KJS v The Queen
[2016] WASC 14
•13 JANUARY 2016
KJS -v- THE QUEEN [2016] WASC 14
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 14 | |
| Case No: | MBA:45/2015 | 21 DECEMBER 2015, 7 & 13 JANUARY 2016 | |
| Coram: | ALLANSON J | 13/01/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Bail refused | ||
| B | |||
| PDF Version |
| Parties: | KJS THE QUEEN |
Catchwords: | Criminal law Bail Home detention Home detention report Conditions to be imposed |
Legislation: | Bail Act 1982 (WA), s 24A, s 50E, s 50L |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail - Home detention - Home detention report - Conditions to be imposed
Legislation:
Bail Act 1982 (WA), s 24A, s 50E, s 50L
Result:
Application dismissed
Bail refused
Category: B
Representation:
Counsel:
Applicant : Mr G W Massey
Respondent : Ms S J Oliver (21 December 2015), Ms E J Martin (7 January 2016) & Ms K A Gregory (13 January 2016)
Solicitors:
Applicant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Nil
1 ALLANSON J: The applicant has been in custody since his arrest on 16 September 2015. He has previously applied for bail, but was refused bail by a magistrate on 25 September.
2 Under s 14 of the Bail Act 1982 (WA), a judge of this court may exercise the power to grant bail. Part C of sch 1 is concerned with the manner in which the power is to be exercised.
Rebuttable presumptions
3 None of the rebuttable presumptions regarding the exercise of discretion, found in cl 3A, cl 3C and cl 4A of sch 1, is applicable in this case.
Clause 1 questions
4 The court is required to have regard to the questions in cl 1(a) to (g) of sch 1, pt C. The answers to those questions, and any other relevant questions, will provide the factual basis for the exercise of the discretion. Once that factual basis has been established, the weighing or balancing process inherent in the exercise of the statutory power can be undertaken in accordance with the Act.
5 In answering those factual questions, the court is required to have regard to the matters set out in cl 3, as well as any others it considers relevant. I will first consider the matters in cl 3:
The nature and seriousness of the offences charged
6 The applicant is charged with attempting to possess a commercial quantity of a border controlled drug (methamphetamine). The offence under s 307.5 and s 11.1 of the Criminal Code (Cth) has a maximum penalty of imprisonment for life.
The circumstances
7 The statement of material facts alleges the following:
(1) At the end of August 2015 a vessel arrived in Fremantle Port from Hong Kong. Included in its freight was a consignment of six cardboard boxes, each containing approximately 300 mobile telephone chargers. Examination revealed a white powdery substance concealed within the chargers. The powder returned a positive test result for methamphetamine. It was replaced by the Australian Federal Police with an inert substance.
(2) On 15 September 2015, the consignment was delivered to a freight forwarding company in South Fremantle, awaiting collection. On 16 September 2015, a carrier collected the consignment and drove it to an address in Karnup where it was unloaded from his vehicle. The applicant's father lives at that address, and the applicant lives next door.
(3) Later that day the applicant and another (Mr S) placed the consignment in a utility registered to the applicant and took it to an off road location near Karnup, where they unloaded it in a hollow area and concealed it underneath brush and shrubbery.
(4) At about 4.15 pm, the police arrested Mr S. A search of his vehicle located items including an iPad and telephone containing emails and images relating to the consignment, and some items consistent with drug distribution activities.
(5) At about 6.15 pm, police officers executed a search warrant at the applicant's home address. The applicant was at home. Police located items related to the consignment, including a mobile phone containing photographs and email correspondence relating to the consignment.
(6) When interviewed, the applicant gave answers which the prosecution says are inconsistent with what police had observed.
(7) The quantity of the white powder is 9.54 kg. It has now been analysed and is methamphetamine of 78.1% purity. The net weight of the amphetamine is 7,456.1 g.
8 Having regard to the quantity of the drug, and the direct involvement alleged against the applicant in receiving it after its importation, the offence alleged is very serious. A long term of imprisonment would be inevitable should he be convicted as charged.
9 Next I must have regard to the matters in cl 3(b). The information I have is limited. I can, however, make the following findings.
Character and previous convictions, antecedents, associations, home environment, background, place of residence, and financial position
10 The applicant was born in Western Australia and has lived here his whole life. He is now aged 45. The majority of his working life, he has been driving trucks.
11 The applicant is the primary carer for his father who lives next door to him. His father is aged 82 and in frail health - he is undergoing treatment for cancer and also suffers from other conditions.
12 The applicant has three children, the youngest of whom is nine. The other two are adult. There are currently family law proceedings between the applicant and the mother of his youngest child. The child does not live with him.
