Magistro v The State of Western Australia - [2016] WASC 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MAGISTRO -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 268

CORAM: FIANNACA J

HEARD: 14 & 15 JULY 2016

DELIVERED : 15 JULY 2016

FILE NO/S: MBA 19 of 2016

BETWEEN: RAYMEN GEORGE MAGISTRO
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail application - Exceptional reason - Delay to trial - Arguable injustice

Legislation:

Bail Act 1982 (WA), s 13, s 14(2), cl 3A pt C sch 1, sch 2
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 7B(6)

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr T Percy QC
Respondent: Mr A Dungey

Solicitors:

Applicant: Nigams Legal Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

Cases referred to in judgment:

Firkins v The Director of Public Prosecutions (2002) 132 A Crim R 321
Jolly v The State of Western Australia [2014] WASC 118
Marrick v The State of Western Australia (2015) WASCA 190
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Oates v The Commonwealth Director of Public Prosecutions (2003) WASCA 329
Outman v The Queen (2001) WASC 162
Saka v The State of Western Australia [2001] WASC 92
The State of Western Australia v Oats (2004) WASC 2014
The State of Western Australia v Sturgeon [2005] WASC 256
FIANNACA J:
(This judgment was delivered extemporaneously on 15 July 2016 and has been edited from the transcript.)

The application

The applicant, Raymen George Magistro, has applied for bail in respect of his next appearance at a committal mention hearing in the Magistrates Court in Perth on 8 September 2016 on a number of charges for offences alleged to have been committed by him on 3 June 2016, which is also the date on which he was charged. He is charged with four offences, namely:
(1)possession of a prohibited drug, namely, methylamphetamine with intent to sell or supply: s 6(1)(a) Misuse of Drugs Act 1981 (WA) (MDA), being in respect of 5.71 g of that drug;
(2)simple possession of a prohibited drug, namely, MDMA, also known as ecstasy: s 6(2) MDA, being in respect of two MDMA tablets;
(3)possession of drug paraphernalia in which there was a prohibited drug, namely, methylamphetamine: s 7B(6) MDA; and
(4)being in possession of property reasonably suspected of having been unlawfully obtained, namely, $1,195 in cash: s 417(1) Criminal Code (WA).
These offences are alleged to have been committed while the applicant was on bail for other offences, which are alleged to have been committed on 23 March 2016. Those offences include two counts of possession of a prohibited drug with intent to sell or supply, under s 6(1)(a) MDA, which relate to 22.66 g of methylamphetamine and 4.35 g of MDMA. He was charged with those offences on 5 April 2016 and 14 April 2016 respectively. There are more offences alleged to have been committed by the applicant on 23 March 2016, for which he was charged variously on that date, on 5 April 2016 and 14 April 2016. They include: two counts of possessing prohibited weapons under s 6(1)(b) Weapons Act 1999 (WA); one count of possessing drug paraphernalia, on which there was a prohibited drug; and two counts of being in possession of property suspected of having been unlawfully obtained. The applicant pleaded not guilty to all of the charges in respect of the alleged March offences and was released on bail of a personal undertaking of $5,000 and a surety of $5,000.
The charges under s 6(1)(a) MDA, that is, the possession of a prohibited drug with intent to sell or supply the drug, in each case bring into play sch 2 and cl 3A of pt C of sch 1 of the Bail Act 1982 (WA) (the Act). For the purposes of cl 3A, the offences are 'serious offences', being described in sch 2.[1] As the applicant is alleged to have committed the June 2016 offence, under s 6(1)(a) MDA, while he was on bail for two counts of offences under that provision, the Court must refuse to grant bail for the June 2016 offence, unless it is satisfied there are exceptional reasons why the accused should not be kept in custody, and is also satisfied that a grant of bail would otherwise be proper, having regard to other criteria the Court must take into account.
[1] See Bail Act 1982 (WA) s 3(1).
The applicant was refused bail in the Magistrates Court. The present application was brought under s 14(2) of the Act, and invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred by s 13 and pt A of sch 1 of the Act on the magistrate who refused bail. It is not an appeal.
The applicant argues that there is an exceptional reason why he should not be kept in custody pending his trial, namely, the delay before he will receive a trial in the District Court. In essence, his argument is that, if he is kept in custody, the delay will result in an injustice because he will have been in custody for a longer period than the custodial part of any sentence that may be imposed on him for the s 6(1)(a) offence if he were convicted of that offence. The applicant argues that, if I am satisfied an exceptional reason has been made out, then I should also be satisfied that it would be proper to grant bail, having regard to the conditions that could be placed on any grant of bail.

