Kirwan v The State of Western Australia - [2014] WASC 425

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KIRWAN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 425

CORAM: SIMMONDS J

HEARD: 29 OCTOBER 2014

DELIVERED : 29 OCTOBER 2014

PUBLISHED : 14 NOVEMBER 2014

FILE NO/S: INS 124 of 2014

BETWEEN: ALVIN GLENN KIRWAN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application for bail pending trial

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 13

Result:

Adjourned for preparation of report

Category: B

Representation:

Counsel:

Applicant: Mr H Sklarz
Respondent: Mr J Newton-Palmer

Solicitors:

Applicant: Sklarz Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Hedgeland v The State of Western Australia [2011] WASC 181
Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
SIMMONDS J:
(This judgment was delivered extemporaneously on 29 October 2014 and has been edited from the transcript.)

I have heard submissions now extending over a period, without excluding the short adjournment to permit counsel for the applicant to consult with the applicant about certain matters raised by counsel for the respondent State in his submissions, something in excess of 1 hour and 20 minutes. I should indicate that the conclusion which I have arrived at, not without some considerable difficulty, is that I would be prepared to make an order that would provide for the assessment of the applicant for home detention bail, and the following are my reasons.
This application for bail is in relation to seven charges on an indictment in this court. It was originally made, as I understood the application, to relate as well to seven other charges pending in the Magistrates Court in Perth. However, I was informed today that the applicant had pleaded guilty to those charges. Accordingly, of course, the bail application no longer relates to them in this sense, that the sentence imposed, in respect of each of those charges was not a custodial one. In each case a fine was imposed.

Background to the present application

So far as the background to this matter is concerned, the seven charges in this court arose out of an incident alleged to have occurred at the home of a Mr SBW, who, I was also informed today, is now deceased. This incident was alleged to have occurred on 29 September 2013. This alleged incident occurred while the applicant was on bail in relation to the charges previously pending in the Magistrates Court to which I have referred.
It is stated in the statement of material facts that the applicant was in company with another when, armed with a firearm, he threatened and then attacked and wounded Mr SBW and his fiancée Ms SAH. These attacks occurred in Mr SBW's bedroom. I have information, in the prosecution brief, that a light was on in the bedroom. I do not have any other information as to lighting conditions in the bedroom at the time.
The attacks occurred in the course of an unconsented to entry and demands for property by the two entrants. The entrants took keys to a vehicle belonging to Mr SBW as well as other property of his, and property of Ms SAH. The entrants drove off in the vehicle. The applicant, it is alleged, later that day bought a can of oven spray cleaner, sprayed the vehicle and set it alight. The vehicle was a write‑off.
The wounding Mr SBW sustained in the attack required surgery. The wounding Ms SAH sustained in the attack required medical treatment.
The indictment contains one count of aggravated home burglary, two counts of unlawful wounding, two counts of aggravated armed robbery, one count of steal a motor vehicle and one count of arson, that is to say, seven counts in all.
The present application dated 16 October 2014 is supported by an affidavit of the applicant sworn 15 October 2014, with attachments.
The application is also supported by an affidavit of the applicant's partner, Ms CTM, sworn 13 October 2014. I will get back shortly to the characterisation of Ms CTM as the applicant's partner, a matter which was raised in argument before me by counsel for the State and responded to, after the opportunity for further instructions I have referred to, by counsel for the applicant.
I have as one of the attachments to the applicant's affidavit, a criminal record for him of nine pages shown as compiled 25 October 2013 at 9.50 am. So far as I can determine, there has been no material change to that criminal record since that date.
The applicant has been in custody for the present offending since early October 2013, and indeed that period in custody to the provisional trial date set in April 2015 forms one of the bases upon which his application for bail is made.