13 The applicant has been in a relationship with his current partner for approximately 18 months.
14 If released it is likely that he would have employment available, although that is subject to the limitations that would inevitably be imposed under the conditions of bail.
15 The applicant has a mortgage of approximately $260,000 over his property, and is concerned about his ability to service that mortgage.
16 While the applicant has a history of criminal convictions, his most recent conviction as an adult was in 2002, for a traffic matter. His only previous drug offences were for possession of cannabis and possession of a smoking implement. Both of those convictions, and indeed all of his adult convictions, are spent.
History of any previous grants of bail
17 There is no history of any previous grants of bail
The strength of the evidence
18 This is, of course, difficult to assess on the limited information available in a bail application. Under the Bail Act, however, I am not bound by the rules of evidence and may take into account such information as I think fit whether or not it would normally be admissible in a court of law.
19 Counsel for the applicant submitted that the statement of material facts may overstate the strength of the prosecution evidence - particularly pointing to:
(1) Karnet is semi-rural - the properties where the applicant and his father live, and where some of the relevant events occurred, are not suburban blocks, but large areas;
(2) the surveillance evidence suffers from several gaps which can be demonstrated by examining the surveillance running sheet; and
(3) the surveillance record shows the presence of several other people at the property where the consignment was delivered at relevant times.
20 The respondent submitted that the surveillance evidence is part only of the prosecution case, and must be considered with the other evidence, including the evidence of things found in the applicant's utility.
21 On the limited information available to me, I believe the prosecution has a reasonable circumstantial case. It is not wholly reliant on the surveillance.
Findings on the questions in cl 1(a)
22 The critical factor is the risk of failure to appear.
23 There is no evidence to support a finding that, if released from custody, the applicant may commit further offences; or that he may endanger the safety, welfare or property of any person. He does not need to be held in custody for his own protection.
24 The Commonwealth has expressed concern about the capacity of the applicant to interfere with one witness - his partner. I am not satisfied that any ability he has to affect her evidence is necessarily altered by whether he is in custody. The risk to other evidence is not, in my opinion, a significant factor.
25 The risk that the applicant might fail to appear stems primarily from the nature and seriousness of the offence charged, and the likelihood of a long prison sentence should he be convicted. The prosecution case, on the limited information available to me, is not overwhelming. On the information before the court regarding the circumstantial evidence, however, there appears to be a reasonably strong case.
26 Balanced against the risk of flight are the following factors:
(1) the applicant has strong lifelong ties to Western Australia;
(2) he cares for his elderly father;
(3) he has other family ties, including a young child and two adult children, as well as a partner here;
(4) he has property in Western Australia; and
(5) his criminal record is not significant.
27 The court must also consider whether the imposition of conditions might mitigate the risk. In order to properly consider this aspect of the application, I adjourned the hearing to obtain a home detention report.
The home detention report
28 The report prepared under s 24A advised that the address proposed by the applicant is suitable. The only unsuitable feature appears to be a shed which might interfere with the monitoring equipment should the applicant enter it.
29 The report also refers to the applicant having previously successfully complied with community based supervision, and assesses him as suitable for home detention bail. In the circumstances, I was satisfied that bail subject to conditions including home detention would sufficiently meet the risk that the applicant may fail to comply with his bail undertaking.
30 I held some concerns, however, about the imposition of home detention conditions and again adjourned the matter for some inquiries to be made. Those concerns were set out in brief reasons for granting the adjournment, which I attach to these reasons as an appendix. In short, under sch 1, pt D, cl 3 of the Bail Act, the requirements of bail subject to a home detention condition include, in cl 3(3)(d) that the accused (the applicant) 'comply with such of the conditions specified in the list provided under section 24A(4) as may be specified in a notice given under section 50E(b)'. The report to the court under s 24A, did not annex to the report a list of conditions 'in rules made under section 50L that may be applied to the accused by the CEO (corrections) while the accused is subject to the home detention condition': see s 24A(4). On further inquiry, the court was advised that the relevant officers were unable to locate any rules made under s 50L. As I understood the advice, if a home detention condition was imposed by the court, conditions such as electronic monitoring and curfews would be applied by agreement between Community Corrections and the applicant. That is not what is contemplated by the Act. Some of the terms of the proposed agreement, while workable as an agreement, are statements of understanding and not conditions. For example, the agreement proposed for the present applicant includes:
7. I understand that I can ring 000 in an emergency even if telephone connection has been paid by the Adult Community Corrections Centre.
8. I understand that if my electronic monitoring unit is disconnected or not working, visits will be conducted to my address.
