Lawson v Director of Public Prosecutions - [2024] WASC 218

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LAWSON -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 218
CORAM:   FIANNACA J
HEARD:   5 JUNE 2024
DELIVERED          :   7 JUNE 2024
FILE NO/S:   SJA 1027 of 2024
BETWEEN:   SHAUN PHILLIP LAWSON
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

Catchwords:

Criminal Law - Bail - Application for Bail pending Magistrate's Court appeal to be heard at later date - Bail Refused

Legislation:

Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Bail refused

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	In Person
Respondent	:	Director of Public Prosecutions for Western Australia

Cases referred to in decision:

Fry v Collins [2013] WASC 371
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Scolaro v Shepherd [2010] WASC 77
YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

The application and its history

This is an application for bail by Shaun Phillip Lawson (the applicant), pending an appeal by him from a decision of a magistrate. It was heard by me on 5 June 2024. At the end of the hearing, I adjourned the application to 7 June 2024 to give my decision. On that day, I gave my decision refusing bail. I provided brief oral reasons, essentially in terms of the conclusions below at [90], [92], [96] ‑ [100], and said I would publish detailed reasons in due course. These are my reasons for refusing bail.
The background is as follows.

Proceedings in the Magistrates Court

On 31 January 2024, the applicant was convicted in the Magistrate's Court in Rockingham of three counts of an offence under s 49(1)(a) of the Road Traffic Act 1974 (WA), committed in circumstances in which s 49(3)(c) applied, namely that he drove a motor vehicle while he was not authorised to do so, his authority to drive having been suspended. Those offences had been committed on 28 July 2023 (charge number RO 4333/2023), 16 October 2023 (RO 6855/2023) and 26 November 2023 (RO 7139/2023) respectively. The penalty for the relevant offence under s 49(1) includes imprisonment for 18 months if it is not a first offence, as was the case here. The applicant was convicted upon pleading guilty to the charges. He was sentenced on each count to a term of 8 months' imprisonment, suspended for 12 months, to be served concurrently.
At the same time, the applicant was convicted of and sentenced for 11 other offences, including three offences of stealing, one offence of being in possession of stolen or unlawfully obtained property, two offences of possessing a prohibited drug, and two offences of driving a vehicle with false number plates, or permitting a vehicle to be driven with false number plates. He was convicted upon pleading guilty to all 11 offences. He was fined in respect of all of those offences, except for one of the stealing offences, for which he was sentenced to 7 months' imprisonment, suspended for 12 months. The sentences had effect from 31 January 2024.
The stealing offence for which the applicant was sentenced to a term of suspended imprisonment (RO 6857/2023) involved the theft by the applicant of 'assorted power tools, tools and building material, to the value of $2,704.40' from a Bunnings store in Baldivis.
After imposing the suspended terms of imprisonment, the learned magistrate said to the applicant:[1]
So, I'm telling you to pull your head in. If it's not yours, don't take it. If you're thinking about driving down to the shops to get something for tea, don't do it, because if you get caught, no point bleating to me that, 'Look, I didn't understand that if, you know, I committed any offence that carried a jail term' - and that includes drugs, violence. I'm not suggesting any of those are your problems. But if they carry a jail term, then the act says I must imprison you unless it's unjust, and that tends to be fairly rare.
[1] ts 4, 31/1/24 (Magistrate Malley).
His Honour reminded the applicant that the admonition was for a period of 12 months. The applicant said he understood.[2]
[2] ts 4, 31/1/24 (Magistrate Malley).
On 12 April 2024, the applicant was convicted in the Magistrates Court in Mandurah of an offence of breaching a conduct agreement order (RO 1800/2024), contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the prosecution notice incorrectly refers to the relevant subsection as (1A)). It is sufficient to explain, for present purposes, that a conduct agreement order is an order made in proceedings in which a person has applied for an FVRO (that is, a family violence restraining order) under s 10G of the Restraining Orders Act, when the respondent to the application agrees to the making of a final order imposing restraints of the kind referred to in s 10G, in which case the court may make the order without being satisfied there are grounds for making an FVRO in the same terms: s 10H(1) of the Restraining Orders Act. Although the order is not an FVRO, it is taken to be an FVRO for the purposes of the Restraining Orders Act: s 10H(3). Therefore, a breach of a conduct agreement order is taken to be a breach of an FVRO, which is an offence under s 61(1) of the Restraining Orders Act. The maximum penalty for that offence is a fine of $10,000 or imprisonment for 2 years.
The offence was alleged to have been committed by the applicant on 11 February 2024, less than two weeks after the suspended imprisonment orders referred to above came into effect.
The applicant pleaded guilty to the offence, and a conviction was entered, on 26 March 2024. The applicant was then remanded in custody, without bail being considered, until he came to be sentenced on 12 April 2024.
By virtue of s 78(1) of the Sentencing Act 1995 (WA), the Magistrates Court was required to deal with the applicant under s 80 of the Sentencing Act in relation to the offences for which he had been sentenced to suspended imprisonment. That was because the statutory penalty for the offence of which the applicant was convicted under the Restraining Orders Act included imprisonment, and the offence was committed during the suspension period of the suspended imprisonment imposed on 31 January 2024. Section 80 specifies four methods by which an offender may be dealt with in those circumstances, the first of which is that the court may order the person is to serve the term or terms of imprisonment that were suspended. Section 80(3) provides that a court must make such an order 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.
It is implicit from the manner in which the learned magistrate dealt with the applicant that he did not consider it would be unjust to require the applicant to serve the terms of imprisonment that had been suspended. However, it is not clear whether his Honour reached that conclusion before deciding that the only appropriate sentence for the offence of breaching the conduct agreement order was an immediate term of imprisonment. It might be thought that that decision would affect the question of whether it would be unjust to require the applicant to serve the terms of imprisonment that had been suspended. In any event, his Honour sentenced the applicant to a term of 7 months' imprisonment, with eligibility for parole, for the offence of breaching the conduct agreement order, backdated to commence on 6 March 2024 to take into account the time the applicant had spent in custody on remand for the offence. His Honour then made orders requiring the applicant to serve the terms of imprisonment that had been suspended, being 8 months' imprisonment for the unauthorised driving offences and 7 months' imprisonment for the stealing offence, all to be served concurrently with each other and with the sentence for the breach of the conduct agreement order, to commence on 12 April 2024. The applicant was made eligible for parole in respect of all the sentences.