Evidence at the hearing

The evidence at the hearing of the bail application consisted of a number of affidavits filed on behalf of the applicant and an affidavit sworn by the prosecutor, Mr Dungey, who appeared for the respondent at the hearing.
The affidavits filed on behalf of the applicant were from:
(1)Ms Perling, the solicitor having the conduct of the matter on behalf of the applicant;
(2)Ms Honey, a solicitor assisting in the conduct of the matter on behalf of the applicant;
(3)Tyson Magistro, the applicant's son;
(4)Samantha Eaton, the mother of Tyson Magistro's partner; and
(5)Angelien Magistro, the applicant's mother.
Ms Perling's affidavit provides information about three sets of charges that have been brought against the applicant. Apart from the charges in March and June 2016, it also refers to summary charges brought against him in February 2016. The information includes an outline of the proceedings in respect of each set of charges. The prosecution notices and the statement of material facts in respect of each set of offences are annexed to the affidavit.
Ms Honey's affidavit sets out the applicant's instructions in respect of his personal circumstances and his proposed defence in relation to the June 2016 charges.
Tyson Magistro and Samantha Eaton attest to facts that may be relevant to a consideration of the applicant's proposed defence in respect of the June 2016 charges.
Mr Dungey's affidavit provides further information received from the police in respect of the offences alleged to have been committed on 3 June 2016, and also annexes text messages extracted from the applicant's mobile telephone seized on 3 June 2016, which include messages that are said to provide evidence of drug dealing by the applicant in May and early June 2016, leading up to his arrest on 3 June 2016. Also filed with the affidavit was a disc containing a recording of a telephone conversation between the applicant and his girlfriend on 3 July 2016, which the respondent submits is relevant to the court's assessment of whether the applicant may commit a drug‑related offence if he were to be released on bail.

Outline of alleged facts

The facts alleged in respect of each set of offences can be ascertained from the statements of material facts and from Mr Dungey's affidavit. It is not necessary, for the purposes of this application, to consider the facts alleged in relation to the February 2016 charges, which relate to three counts of simple possession of a prohibited drug and one count of possession of drug paraphernalia on which there was a prohibited drug. Those offences are alleged to have been committed in June 2015.
The facts in respect of relevant offences alleged to have been committed on 23 March 2016 are that police conducted a search at the applicant's home in Alexander Heights that morning, and, during the search, the applicant declared that he had a quantity of methylamphetamine in his garage. He then pointed out to the police a small black box on a table in the garage and, when the box was opened, the police found a clip‑seal bag inside, containing what was later found to be 22.66 g of methylamphetamine. The applicant admitted that the drug was his and said that he provided some of the drug to his friends on occasions when they came over to visit. Also inside the box was a clip‑seal bag containing approximately 4.35 g of MDMA (ecstasy). The search, including the admissions made by the applicant, was recorded on video.
During that search, police also found $5,990 in cash, numerous unused clip‑seal bags, a spoon with traces of methylamphetamine on it, disposable gloves and three sets of scales. The police also found a number of laser pointers and a torch which also functioned as a taser (an electric shock weapon). The applicant admitted those items were his and said he collected torches because of a fetish. The police also found smoking implements which the applicant admitted were his.
The facts in respect of the offences alleged to have occurred on 3 June 2016 are that the police conducted a search at the applicant's home in Alexander Heights that morning, and during the search they found a clip‑seal bag containing 4.81 g of methylamphetamine on the applicant's bedside table. Next to the clip‑seal bag was $455 in cash and a mobile telephone. During the search, the police also found two clip‑seal bags on a table in the garage, which contained a total of approximately 0.9 g of methylamphetamine. It is by the combination of the 4.81 g and the 0.9 g that one arrives at the 5.71 g I referred to earlier. The police also found $740 in cash in a bag in the garage, two sets of scales and numerous unused clip‑seal bags. At the bottom of the box that contained the unused clip‑seal bags, police also found trace amounts of methylamphetamine. The police also located two MDMA tablets in a clip‑seal bag inside a box on a table in the garage and a number of smoking implements. One of those implements was in a bag, believed to belong to the applicant, which was found in a cabinet in the garage. Another two were on a table in the garage, one was in the applicant's bedroom and one was in the boot of the applicant's car.