Applicable principles

So far as the approach to the decision as to bail is concerned it is quite clear what the approach must be.
It is based, of course, upon the Bail Act 1982 (WA) sch 1 of pt C of cl 1, read with cl 3. Those provisions are to be approached as stated in the decision of Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [43], [34]. In Hedgeland v The State of Western Australia [2011] WASC 181 [16] I extracted what I called the 10 principles, which I will not repeat here, and which I associated with Milenkovski. I also noted in Hedgeland [15], by reference to Milenkovski [34] read with [35], that the Bail Act is to be approached as a comprehensive code on the subject of bail, as I indicate there.
I note in determining the present application that I may receive and take into account such information as I see fit, whether or not the same would normally be admissible in a court of law. I refer here to the Bail Act s 22. However, the weight of such information is a distinct consideration. It will shortly be seen this is a significant provision in relation to the present bail application.
It is clear that the information may be derived from matter other than that contained in affidavits. If authority is needed for that it is to be found in Lai v The State of Western Australia [2010] WASC 334 [20] ‑ [25] (EM Heenan J), which is not infrequently referred to for this purpose.

The basis of the application and the questions in cl 1(a)

The basis for the present application, taking account of what Milenkovski has to say as to how these applications are to be approached, is that the answers to the applicable questions in the Bail Act cl 1(a) of pt C of sch 1 (as will shortly be indicated, the applicable question here is, I think, cl 1(a)(ii)), read with cl 3 and cl 1(e), as well as what is referred to in cl 1 as 'the allowance for other questions to be raised', all either point towards the grant of bail or do not sufficiently point away from it.
In the alternative, it is put that the court should have the applicant assessed for home detention bail and then proceed to consider the matter of home detention bail.
Turning then to the questions in cl 1(a) read with cl 3, counsel for the State made it clear to me that the State rested its opposition to bail on the matter that the applicant may commit an offence (see cl 1(a)(ii)), of a kind not dissimilar to the present offending, as well as the possibility of a breach of bail. One of the offences before the Magistrates Court to which the applicant pleaded guilty was a breach of bail, although it was explained to me that it was a relatively inadvertent breach of bail, nonetheless one where the applicant did not invoke any question of reasonable excuse.
The State is not relying on the possibility that the applicant may fail to appear, or would otherwise endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice.
I must take account of the matters in cl 3 for the purpose of assessing the risk in cl 1(a)(ii). That is an important point because cl 3 directs my attention to the nature and seriousness of the offences and the probable method of dealing with them; the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant; the history of previous grants of bail (although I would be inclined to put that aside as the only breach of bail is the one I have referred to); and, finally, the strength of the evidence against the applicant. This is in addition to any other matters I might consider relevant.
The basis for the application for bail was put in terms of the personal and financial hardship to the applicant's family from his continued incarceration. There is also reference as a ground to the applicant's employment on release. I took this basis as going to cl 1(a)(ii) in terms of it acting to constrain or make unlikely the commission of any further offence because it would threaten the applicant addressing the personal and financial hardship to his family in the way that would be possible on his release. I return to that later in these reasons. However, I also took the reference to personal and financial hardship as a separate consideration, one to be considered on its own. I believe, on the authorities, that is the way that the matter can be approached, in which case, in terms of cl 1, it is approached as one of the other questions arising under cl 1.
The hardship which it is put the applicant's release on bail would address is the need for Ms CTM to resign from her position to resume full‑time care of their 12‑year‑old son.
Ms CTM is described in the applicant's affidavit as his wife and the 12‑year‑old as his son. It emerged at the hearing before me that Ms CTM is the de facto partner of the applicant, and while that is, indeed, a distinction that in popular speech is regarded as a narrow one, nonetheless it is a distinction that I note. Further, the 12‑year‑old is not the son of the applicant in the sense of being a biological son. In this respect the affidavit, if I may say so, has some of the flavour of a somewhat misleading document.