The appeal notice

The applicant is self-represented. By an Appeal Notice dated 29 April 2024, he has sought leave to appeal against his conviction in relation to the offence of breaching the conduct agreement order (RO 1800/2024). That is clear from the fact that, on the Appeal Notice, the date of decision is shown as 12 April 2024. That offence is also referred to in the section identifying the 'Conviction recorded', although the applicant has particularised the 'Sentence imposed' as 8 months' imprisonment. That was not the term imposed for the offence of breaching the conduct agreement order, as will be evident from my outline of the various sentences above. The Appeal Notice also refers to charge RO 4333/2023 in the heading. However, the grounds of appeal for the conviction appeal do not relate to that charge, which was dealt with on 31 January 2024. The grounds of appeal written on the Appeal Notice require some deciphering and parts are illegible. However, within the body of the Appeal Notice, in a manner referring to the grounds of appeal, the applicant has referred to an annexure, which is typed. The grounds stated in the annexure may be taken to be the grounds of appeal. There are three grounds. They have not been drafted by a lawyer and do not identify error in an orthodox way. However, for present purposes, they may be taken to amount to grounds that:
(1)the Magistrate erred in accepting the applicant's plea of guilty in circumstances in which the applicant disputed the facts alleged in a manner that amounted to a dispute that he was guilty of the offence;
(2)the plea of guilty should not be allowed to stand because it was entered by the applicant under duress, occasioning a miscarriage of justice;
(3)the plea of guilty should not be allowed to stand, because it was entered in circumstances in which the applicant was not afforded the opportunity to obtain legal advice, occasioning a miscarriage of justice.
The applicant has also sought leave to appeal against his sentence for the offence of breaching the conduct agreement order. At the hearing he said that the appeal was only against some of the sentences imposed on 12 April 2024. He said that he had filed a separate Appeal Notice in relation to the sentence appeal. That does not accord with the court's records. It also appears to be inconsistent with the fact that the grounds of appeal in relation to the sentence appeal are headed 'Annexure 2', suggesting it was also an annexure to the Appeal Notice dated 29 April 2024 that seeks leave to appeal against conviction, although the applicant ruled out the option on that form that seeks leave to appeal against sentence. For present purposes, it may be accepted that the applicant deleted that option by mistake. However, that leaves confusion as to which sentences are the subject of the application for leave to appeal. As I noted earlier, the heading in the Appeal Notice refers to charge numbers 1800/2024 and 4333/2023.
The typed grounds of appeal in the sentence appeal (Annexure 2) are, again, not in an orthodox form, but, in essence, allege that the sentencing magistrate:
(1)erred by failing to consider a sentence other than an immediate sentence of imprisonment, including an intensive supervision order;
(2)erred in his Honour's assessment of the seriousness of the offence of breaching the VRO (violence restraining order);
(3)erred in failing to give any weight to the character references provided to the court by the applicant; and
(4)erred by taking into account irrelevant and incorrect factors.
The issue of whether the application for leave to appeal relates only to some of the sentences of imprisonment imposed on 12 April 2024 has practical ramifications for the present application for bail. As I will explain below, the application is to be dealt with as if the applicant is an accused awaiting an appearance in court before conviction for an offence; in other words, as if he had had not been convicted of the offence (or offences) the subject of the application. However, any grant of bail would not result in the applicant being released from custody if he must continue to serve sentences of imprisonment that he has not appealed.
The appeal has been brought under s 7 of the Criminal Appeals Act 2004 (WA), being an appeal to a single judge of the General Division of the Supreme Court against the decision (or decisions) of a court of summary jurisdiction.

The application for bail

The application for bail is brought under s 7F of the Bail Act 1982 (WA), which allows a person to apply for bail if they are in custody in connection with the decision of a Magistrates Court, and he has commenced an appeal against that decision under pt 2 of the Criminal Appeals Act, which includes s 7 of that Act. There are procedural requirements for the giving of notice, which have been met.
The application for bail was made in conjunction with an application for an urgent appeal hearing. On 15 May 2024, Registrar Whitbread made an order that the appeal is an urgent appeal that must be heard as quickly as practicable consistent with the proper administration of justice. Registrar Whitbread also made programming orders, including orders for the filing of submissions.