The applicant's account of events

The applicant's account in respect of these matters is set out in the affidavit sworn by Ms Honey. I will refer to that account briefly, although I note that, at this stage of the proceedings, I am not called upon to make any assessment of whether the applicant's account would be believed. That would not really be possible in any event given that he has not provided this information on affidavit; rather, it has been put in hearsay form by his solicitor. That is not to be critical of the way in which the evidence is presented, but it does affect the weight that can be given to it.
According to the affidavit, the applicant's account is that, on the evening of 2 June 2016, he went to Ms Eaton's house for dinner. He says that he stayed there until sometime later in the evening. He says that the garage at his home was fitted out as a games room and bar and, whenever he and his partner, Cassandra, would have friends over, they would socialise in the garage.
His account is that, when he returned home after dinner on 2 June 2016, Cassandra and her friends were socialising in the garage. He had been unwell earlier that evening and was still feeling unwell when he returned home, so he took his heart medication and went straight to bed. He says that his bedroom was not locked and that Cassandra and her friends would have been able to access the bedroom. He also refers to the fact that there had been tradesmen at his place working on renovations during the week prior to the search that occurred on 3 June 2016, and that those tradesmen came and went from his home freely. He says that neither his bedroom nor the garage was locked at any stage. It is said on his behalf that he maintains he had no knowledge of the 4.81 g of methylamphetamine, found on 3 June 2016, and did not know to whom it belonged.
In respect of the 0.9 g of methylamphetamine, again, it is said on his behalf that he had no knowledge of that and did not know to whom it belonged. As far as the MDMA tablets are concerned, the same position is maintained. In respect of the cash and the drug paraphernalia, it is said that he is still considering his position.
The affidavits of Tyson Magistro and Samantha Eaton, as I said earlier, purport to provide information that might be relevant to the consideration of the applicant's account. However, the most that might be established by Tyson Magistro's affidavit is that he went to Ms Eaton's place on the evening of 2 June 2016 with his father and that when he returned home, sometime after 10.00 pm, he went inside and went to his room and, on his way there, he walked past his father's bedroom and noticed that there were a few women in there and that they closed the door after he walked past. He says that he saw that they were smoking something with a glass pipe. He claims that his father was not inside at that time.
Ms Eaton's affidavit does not really assist other than referring to some hearsay information that she says she received from her daughter about needing to pick up Tyson Magistro. All she really does is confirm that the applicant and his son were at her place for dinner that night.
It is not appropriate, as I have already said, to seek to make any assessment of the account that is set out in Ms Honey's affidavit as the account on which the applicant would rely. However, it does not seem to me that the information contained in Tyson Magistro's affidavit could explain the finding of the drugs on the applicant's bedside table on 3 June 2016, next to his phone, and the bundle of cash. At most, it suggests that there were persons in the bedroom smoking something the night before. In any event, when I come to deal with the question of the strength of the prosecution case, at this point in time, it seems to me that all that can be said about the evidence is that there is a prima facie case in respect of possession on the part of the applicant, and that the items that were found in the garage tend to support the conclusion that the amphetamine found on his bedside table was in his possession.
I also note that, in having regard to those matters, it is necessary to take into account the applicant's history of offending, and the conviction that he incurred in 2012, which I will come to shortly. Before I come to that, I will deal with his personal circumstances as revealed in the affidavit of Ms Honey.

Personal circumstances

The applicant is 39 years old. He grew up in Perth. His immediate family, consisting of his parents, his brother and his son (Tyson), continues to live in Perth. None of the members of the applicant's immediate family has any criminal convictions. The applicant is said to be close to his immediate family. His parents are employed. His mother is prepared to be the applicant's surety, and his father is prepared to provide him with employment in his hardware business, if the applicant were to be released on bail.
The applicant had been working in his father's business three to four days a week on a casual basis before he was arrested. He left school at the age of 10, but has had long‑term employment in the past in tyre and vehicle servicing businesses.
The applicant has been in a relationship with a woman named Cassandra Bates since around May 2015. At the bail hearing, the State tendered a recording of a prison call between the applicant and Ms Bates made on 3 July 2016, to which I have already referred, and that tends to indicate that, at the time of the call, they still regarded themselves to be in a relationship, although it may be said that there appeared to be tension arising from Ms Bates' expectation that the applicant would have to change his ways if their relationship was to continue. I will come back to that call later.
The applicant has owned a residential property in Alexander Heights since 2000, although he continued to live with his parents in their home in Lansdale until 2015 when he moved into his house with Ms Bates.