The reference to a 12‑year‑old son might be taken to be a reference, by implication, to the duration of a relation with Ms CTM. I understood it to be common ground that the relationship simply was not of that duration. Indeed, on an incident report which I had provided to me at the hearing and which falls into the category of information I would take account of, allowing for considerations of its weight under s 22 of the Bail Act, it seems that the relationship with Ms CTM, which I accept is properly to be characterised as a de facto one, began sometime in 2013 while the applicant was in custody as a sentenced prisoner for other offending.
There is also a complication described in the incident report and not contested that the applicant had a relationship of some kind with another person, another female partner, which broke down after his release from that prior incarceration and prior to his return to custody in connection with the present indictment offences. This is a rather more complex picture than emerges either from the affidavit of the applicant or the affidavit of Ms CTM. This is of some significance to the basis for the application for bail which, to repeat, is personal and financial hardship to the 'family', from the applicant's continued incarceration.
Allowing for that complication, it seems to me that I should recognise the following as established before me. Ms CTM is, at present, the only financial provider for the grouping made up of the applicant, Ms CTM and the 12‑year‑old boy. Her position currently requires her to be rostered on a two weeks on, one week off basis in the North West. While she is absent, the son has, up to very recently, been accommodated and received general parenting from a cousin of Ms CTM, a Ms LM.
However, Ms LM relocated to South Hedland, where her husband is employed, a few days before this hearing. I have material in Ms CTM's affidavit indicating that neither the applicant's mother nor his maternal grandmother is in a position to provide replacement accommodation or general parenting by reason of ailments that they are suffering from, which I will return to.
The applicant is, I accept, a person who can be relied upon and who intends to be someone who can be relied upon to provide for the accommodation and general parenting of the boy. Ms CTM has taken over the lease of the home where Ms LM had formerly performed those services. Ms CTM treats the applicant as a person who will provide that support; and the applicant himself has indicated that that would be what he would wish to do and to be released to enable him to do.
The question of the possibility of interference with his ability to do this in a way that would engage the concern the State puts against the grant of bail, the risk of reoffending in cl 1(a)(ii) arising from the employment of the applicant, is a matter I will shortly reach.
I also note I have material before me which indicates the role the applicant would be prevented from playing in the provision of support for the applicant's ailing mother and the applicant's ailing maternal grandmother. That role is described in letters from both attached to the affidavit of Ms CTM to which I previously referred. Those letters particularly refer to physical assistance the applicant can provide to the two women in getting them to and from their medical appointments in connection with the significant ailments which they describe and for which, in respect of one of them, there is additional medical information available to me.
In addition, I have material indicating that a friend of the applicant has offered him employment in the friend's refrigeration, air conditioning and insulation business if the applicant is released. The letter indicates drug and alcohol screening is a regular occurrence on the sites at which the applicant would work. I take this to be a matter of significance to me in view of sentencing remarks of McKechnie J in 2005 in connection with offending that I will reach in a moment. These remarks indicate that substance abuse has been a significant issue for the applicant both in his life more generally and in relation to his previous offending. Counsel for the State reminded me that acceptance of that offer of employment would create, at the very least - and I did not understand this to be in substantial contest - the difficulty for the applicant of, as his own counsel described it, 'juggling' the obligations of employment with the obligations to get the son to and from school, to look after him after school, as well as to get the two women to their respective medical appointments, which I would have to take it, it seems to me, could not infrequently arise during normal business hours. The material I have before me does not indicate to me that his employment offer has particular allowance for this, although it might be expected that some allowance, at least, would be provided.