Statutory provisions and legal principles

Apart from the procedural requirements, s 7F does not otherwise prescribe any factors relevant to the exercise of the power to grant bail under that section. It is necessary, therefore, to have regard to s 13, which applies generally to applications for bail, and provides that the jurisdiction to grant bail and the way in which that jurisdiction is to be exercised is set out in sch 1 of the Bail Act.
Schedule 1 pt A of the Bail Act provides that, if an appeal under the Criminal Appeals Act from the Magistrates Court is to be determined by a single judge, then bail pending the appeal is also to be determined by a single judge.
Generally, the grant of bail to an appellant serving a sentence of imprisonment will require the appellant to show exceptional reasons why he should not be kept in custody: see cl 4A of sch 1 pt C. However, that is not the case where the appellant is serving a sentence imposed by the Magistrates Court: see cl 5 of sch 1 pt C. Pursuant to cl 5, a person who is awaiting the disposal of appeal proceedings from a Magistrates Court shall be deemed to be awaiting an appearance in court before conviction for an offence.
The practical effect of cl 5 is that, when considering bail pending an appeal from a magistrate, this court is required by law to treat the applicant as if he had not been convicted: Scolaro v Shepherd [2010] WASC 77 [11]. Ordinarily, that means that the grant of bail will depend on consideration of the factors referred to in cl 1, as affected by cl 3, of sch 1 pt C of the Bail Act. There are exceptions to that usual position which do not apply to this case.
The factors in cl 1 are in the form of questions which address, firstly, whether there are grounds to refuse bail, and secondly, whether there are any conditions that the court can impose which would remove the reasons for refusing bail.
The first category of questions, under cl 1(a), requires consideration, relevant for this application, of whether the applicant will appear at a future court date, will commit an offence, will endanger the safety or welfare of others, or will interfere with witnesses or obstruct justice.
In considering those questions, the court must have regard to the factors set out in cl 3 of sch 1 pt C, which include: (a) the nature and seriousness of the offence and the probable method of dealing with the applicant if he is convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to him; and (d) the strength of the evidence against him.
The second category of questions, under cl 1(e), requires consideration of conditions which could reasonably be imposed under pt D of the Bail Act that may sufficiently remove the risks that would otherwise justify a refusal of bail.
One measure provided in the Bail Act which, for the purposes of cl 1(e) of pt C of sch 1, may 'sufficiently remove' the risk that an accused may fail to appear in answer to his charges, and which may also serve to 'sufficiently remove' the risk of an accused committing an offence if not kept in custody, is home detention.
Section 24A(2) of the Bail Act provides:
A judicial officer who is called upon to consider a case for bail and 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.
The interpretation of s 24A(2), in particular, what is required from a report by a Community Corrections Officer (CCO), is affected by cl 3(2) of pt D of sch 1 and s 24A(4). Clause 3(2) sets out a number of conditions that must be met before a home detention condition can be imposed, as follows:
(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.
Section 24A(4) provides matters that a CCO must address if they make a report that an accused is suitable to be subject to a home detention condition, including a recommendation as to whether or not the accused is suitable for electronic monitoring while the accused is subject to the home detention condition.
It is sufficient to say in relation to a home detention condition that it includes a number of restrictions on the accused person's liberty and his ability to undertake activities in the community, and the person is subject to the reasonable directions of a CCO. As the name suggests, the essential requirement is that the person must remain at his residential address at all times, subject to some specific statutory exceptions and being given permission by his CCO to leave the premises for specific purposes. An accused who is on home detention may also be subject to other conditions, including restrictions on his use of electronic devices, and protective conditions that would prevent him from having contact with specified (protected) persons.
The approach to be taken when considering the factors or questions in cl 1 and cl 3 is well known and was explained by McLure P in Milenkovski v The State of Western Australia[2011] WASCA 99; (2011) 42 WAR 99 at [24] ‑ [25] and [39] ‑ [41]. See also YSN v The State of Western Australia [2017] WASCA 155 at [15] ‑ [21]. In summary, while there is no presumption for or against bail (except in particular circumstances that do not apply to this case), the structure of the statutory provisions is such that, ordinarily, bail will be granted unless the prosecution puts forward reasons why bail should be refused, such as that there is a real risk that the applicant will engage in conduct referred to in cl 1(a) and that the nature and extent of that risk provides a proper ground for refusing to grant bail, having regard to the matters in cl 3. If the court is satisfied such a risk exists, it must determine whether there are reasonable conditions that could be imposed that would sufficiently remove, that is, sufficiently reduce, the risk. This recognises that reasonable bail conditions are unlikely to completely remove risks of the kind referred to in cl 1(a), if such risks are found to exist. The question is whether, after the imposition of reasonable conditions, any remaining risk no longer constitutes a proper ground for refusing bail. Put another way, 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.

Finally, while the applicant is deemed to be a person awaiting conviction for the purposes of bail, the fact that the appellant was found guilty and sentenced to imprisonment cannot be ignored. As Hall J noted in Fry v Collins [2013] WASC 371 [12], it is relevant to take into account that the applicant has knowledge of that outcome and, given the possibility that his appeal may be dismissed, that may provide an incentive to abscond. It is part of the applicant's antecedents to be taken into account under cl 3 of sch 1 pt C of the Bail Act.

Evidence in the application

The applicant filed an affidavit dated 29 April 2024 in support of the application, but its contents are ostensibly in the nature of submissions, rather than factual statements going to issues relevant to the bail application.
The applicant also provided the court with three unsigned typed letters and two emails that were relied upon by him in the Magistrates Court as character references. The three letters are addressed to the 'Parole Board', which I take to be a reference to the Prisoners Review Board, and provide information in support of a grant of parole to the applicant. Two of the letters, dated 6 April 2024 and 9 April 2024 respectively, purport to be from Kyrston Williams, who introduces herself as the applicant's friend. The other letter, which is undated, purports to be from Darrel Reethes, who describes himself as the applicant's employer for the last two years. Mr Reethes describes himself as a 'supervising site officer' but does not state what work his business does or what type of work the applicant had been doing. The first email, which was addressed to the magistrate at the Mandurah Magistrates Court, purports to be from Ms Tanya Mancktelow, who introduces herself as the applicant's partner. The second email, which was addressed to the Magistrates Court, purports to be from Mrs Lorna Buchan, Deputy Mayor and Councillor, City of Rockingham. The documents from Ms Williams, Mr Reethes and Ms Buchan all speak of the applicant in positive terms, in effect vouching for his character. Ms Williams, Mr Reethes and Ms Mancktelow also suggest the applicant has rehabilitated since being in prison during the most recent period.
The applicant also provided to the court at the start of the hearing of this application three letters, only one of which has relevance. The first is a letter from Legal Aid Western Australia, dated 12 April 2024, informing the applicant that his application for aid 'has been withdrawn as requested by [the applicant] or [his] solicitor'. The second is a letter dated 1 May 2024 from the Department of Communities, Housing, headed 'Notice of Termination', purporting to enclose a Notice of Termination under the Residential Tenancies Act 1987 (WA) and requiring the applicant to give vacant possession of the relevant property on 11 June 2024, failing which, the Department will proceed with action to terminate the tenancy. The Notice of Termination was not included with the letter provided to the court by the applicant. However, at the hearing he said that the property the subject of the notice is the property at which he had been residing in Parmelia, which is also where he intended to return if granted bail.
Other documents that were provided to the court as part of the materials in the appeal proceedings were: the prosecution notices for all the offences for which the applicant was dealt with on 31 January 2024 and 12 April 2024; transcript of the sentencing remarks of the magistrate in each instance on 31 January 2024 and 12 April 2024; an affidavit of the applicant dated 3 May 2024 which, again, is in the nature of submissions; the applicant's 'Outline of written submissions' in respect of both the conviction and sentence appeals; a typed note headed 'Annexure 4' concerning possible administrative errors made by the Sentence Information Unit in relation to he applicant's earliest release date; two letters from the applicant to the court, both filed on 10 May 2024. In one of those letters the applicant states that he has a business, which appears to provide a garden cleaning service, and that he has jobs booked and he fears he will go bankrupt if he cannot fulfill the jobs. I note that in the affidavit dated 3 May 2024, the applicant describes himself as a 'brickie's labourer'.
The respondent filed a written outline of submissions and a number of bundles of documents consisting of materials that were in the police brief for the various offences for which the applicant was convicted on 31 January 2024 and 12 April 2024. The materials included witnesses' statements and the applicant's criminal record. As I indicated at the hearing, I have not had regard to the materials other than the criminal record, the statement of material facts in respect of the offence of breaching the conduct agreement order, and the statement of the applicant's father, Phillip Norman Lawson, dated 19 February 2024, provided in respect of that offence, which counsel for the respondent sought to rely upon in response to the application.
Immediately before the hearing, I was also provided with the full transcript of proceedings in the Magistrates Court on 12 April 2024, having previously only had the transcript of the magistrates sentencing remarks.

