Mather v The State of Western Australia - [2015] WASC 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MATHER -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 298

CORAM: HALL J

HEARD: 11 AUGUST 2015

DELIVERED : 14 AUGUST 2015

FILE NO/S: MBA 26 of 2015

BETWEEN: SHAUN MICHAEL MATHER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail application - Serious drug charge - Whether fact other co‑accused released on bail justifies grant of bail to the applicant - Strength of prosecution case

Legislation:

Bail Act 1982 (WA), sch 1 pt C

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Mr G W Massey
Respondent: Ms F A Cain

Solicitors:

Applicant: Holborn Lenhoff Massey
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
Quaid v The State of Western Australia [2013] WASC 228

HALL J: This is an application for bail pursuant to s 14 of the Bail Act 1982 (WA).
On 9 April 2015 police officers executed a search warrant at a house in Mount Richon. The applicant and two other men, Ahmet Nuhana and Christopher Neil Rowson, were arrested and charged with possession of a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The applicant has been in custody since his arrest. He appeared before a magistrate on 24 April 2015 at which time an application for bail was refused. He is next due to appear in the Magistrates Court on 23 September 2015 for a disclosure committal hearing.
By an application dated 4 August 2015 the applicant has applied to this court for bail. In support of the application he has sworn an affidavit dated 31 July 2015. I will return to the contents of that affidavit later in these reasons. He states that it is his intention to plead not guilty to the charge, though on legal advice he does not wish to reveal his defence at this stage.
The prosecution oppose a grant of bail, primarily on the basis of the seriousness of the charge, the strength of the prosecution case, the likelihood of a lengthy term of imprisonment on conviction and the consequential risk that the applicant will abscond. These submissions are made notwithstanding that the other two co‑accused have been released on bail. It is submitted that there are differences between the applicant and the co‑accused that justify a different conclusion in regard to whether bail is appropriate.

The prosecution case

The prosecution case is that at approximately 12.30 pm on 9 April 2015 the applicant met with a member of a motorcycle gang in Mandurah. Police were conducting surveillance at this time. An exchange of bags was seen to occur. It is not known what the bags contained and an accurate description of the bags could not be provided due to the conditions under which the surveillance was conducted. However, the inference that the prosecution draws is that the applicant purchased a large quantity of drugs. The applicant was then followed to a house in Mount Richon where he was apprehended.
The house in Mount Richon is owned and occupied by the co‑accused, Christopher Rowson. The applicant arrived at the house at approximately 3.00 pm. At about 4.30 pm police executed a search warrant. The applicant, Nuhana and Rowson were observed together in the rear enclosed patio of the house. The applicant was then observed to run to a nearby spa and throw several large bags into the water contained in it. Police arrested all three men and were able to recover some of the contents of the bags, which was later confirmed to be methylamphetamine.
Some of the methylamphetamine had been spilt on the ground around the spa. This was collected and found to be 132 grams of methylamphetamine of 79% purity. Some solid methylamphetamine was also recovered from the bottom of the spa. This quantity of drugs was 62 grams at 82% purity. Some liquid, including from two of the bags, was recovered and produced a further 222.6 grams of methylamphetamine. The balance of the water in the spa was sampled and produced a further 1,715.3 grams of methylamphetamine. The total amount recovered was 2,131.9 grams, however if the concentration rates for the samples of the balance of the spa water are extrapolated to the whole quantity of the water contained in the spa the original total amount is estimated to have been a little over three kilograms.
In a locked room adjacent to the patio and near to the spa police found items consistent with the preparation of drugs for sale. The items included a very large mixing bowl with several grams of suspected methylamphetamine, several boxes of large clip seal bags, scales, mixing spoons and a 250 gram bag of a cutting agent. The prosecution also allege that the room contained a backpack which the applicant later identified as belonging to him. That backpack has recently been tested and traces of methylamphetamine were found in it.