History of offending

In early 2012, the applicant was convicted of offences under s 6(1)(a) MDA, namely, possession of methylamphetamine with intent to sell or supply to another and possession of amphetamine with intent to sell or supply to another. He was sentenced to 3 years and 6 months' imprisonment. I was told that he served 21 months in prison before being released on parole. Senior counsel for the applicant informed me that, at some stage, the applicant was breached while on parole because he returned a so-called 'dirty sample', which was obviously a reference to a positive urinalysis test for drugs. However, it is not clear whether that in any way contributed to the non‑parole term, which was 21 months, or whether it was additional to that. It does not seem to me to matter in any event. What is important is that there are convictions for two offences of that kind in 2012.

Legal principles

In this State, the subject of bail is governed by the provisions of the Act, which is intended to be a comprehensive code on the subject.[2] Any common law or inherent power to grant bail has been abolished.[3]
[2] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [31].
[3] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [32].
The exercise of my discretion to grant bail in the present case is governed by cl 1 of pt C of sch 1 of the Act. That clause is subject to cl 3A and cl 3B of the same part. Clause 3A is relevant to the determination of this application. It applies where an accused is in custody charged with committing a serious offence, as defined in the Act, and that offence is alleged to have been committed while he was on bail for another serious offence. In those circumstances, the court shall refuse to grant bail for the first mentioned serious offence unless it is satisfied that there are exceptional reasons why the accused should not be kept in custody and is also satisfied that bail may properly be granted having regard to the provisions of cl 1 and 3. 'Serious offence' is defined to include an offence described in sch 2 of the Act. By cl 2A of sch 2, offences under s 6(1) MDA are among those described in that schedule.
There are two elements about which the judicial officer must be satisfied under cl 3A before bail can be granted. The first is that there are exceptional reasons why the accused should not be kept in custody. The second is that bail may be properly granted having regard to the provisions of cl 1 and cl 3. The operation of cl 3A was considered in Milenkovski. As Simmonds J noted in Jolly v The State of Western Australia,[4] McLure P in Milenkovski referred to the two elements in reverse order and said that:[5]
If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are exceptional reasons.
[4] Jolly v The State of Western Australia [2014] WASC 118.
[5] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [37].
As Simmonds J noted, the approach that had been taken in previous cases tended to put the consideration of whether there were exceptional reasons first. That has been the case in a number of first instance considerations of bail since Milenkovski as well. Simmonds J in Jolly took that approach, partly in deference to the fact that counsel had argued the matter in that way.

Given that both elements are necessary conditions of which the court must be satisfied under cl 3A before bail can be granted, it does not matter in which order they are considered. If either condition is not satisfied, it would not be necessary to go on to consider the other. In the present case, counsel approached the matter as in Jolly by submitting that I must first be satisfied there are exceptional reasons for the grant of bail. I will take that approach. However, I have come to the view that I should indicate my view in respect of whether bail would be granted having regard to cl 1 and cl 3 in any event; in other words, what would occur if I was satisfied that there were exceptional reasons.

Clauses 1 and 3 of pt C of sch 1 of the Bail Act

Clause 1 provides that the grant or refusal of bail to the applicant is in the judicial officer's discretion. It requires that the discretion be exercised having regard to questions posed by (a) to (g) of that clause, as well as to any others which the judicial officer considers to be relevant.
For the purposes of this application, the following paragraphs are potentially relevant:
(a)whether, if the accused is not kept in custody, he may -
i.fail to appear in court in accordance with his bail undertaking or
ii.commit an offence;
…
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
…
(e)whether there is any condition which could reasonably be imposed under Part D which would:
i.sufficiently remove the possibility referred to in paragraphs (a) and (d); or
ii.remove the grounds for opposition referred to in paragraph (c).
The matters specified in those paragraphs are non‑exclusive, mandatory, relevant considerations.[6]
[6] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [24].
The proper construction of cl 1 and the manner in which the discretion is to be exercised was elucidated by McLure P in Milenkovski, as follows:[7]
… First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
[7] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [39] ‑ [41].
As I noted earlier, the questions in cl 1(a)(i) and (ii) are potentially relevant in this case. Clause 3 of pt C of sch 1 provides that, in considering whether the accused may do any of the things set out in cl 1(a), the judicial officer shall have regard to the following matters, as well as any other matters that the judicial officer considers relevant:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, financial position of the accused; and
(c)the history of any previous grants of bails to him; and
(d)the strength of the evidence against him.
Those matters are non‑exclusive, mandatory considerations.[8]
[8] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 108 [25].

