Marsden v The State of Western Australia
[2016] WASC 342
•25 OCTOBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MARSDEN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 342
CORAM: HALL J
HEARD: 18 OCTOBER 2016
DELIVERED : 25 OCTOBER 2016
FILE NO/S: MBA 30 of 2016
BETWEEN: GREG HENRY MORRIS MARSDEN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Possession of methylamphetamine - Possession of unlicensed handgun - Flight risk - Risk of offending if released on bail - Whether any conditions could sufficiently remove risks
Legislation:
Nil
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr S Vandongen SC
Respondent: Mr J Chu
Solicitors:
Applicant: Alana Padmanabham, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MARSDEN -v- THE STATE OF WESTERN AUSTRALIA
CORAM: HALL J
HEARD: 18 OCTOBER 2016
DELIVERED :
FILE NO/S: MBA 30 of 2016
BETWEEN: GREG HENRY MORRIS MARSDEN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Possession of methylamphetamine - Possession of unlicensed handgun - Flight risk - Risk of offending if released on bail - Whether any conditions could sufficiently remove risks
Legislation:
Nil
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr S Vandongen SC
Respondent: Mr J Chu
Solicitors:
Applicant: Alana Padmanabham, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
HALL J: This is an application for bail pursuant to s 14 of the Bail Act 1982 (WA). Such an application may be made to this court in any case including, as here, where bail has been refused in the Magistrates Court.
An application under s 14 is not an appeal and does not require the demonstration of error. Rather, it is an application in the original jurisdiction of this court to exercise the power to grant or refuse bail in any case. Such an application requires the court to consider afresh whether or not bail should be granted. That jurisdiction is to be exercised in accordance with s 13 and sch 1 of the Bail Act.
The applicant is charged with possession of a prohibited drug with intent to sell or supply (methylamphetamine), possession of stolen or unlawfully obtained property, possession of a prohibited drug (cannabis), possession of drug paraphernalia in or on which there was a prohibited drug or plant, possession of a firearm in circumstances of aggravation and being an unlicensed person possessing a firearm and ammunition. He has been in custody since 22 July 2016, on which date he was arrested and charged.
The applicant applied for bail in the Magistrates Court on 4 August 2016. That application was refused on the grounds that the magistrate considered that the charges were serious, the risk of flight was significant, the applicant's record indicated a propensity not to comply with court orders and there was a very high likelihood that if released on bail he would commit further offences. The magistrate concluded that there were no conditions that could be imposed that would ameliorate or remove those concerns.
The applicant intends to enter pleas of not guilty to the charges, but he has not yet been committed for trial. He is next due to appear in the Magistrates Court for a committal mention on 28 October 2016. A trial in the District Court is estimated to be unlikely to take place before the second half of next year.
The prosecution case
The prosecution case is that as at 22 July 2016, the applicant was the subject of covert surveillance by WA Police. He was observed driving into the carpark of accommodation in Scarborough and parking in the car bay designated for room 409. As he walked from his car to the accommodation he was observed to be carrying a black backpack. He entered the building and used the lifts.
Later the same evening, the applicant was arrested at a pizza shop in Scarborough and found to be in possession of $6,635.00 in cash. He was questioned regarding the money but refused to provide any comment. He was also found in possession of a key to room 409 at the accommodation earlier referred to.
In the early hours of the following morning, police executed a search warrant at room 409. Two clip seal bags containing a substance believed to be methylamphetamine were located on a laundry countertop near some of the applicant's personal effects. The total weight of the contents of these bags was 555.91 g. The purity of the drugs has not yet been determined.
A black backpack was also located in the laundry. This backpack was the same in size and appearance as that earlier seen being carried by the applicant. Two clip seal bags containing a further 22.34 g of methylamphetamine were located inside the backpack. Also found in the backpack was a small Adidas carry bag containing a .40 calibre Barretta handgun. This firearm was loaded with 11 rounds of live ammunition. The applicant is not the holder of any permit or license for a firearm. A further 50 rounds of ammunition were found in a separate bag. The backpack also contained two small plastic bags containing 24.24 g of cannabis and a glass smoking pipe with visible traces of a substance believed to be methylamphetamine.
A number of other items were found in room 409 that were consistent with dealing in drugs. They include scales, clip seal bags and a 'tick list'. The latter being a list of names of people to whom drugs had apparently either been supplied or were to be supplied. Also located was the applicant's Medicare card and his proof of age card.
The items seized in room 409 were forensically examined. The prosecution case is that DNA belonging to the applicant was found on ammunition within the magazine of the handgun.
Bail History and Criminal Record
The applicant has a lengthy criminal history which includes a number of offences of breach of bail. He was convicted of the first of these offences on 29 December 1998 and received a sentence of 4 months imprisonment. On 23 May 2005 he was convicted of a further such offence and was sentenced to 3 months' imprisonment. He was convicted of two more such offences on 11 March 2011, those offences having been committed on 6 October 2010 and 23 June 2009 respectively. He was sentenced to 2 months' imprisonment in respect of each of those offences. Finally on 20 April 2011, he was convicted of two further breach of bail offences, which were committed on 3 September 2009 and 4 August 2009 respectively. He was sentenced to 1 month imprisonment in respect of each of those offences. Although there are no further offences after 2011 it would appear that that was because the applicant was serving a lengthy term of imprisonment which he completed in April this year.