In relation to all of these matters, and, in particular, the risk of reoffending to which counsel for the State directed my attention, I note that the applicant has an extensive criminal record. It includes sentences of immediate imprisonment for significant terms for offences of the same kind as those in the indictment. I note here the sentencing remarks of McKechnie J, to which I have referred on a number of occasions before now, where offending of a home invasion type involving offenders, one of whom was the applicant, bearing weapons, issuing threats, inflicting injuries, and taking property in ways with strong measures of similarity to the offending with which the applicant has been charged here, and in respect of which he is seeking bail. The total effective sentence was one of some 6 years. Of course, it was a sentence which can be compared to sentences imposed currently as a result of the authorities on the removal of the transition period provision. I should note, however, that the offending here has an element not in common with that previous offending, namely, the destruction of the vehicle stolen by fire.
It seems to me that in view of that additional matter, as well as the other circumstances of the offending, and the other matters in the criminal record, but, of course, without the benefit of a plea in mitigation, assuming one were ever needed, if the offender were to be convicted of the present offences, it seems to me highly likely that the offender's sentence of imprisonment would be of a significantly greater order than that imposed by McKechnie J. Beyond that it is not possible, however, for me to say.
I further note that the evidence of which I have information against the offender is in my view such as to make the case against him very strong. I have heard what counsel for the applicant put to me about why it should not be so approached. There is recognition evidence, which is not simply oral recognition evidence, but also visual recognition evidence (on the aspects of the relevant witness statement to which my attention was directed by counsel for the State) of the female victim, Ms SAH. There is also photo board identification evidence for her.
I have heard what counsel for the applicant has had to say about why photo board evidence might not in the end be admitted because of the way in which the applicant's photograph shows him relative to the way the other 11 images appear. It is, of course, a matter upon which I can offer no more than a very basic impressionistic assessment. I should say, however, that, while it is certainly not an insignificant possibility that that approach to that photo board identification contended for by counsel for the applicant will be taken, it equally does not seem to me to be, straightforwardly at least, a foregone conclusion. However, it does weigh on the photo board identification evidence. That, however, still leaves the recognition evidence.
There is also photo board identification evidence from the other victim, Mr SBW, who is, as I have said, unfortunately deceased. There is a question of the admission of that evidence, however, as an exception to the hearsay rule given that he is deceased. I take it, although counsel for the applicant did not make this point as I heard him directly, that the same point about the admissibility of photo board evidence would apply there as applied to Ms SAH. I would make the same comment.
There is, in addition, however, evidence of the location in the vehicle that was burnt of a wedding certificate in the names of the applicant and a spouse. It is not clear who that spouse was. I will not go any further into it. However, the name of the applicant appears in a document of some significance.
There is also forensic evidence in the form of fingerprints on the lid of a can of oven spray of the kind which other witnesses identify as having been used on the car by the person who set it alight. I was directed to evidence of a person who had sold a can of oven spray like it, at least, to a person with generic characteristics not inconsistent with those of the applicant. The fingerprint match on the lid is for a lid found 5 ‑ 7 m away from the vehicle on the material I have available to me. The vehicle, of course, is a link back to the offending in the residence of Mr SBW involving him and Ms SAH.
I do not believe that there is any escape from the conclusion that that is a very strong case. It is certainly not the strongest that might be imagined. However, it is a very strong case, and it is relevant to assessing the risk of reoffending in the way that I have indicated, namely, that even though the offending in this case is alleged it may go to an assessment of a risk of future offending of a similar kind, at least when account is also taken of the offences for which McKechnie J sentenced the applicant in 2005.
I have referred repeatedly to the grounds which the prosecution has put forward for opposing the grant of bail. This is the question in cl 1(c). I do not need to refer to that again.

