Jordan v The State of Western Australia - [2011] WASC 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: JORDAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 81

CORAM: MURRAY J

HEARD: 28 MARCH 2011

DELIVERED : 28 MARCH 2011

PUBLISHED : 29 MARCH 2011

FILE NO/S: MCS 8 of 2011

BETWEEN: BRENDAN JORDAN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application for bail - Balancing matters favourable to the grant of bail against flight risk and risk of further offences - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 14; Sch 1 Pt C cl 1, cl 3

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr B D Nibbs
Respondent: Mr N Barber

Solicitors:

Applicant: Holborn Lenhoff Massey
Respondent: Director of Public Prosecutions (WA)

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

Lim v Gregson [1989] WAR 1
WCVB v The Queen (1989) 1 WAR 279

MURRAY J:

The application

This was an application for bail. It was made under s 14 of the Bail Act 1982 (WA) which, in the circumstances of this case, gives a judge of this court the jurisdiction to exercise a power to grant or refuse bail, although for the particular appearance in question the statute confers that power upon another judicial officer, in this case a magistrate.
I refused bail. That decision may be taken on appeal to the Court of Appeal: s 15A. These are my reasons for that decision, as required by the Act, s 26(2).
It appears that prosecution notices have been issued, charging the applicant with 22 offences, as follows:
(l)Possession of a prohibited weapon (Taser);
(2)Possession of unlicensed ammunition (22 x .22 calibre rounds);
(3)Received a prohibited weapon (cat A ERMA .22 bolt repeater rifle);
(4)Possession of methylamphetamine with intent to sell or supply (29.4 grams);
(5)Possession of methylamphetamine with intent to sell or supply (199.95grams);
(6)Possession of Lysergic acid with intent to sell or supply (1.83 grams);
(7)Possession of MDMA (2 tablets);
(8)Possession of a controlled weapon (doubled edged blade);
(9)Possession of a controlled weapon (throwing star);
(10)Possession of a prohibited weapon (three throwing knives);
(11)Possession of a prohibited weapon (metal asp baton);
(12)Possession of a prohibited weapon (pepper spray);
(13)Possession of a prohibited weapon (knuckle dusters);
(14)Possession of a prohibited weapon;
(15).Possession of a smoking utensil;
(16)Possession of a prohibited drug (cannabis);
(17)Possession of a prohibited drug (dexamphetamine;
(18)Possession of unlicensed ammunition (10 x 12 gauge shot gun shells);
(19)Possession of unlicensed ammunition (166 x .22 calibre hornet rounds);
(20)Possession of unlicensed ammunition (28 x .22 calibre hornet rounds);
(21)Possession of unlicensed ammunition (21 x 9mm rounds);
(22)Possession of unlicensed ammunition (1 x 7.62 round).
The applicant first appeared in the Magistrates Court on 1 February 2011. He applied for bail, but bail was refused. He now makes the same application to this court, supported by two affidavits, the most important of which is that sworn by him on 14 March 2011. In addition, the applicant has provided four character references. I also had before me an affidavit sworn by a Detective Fowler, who has been closely associated with the investigation which led to the charges referred to above being laid.