Exceptional reasons

I come then to consider the first question in the order in which it was dealt with in this application, and that is whether there are exceptional reasons for the purposes of cl 3A of the Act. It is useful, in my respectful opinion, to have regard to the rationale behind cl 3A. It is obvious from the terminology, as was explained in Milenkovski, that it provides for a rebuttable presumption against the grant of bail. The reasons why that would be the case were considered by EM Heenan J in The State of Western Australia v Sturgeon, where his Honour said:[9]
The explanation appears to me to lie in the view that, generally speaking, on applications for bail not falling within Sch 1, Pt C, cl 3A of the Bail Act, the discretion to grant bail is at large and no single factor is to be regarded as conclusive or determinative in favour of or against the grant of bail. Whereas, in cases coming within the purview of cl 3A, there is a specific statutory direction that the alleged commission of a serious offence whilst on bail for another serious offence must result in the refusal of bail unless exceptional circumstances are demonstrated, so elevating the significance of the alleged commission of the offence whilst on bail for another serious offence to a prescriptively disqualifying factor for such a bail application unless exceptional circumstances be shown. It is not difficult to see a clear policy of Parliament behind such a provision which obviously rests in the concern of the legislature, responding to public anxiety, that persons who may turn out to be serious serial offenders may be permitted to remain at large when there is public concern about their ever-present threat to the community. While the common law authorities are clear that "a prisoner is not detained in custody pending trial because of his guilt or assumed guilt" - per Cussen J in R v Sefton [1917] VR 259, there is a statutory encroachment upon that principle (subject to the demonstration of exceptional circumstances to the contrary) in cases where an offender is alleged to have committed a serious offence whilst on bail for another serious offence. In other words, this is a form of statutory presumption that such an applicant for bail does constitute a threat to the safety of the community and is therefore within one of the long established categories of applicants for whom bail is refused on conventional principles - subject always to the potentiality of demonstrating exceptional circumstances to the contrary.
This approach, in my opinion, gives recognition to the differentiation in the treatment of applicants for bail under cl 3 and cl 3A of Pt C of Sch 1 of the Act, in a way which is consonant with long established doctrine and common law principles and which is also harmonious to the Parliamentary recognition of public apprehension about the risk of potentially serial offenders roaming free. However, it still leaves the discretion to grant bail in other cases, including applicants charged with serious offences, who are seeking bail under cl 3 of Pt C of Sch 1 of the Act at the general discretion of the judicial officer or other authority exercising the jurisdiction to consider bail.
[9] The State of Western Australia v Sturgeon [2005] WASC 256 [39] ‑ [40] (EM Heenan J).
I respectfully agree with his Honour's assessment that the policy that appears to underpin cl 3A is that a person who may turn out to be someone who has committed offences serially should not be at large. The protection of the community, of course, extends beyond offences that might be regarded as violent offences which might justify the detention of someone awaiting their trial. In my respectful opinion, the protection of the community includes protection against those who might be inclined to engage in drug offences, particularly offences that involve distribution of the drug within the wider community.