Respondent's submission

The respondent opposed the application. It submitted that there is an unacceptable risk that the applicant will fail to comply with any conditions of bail, particularly by committing a further offence and, in doing so, threatening the welfare of his father, the protected person under the conduct agreement order, and potentially interfering with a witness.
The respondent submitted that the very nature of the applicant's offending (which included the alleged offending the subject of the appeal) shows that he has little regard for orders of the court. It was submitted that, by breaching the conduct agreement order, as alleged, the applicant demonstrated an inability or unwillingness to abide by the condition that he not contact or harass his father. It was submitted that, if a protective bail condition were to be imposed, there is every reason to believe that the applicant would similarly disregard it. Therefore, there is a tangible risk that the applicant would commit an offence and thereby adversely affect the welfare of his father. Further, as the applicant is challenging his conviction for the offence of breaching the conduct agreement order, and as the applicant's father is the key witness in respect of that charge, there is the potential that any breach of a protective bail condition would amount to interference with a witness.
Although, in relation to the offence of breaching the conduct agreement order, the applicant is deemed to be an unconvicted accused in this application, the court is required to have regard to the strength of the evidence against the applicant on that charge in determining the nature and extent of the risk that he would commit an offence of that kind. The respondent submitted that the evidence against the applicant is strong. There is a statement from Mr Phillip Lawson, who identified the applicant's voice in the voice message that was left on his phone. Mr Phillip Lawson reported the matter to police, who were able to photograph the information on the phone in respect of the message and were able to record the voice message on video.
The respondent also relied on the applicant's antecedents, submitting that they indicated an unsatisfactory history in relation to compliance with bail and other orders imposed by courts.
The respondent submitted that there were no reasonable conditions that could reduce the applicant's risk of committing further offences to an acceptable level. In particular, it was submitted that, given the nature of the offending involved in the alleged breach of the conduct agreement order, which was facilitated by electronic means, even home detention could not be relied upon to sufficiently reduce the risk that the applicant would commit a further offence.

The applicant's submissions

The applicant did not file submissions that addressed the issues that are necessary to be considered on the bail application. His oral submissions had a tendency of straying into the merits of his grounds of appeal, which sometimes continued despite the applicant being told that was what he was doing, and that it was not addressing matters relevant to bail.
The applicant's submissions that were relevant may be summarised as follows. First, in relation to the question of where he would live if he were released on bail, he acknowledged that the letter from the Department of Communities indicated that his tenancy was being terminated and he was required to provide vacant possession, but he submitted that, if he were to be released on bail, he would be able to advocate for a withdrawal of the notice of termination. He submitted that such advocacy would be received favourably, because the Department had been, and would continue to be, intent on providing him with accommodation, so that he would not be homeless. The applicant produced no evidence to support those submissions. I informed him that he would need to produce evidence in support of the submissions if they were to be given any weight. Although he initially considered seeking an adjournment for that purpose, ultimately he did not do so.
The applicant submitted that an alternative place of residence could be a hotel in East Perth, where he had taken a room previously. Again, putting to one side whether such accommodation would be suitable for the purposes of a residential bail condition, the applicant did not have any information about the availability of accommodation at that place.
In response to the proposition that the court could give consideration to a home detention condition, but that such a condition could not be imposed if he could not be released to accommodation assessed to be suitable, the applicant indicated that he did not think he could cope with a home detention condition, in particular the wearing of a GPS tracking device. Although he went on to say he would be prepared to comply with any conditions the court might impose, it was apparent that the court could have no confidence in the applicant's capacity to comply with the restrictive conditions of home detention bail.
The applicant gave explanations for the breaches of bail undertakings that appear on his criminal record, to which I will return below. While admitting there were occasions when he did not appear as required, he claimed in effect that the failures were not deliberate, and that he handed himself in to the police. In respect of a breach of a protective bail condition, he claimed it was an occasion when he sent a birthday card to his son.

Consideration of matters under cl 1 and cl 3

The first matter I would note in considering the relevant factors under cl 1 and cl 3 of the Bail Act is that the applicant was previously on bail in respect of the offences for which he was sentenced on 31 January 2024. He was not considered for bail in respect of the offences he committed or is alleged to have committed after he was released on the suspended imprisonment order, for which he came to be sentenced on 12 April 2024. In considering whether the applicant may fail to appear in the appeal proceedings, or may commit an offence, if not kept in custody, I am of the view that the focus must be on the latter offending or alleged offending. If the applicant were to succeed in his appeal against conviction for the offence of breaching the conduct agreement order, the foundation for requiring the applicant to serve the terms of imprisonment that had been imposed and suspended on 31 January 2024 would fall away. If bail were appropriate for the offending or alleged offending after the applicant was released on the suspended imprisonment order, there would be no reason, in my view, to refuse bail in respect of any of the earlier charges that may be the subject of the appeal. However, the prior offending is relevant as part of the applicant's antecedents in considering the application in respect of the offences after 31 January 2024.
The matters that should be considered first are the nature and seriousness of the offence of breaching the conduct agreement order and the strength of the prosecution evidence against the applicant on that charge.