31 Other proposed conditions may, with an alteration to the wording, be expressed as conditions on bail, although some would be difficult to recast. For example, the agreement includes requirements such as '[taking] appropriate steps to maintain the condition of the equipment including, addressing insect issues within the residence that may impact on the operation of the equipment' and '[notifying] my supervising officer of any issues that may impact on the effectiveness of the equipment'.
32 More importantly, unless the grant of bail is subject to a home detention condition contemplated by the Act, the flexibility in pt VIA of the Act may be lost. Some of the features of home detention bail may be directly imposed as conditions. But others may not. For example, the power of the CEO (corrections) to cancel bail under s 50F arises where a home detention condition within the terms of the Act has been imposed as a condition on the grant of bail.
33 I do not believe that on the present home detention report, and the advice the court has received, I can grant bail subject to a home detention condition. Because of the seriousness of the charge and the circumstances alleged, I am not satisfied that bail, other than bail subject to a home detention condition that comes within pt VIA of the Act, can sufficiently meet the risk that the applicant will not comply.
34 Bail will accordingly be refused.
Appendix
35 In deciding whether to grant bail under the Bail Act 1982 (WA), a judicial officer is required to consider specified matters, including the possibility that an accused may fail to appear in accordance with his or her bail undertaking, and also whether there is any condition that can be imposed under sch 1, pt D that might sufficiently remove that possibility.
36 Clause 3 of pt D, provides:
(1) A judicial officer may, subject to this clause, impose a home detention condition as a condition on a grant of bail.
37 A judicial officer who desires to impose a home detention condition as a condition on a grant of bail, shall request that a report be made by a community corrections officer about the suitability of the accused to be subject to a home detention condition: s 24A(2). I requested a report for the purposes of considering home detention.
38 Clause 3 further provides:
(2) A home detention condition shall not be imposed unless the accused is over the age of 17 years and the judicial officer is satisfied -
(a) after considering a report from a community corrections officer about the accused and his circumstances, that the accused is suitable to be subject to a home detention condition; and
(b) that the place where it is proposed the accused will remain while subject to the home detention condition is a suitable place; and
(c) that unless a home detention condition is imposed, the accused will not be released on bail.
40 Under cl 3 (3):
(3) A home detention condition is a condition that while the accused is on bail the accused shall -
(a) remain at and not leave the place specified in the bail record form and in the bail undertaking (or in a notice under section 50E) until the time specified, or deemed by section 31(3) to be specified, in the bail undertaking except -
[it is unnecessary to state the exceptions]
and
(b) not leave the State; and
(c) comply with every reasonable direction of a community corrections officer; and
(d) comply with such of the conditions specified in the list provided under section 24A(4) as may be specified in a notice given under section 50E(b); and
(e) when requested to do so, produce a copy of his bail undertaking and any notice by the CEO (corrections) under section 50E for inspection by a community corrections officer or a member of the Police Force.
42 Where a community corrections officer makes a report that an accused is suitable to be subject to a home detention condition, the officer shall annex to the report and provide to the accused or his solicitor or counsel, a list of those conditions in rules made under s 50L that may be applied to the accused by the CEO (corrections) while the accused is subject to the home detention condition: s 24A(4).
43 Section 50L(1) provides that the CEO (corrections) may, with the approval of the Minister, make rules for the purposes of pt VIA of the Act
which may provide for the manner of ensuring that accused persons are complying with home detention conditions and for conditions to be applied to accused persons granted bail subject to home detention conditions including conditions -
(a) requiring an accused to wear any device;
(b) requiring an accused to permit the CEO (corrections) to install any device or equipment at the place where the accused is required by a home detention condition to remain.
44 The importance of the rules under s 50L is apparent also apparent in s 50E, under which:
The CEO (corrections) may, at any time, by notice in writing given to an accused granted bail subject to a home detention condition -
(a) …;
(b) require the accused to comply with such of the conditions specified in the list provided to the accused under section 24A(4) as are specified in the notice.
45 In the present case, I would not grant bail other than subject to a home detention condition. In my opinion, the measures necessary to remove the risk that the accused will fail to appear in accordance with his bail include that the department be able to monitor his whereabouts. I need to be satisfied that the accused may be subject to monitoring by electronic monitoring equipment. Electronic monitoring is contemplated in the home detention report, but it may not be enforceable without compliance with s 24A(4) (assuming that rules have been made to that effect as required by s 50L).
46 Although I am reluctant to further delay a decision that affects the accused in his liberty, I do not believe that I am able to grant bail subject to a home detention condition on the present report. I will request a further report. The substance of the report does not have to change, but it needs to comply with s 24A(4) so that I can be satisfied that suitable conditions can be imposed. I will have a copy of these remarks, which I have read into the transcript, forwarded to Community Corrections.
47 The application is adjourned to 2.15 pm on Wednesday, 13 January 2016.
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