Kimberley v The State of Western Australia
[2013] WASC 238
•20 JUNE 2013
KIMBERLEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 238
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 238 | |
| 20/06/2013 | |||
| Case No: | MBA:12/2013 | 15 MAY 2013 | |
| Coram: | CORBOY J | 15/06/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | CLINT JAMES KIMBERLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail No new principles |
Legislation: | Bail Act 1982 (WA), s 14, sch 1 |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99; 42 WAR 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for bail - No new principles
Legislation:
Bail Act 1982 (WA), s 14, sch 1
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Ms L Boston
Respondent : Mr D J Krueger
Solicitors:
Applicant : Lisa Boston
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; 42 WAR 99
- CORBOY J:
(These reasons were delivered orally on 15 May 2013 and have been edited from the transcript.)
1 This is an application that the applicant be released on bail on his personal undertaking, the provision of a surety and certain protective and reporting conditions. The application is made pursuant to s 14 of the Bail Act 1982 (WA). The application is supported by an affidavit made by Lisa Boston on 10 May 2013. Ms Boston is a barrister who acts and appears on behalf of the applicant. The application is opposed by the State.
2 The applicant is charged by a prosecution notice dated 15 November 2012 with four offences: that he unlawfully detained The Anh Doan, contrary to s 333 of the Criminal Code (WA); that he was armed with a dangerous or offensive weapon, namely a replica handgun, in circumstances that were likely to cause fear to any person, contrary to s 68(1) of the Criminal Code; that he demanded $6,000 in cash from Tony Lam, with a threat that he would steal his motor vehicle, contrary to s 397(2) of the Criminal Code; and that he stole an Apple iPod and $60 in cash, to the value of $360, the property of Vi Anh Doan, contrary to s 378 of the Criminal Code.
3 The statement of material facts alleges that on 14 November 2012 the accused was in company with two other males in William Street, Northbridge. Ms Doan commenced parking the vehicle that she was driving on William Street while Mr Lam was standing adjacent on the footpath, smoking a cigarette. The applicant walked up behind Mr Lam, who was the boyfriend of Ms Doan, and placed a toy handgun in his lower back. At the same time he told Ms Doan, through the open front passenger-side window of the motor vehicle, to pull over. Mr Lam observed the toy handgun and feared for his life, not appreciating that it was a replica.
4 The applicant said to Mr Lam, 'Come take a walk', and he and Mr Lam commenced walking down William Street. Mr Lam then escaped and ran into a nearby restaurant. The applicant did not chase after Mr Lam but continued to walk down William Street to where Ms Doan had parked her vehicle. He opened the passenger door, got into the car, saying to Ms Doan, 'Your man owes a lot of money'.
5 Once in the vehicle, the applicant held the replica handgun to Ms Doan's face and stated, 'Tell Tony I'm not going to fuck around'. He made Ms Doan send Mr Lam a number of text messages stating, 'Get 6K' and 'or he'll take the car'. A short time later, the applicant told Ms Doan to send another message to Mr Lam stating, '1K for now', and, 'He's not leaving until he gets 1K'.
6 A companion of the applicant walked up to the vehicle and stated to the applicant, 'Let's go. She's got nothing to do with this', to which the applicant replied, 'I know but I want my cut'. The applicant got out of the vehicle to speak to the other male and said to Ms Doan, 'You're not going to drive off, are you?' and, 'I've got your purse, by the way'. Ms Doan did not feel that she could leave.
7 The applicant re-entered the vehicle and, after a few minutes, instructed Ms Doan to drive around the local area. While the car was being driven around, the applicant took approximately $60 in cash and an Apple iPod from Ms Doan's handbag.
8 The police located Ms Doan and the applicant shortly after and took the applicant into custody. The cash and ipod were located on the applicant's person and the replica firearm under the seat of a vehicle connected with the applicant. The applicant later participated in a video record of interview in which he made partial admissions.
9 In his witness statement dated 14 November 2012, Mr Lam stated, among other things, that he was standing on the footpath while Ms Doan parked her vehicle. A person, who he described as being a white male, grabbed him from behind and pushed a gun into the right side of his lower back. He described the gun as being a 'medium-size, blackish-grey handgun'. He did not get a good look at the male but he had not seen him before. He was very scared and feared for his life. He waited in the restaurant after he escaped for about five minutes. Two Asian males then came into the restaurant and approached him. They said, 'Come take a walk'. He refused to move and one of the males hit him on the left side of his face with a fist.
10 Ms Doan described arriving at Mr Lam's house in Beechboro and then driving to Northbridge. She stated that she noticed a particular motor vehicle near Mr Lam's house which she later stated she saw in Northbridge during the incidents that are the subject of the charges against the applicant. She stated that Mr Lam was standing on the footpath adjacent to where she was parking the vehicle on William Street. He was standing with another man who was dressed in black. The man had his arm across Mr Lam's shoulders and had an object in his right hand that he was pointing at Mr Lam.
11 Ms Doan stated she saw another man who she recognised and who she knew as Hien. She drove her vehicle a short distance up Monger Street and parked. As she did so, she noticed the vehicle that she had seen earlier near Mr Lam's house in Beechboro. The man who had been with Mr Lam then approached her vehicle and said to her through the passenger window, 'Your man owes a lot of money'. He opened the passenger door and got into the vehicle.
12 The man then said to Ms Doan words to the effect, 'You're innocent', and, 'It's got nothing to do with you. I just want my cut'. He then said that he had flown over from Melbourne to 'do this' and that he was not going to do anything to Ms Doan. He told Ms Doan that he had just got off the plane from Melbourne. He then said, 'Tell Tony I'm not going to fuck around'. He shook a handgun in front of Ms Doan's face. Ms Doan could hear a rattle coming from the gun and believed that it was made of plastic.