The material facts

On 31 January 2011, the applicant telephoned the police. He complained that he had, at his home in Ballajura, been the victim of a burglary or robbery. Detective Fowler's affidavit says that the applicant reported, 'an armed home invasion'. The police attended. The applicant was interviewed. He told the police that he was the 'owner and the sole occupant of the house'.
Detective Fowler says that the police made, 'some observations' about what was in the house. Counsel explained that meant they saw things which caused them concern about the applicant's way of life.
After they left the house they obtained a search warrant, and in the afternoon of 31 January that warrant was executed at the house. Detective Fowler says they found quantities of methylamphetamine hidden in various places, including in a locked box which contained about 29 grams of the drug. They located documents which indicated amounts of money received, said by Detective Fowler to be amounts up to $13,000.
Various other items were found: a cutting agent, digital scales, heat-seal bags and a machine to complete the seal, clipseal bags, smoking implements, a fake Canon digital camera which contained what the applicant described as a 'party pack' which was a quantity of various different prohibited drugs. There were instructions on how to cook methylamphetamine.
During this and a later search the police located and seized a veritable arsenal of weapons and ammunition: various firearms, including a stolen sawn‑off .22 calibre lever‑action rifle, a 12‑gauge long‑barrelled shotgun, a loaded 12‑gauge sawn‑off shotgun; a loaded 9 mm handgun, a double edged knife, a throwing star, throwing knives, a metal asp baton, a pepper spray, a set of knuckle dusters, a taser and assorted ammunition.
Given that the applicant was the sole occupant of the house, it would seem that, at first sight, there is strong evidence available that the applicant has been involved in significant activity as a drug dealer, leading to the commission of serious offences against at least the Misuse of Drugs Act 1981 (WA) and the Firearms Act 1973 (WA), although the particular prosecution notices recording the charges as laid are not before me.
Further, I am told that as a result of monitoring the applicant's telephone calls immediately after he was detained in custody, there is evidence that he had consigned baggage, a duffle bag and a computer carrying bag, by air from Perth to Karratha. The police had found documentation in the applicant's possession upon his arrest which showed that he was proposing to travel by air from Perth to Karratha. The luggage must have been consigned by or on behalf of the applicant on or about 31 January. Of course, he did not take the flight in question, but it seems that his luggage did.
It was located at the Karratha airport on 3 February 2011 and it was examined. In a holder in the duffle bag they found a sealed bag containing about 200 grams of methylamphetamine and a taser device. In the other bag, the computer carrying bag, a small quantity of LSD tablets, bearing the same logo as those located at the house in Ballajura, was found. The police also found what Detective Fowler described as 'tick sheets', naming individuals and identifying large sums of money.
Further charges were laid to add to those arising out of the execution of the search warrant. A further search under warrant was made of a donga which is said to be the place where the applicant would reside when in Karratha, at his place of employment with RDS Transport Services. I shall speak more of that business shortly. This search revealed further ammunition, heat‑seal bags and a heat‑sealer.
In his affidavit, Detective Fowler says that he understands that the street value of methylamphetamine is from about $7,200 ‑ $15,000 for an ounce, or 28 grams, depending on purity. His estimate, therefore, of the street value of this drug found at the house in Ballajura is between $7,200 and $15,000. The much larger quantity found in the applicant's luggage at the Karratha airport would, Detective Fowler estimates, have a value on the street of between about $51,000 and $107,000. I gather than no more can be said about value until the purity of the drug is established. But on any view of it, the quantity of the drug involved and its value is considerable, and supports the conclusion of drug dealing to be drawn by inference from the tick lists which were found.
The applicant says nothing about the facts concerning the offences with which he has been charged. He says nothing about his intentions in respect of the pleas that he would propose to enter. Nor does he need to. But the court is left in the position that it may accept at face value what emerges from Detective Fowler's affidavit and form a view about the case against the applicant accordingly.
It seems to me that, subject to the fact that no case has been presented at trial and the investigation is at an early stage without, as yet, complete prosecution disclosure having taken place, there is evidence capable of sustaining the conclusion that the prosecution case will be a strong one in support of the offences charged.
They are serious offences, and there would appear to be evidence capable of establishing that the applicant was seriously involved in dealing in illicit drugs in a way which was capable of yielding substantial profit. He was heavily armed with a variety of weapons. Some of the firearms were high‑powered. Some were loaded. There is, it would seem, good evidence to link the applicant with the bags in his name which were searched upon their discovery at the Karratha airport.
If he is convicted, he faces a substantial term of imprisonment, and he must realise that that is the case. He also faces the loss of his assets: his equity in the house in Ballajura, a Harley Davidson motorcycle and about $17,400 in money, all of which have been frozen, as I understand it, pursuant to the Criminal Property Confiscation Act2000 (WA).

The applicant's personal circumstances

The applicant is a young single man of 30 years of age who has no previous convictions. It appears that he has no partner or children, and when in Perth he lives alone in the Ballajura house, which he says he has been in the process of purchasing for about 8 years.
He is a Victorian by birth. His parents now reside in Karratha. He has a brother and sister who are 5 years older than him. They are twins. Both are married and live in Perth. The applicant's mother is a qualified teacher employed in Karratha. His father, the applicant's older brother and the applicant jointly conduct the transport services business known as RDS Transport Services. It is a substantial business, having a fleet of nine trucks and 12 trailers, and employing eight people. It provides transport services to various other companies and its business interests extend as far north as Broome.
The applicant is a qualified diesel fitter and mechanic. According to a letter provided by his father, dated 9 February 2011, which I received in evidence, the applicant has significant responsibilities in the day‑to‑day management and operation of the business to such an extent that his father says, 'It would be difficult for the business to function at full capacity if he was unable to work for an extended period of time'. It appears that the applicant is not only responsible for maintaining the business's fleet of trucks and equipment, but he has responsibility to book jobs and to manage staff rosters, as well as carrying out his share of the truck driving duties.
Although the applicant's father says nothing about it, perhaps because his letter is dated 9 February, and was therefore written shortly after the applicant's arrest, the applicant says in his affidavit that since his incarceration his father has been under considerable stress because he has had to undertake the driving duties which would otherwise have been performed by the applicant. This presents difficulties because the applicant's father has had interim arthroscopic knee surgery, from which he is in the process of recovery, but he will require a total knee replacement. He has been told that he should allow 2 to 3 months for recovery before returning to work full time.
It is convenient to note that, having placed substantial reliance upon these matters in support of his application for bail, the applicant offered a bail undertaking conditioned by a surety undertaking to be provided by his father, by a condition as to where he should reside (with his parents in Karratha or his brother here in Perth) by his undertaking not to leave WA, by his undertaking not to have any contact with witnesses (although it would seem that they will overwhelmingly be police officers) and by a condition requiring frequent reporting to the police, both in Karratha and in Perth, whenever he is required to be in either place.
I queried this, in view of the fact that his truck driving duties might take him away for periods of time and cause him to be required to travel as far as Broome. I was told that if the applicant could not perform those duties because of conflict with residential and reporting conditions, there could be a reallocation of those duties, although presumably not to the applicant's father. In my view, this rather cut away the force of any suggestion that the applicant's presence in the business to undertake all aspects of his ordinary responsibilities for the operation of that business, was required.
Counsel also suggested that it might be appropriate to order the applicant not to have in his possession any weapon, but, of course, if the weapon is a prohibited or controlled weapon or a weapon the possession of which requires a licence, that would be the obligation of the applicant in accordance with the law. It would need no reinforcement by making it a condition of bail.
Apart from the letter from the applicant's father to which I have referred, three references were provided and received in evidence. The first is dated 11 January (presumably the date should be 11 February), from the proprietor of Karratha Auto Electrics. He says that he knows with what offences the applicant has been charged and, if granted bail, there would be no hesitation in Karratha Auto Electrics providing services to the applicant or his family business.
A more extensive character reference is that of a Mr Smith, the managing director of Angelsmith Pty Ltd, which is a transport company for whom RDS Transport Services provides services in the form, not only for the hire of equipment, but also the provision of drivers employed by RDS Transport Services. This is a fulsomely expressed character reference, which refers not only to the applicant's worth in the performance of business services, but also to his 'tireless work' as a volunteer with children and non‑profit organisations such Convoy For Kids, and the fundraising appeal, Toys For Kids.
A further character reference in similar terms is that provided by a Mr Newbold, the director of Chameleon Resources Pty Ltd. He knows the applicant as a result of business contacts and social contacts. It seems that the Newbold and Jordan families are friends. He says that he has found the applicant to be, 'a very family‑oriented and agreeable person' with whom he would be happy to deal in the future.
While I note the content of these references, they are, I think, of little weight in relation to the matters to which I must have regard in considering the applicant's case for bail.