Nature and seriousness of the offending

In my opinion, the magistrate was correct to regard the offence as very serious. At the hearing on 5 June 2024, the applicant submitted, consistent with his appeal against sentence, that the circumstances were exaggerated by the magistrate for the purposes of sentencing. He submitted that in comparison with cases involving offenders breaching violence restraining orders and committing violent offences against women, or cases where an offender has sent hundreds of text messages in breach of such an order, the allegation against him was at the low end of seriousness.[3] In the Magistrates Court, when Magistrate Hockton noted that the question was whether the offence warranted a sentence of imprisonment, the applicant said, 'Maybe ask the protected person, see what he says.'[4]
[3] ts 10, 26, 34.
[4] ts 11, 12/4/24 (Magistrate Hockton).
It is not appropriate, in the context of this application, for the court to express any view about the merits of the applicant's appeal against sentence, in particular whether the sentence imposed was manifestly excessive, and I do not do so. However, in my opinion, in the context of considering the seriousness of the alleged offending for the purposes of determining the bail application, the applicant's submission fails to properly recognise the flagrant nature of the alleged contravention and the potential psychological impact on the complainant, his father. The circumstances of the alleged offence are as follows.
On 14 December 2023, the applicant was served with a Conduct Agreement Order in which the applicant's father was named as the protected person. The conditions included a condition that the applicant was not to communicate or attempt to communicate with the protected person by any means whatsoever, including SMS or text messages or any other electronic means, and a condition that he was not to harass the protected person by any electronic means.[5] On 17 February 2024, at 1.58 am, the applicant called the protected person on the phone and left a 32 second voicemail message when the latter did not answer. In his statement, Mr Phillip Lawson says that at the start of the message the applicant was rambling, but he got louder towards the end.[6] The applicant said, 'You're a fucking dog, man' and 'Do yourself a favour and fucking neck it.'[7] The applicant was arrested on 5 March 2024 in respect of another matter. He declined to participate in a video record of interview in respect of this matter.
[5] Statement of Material Facts for Rockingham Magistrates Court charge number 1800/2024; ts 6, 12/4/24 (Magistrate Hockton).
[6] Statement of Phillip Noman Lawson, 19/2/2024, [11].
[7] Statement of Material Facts for Rockingham Magistrates Court charge number 1800/2024; Statement of Phillip Noman Lawson, 19/2/2024, [9] - [12].
The offence is alleged to have been committed against a background explained in Mr Phillip Lawson's statement. Mr Lawson explains that, over the last few years, the applicant has been using drugs, and that, while on drugs the applicant is a completely different person and has been abusing and threatening Mr Lawson and his wife.[8] It was because of that behaviour that Mr Lawson sought a violence restraining order for protection.[9] The conduct agreement order was issued in those circumstances.
[8] Statement of Phillip Noman Lawson, 19/2/2024, [2].
[9] Statement of Phillip Noman Lawson, 19/2/2024, [3].
It is evident that Mr Lawson was fearful of the applicant, which was the reason for seeking the violence restraining order (which, given the familial relationship, would have been an FVRO). He states that he reported the voicemail to police because he was afraid that the applicant may attend his house and that Mr Lawson would not be able to defend himself against the applicant.[10] In the absence of any explanation to the contrary, the making of the call was a clear violation of the 'no contact' condition of the conduct agreement order. Further, the time at which the call was made (in the middle of the night) and the content of the message may readily be regarded as harassment. Apart from being abusive, there was an implication that Mr Lawson should cause himself harm, or that harm should come to him. It may readily be inferred that the message was deliberate conduct intended to cause emotional distress.
[10] Statement of Phillip Noman Lawson, 19/2/2024, [13] - [14].
A factor that elevates the seriousness of the offence of breaching the conduct agreement order is the fact that the offence is alleged to have been committed less than three weeks after the applicant was released on the suspended imprisonment order, and therefore at a very early stage of the period of suspension.

Strength of the evidence against the applicant

On its face, the evidence against the applicant is strong. It can be inferred from the conditions of the conduct agreement order and the history explained by Mr Phillip Lawson, that the applicant was aware of Mr Lawson's phone number. Mr Lawson recognised the applicant's voice.[11] With Mr Lawson's consent, the police took a photograph of the call log on Mr Lawson's phone and made a video recording of the voicemail.[12] Although the photo of the phone call log and the video recording were not tendered by the respondent in these proceedings, the applicant did not refer to any evidence that would contradict the contents of Mr Lawson's statement to that effect.
[11] Statement of Phillip Noman Lawson, 19/2/2024, [10].
[12] Statement of Phillip Noman Lawson, 19/2/2024, [15].
The applicant made a number of assertions during the hearing on 5 June 2024 which, if to be relied upon, should have been in evidentiary form (usually on affidavit). As he is self-represented, I have taken his assertions into account on the basis that they reflect what he would have included in an affidavit if he was given the opportunity to file evidence in the application for bail.[13] He said that he had not been near his father's house in 19 years, stating, 'I've got my own life. I've got my own problems. I don't need this shit man.' He said he had no ill will towards his father, and he had no reason to call him or contact him.[14] However, as I have noted, he did not offer or refer to any evidence that would contradict the evidence contained in Mr Lawson's statement. If the latter evidence is accepted, then the applicant's claim of bearing no ill will towards his father rings hollow. The fact that he may not have attended Mr Lawson's house is not to the point. The conduct agreement order was intended to prevent any contact by electronic means, and the nature of the voicemail was such as to be capable of causing fear and psychological harm.

The applicant's antecedents

[13] The applicant was told during the hearing that, in the absence from any affidavit from him at this stage about the circumstances in which he came to enter his plea to the charge in the Magistrates Court, all I had in relation to the strength of the case against him was his father's statement: ts 11, 5/6/24.

[14] ts 13, 5/6/24. (He used the term 'ill health', but in context meant 'ill will'.)

The applicant did not adduce evidence by affidavit in relation to his character. However, he provided the letters and email referred to at [36] above from Ms Williams, Mr Reethes, Ms Mancktelow and Ms Buchan.
Ms Williams, writing on 6 April 2024, said she had known the applicant for 10 years. She described him as a very hard working person, for whom she has immense respect. She said the applicant has been a contributor to, and participant in, many local community activities and charitable events. However, she provided no details. Writing on 9 April 2024, Ms Williams stated that she had witnessed a transformation and growth in the applicant while he had been in prison the previous six weeks. She said he had taken responsibility for his actions, had shown remorse and had sought to make amends. She claimed that he has the support of a strong network of family and friends that is committed to helping the applicant to succeed upon his release. As I will discuss below, it is difficult to place significant weight on Ms Williams' statements for present purposes. Although the applicant has a 19‑year‑old daughter with whom he maintains contact,[15] it is obvious that Ms Williams' claim of a strong family network does not sit well with Mr Phillip Lawson's statement or the fact that a community conduct order was served on the applicant. Nor does it sit well with the applicant's admission to the CCO who presented the oral pre-sentence report in the Magistrates Court on 12 April 2024 that he had 'long‑held relationship difficulties with his father'.[16] Further, it would appear that the support the applicant may have in the community does not include any offer of accommodation.
[15] ts 16, 12/4/24 (Magistrate Hockton).
[16] ts 15, 12/4/24 (Magistrate Hockton).