Delay before trial ‑ The law

However, it is clear from the authorities that one matter that may constitute an exceptional reason to grant bail under cl 3A is where there is likely to be delay of such magnitude, in the accused coming to trial, that an injustice may result. That is precisely the basis upon which the application is made in this instance.
On this issue, I have had regard to what was said by McKechnie J in Saka v The State of Western Australia,[10] by Roberts-Smith J in Outman v The Queen[11] and The State of Western Australia v Oats,[12] and by Pullin J in Firkins v The Director of Public Prosecutions.[13] Those cases recognise that there can be a point at which the delay in bringing an accused to trial might itself be an exceptional circumstance justifying a grant of bail.
[10] Saka v The State of Western Australia [2001] WASC 92.
[11] Outman v The Queen (2001) WASC 162 [45].
[12] The State of Western Australia v Oats (2004) WASC 2014 [21] - [23].
[13] Firkins v The Director of Public Prosecutions (2002) 132 A Crim R 321 [24] - [25].
However, as has been noted in the cases that have dealt with this issue, and specifically referred to by Miller J in Oates v The Commonwealth Director of Public Prosecutions,[14] there will be occasions where it is necessary for an accused person to be detained in custody, pending his trial, no matter how long that may be, even though it might be perceived that a person who is presumed to be innocent ought to be at large while he awaits his trial, and that an injustice may result if that person is acquitted. In the end, as has been recognised in the authorities, the court must have regard to the particular circumstances of the case it is dealing with.
[14] Oates v The Commonwealth Director of Public Prosecutions (2003) WASCA 329 [27] - [31].
A relevant consideration is the relationship that the delay may bear to the sentence that is likely to be imposed on the accused if he is convicted after trial. The applicant argued that I should have regard only to the sentence that will be likely to be imposed on the applicant if he were convicted of the June 2016 offences. It was submitted on his behalf that I should not have regard to the fact that the applicant may come to be sentenced ultimately for a number of offences combined with those in June 2016, including the offences alleged to have been committed on 23 March 2016, because the applicant was granted bail in respect of those earlier offences.
It may be thought that there is merit in that argument because of the provisions of the Sentencing Act 1995 (WA) which allow a court to take into account the time that an accused has spent in custody on remand, for the purpose of backdating a sentence, where the custody has been in relation to the particular offence for which he is being sentenced and only in relation to that offence. So, if he were to be sentenced for the June 2016 offences, and, but for bail being refused for those offences, he would have been at large in relation to the earlier matters, it might be argued that the time in custody could be taken into account only in respect of the June 2016 offences.
However, the applicant's next appearance is on 8 September 2016, at which time, as I understand the situation, both sets of offences, that is, those from March 2016 and June 2016, will be considered for committal. I also understand that, in respect of the March 2016 offences, his bail would have expired at that time if the bail undertaking remained operative. That is, he would have been required to answer his bail at that time, were he not in custody. It seems to me that the likely scenario, if he is not released on bail, is that he will be remanded in custody in respect of all of the charges which will move forward to trial in the District Court.
For that reason, it seems to me that the argument to which I have referred, relying on the provisions of the Sentencing Act, provides no basis in this case to consider that the only sentence I can have regard to, in weighing the potential injustice of delay, is the sentence that would be likely to be imposed in respect of the June 2016 offences. However, with all due respect, there are other reasons, in my view, why the approach that has been put forward on behalf of the applicant is artificial.
For instance, senior counsel for the applicant submitted, in answer to questions put by me, that even if an accused were to come back before the court repeatedly for offending of the same kind, that is, under s 6(1)(a) of the MDA, but in respect of small amounts for which he might receive a relatively short term of imprisonment, that the court could only ever have regard to the last-most offence which has triggered the application of cl 3A of the Act, for the purpose of considering the likely sentence to be imposed when weighing the potential injustice of delay. In my respectful submission, that simply cannot be correct and tends to contradict the policy underpinning cl 3A, which was referred to by EM Heenan J in Sturgeon.
Further, as the prosecutor has indicated, the applicant will be charged on a joint indictment in respect of the March and June offences. That is not surprising, given that the offences are of a similar kind and might be said to be part of a series of offences. Of course, it will always be open to the applicant to apply to sever the charges if he considers such an application to be appropriate. However, on the assumption that the matter will proceed on the basis of all charges being heard at the same time, it would be artificial, in my respectful opinion, to disregard the fact that he is charged with the March 2016 offences when considering the manner in which he may be dealt with, if he is convicted. The significance of that, of course, is that, in respect of the offence of possession of 22.6 g of methylamphetamine on 23 March 2016, the applicant is likely to receive a very significant term of imprisonment if he is convicted. That is acknowledged by his counsel. In my opinion, any period that the applicant will have spent in custody awaiting his trial would fall well short of the custodial part of that sentence that he would be required to serve (i.e. the non-parole period).
However, even in respect of the sentence that is likely to be imposed for the June 2016 offences, it seems to me that the suggested likely outcome put on behalf of the applicant in argument, in the event of a conviction for the possession of the methylamphetamine with intent to sell or supply, tends to underestimate the likely sentence. The term suggested by senior counsel was 12 to 18 months' imprisonment. At best, it might be said that such a term would be at the very lower end of the appropriate range. However, if the applicant were convicted, the court would be sentencing him on the basis that he is not a first offender in relation to the possession of methylamphetamine with intent to sell or supply, having been convicted in 2012 and having been sentenced previously to a sentence of 3 years' imprisonment for drug offences.
In Marrick v The State of Western Australia,[15] which involved a conviction for an offence involving 5.78 g of methylamphetamine with a purity of 26% to 27%, a sentence of 3 years' imprisonment was considered by the Court of Appeal to be appropriate. I refer to that case simply to indicate the range of sentences that might be available and that, in relation to any conviction for the possession of methylamphetamine that was found on 3 June 2016, the sentence that would be imposed may be well beyond the 12 to 18 months' imprisonment that senior counsel has suggested.
[15] Marrick v The State of Western Australia (2015) WASCA 190.
The point of the preceding discussion about the likely length of any sentence, of course, is that it provides some kind of benchmark against which to assess whether the period that the applicant will have spent in custody will be of such an order as to result in an injustice, in particular because he will have served either the whole of or more than the sentence that would be imposed if he were convicted of the s 6(1)(a) offence, or at least all of or more than the non-parole period of such a sentence. Of course, the greatest injustice would be if the applicant were acquitted, but it is fair to say that, even in the event of a conviction, if he were to have served longer than he might have been required to serve, that, too, would constitute an injustice.
I have had regard to what EM Heenan J had to say in Sturgeon, where his Honour traversed the history of bail applications involving exceptional circumstances, and, in particular, cases involving delay in bringing an accused to trial, and noted that the fact that longer delays are now commonplace is no reason to relax the vigilance of the courts in ensuring that procedural delays do not cause injustice.[16] There is no doubt, as his Honour pointed out, that in assessing whether an injustice will result, it is not simply a matter of considering whether the delay that will be involved in the particular case is what has come to be expected as commonplace delay before an accused can have his trial.
[16] The State of Western Australia v Sturgeon [2005] WASC 256 [50] - [56].
Ultimately, the question must be approached on the basis that there are competing considerations that need to be taken into account.

