted
The applicant will be granted bail on the following conditions:
(1)The applicant is to enter into a personal undertaking to forfeit $5,000 if he fails to comply with any requirement of his bail undertaking;
(2)There is to be a surety who agrees to forfeit the sum of $5,000 if the applicant fails to comply with any requirement of his bail undertaking;
(3)The applicant is to be subject to a home detention condition and is to be released upon confirmation from Adult Community corrections that the installation of the monitoring equipment can be facilitated and not before;
(4)Upon release the applicant is to attend at Adult Community Corrections in Mirrabooka, and is then to proceed directly to [address redacted] and is to reside at that address while on bail;
(5)The applicant is to abstain from the use of all illicit substances and non-prescribed medication;
(6)The applicant is to attend for urinalysis testing as directed by a Community Corrections officer and is to provide a valid sample for urinalysis, with any positive result for illicit substances to constitute a breach of bail;
(7)The applicant is to attend and engage in programmes/counselling as directed by a Community Corrections officer;
(8)The applicant is to surrender any passports he may hold;
(9)The applicant is to comply with all lawful directions of a Community Corrections officer;
(10)The applicant is prohibited from approaching within 1 Km of any international point of departure; and
(11)The applicant is not to contact [AG] or [KJK] directly or indirectly, except that the prohibition does not apply to the applicant's counsel contacting those persons for the purpose of the conduct of the defence case.
Order
At the conclusion of proceedings on 6 May 2019, the applicant was granted bail in the above terms.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca4 JULY 2019
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