Mr Reethes, apparently addressing the Prisoners Review Board, said he had been the applicant's employer for the past two years (although the letter is undated) and described him as an exemplary employee, noting many positive qualities demonstrated by the applicant in the workplace on construction sites. Mr Reethes did not say the applicant would continue to have employment with him if released, but I will assume that is the employment that was referred to in the oral pre‑sentence report presented in the Magistrates Court on 12 April 2024, which I will discuss below. Mr Reethes also claimed that the applicant had taken significant steps towards personal growth and rehabilitation.
In her email, Ms Buchan said she had known the applicant for four years and spoke of him being respectful and considerate of her and others in her company. This was in the context of the applicant bringing his daughter to Ms Buchan's martial arts studio.
In her email, Ms Mancktelow stated that she is pregnant with twins and due to give birth in August 2024, although she said she is having a difficult pregnancy and did not expect to be carrying the babies to full term. She said she was struggling physically, emotionally and financially with the pregnancy, and that the applicant is her only support, as she does not have any family in Western Australia. She claimed the applicant was remorseful in relation to his offending and his mindset had changed while he had been in custody.
I note that Ms Mancktelow provided no details of the way in which the applicant was providing her with support. In her oral pre‑sentence report presented to the Magistrates Court, Ms Arnold, a CCO, said that the applicant had told her he had been in an 'on and off relationship' with his current partner who is currently pregnant, from which I infer he was referring to Ms Mancktelow.[17] The applicant had described his partner as prosocial, but he referred to the relationship as being 'complicated' and was unable to discuss the details, although he said they live separately.[18]
[17] ts 15, 12//24 (Magistrate Hockton).
[18] ts 16, 12/4/24 (Magistrate Hockton).
Ms Arnold's oral pre-sentence report provided information that elaborates further on the applicant's antecedents and personal circumstances, but it did not provide any detail concerning his childhood history. The applicant indicated that the offending (apparently referring to all of his recent offending in 2023 and 2024) occurred during a period when he was experiencing a breakdown of his current relationship, issues with employment, and methamphetamine use associated with negative peer influences.[19] Ms Arnold was of the view that the applicant presented with limited insight into his offending behaviour and a poor attitude towards previously imposed suspensions and fines.[20] She was of the view that the applicant's offending is underpinned by pro‑criminal attitudes and lack of consequential thinking, problem‑solving and decision-making, shown by his repeat offending.[21]
[19] ts 14, 12/4/24 (Magistrate Hockton).
[20] ts 14, 12/4/24 (Magistrate Hockton).
[21] ts 14, 12/4/24 (Magistrate Hockton).
Ms Arnold referred to the applicant's history of convictions for criminal offences, which described as being in clusters. The applicant has an extensive criminal record. He has convictions from the age of 15 years, but his persistent course of offending commenced when he was an adult in 2007. He has been convicted of numerous stealing and fraud offences over a number of years, and of an offence of armed robbery in 2017 for which he was sentenced to a term of imprisonment. At the same time, he was sentenced to imprisonment for a large number of stealing and fraud offences, although at other times, including since then, he has been fined for similar offending. He has numerous convictions for traffic offences, including dangerous driving causing grievous bodily harm, driving without a licence and failing to provide identifying details to police. He also has convictions for providing false personal details to police. He has convictions for simple drug offences, including for possession of methylamphetamine.
Importantly, in the context of a bail application, the applicant has a conviction in January 2017 for breaching a violence restraining order in 2016, convictions in December 2011 for breaching a conditional release order and a community based order, convictions in March 2017 and October 2023 for breaching a bail undertaking (the offences having been committed in April 2014 and September 2023 respectively), and a conviction in March 2017 for breaching protective bail conditions, which occurred in December 2016.
The stealing offences for which the applicant was sentenced on 12 April 2024 (RO 1271, 1801 and 1802/2024) involved the theft of goods worth $300 from Coles in Rockingham on 23 January 2024, the theft of items worth $30 from Coles in Warnbro on 2 March 2024, and the theft of meat and electronic items worth $670 from Woolworths in Warnbro on 27 March 2024, although in relation to the last of those offences, a staff member challenged the applicant in relation to the contents of a bin, in which he had placed the goods, and the goods were recovered.[22] Obviously, the January offence was committed before the applicant was sentenced to suspended imprisonment on 31 January 2024.
[22] ts 6 - 7, 12/4/24 (Magistrate Hockton).
The applicant expressed regret to Ms Arnold for his actions and said that the period in remand had given him the opportunity to reflect on his behaviours. He indicated a desire to lead a law-abiding lifestyle, without drugs, and focussing on employment and preparing for fatherhood.[23] These statements correlated with what the applicant said to the magistrate on 12 April 2024[24] and what he said in the hearing before me. On each occasion he spoke about wanting to be a productive and peaceful member of society. He told the magistrate that he understood the seriousness of the stealing offences and that he had written letters of apologies to all the stores and had offered to pay compensation.[25]
[23] ts 15, 12/4/24 (Magistrate Hockton).
[24] ts 8, 12/4/24 (Magistrate Hockton).
[25] ts 8, 12/4/24 (Magistrate Hockton).
The applicant told Ms Arnold that he had secured accommodation through the Department of Housing approximately six months prior to the hearing, and this was the first time he had stable accommodation in a long time. He noted that further prison time may result in him losing his accommodation. That appears to have been borne out by the letter the applicant produced in the present application, which requires him to give vacant possession of the property by 15 June 2024.
The applicant had been in receipt of a disability support pension since 2002 as a result of being diagnosed with mental illness. It seems that before his incarceration, he was receiving $1,100 per fortnight.[26] The applicant was on medication for a 'generalised anxiety condition' and was also on medication to manage pain from an injury he suffered in a car accident. He had engaged regularly in counselling with a counselling service called emPOWER WA.[27] It seems the counselling involved face-to face sessions to deal with 'life stresses', which the applicant felt provided him with support. He indicated to Ms Arnold that he intended to resume the counselling if released, a matter that he also mentioned in the present proceedings.
[26] ts 16, 12/4/24 (Magistrate Hockton).
[27] ts 16, 12/4/24 (Magistrate Hockton).
The applicant indicated to Ms Arnold that he had paid employment available to him upon release, in gardens maintenance work,[28] and that transport arrangements had been put in place by his employer for that purpose.[29]
[28] ts 16, 12/4/24 (Magistrate Hockton).
[29] ts 14 - 15, 12/4/24 (Magistrate Hockton).
Ms Arnold was of the view that the applicant appeared to have protective factors in the community, including stable accommodation, employment prospects, community supports and strategies to reduce his risk of driving, and she noted that he presented as motivated to engage in interventions to deal with his criminogenic needs.[30] However, she noted that interventions had not deterred the applicant to date, and his risk of reoffending in a similar manner remained elevated while his treatment needs remained unaddressed.[31]

The history of any previous grants of bail to the applicant

[30] ts 17, 12/4/24 (Magistrate Hockton).