Senior counsel for the applicant said that the applicant could not recall each of the breach of bail offences but believed that they occurred in circumstances where he simply forgot to attend court and subsequently surrendered himself. The facts of those offences were not available, however the sentences imposed do not appear to be entirely consistent with the explanation given. Furthermore, the applicant has committed other offences which indicate disrespect for authority, including offences of obstructing public officers and escaping from legal custody.
The applicant has also been previously convicted in 2011 of possessing a prohibited weapon and possessing unlicensed ammunition. Those offences occurred at a time when the applicant was also in possession of methylamphetamine, some of which he tried to dispose of by flushing it down a drain. This resulted in a conviction for attempting to pervert the course of justice. This course of offending will be relied upon by the prosecution as propensity evidence under s 31A of the Evidence Act 1906 (WA). They will also rely on his past history of offending as being indicative of the risk that the applicant would commit further offences if released on bail.
Personal circumstances
In support of this application, an affidavit was filed that was sworn by the applicant's solicitor, Ms Alana Padmanabham, on 30 September 2016. That affidavit attests to the following matters in respect of the applicant:
(1)That he has strong family ties in Perth. This includes two sisters who reside in separate homes in Perth with their respective partners and children. Both sisters have provided written confirmation of their willingness to support the applicant and for him to reside at their homes. One of the sisters has also provided a statutory declaration to the effect that she loaned the applicant $10,000 prior to his arrest. This is said to explain the cash located on the applicant at the time of his arrest.
(2)The applicant's brother‑in‑law has provided a letter confirming that he is prepared to employ the applicant in his tree lopping business. The applicant has previously been employed in the business on two occasions, in 2008 and earlier this year after his release from prison.
No information was provided as to whether the applicant has any assets, dependents or other connections to this State (other than those referred to).
Relevant considerations
Clause 1 of pt C of sch 1 to the Bail Act requires that the discretion to grant bail be exercised having regard to the questions in paragraphs (a) to (g) of that clause. The matters specified in those paragraphs are non‑exclusive, mandatory, relevant considerations: see Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25], [37]. The discretion is also to be exercised having regard to other considerations which may be relevant.
In Milenkovski at [39] ‑ [41] McLure P said:
There remains the proper construction of the general provision in cl 1 of Pt C. It contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction who is required to have regard to the questions in paras (a) ‑ (g) and to any other questions which the decision-maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in paras (a) ‑ (g). There are a number of significant points to note. First, the matters in paras (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 para (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.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
I will only refer to those questions that are relevant to this particular application.
The applicant has a significant history of failing to appear in court in accordance with bail undertakings. The suggestion that such failures could have been a mere oversight does not adequately explain the number of bail breaches or the fact that they were punished by sentences of imprisonment. Whatever the explanation, it is apparent that the applicant has shown himself to be a person who does not take his bail obligations sufficiently seriously and cannot be relied upon to comply with them. In my view, there is a very significant risk that if released on bail he would fail to appear in court in accordance with his undertaking (par (a)(i)).
I also accept that there is a risk that the applicant may commit an offence if released on bail. The prosecution alleges that the present charges bear a number of marked similarities to past offending. In my view, there is a risk that the applicant would commit offences if released on bail (par (a)(ii)).
There is no suggestion that the applicant would endanger the safety, welfare or property of any person (par (a)(iii)). Nor was it suggested that he would interfere with witnesses or otherwise obstruct the course of justice, although, as I noted earlier, he has been convicted of an attempt to pervert the course of justice in the past (par (a)(iv)).
The prosecutor has put forward grounds for opposing the grant of bail (par (c)). These include the seriousness of the charges and the strength of the prosecution case. If convicted, the applicant is likely to be sentenced to a significant term of immediate imprisonment. Whilst it is not possible on an application of this nature to make any detailed assessment of the evidence, on the information provided the prosecution case appears to be a reasonably strong one. These factors provide a strong incentive to the applicant to abscond.
On behalf of the applicant, it is submitted that, notwithstanding the strength of the prosecution case and the seriousness of the charges, conditions could reasonably be imposed which would sufficiently remove the risk that the applicant would fail to appear or would commit an offence if released on bail (par (e)). The conditions that were proposed include a substantial surety, a curfew, reporting, a requirement to reside with either of the applicant's sisters, surrender of any passport and not to approach any points of international departure. In the alternative, it was suggested that home detention would adequately address the risks referred to. I have carefully considered these suggestions but I am not satisfied that there are any conditions, including home detention, that would sufficiently remove the risks of absconding or reoffending. The seriousness of the charges, the strength of the prosecution case and the applicant's very poor history of bail compliance combine to make release on bail an unviable prospect.
Conclusion
In my view, there is a significant possibility that the applicant will not appear in court in accordance with his bail undertaking if he is not kept in custody. The seriousness of the charges and the likely outcome on conviction combined make him a significant flight risk. Furthermore, there is a real risk that, if released on bail, he would commit offences and that risk could not be sufficiently removed by any reasonably conditions. The application for bail is refused.
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