So far as cl 1(e) is concerned, which is whether any conditions which could reasonably be imposed have been put forward which would sufficiently remove the possibility here in cl 1(a)(ii) or remove the grounds for opposition in cl 1(c), it seems to me that there are, indeed, significant conditions. They are referred to in the application. They are:
(a)a personal undertaking and approved surety;
(b)residence at the address Ms CTM has now leased;
(c)regular reporting on Monday, Wednesday and Friday;
(d)a curfew between 7.00 pm and 6.00 am;
(e)not to approach within 100 m of any domestic or international point of departure; and
(f)that the applicant is not to leave the State.
It seems to me those conditions would be assessed in conjunction with the further matters that I am going to reach in due course arising under cl 1, the personal and financial hardship considered on its own, and the matter of the time in custody, to which I will also come shortly.
However, it seems to me, given my assessment of the risk of reoffending by reference to the matters in cl 3, as I have indicated, that the conditions described do not, as counsel for the State put to me, sufficiently remove that possibility. That would then take me, at least, at this point, subject to what I would conclude on personal and financial considerations and time in custody, to the matter of home detention bail conditions. Home detention bail can only be imposed if I have concluded that I should impose a home bail detention condition, and I find two conditions are met.
One is that I have requested, obtained and considered a report by a community corrections officer about the suitability of the applicant to be subject to such a condition. That suitability would be by reference to the address in [suppressed], and the suitability of the applicant for home bail detention at that address. I also consider this report should include an assessment of the prospect of monitoring of the applicant and his movements electronically using the devices available to the Department of Corrective Services in that regard. The other condition is that I am satisfied the applicant is suitable to be subject to a home detention condition, and that is, in large part, what the report is about, that the place where it is proposed the applicant will remain whilst subject to the conditions is a suitable place and that unless home detention conditions are imposed, the applicant will not be released on bail.
It is important, however, that I also add a point which counsel for the applicant raised with me, namely, that for the applicant to be able to look after his step-son, a matter in respect of which I have indicated I am satisfied he has a sufficient interest, it will be necessary to allow for the applicant to leave the home to take the son to and from school. I understood, however, counsel for the applicant to not have in contemplation that the applicant would be further available to the employer for the employment purposes described, and it seems to me that that is appropriate.
The applicant's availability in that regard would be inconsistent with the home detention condition that I consider would be appropriate here because of the significantly enhanced possibilities for reoffending that would arise out of being available for employment as I have indicated.
The matter of home detention bail then would be addressed in a report by a community corrections officer with the benefit of these remarks.
There is no other consideration applicable here in the specifics listed in cl 1. In particular, counsel for the State disclaimed any reliance on cl 1(g).
So far as questions from the opening words of cl 1 are concerned two points were indicated. One is the personal and financial hardship to the applicant's family, to which I have referred previously. I do not believe I need to say anything more about that, save that that hardship has to be considered by reference to the matters of the risk in cl 1(a)(ii) that I have referred to.
The other matter is the period in custody which will, on my mathematics, be in the order of 19 months by the time the applicant goes to trial. This is a period of time of some significance. Periods of about 12 months or greater have been referred to in decisions of this court as ones that tend to engage close attention from the court as to whether or not that matter should play a significant role in the determination of the bail application.
Nevertheless, it is not a determinative matter and I do not believe the matter can be put any more highly than I have described, even in respect of a period of the order I have just described. However, it seems to me that it has a bearing here and its bearing is in my preparedness to allow, and indeed my instruction, that there be an assessment for home detention bail.
With all of those matters in view I then have to return to the question of discretion with the weighing and balancing process referred to in Milenkovski. It seems to me that, in fact, I do not yet need to make that determination. I will not be making that determination until I have the benefit of the home detention bail report, which I have sought.
When I say 'I', I refer to any other judicial officer if I am not available. Given the pressure on court personnel at present this possibility, that it is another judicial officer who has to consider the report, must, it seems to me, be allowed for. As I read pt D of sch 1, cl 3(2), the judicial officer referred to there can be different from the judicial officer who ordered the home detention report. Nonetheless, it would be highly desirable, for me to be the judicial officer to consider that report.

Conclusion and orders

It follows that I have not finally determined the present application for bail. Instead I have ordered an assessment for the purpose of home detention bail.
I now need to remind myself of the terms of the order that I need to make in that regard, which is that referred to in s 24A(2). I particularly note s 24A(4) referring to the annexing to the report, with provision to the applicant or his solicitor or counsel, of a list of those conditions in rules made under s 50L that may be applied to the applicant by the Chief Executive Officer of the Department of Corrective Services while the applicant is subject to the home detention bail condition. That would contemplate, it seems to me, a written report, without excluding the possibility that the author of the report would appear at the bail hearing to add to, or explain, matter contained in that report.