[31] ts 17, 12/4/24 (Magistrate Hockton).

I have referred above to the applicant's convictions for breaches of bail. I asked him about those, and he provided some explanations.
In relation to the breach of bail on 8 September 2023, he said that he had handed himself in after realising he had missed court, having mixed up the dates. He said he was granted bail again after that.[32] His record shows that he was fined $100, which tends to reflect that it was considered a low level breach.
[32] ts 14, 5/6/24.
The applicant appeared to have no recollection of the breach of the protective bail condition on 5 December 2016.[33] It is difficult to know the level of seriousness found by the court in relation to that offence, because the court imposed a global fine of $6,000 for numerous offences, which were mainly fraud.
[33] ts 15, 5/6/24.
The applicant pointed out that the offence of breaching a violence restraining order, committed in 2006, involved him sending a birthday card for his daughter to his father's home.[34] I note that he was fined $300, which, again, reflects an offence at the lower end of the scale.
[34] ts 15, 5/6/24.
In relation to the breach of bail undertaking on 15 April 2014, for which the applicant was sentenced to one months' imprisonment on 10 March 2017, the applicant explained that he got the dates mixed up, although he went on to give a further explanation to the effect that he had secured a new job in prawn fishing from Shark Bay and he did not want to have to explain to his employer that he needed a letter for the Supreme Court. The applicant did not explain why he needed a letter, although the implication was that there was a clash between his work obligation and his obligation to attend court in answer to his bail. The penalty imposed indicates that it was not regarded as a minor breach.

Further submissions by the applicant

The applicant submitted that, which he may have 'back pedalled' somewhat, he had 'kicked some goals' since being released in December 2023.[35] It is not clear why he was in custody at that time. In any event, the more significant period is since the applicant was sentenced to suspended imprisonment on 31 January 2024.
[35] ts 16, 5/6/24.
The applicant acknowledged that his word might not carry much weight, but submitted in any event that, if released on bail, he would come to court, because he has too much at stake, and he wants to have his appeal resolved.[36]
[36] ts 18 - 19, 5/6/24.
He submitted that, if released, he would be able to resolve the issues in respect of his accommodation so that he would not be evicted. However, there is no evidence that the termination of his lease is reversible at this stage.
The applicant submitted that he would not commit any further offence if released, as he has no reason to commit offences, is ashamed of having committed the stealing offences, and has done it hard in prison since his remand, which is enough incentive for him to do the right thing.[37] He said that, after experiencing custody again the last couple of months, it was a 'no-brainer' for him to do the right thing.[38] He said he would respect the conduct agreement order, even though it had taken him a long time to come to terms with it, because it is for seven years.[39] He said that he has no intention of interfering with witnesses.
[37] ts 19, 5/6/24.
[38] ts 5/6/24.
[39] ts 18, 5/6/24.
The applicant also submitted that bail would put him in a better position to obtain legal representation.

Consideration of any conditions that may alleviate risk

The applicant said he was prepared to comply with any conditions of bail the court might consider to be necessary. He submitted reporting conditions and a requirement that he comply with the directions of a CCO would sufficiently alleviate any risk that he might not attend court or commit further offences. He said he would prefer not to be subject to home detention, as he would need to be able to get out to go into town to do shopping and attend the Department of Communities, and to engage in employment . If it were simply an expression of preference, the reluctance might not be regarded as a significant obstacle to the efficacy of home detention to prevent the applicant from committing further offences. However, the applicant earlier expressed disdain for having to wear a tracking device in his circumstances. He queried whether home detention would require him to wear an ankle bracelet, and then said:[40]
That means you're bad. I'm not - on the scale of things, your Honour, with respect, I'm (indistinct) I have got – my charges are minor. Like, they're literally – like as far as – even a VRO – if I was apparently whatever I have done, it's not the seriousness – I haven't been (indistinct) my dad's house.
[40] ts 26, 5/6/24.
Although the applicant went on to say that, if that was what the court wanted to do, 'then, yes', the applicant's reaction suggests an attitude that is not conducive to compliance with what would be strict conditions of home detention.
Finally, I am obliged to note that the applicant's conduct on 7 June 2024, when I gave my decision, tends to confirm the observations of Ms Arnold that the applicant continues to demonstrate a lack of consequential thinking, problem-solving and decision‑making. He appeared by video link on that occasion. While I appreciate that, as a self‑represented litigant, he may have felt frustrated at times with the process, he became upset and began to speak loudly and aggressively over me, and was then uncooperative when I asked him to stop, necessitating the muting of the audio from his end of the video link. No doubt, his reaction stemmed from the unfavourable outcome of his application. However, it underscored my finding below that I do not have confidence in the applicant's ability to comply with conditions of bail to avoid a relapse into offending behaviour.