Delay before trial in this case

The application initially relied on an understanding on the part of the applicant's legal advisers that it was likely he would not receive a trial until the second‑half of 2017. That is because it is considered that the trial would take five days. It is also the case that the State intends to make an application under s 31A of the Evidence Act 1906 (WA) to adduce evidence of the offences of which the applicant was convicted in 2012. It was suggested that the need for a pre-trial hearing may delay the allocation of trial dates for the matter.
I requested that inquiries be made with the District Court registry about the possibility of the applicant being given dates for an expedited trial if he were to remain in custody. Information was subsequently provided by the prosecutor and the applicant's lawyer which indicates that, if the applicant were to be committed for trial at his next appearance on 8 September 2016, he could go to a trial listing hearing on or about 1 December 2016, and a five-day trial could be listed in March or April 2017. If that course of events were to unfold, the applicant would have his trial within a period that is less than 12 months since he was charged on 3 June 2016. Indeed, it could be as little as 10 months. I appreciate that is still a significant period for someone to have been in custody awaiting their trial. However, having regard to the view that I have taken about the need to consider the matter in context, that is, that the applicant will be facing a trial in respect of not only the June 2016 offences, but also the March 2016 offences, it seems to me that a delay of 10 to 12 months could not be said to be such as to result in an injustice.
In any event, at this point in time, I am not satisfied that the time that it would take for the accused to come to trial amounts to delay of such an order as to constitute an exceptional reason to grant bail under cl 3A.

Consideration of factors under cl 1 and cl 3

I consider, however, that there are also reasons why, under cl 1(a) of pt C of sch 1, the grant of bail at this time would be inappropriate.
It seems to me that, while it is the case, as was put on behalf of the applicant, that he has previously complied with his bail undertaking, the risk that exists now that he may be convicted of a number of offences, which would increase the likely term of imprisonment if he were convicted, provides a basis for considering that it is possible he would not comply with his bail undertaking.