13 Ms Doan then described a series of text messages exchanged between her and Mr Lam. The man in the vehicle got her to send a message requiring Mr Lam to 'get 6K' and another message stating, 'Or he'll take your car. He's sitting next to me'. At one point the man left the vehicle with Hien, but he subsequently returned. On his return, he demanded that Ms Doan take him to the nearest teller machine stating that he required at least $800. They drove around for a short while, during which time the man went through Ms Doan's handbag. Subsequently, he had Ms Doan stop the vehicle and he left.
14 That is the only evidence relating to the charges alleged against the applicant. The State elected to rely on the statement of material facts together with other information that was relevant to the charges and which had been annexed to Ms Boston's affidavit.
15 The jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Bail Act and pt A, B, C in sch 1 to the Act: see s 13(1) . Part C of sch 1 prescribes the manner in which the jurisdiction is to be exercised. The judicial officer is required to consider the questions stated in pars (a) to (g) of cl 1 and any other questions that he or she considers to be relevant.
16 The principles to be applied in determining an application for bail are well known and were identified by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99; 42 WAR 99. In summary:
(a) The Bail Act was intended to contain a comprehensive code on the subject of bail.
(b) 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 of pt C sch 1 to the Act.
(c) 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 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) of sch 1.
(d) 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.
(e) All of the mandatory questions, with the exception of par (e), are directed to whether there are positive grounds for refusing bail. The matters in par (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, 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.
(f) The Bail Act does not place a legal onus on any party to the application. However, the structure of cl 1 is such that bail will be granted if there is no material before the Court providing a proper foundation for refusing bail. Consequently, it will often be for the State to furnish the material required to provide a proper foundation for refusing bail.
(g) The word 'may' in pars (a) and (b) of cl 1(a) means the possibility of the event occurring. So, for example, the Court is required to answer the question whether, if the accused is not kept in custody, there is a possibility that he would fail to appear in court in compliance with his bail undertaking.
(h) It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused for and upon conviction are sufficient to enable the Court to conclude that the accused may fail to appear in court in compliance with his or her bail undertaking. The existence and extent of that possibility may, having regard to the answers to all of the mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach for or against bail is inconsistent with the approach required under the Bail Act.
17 The State opposes bail, as I indicated, on two grounds relevant to cl 1 of pt C: that there was a risk that if the applicant was not kept in custody, he may commit further offences - see par 1(a) of cl 1 of pt C; and, second, that the seriousness of the offences with which the applicant had been charged and the likely sentencing disposition if the applicant was convicted of those offences was such that a grant of bail was inappropriate.
18 I accept that these are serious offences and I also accept that the applicant has an extensive criminal record dating back to 1994. I also note that on one previous occasion the applicant breached bail. It is also accepted that for the purposes of this application, the State has a strong case on the charge that the applicant was armed with a dangerous or offensive weapon, namely a replica handgun, in circumstances that were likely to cause fear to any person.
19 It is said on behalf of the applicant that the State case was not as strong in relation to the charges of deprivation of liberty and of demanding cash from the complainant with a threat (the complainant being Mr Lam). It was said that that was apparent from the witness statements of Mr Lam and Ms Doan that have been served by the State on the applicant.
20 I accept that it would appear from her witness statement that Ms Doan quickly appreciated that the weapon that the man who got into the car was holding was a replica handgun. I also accept that it would appear from her statement, as best as can be ascertained, that she was not especially frightened by the man in the motor vehicle. It is, as I understand it, accepted by the applicant for the purpose of this application that he was the person who was in the vehicle.
21 It is more difficult to ascertain from Ms Doan's statement the strength of the State case in relation to the charge that the applicant unlawfully detained her. As I have indicated, she did not appear to be especially frightened or intimidated by the man but, on the other hand, it cannot, in my view, be reasonably inferred from her statement that she felt free to be able to leave the vehicle of her own volition.
22 As I have indicated, these are serious charges and it was rightly conceded by Ms Boston that if the applicant was convicted of the charges of unlawfully detaining Ms Doan and of being armed with a dangerous or offensive weapon that the applicant would be likely to be sentenced to an immediate term of imprisonment.
23 Notwithstanding those matters, I have concluded that the nature of the offences themselves are not such as to make the grant of bail inappropriate. I have also concluded that the risk that the applicant might commit further offences if not detained in custody, or that the applicant would not appear in court as directed if not detained in custody, can be sufficiently guarded against by appropriate protective and reporting conditions and the provision of a surety. Accordingly, I am satisfied that bail should be granted subject to those conditions.
24 The conditions that are proposed as part of the application are that the applicant enter into a personal undertaking in the sum of $10,000. Secondly, there be a surety in the sum of $20,000 and that the surety be the applicant's mother, Judith Ann Kimberley. In my view the appropriate amount for the surety should be $20,000, not $10,000 (as the applicant suggested), having regard to the seriousness of the offences with which the applicant has been charged.
25 There will be a further condition which is consistent with what is proposed in the application, that is, the applicant reside at 17 Finlay Court, Rivervale. I will impose a curfew condition. The applicant is to be at that address between 9 pm and 8 am daily. The applicant is not to attempt to contact or attempt to contact Mr Lam or Ms Doan or any other prosecution witness as identified in the prosecution brief. The applicant is not to enter the Northbridge area, defined by the following boundaries: Newcastle Street, William Street, Roe Street and Elder Street. That is an absolute prohibition. The applicant is not at any time to enter into that area as defined by those boundaries. The applicant is to report to the officer in charge of the Belmont police station between 9 am and 4 pm on Monday, Wednesday and Friday of each week.
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