Conclusions

The respondent did not submit that I should find that the applicant presents a real risk of failing to appear if he is released on bail. Although the past breaches of bail undertakings are cause for concern that such a risk may exist, the most recent of the breaches appears to have been of a minor nature. I consider that the applicant's desire to obtain a favourable outcome in his appeal provides an incentive to appear that outweighs any concern about that risk.
However, taking into account all of the matters set out above, I am satisfied that there is a real possibility the applicant would commit further offences if he is not kept in custody. I have come to that conclusion, having regard in particular to:
(1)the circumstances in which the applicant is alleged to have committed the offence of breaching the conduct agreement order at an early stage during the period of suspension of the suspended imprisonment imposed on 31 January 2024;
(2)the fact that the applicant also committed stealing offences at an early stage in that period;
(3)the fact that he did so after he had been warned very clearly by the magistrate on 31 January 2024 that he would be required to serve the sentence of imprisonment if, during the period of suspension, he committed an offence for which the penalty included a term of imprisonment; and
(4)the applicant's criminal history generally, which includes several offences of breaching bail and court imposed orders.
While the last of those factors does not give me any significant concern that the applicant will fail to appear, if released on bail, it does indicate a preparedness on the part of the applicant to disregard court orders, or particular conditions attached to those orders. In relation to the first factor, I have taken into account the strength of the case against the applicant in respect of the offence of breaching the conduct agreement order. It gives rise to a real concern that the applicant would again attempt to contact his father. Apart from constituting an offence of breaching the conduct agreement order, the possibility that the applicant would do so also constitutes a possibility that he would interfere with a witness, being the central witness in respect of the offence that is the subject of the appeal. As I noted at [53] above, the applicant suggested to Magistrate Hockton that he might want to ask the protected person whether he thought imprisonment was warranted. In my opinion, the applicant's attitude, evident from those remarks, suggests that he could be motivated to contact his father again for the purpose of trying to sway him to a position favourable to the applicant's case. Given the applicant's strongly expressed opinions about his case, the risk is not fanciful.
I am of the view that there are no conditions that could reasonably be imposed that would sufficiently remove the risk to the extent that it would no longer be a proper ground for refusing bail. I am of the view that the nature and extent of the risk that would remain after the imposition of reasonable conditions would be such as to warrant the applicant's detention, notwithstanding that he is deemed to be an accused who has not been convicted.
Conditions such as reporting conditions are primarily concerned with early detection of a person having absconded or being unlikely to appear as required by their bail undertaking. It does not sufficiently reduce the risk of a person committing further offences when that person has not been deterred previously by the threat of imprisonment hanging over his head by virtue of a suspended imprisonment order, and when his risk of reoffending in a similar manner to previous offending remains elevated while his treatment needs remained unaddressed. It is not evident that the counselling with emPOWER would address the criminogenic issues identified by Ms Arnold. The protective factors that Ms Arnold identified as appearing to be available did not prevent the applicant from relapsing into committing stealing offences soon after being released subject to the suspended imprisonment order. Nor did they prevent the situation in which the applicant was charged with the offence of breaching the conduct agreement order in circumstances in which the case against him is strong.
The applicant's submissions were largely concerned with impressing on the court that he should be given the opportunity to demonstrate that he has rehabilitated and to be able to improve his position in relation to his accommodation, his employment and the obtaining of legal representation. While those are matters I have taken into account, they do not take precedence over the court's assessment of the risks I have identified and the assessment of whether they can be sufficiently reduced by the imposition of reasonable conditions. In that regard, I do not consider that the letters and emails of support tendered by the applicant overcome the aspects of his antecedents that point to a real risk that he would commit offences if not kept in custody. As I explained above, there are aspects of the views expressed by the authors of the letters and emails that do not accord with other known facts.
One can formulate conditions that would go some way towards reducing the risks, in particular the risk of the applicant contacting his father. For instance, he could be prevented from having possession of, or using, a mobile telephone or other electronic device, but that would not be reasonable, especially if the applicant was to pursue employment and counselling. In any event, such a condition would not necessarily prevent him from obtaining access to an electronic device to make contact.

I am satisfied that a grant of bail would not be appropriate on conditions short of home detention.
I have given careful consideration to whether home detention would sufficiently reduce the risks I have identified. I do not consider that a home detention condition would be an adequate means of preventing the applicant from committing further offences of the kind he committed and is alleged to have committed while subject to the suspended imprisonment order. In particular, I agree with the respondent's submission that the nature of home detention is not such as to be able to reduce to an acceptable level the risk that the applicant would commit an offence of breaching the conduct agreement order by making contact by telephone. In any event, there are two further reasons that emerged during the hearing, as discussed above, that make further consideration of home detention inappropriate.
First, the applicant indicated in essence that home detention is not suitable for him, particularly in relation to wearing a tracking device. The views he expressed about that matter, as outlined above, do not give me confidence that he would comply with the conditions of home detention, even if it was otherwise appropriate. In my view, it would be setting the applicant up to fail.
Secondly, it is intrinsic to home detention that a person has suitable accommodation, which would allow for monitoring of the applicant's presence at the place where he is residing. Without an address for a CCO to assess, it is not possible to request a report under s 24A(2) of the Bail Act, as affected by cl 3(2) of sch 1 pt D. The applicant did not offer evidence of confirmed to stable accommodation that would be available to him if he were released on home detention bail. The addresses he proposed were the rental property for which his tenancy has been terminated, and a hotel, without evidence that a room would be available to him in any event. It may be, as the applicant submitted, that the termination of his tenancy has resulted from his incarceration and, therefore, his inability to pay the rent. That would be an unfortunate situation, given the period for which he had to wait for the accommodation to become available. However, I am required to deal with the circumstances as they currently present, and, having regard to the letter from the Department of Communities produced by the applicant, I cannot be satisfied that the property will be available to him.
In those circumstances, I did not consider it appropriate to request a report under s 24A(2).
I have had regard to the possibility that the applicant's appeal, both against conviction and sentence, may be rendered futile, in terms of avoiding the sentences of immediate imprisonment, if he remains in custody until the determination of the appeal . However, an order has been made for an urgent appeal hearing. Further, having regard to the strength of the evidence against the applicant on the charge of breaching the conduct agreement order, and in the absence of evidence at this stage to support the applicant's ground that he entered the plea of guilty under duress, it cannot be said that there is a significant prospect of the applicant suffering an irremediable injustice if he is not granted bail.
I have not taken into account the fact that it appears the applicant has not appealed against all of the custodial sentences, with the possibility that he could not be released on bail, even if I had been inclined to grant bail. The practical consequences in those circumstances would be for the applicant to deal with. I have also ignored the fact that it appears the applicant has other outstanding charges in the Magistrates Court for which he has been remanded in custody. That may well be because he has been serving the terms of imprisonment imposed on 12 April 2024. Ultimately, I have decided the application on the basis of whether a grant of bail is appropriate in respect of the offences that are the subject of the appeal, having regard to the matters in sch 1 pt C of the Bail Act.
As I have concluded that a grant of bail would be inappropriate, bail must be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JH
Associate to the Honourable Justice Fiannaca
14 JUNE 2024