Personal factors

The applicant is 34 years old, was born in Western Australia and has lived his whole life in this State. His states in his affidavit that he has never left Australia and never held a passport. All of his family and extended family reside in Western Australia.
The applicant's parents are separated. His mother lives in Spearwood and his father in Kalbarri. Although he does not see his father often he has regular telephone contact with him. He has two brothers and one sister. His two brothers are aged 31 and 17 years old and live with the applicant's mother at her house in Spearwood. His sister is 24 years old and lives in Beaconsfield.
The applicant has a 6‑year‑old son to a former partner. His son lives with his former partner in Mandurah and the applicant sees the child regularly. The applicant is on good terms with his former partner and pays child support for his son.
The applicant is presently in another relationship and has been for approximately three years. His present girlfriend has supplied a letter in which she refers to the hardship suffered by her as a result of the applicant being remanded in custody. This includes being the victim of an assault, being unable to pay the rent on their house and having to move into share accommodation with her daughter.
The applicant deposes that after leaving school in Year 10 he commenced an apprenticeship as a carpenter before starting work as an air‑conditioner installer. He says that he had steady work in this field up until the time of his arrest. He states that if released on bail he would be able to find employment either as an air‑conditioning installer or in his mother's cleaning business.
If released on bail it is the applicant's intention to reside with his mother in Spearwood. She has written a letter confirming her willingness to provide him with accommodation and employment. It is also proposed that she would act as his surety.
The applicant has a relevant criminal history. It includes a conviction for possession of a prohibited drug with intent to sell or supply on 30 December 2014. He states that that offence related to the possession of approximately 3 grams of methylamphetamine on 30 May 2014. He says that at that time he was a drug user and after being charged successfully completed a rehabilitation programme. However, the prosecution note that at the time of arrest tick lists, cash and empty deal bags were found in the applicant's possession and that he admitted an intention to sell the drugs. On 30 December 2014 he was sentenced in the Fremantle Magistrates Court to 9 months' imprisonment suspended for 15 months. In the event that he is convicted of the present charge he will be in breach of that suspended imprisonment order and be liable to serve the term of 9 months' imprisonment in addition to any other penalty.
The applicant also has convictions for assault occasioning bodily harm and aggravated burglary in 2010. Further, he has a conviction for breach of bail on 11 March 2003. His explanation for the latter conviction is that he forgot to attend court and when he remembered and went to court in the afternoon was told that the matter had been dealt with and that he should hand himself to the police the next morning, which he did.

Relevant principles

The matters specified in sch 1 pt C cl 1 of the Bail Act are non‑exclusive mandatory relevant considerations when considering bail: Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. The discretion is also to be exercised having regard to such other matters as are considered to be relevant.
In Milenkovski McLure P made the following points regarding pt C cl 1:
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 pars (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 pars (a) - (g). There are a number of significant points to note. 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.
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 [39] - [41].