My evaluation of the case for bail

A discretionary judgment in relation to the grant or refusal of bail is required. There is no right to bail in such circumstances as are involved in this case. The applicant's right is to have his case for bail properly considered. By cl 1 of Sch 1 Pt C of the Bail Act, so far as it is material to this case, the judge is to exercise the discretion having regard to:
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
…
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
By cl 1(e), I am to consider whether there are any conditions which may be imposed upon the grant of bail which would sufficiently remove any possibility referred to in par (a).
Clause 3 of this schedule provides:
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant -
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
In WCVB v The Queen (1989) 1 WAR 279, Ipp J followed the earlier decision of the Full Court in Lim v Gregson [1989] WAR 1 in holding that the common law in regard to the relevant factors to be taken into account in considering the grant of bail was replicated in the provisions of the schedule to the Bail Act. In relation to matters that were adverse to the grant of bail, his Honour observed that it was for the prosecution opposing the grant of bail to establish the relevant facts. In this case, of course, there is no dispute as to those facts on either side. The question here is how the discretion should be exercised.
As to that, his Honour held that where, as in that case and as in this case, the charges laid in respect of which bail was sought were, in themselves and/or because of their multiplicity, of particular seriousness, then the applicant for bail must show that there are particularly cogent reasons why the balance should lie in favour of the grant of bail. This decision has been applied often. I respectfully agree with it and approach the question of the grant or refusal of bail in this case in that way.
I can express my conclusions shortly, having regard to the findings of fact which I have set out above. The prosecution case against the applicant is strong. Upon the basis of the information available to me there is a good prospect that he will be convicted of the multiplicity of offences with which he has been charged. They are generally serious in themselves and they are serious because of the multiplicity of offences which the applicant is alleged to have committed. If he is convicted, it is very likely that, despite the fact that he would be a first offender, he would be sentenced to a substantial term of imprisonment, as well as being declared a drug trafficker and ultimately suffering the loss of his property.
The tragedy would then be that, if convicted, the applicant would have set at naught his previous good character, his solid family support and the high regard with which he his held in the community, both by those who know him in the context of his business activities and personally. He is a young man without ties in the community except those created by his commitment to the family business and, I presume, if his father was to provide a surety, his desire not to abscond and thereby cause his father to suffer the loss of the surety undertaking.
In my opinion, there is a grave danger, in all the circumstances, that the applicant would abscond and would fail to answer to his bail at trial. Whether or not he did so, I think there is also a grave danger that the applicant would commit serious drug trafficking offences and that he might, given his penchant to be armed, endanger the safety and welfare of those to whom he may deal drugs and who may prove to be unable to discharge their debt.
If the facts alleged can be proved, they reveal the applicant to be a person who, despite the solid place he has in the affairs of the family business and the stake he has in keeping that business operating profitably, may be motivated, by the desire for personal profit, to commit serious offences. There is little reason to suppose that if he were so minded he could be deterred by the imposition of conditions upon the grant of bail, such as those to which reference has been made above.

For those reasons, having heard the applicant's case, I refuse to grant bail. The applicant remains remanded in custody.