More significantly, one of the matters that I am required to take into account under cl 1(a) is the possibility of the applicant offending again. In that regard, under cl 3, I am entitled to take into account his prior history of offending and any other information that may have been put forward. As I said earlier, the prosecutor produced a disc of a recording of a telephone conversation which the applicant had with his partner on 3 July 2016. During that telephone conversation, Ms Bates (the applicant's partner) questioned him whether he would change his ways if he were released. This was in the context of explaining her own position, that she had stopped using drugs herself. However, she made it clear in her discussion with the applicant that she was not talking only about using drugs. The applicant responded that he could not honestly say at that point in time that he would not go back to doing what he had been doing. He said he did not know.
Whilst I accept the submission made by senior counsel on behalf of the applicant that that does not amount to a positive statement that he will offend, nevertheless it does create serious concern on the court's part that the applicant may offend by way of being involved in drug dealing if he were to be released on bail. The fact is that, irrespective of the applicant's account, put on his behalf in Ms Honey's affidavit, drug‑related paraphernalia was found in his premises on 3 June 2016 at a point in time when he was on bail. It is difficult to understand how he could not be aware of the presence of the items on his premises, irrespective of his claim that he did not know who owned the drug on his bedside table.
In all the circumstances, I consider there is a concern that he may commit an offence if he were released. That, of course, is also a relevant consideration in determining the question of whether there are exceptional reasons because, as I said, the authorities make it clear that one needs to weigh the competing factors, and the factor of particular concern here is the policy of Parliament underpinning cl 3A as discussed by EM Heenan J in Sturgeon.
While it is not necessary for me to go into any further detail in respect of the strength of the prosecution case, it does seem to me that it has not been shown to be a weak case, having regard to the circumstances in which the drug was found and the presence of text messages that were extracted from the applicant's phone, which was seized from his bedside table on 3 June 2016. It is certainly open to infer from a number of the messages found on his phone that he was involved in drug dealing during late May 2016, and leading up to 3 June 2016, but that is really as high as it could be put at this stage. As I say, there is no need for me to make any determination in respect of that, and indeed it would not be appropriate to do so.
However, as was submitted by the prosecutor, the case in respect of the offences alleged to have been committed on 23 March 2016 does appear to be quite strong. I make that assessment without knowing what the applicant's response is to those charges, because there was no reference to that in any of the material filed on his behalf. However, in circumstances which include admissions made by the applicant during a video recording, as I mentioned earlier, it does seem to me that the prosecution case can properly be characterised as being quite strong in respect of those offences. That is another reason why it is important to consider the March offences as part of the context when considering what sentence might be imposed on the applicant in respect of the June 2016 offences, if he were convicted, as I discussed earlier.
Finally, I have had regard to the proposed conditions that were referred to in the affidavit of Ms Honey, should bail be granted. Those conditions included that the applicant provide a personal undertaking; that his mother provide a surety in the sum of $15,000, or such other sum as the court considers appropriate; that he reside with his mother and father at the family home in Landsdale; that he be subject to a curfew; that he report to the police; that he surrender his passport; that he not approach within 1 km of a domestic or international airport; and, otherwise, that he comply with any other condition that the court may impose.
As was submitted by the prosecutor, the requirement that the applicant reside with his parents could give the court no confidence that he would not offend while on bail, because he previously offended while living with his parents. In any event, it seems to me that the conditions that have been proposed would not be sufficient in other respects to remove the possibility that I have referred to, that the applicant would not comply with his bail undertaking and, perhaps more significantly, that he may commit an offence if he were released on bail.
Because I have come to the view that the potential delay is not sufficient to amount to an exceptional reason for granting bail in this case, I have not considered further whether another condition might be imposed which would overcome the concerns that I have under cl 1(a). I gave specific consideration to home detention, which was a matter that senior counsel raised as a possibility in the event that I was satisfied that there were exceptional reasons. Given that I have come to the conclusion that I am not so satisfied, it seems to me that it would not be appropriate to undertake the exercise of obtaining a home detention assessment report.

Conclusion

I have come to my conclusion that there are no exceptional reasons for the grant of bail on the basis that the applicant will appear on 8 September 2016 in the Magistrates Court for committal mention in respect of the indictable offences, and that he will be committed to the District Court for his trial then or soon after. Of course, circumstances may change.
If the applicant is not committed to the District Court on 8 September 2016, or soon after that, so as to enable the matter to proceed in a way that would enable a trial to be listed in March or April of next year, and for a pre‑trial hearing to be heard some time before that (which, as I understand the position, would likely be in January or February 2017), then, of course, that ought to be regarded as a change of circumstances which any other judicial officer who may come to consider any future application on behalf of the applicant would be entitled to take into account in deciding whether there were exceptional reasons for the grant of bail at that point in time.
We are not at that stage, and for the reasons that I have given, the application is refused.