Merits of the application

The prosecution submit that having regard to the nature of the charge, the strength of the prosecution case and the likelihood of a lengthy term of imprisonment on conviction, there is a significant incentive for the applicant to abscond. I accept that on the limited information available to me the prosecution case does appear to be strong. The quantity of drugs alleged to have been possessed by the applicant is very large and if convicted a lengthy sentence of imprisonment would be inevitable. On the other hand the applicant is presumed to be innocent and there are no details of any defence that he may advance. The fact that an accused person may have an incentive to abscond is not a factor to be viewed in isolation. That incentive may be offset and the risk reduced by appropriately stringent conditions: cl 1(e).
Counsel for the applicant submitted that parity was a relevant consideration in determining the question of bail. He submitted that the applicant would have a legitimate sense of grievance if he was not granted bail given that the other two co‑accused have been granted bail. He cited in this regard the decision of Edelman J in Quaid v The State of Western Australia [2013] WASC 228 [2]. I was informed by counsel for the respondent that Mr Nuhana has been released on bail with an undertaking of $20,000 and a surety in the same amount with residential and reporting conditions, a requirement to surrender his passport and a requirement not to approach points of departure. I was also told that Mr Rowson had been released on a personal undertaking of $5,000 only (though this was later revealed to be wrong).
The parity principle is a principle of sentencing. It is concerned with ensuring that co‑offenders are treated fairly as amongst themselves in regard to their ultimate punishment. It does not apply to bail. Bail, or the refusal of it, is not a punishment. Bail is not an end in itself, it is concerned with the practicalities of ensuring that a particular accused will attend trial or that he will be safe or that he will not commit offences or interfere with witnesses. The fact that other co‑accused have been released on bail does not in itself justify, or make more appropriate, a grant of bail to the applicant. However, it may be relevant in assessing the prosecution's submissions as to the risk of absconding. If the circumstances of the co‑accused are comparable to those of the applicant but the co‑accused have, without prosecution objection, been granted bail this may call into question the claim that the risk of absconding is too high to justify a grant of bail. In my view when Edelman J referred to parity in Quaid he meant no more than this.
Counsel for the respondent submitted that the position of the applicant could be distinguished from that of his co‑accused because it would be alleged that the applicant was the principal in this criminal enterprise. This was said to be based upon his actions in attempting to dispose of the drugs. In my view, on the limited information available, it is difficult to come to a conclusion that the applicant is any more or less culpable than his co‑accused. In this regard I note that Rowson was the owner/occupier of the premises in Mount Richon and that the drug dealing paraphernalia was found in a locked room at those premises. I have also taken into account that both Nuhana and Rowson have criminal histories, that of Rowson containing numerous prior offences of possessing prohibited drugs.
I do, however, accept that the prosecution case is stronger in respect of the applicant than in respect of the co‑accused. The evidence against the applicant will include the surveillance in Mandurah, which is consistent with him collecting and paying for the drugs. The applicant's actions when the police entered the Mount Richon premises will doubtless be relied upon as showing his control over, and interest in, the drugs. Even if the calculations as to the original total are challenged, there was a very large quantity of drugs of high purity involved. This will be used to support an inference that the applicant was close to the source of manufacture. The presence of the applicant's backpack containing traces of drugs in the locked room, is evidence that links him both to the drugs and to equipment in the room that is consistent with cutting and packaging the drugs for sale. As opposed to this, the evidence against the two co‑accused appears to be largely confined to their presence at the Mount Richon premises.
Having regard to the considerations in pt C cl 1 of sch 1 of the Bail Act I have come to the following conclusions.
There is a significant risk that the applicant may not appear in court in accordance with his bail undertaking. That risk cannot be minimised to an acceptable level by appropriate bail conditions. The risk does appear to be greater than in respect of either of the co‑accused because of the greater strength of the case against the applicant, the consequential high probability of conviction and a lengthy sentence of imprisonment and the pending suspended sentence. The alleged offence is serious in its nature and type and the applicant has a very recent conviction for drug dealing. Whilst there is no direct evidence to indicate that the applicant is likely to flee the jurisdiction and he does have strong connections to this State, the incentives to abscond are overwhelming: cl 1(a)(i).
The prosecutor has put forward grounds for opposing the grant of bail: cl 1(c). These are the inherent seriousness of the charge and the strength of the prosecution case as well as the risk of absconding. Any assessment of the prosecution case has been made on the limited information available at this stage. The applicant has declined to provide any information in regard to his defence, though he states that he intends to plead not guilty. On the limited information available the prosecution case appears to be a very strong one. The accused is entitled to the presumption of innocence and the strength of the case does not detract from that presumption. The strength of the case does, however, provide a powerful incentive to abscond.
The applicant has suggested that conditions could be imposed that could effectively remove any flight risk: cl 1(e). These include a substantial surety, a condition not to apply for a passport, a condition to reside at his mother's home, reporting to police and/or a curfew condition. Conditions of this nature could not, in my view, reduce the risk of absconding to an acceptable level.
There was no submission that the applicant would be at risk of further offending if released on bail, but that is a real possibility given his relatively recent conviction for dealing in drugs of the same type: cl (1)(a)(ii). The applicant claims that he successfully undertook a course of rehabilitation prior to that conviction, but there is no independent confirmation of this and the alleged facts of the present charge tend to contradict the implication that he has no current involvement in drug dealing.
There is no suggestion that the applicant's safety, or the safety of others would be imperilled: cl 1(a)(iii), cl (1)(b). Nor is there a basis for concluding that if released the applicant would interfere with witnesses or obstruct justice: cl (1)(a)(iv).
Clause 1(g) provides that the alleged circumstances of an offence may amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. The quantity of drugs involved in this alleged offence is a relevant factor, however the precise nature and length of the applicant's involvement in the alleged offence of possession are yet to be determined. Nonetheless, on the information available it would seem that the applicant played a significant (indeed pivotal) role in the alleged criminal enterprise. I accept that there is no requirement to show exceptional circumstances to justify a grant of a bail on a charge of this nature. However, the seriousness of the charge and the allegations weigh heavily against a grant of bail.
The applicant's counsel also submits that the likely delay before trial is a factor that favours bail. The applicant has now been in custody for four months. If he is committed for trial at the disclosure committal hearing on 23 September 2015 it is estimated that his trial in the District Court may not occur until the second half of next year.
It is possible that by the time he comes to trial the applicant will have been in custody for 16 to 18 months. Whilst that is a substantial time, that estimate involves some elements of guesswork at this stage. In any event, I am not satisfied that the delay at this stage is such as to outweigh the other factors I have referred to.

Conclusion

I am satisfied that a grant of bail in this case is inappropriate. The risk of absconding cannot be adequately minimised by setting even stringent conditions. Accordingly, the application is refused.