NIEUWENHUIS v The Queen
[2003] WASC 47
NIEUWENHUIS -v- THE QUEEN [2003] WASC 47
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 47 | |
| Case No: | INS:142/2000 | 14 MARCH 2003 | |
| Coram: | SCOTT J | 17/03/03 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | DANIEL PETER NIEUWENHUIS THE QUEEN |
Catchwords: | Bail Application for new bail after applicant absconded whilst on bail for offences Voluntary return Exemplary conduct whilst an absconder Applicant facing several serious charges |
Legislation: | Bail Act 1982, Sch 1, Pt C, cl 1 |
Case References: | Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993 R v Sefton [1917] VR 259 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NIEUWENHUIS -v- THE QUEEN [2003] WASC 47 CORAM : SCOTT J HEARD : 14 MARCH 2003 DELIVERED : 17 MARCH 2003 FILE NO/S : INS 142 of 2000 BETWEEN : DANIEL PETER NIEUWENHUIS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Bail - Application for new bail after applicant absconded whilst on bail for offences - Voluntary return - Exemplary conduct whilst an absconder - Applicant facing several serious charges
Legislation:
Bail Act 1982, Sch 1, Pt C, cl 1
Result:
Bail refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr M M Wood-Gush
Respondent : Mr B D Meertens
Solicitors:
Applicant : Marcus Wood-Gush & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993
R v Sefton [1917] VR 259
Case(s) also cited:
Nil
(Page 3)
1 SCOTT J: The applicant has applied for bail pending trial in this Court on a charge of armed robbery.
2 It is common ground that the applicant also faces charges of aggravated burglary in the District Court and attempted stealing in the Court of Petty Sessions. In addition, the applicant faces a charge of breach of bail which is to be dealt with in this Court.
3 The applicant was charged with armed robbery on 17 May 2000 and was committed for trial on that charge to the Supreme Court sessions commencing on 4 September 2000. On the evening before he was due to be arraigned in the Supreme Court the applicant left the State of Western Australia and relocated in Victoria with his de facto wife and family. In addition, the brother of the applicant's de facto went with them to Victoria. The applicant says, in his affidavit supporting the application, the reason that he went to Victoria was so that he and his de facto's brother could address their drug problems.
4 It is not in dispute that whilst in Victoria the applicant set about improving his lot in life and bringing about his own rehabilitation. He overcame his alcohol and drug problems and obtained qualifications as a swimming coach and a martial arts instructor. In addition, he obtained employment and, whilst in Victoria, the applicant lived a law-abiding life. No doubt that was in part due to the fact that had he come to the attention of authority, there was a possibility that he would have been extradited to this State.
5 The applicant also deposes that in November of 2002 he resolved to return to Perth with his de facto and two children. He says that he returned to this State in order to have the outstanding matters dealt with. Upon return to this State, the applicant commenced to pay outstanding fines and obtained employment.
6 When the applicant returned to Perth, he did not hand himself in to authorities. He and his wife took up residence with his mother.
7 On 3 January 2003 police officers visited the address at which the applicant was living in relation to a violence restraining order. They located the applicant and became aware of the outstanding warrant for his arrest. The applicant has been in custody since.
8 The applicant has arranged for the District Court matters and the matter in the Court of Petty Sessions to be dealt with after his trial on the
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- armed robbery charge. The trial for the armed robbery is listed for hearing in the Supreme Court, commencing on 5 August this year.
9 It is not in dispute that the applicant has a bad record as a juvenile and two previous convictions for breach of bail in the Children's Court. In addition, he has convictions for a number of dishonesty offences in the Court of Petty Sessions. On 6 June 2000 he was sentenced to a term of 8 months' imprisonment suspended for 15 months. That sentence was imposed upon the applicant after the offences presently under consideration were alleged against him. It is not suggested that the applicant breached the suspended prison term.
10 The applicant deposes to the fact that he left the State of Western Australia in September 2000 because he realised that a prison term was likely to be imposed upon him. He says that he went to Victoria with the intention of overcoming his drug addiction before returning to this State. It is common ground that the applicant has carried out his resolve in that regard.
11 In the course of the hearing of this application the applicant produced evidence that employment is available to him. In addition, he says that his mother is prepared to go surety for him if he is granted bail.
12 It is important in considering this application to take into account the fact that the applicant has said that he will plead guilty to the burglary charge in the District Court. The facts in relation to that matter are such that a plea of guilty in any event is almost inevitable. In addition, he has indicated he will plead guilty to the charge of attempted stealing in the Court of Petty Sessions. There is no dispute that the applicant has breached bail, so that the outstanding charge of breach of bail is likely to attract a guilty plea in due course.
13 The application is opposed by the respondent. Counsel for the respondent points out that the applicant did not surrender to the police when he first returned to Western Australia and that he remained at liberty from the time of his arrival in this State in November 2002 until his arrest in January this year. That arrest came about because of police involvement in relation to the restraining order.
14 It was also pointed out by counsel for the respondent that the applicant's previous surety absconded so that the bail bond entered into by the surety has not been recovered. As counsel for the respondent expresses it, the sum of $5000 fixed for bail on the earlier occasion was not sufficient incentive for the applicant to remain in this State.
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15 In considering bail, the primary consideration is whether the applicant will appear at his trial: R v Sefton [1917] VR 259.
16 It is to be noted that the fact that the applicant absconded whilst on bail does not bring him within cl 3A of Sch 1 of the Bail Act so as to require him to demonstrate exceptional circumstances before further bail is granted. Notwithstanding that, however, in my view, once it is shown that the applicant failed to honour the earlier bail undertaking, the applicant needs to establish a very strong case for bail if bail is to be granted again. The integrity of the trial process is undoubtedly put at risk in such circumstances. As Owen J said, in Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993:
"In whatever way the test is formulated, the rights of an individual to his liberty give way to the public interest in the integrity of the trial process where the two come into serious conflict. In the end it is for the applicant to satisfy the Court that his or her case is a deserving one. This the applicant does by establishing exceptional circumstances in the context of the particular provisions of items 1 and 3 of Part C of the Schedule to the Bail Act."
17 As counsel for the applicant points out, if the applicant is not granted bail, he will spend a period of some 7 months in custody before trial. That, however, needs to be weighed against the seriousness of the allegations which the applicant faces and the likelihood that his conduct will attract a custodial sentence.
18 As I have said, trial dates have been fixed for the applicant's trial in this Court. As that hearing draws closer, the temptation for the applicant to abscond will no doubt increase. That is a temptation to which he has previously yielded. On the other hand, the applicant has made it clear that he now wishes to have all of the outstanding matters against him resolved.
19 This is a matter which is not easy of resolution. The competing factors on each side of the application are strong. On balance, however, I have come to the conclusion that the application should be dismissed. I have come to that view because the indictment in this Court will have been outstanding for almost three years at the time when the applicant is brought to trial and with trial dates being fixed, the risk to the integrity of the trial process is substantial. I take into account there is at least the possibility that the applicant may be sentenced to a term of imprisonment if convicted of the armed robbery. Whilst it is fair to say that the period
(Page 6)
- that the applicant will have spent in custody prior to trial will be substantial, it is not so long that it can be said to be out of proportion to the possible sentence that he faces.
20 Finally, in my view, the applicant's present custody has been brought about by his own actions. Had he not absconded whilst on bail, he would not be in his present predicament. The applicant's conduct in absconding whilst on bail is a substantial reason why bail should be refused. In that sense the privilege bail afforded to him was abused by him. The applicant's trial is approximately five months away and I have come to the conclusion that, in all the circumstances, the applicant should remain in custody until trial.
21 The application will be dismissed.
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