Olomi v The State of Western Australia

[2016] WASC 261

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   OLOMI -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 261

CORAM:   MARTINO J

HEARD:   8 AUGUST 2016

DELIVERED          :   8 AUGUST 2016

FILE NO/S:   MBA 21 of 2016

BETWEEN:   FAROUK OLOMI

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail

Legislation:

Bail Act 1982 (WA)

Result:

Home detention bail report requested

Category:    B

Representation:

Counsel:

Applicant:     Mr S Vandongen SC

Respondent:     Mr L Hobson

Solicitors:

Applicant:     Rhett Williamson Barristers & Solicitors

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

MARTINO J: 

(These reasons have been edited from the transcript).

1. The applicant applies under s 14 of the Bail Act 1982 (WA), for bail to his appearance in the Magistrates Court at Perth on 7 October 2016, at a disclosure committal hearing. I am to exercise the discretion to grant or refuse bail, having regard to the questions set out in cl 1 of pt C of sch 1 as well as any other questions which I consider to be relevant.

2. In considering whether, if the applicant is not held in custody, he may do any of the things mentioned in cl 1(a) of pt C of sch 1, namely whether he may fail to appear in court in accordance with his bail undertaking, commit an offence, endanger the safety, welfare or property of any person or interfere with witnesses or otherwise obstruct the course of justice, I am to have regard to the matters set out in cl 3 of pt C of sch 1, namely the nature and seriousness of the offences with which the applicant has been charged, including any other offences for which he is awaiting trial, the probable method of dealing with the applicant for them, the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant, the history of previous grants of bail to the applicant, the strength of the evidence against the applicant, as well as any other matters which I consider relevant. 

3. The applicant applied for bail in the Magistrates Court.  The hearing took place over two days on 30 March and 5 April 2016.  On 5 April 2016 the applicant's application for bail was refused.  The applicant does not need to demonstrate that there has been an error in the Magistrates Court in refusing bail.  This is a fresh hearing of the application for bail, which I am required to determine in accordance with the provisions of the Bail Act. 

4. The Bail Act does not place a legal onus on a party to a bail application.  However, as a practical matter, it is usually the case that it is left to the State to provide the material required to provide a proper foundation for refusing bail:  Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.

5. On 24 March 2016, following the execution of a search warrant at his home, by police officers on 23 March 2016, the applicant was charged with possession of stolen or unlawfully obtained property, namely $8,955 cash, possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply, two charges of possession of a prohibited drug, namely MDMA, with intent to sell or supply, two charges of possession of a prohibited weapon, possession of a prohibited drug, namely cannabis, and possession of drug paraphernalia, namely a smoking implement and digital scales, on which there were traces of cannabis and methylamphetamine.

6. He has also been charged with refusing to provide a passcode for two mobile phones to police officers. 

7. The applicant is 43 years old.  He was born in Afghanistan.  In 1984 when he was 11 years old he came to Australia with his family from Germany.  He is an Australian citizen and holds an Australian passport.  He has deposed that he has lived in Western Australia since he came here with his family and that he does not hold citizenship of any other country.  He lives in a suburb of Perth with his wife and six‑year‑old daughter. 

8. He has deposed that his whole family live in Western Australia;  his mother, brother and two sisters live here. 

9. The applicant has a lengthy record of offending.  He has been sentenced to terms of imprisonment on three occasions.  On 27 January 2000 he was sentenced to 6 years and 6 months' imprisonment, for the offence of armed robbery in company.  On 20 April 2004, he was sentenced to a total of 5 years' imprisonment for two offences of possession of a prohibited drug with intent to sell or supply, an offence of possession of a prohibited drug, and an offence of unlicensed possession of a firearm.  He was declared to be a drug trafficker.

10. On 27 October 2011, he was sentenced to a total of 2 years' imprisonment for two offences of possession of a prohibited drug with intent to sell or supply.  He was again declared to be a drug trafficker.  He has a record of one offence for breach of bail, for which he was convicted on 20 November 1997.  He was fined $300 for that offence.  He has deposed that he committed that offence while he was on bail for a charge of driving under fine suspension and that the offence was caused by him making an error about the date he was to appear in court.

11. The facts alleged by the prosecution, on the charges the applicant now faces, are that on 23 March 2016 when police officers executed the search warrant at his home, the applicant, his wife and their five‑year‑old daughter were present.  Police officers found $255 on the applicant, $8,700 inside a stack of DVDs and a tick list.  In the same area as that in which the cash was hidden, there were digital scales, clip seal bags, a mobile phone and a bag containing approximately 23.32 grams of methylamphetamine. 

12. In the rear bedroom of the house, police officers found, in a backpack, approximately 1,500 MDMA tablets, weighing approximately 402.04 grams.  Police officers found, in the laundry of the house, approximately 24.21 grams of MDMA powder.  The belt that the applicant was wearing contained a knife hidden in the buckle.  Another matching knife and four knuckledusters were found in the room in which the cash and drugs were found.  In the kitchen, the police officers found a clip seal bag containing 4.34 grams of cannabis and a cannabis smoking implement. 

13. The State opposes the application for bail.  It points to the accused's record.  It submits that the record demonstrates that if the applicant is not kept in custody he may commit an offence, of the same kind as that of which he has been convicted.  It also submits that the State's case is very strong and submits that this raises a significant risk that he will flee;  that is that he will fail to appear in court if granted bail. 

14. I will begin my analysis by referring to the things mentioned in cl 1(a) of pt C of sch 1.  The charges against the applicant of possession of a prohibited drug with intent to sell or supply, are charges of very serious offences being charges of possession of significant amounts of dangerous prohibited drugs.  If convicted of those charges the applicant will be sentenced to a lengthy term of imprisonment.  I have referred earlier to the applicant's record.  He is a man of poor character with a record of offending in a similar manner as that with which he has been charged.  If granted bail he will live with his wife and six‑year‑old daughter in the family home.  His mother, brother and sisters live in Western Australia. 

15. If granted bail he has employment available to him with his brother.  As I have said, the applicant has a conviction for breach of bail in 1997, for which he was fined $300.  The amount of the fine tends to confirm that the offence was a case of error rather than flight.  I do not regard the offence as relevant to this application for bail, in the sense of being adverse.  That is I do not regard the offence of breach of bail as being adverse to this application.

16. The drugs and the other items are alleged to have been found in the applicant's home where he lived with his wife and daughter.  I regard the case against him as a strong one.  The combination of the nature and seriousness of the offences for which he has been charged, the strong likelihood that if convicted the applicant will be sentenced to a lengthy period of imprisonment, his record and the strength of the prosecution case, gives rise to concerns that if granted bail the applicant will fail to appear in court and he may commit another drug offence.

17. In assessing that risk I also have regard to the fact that he has previously substantially complied with his bail conditions, other than the one occasion to which I have referred and which as I have said I do not regard as relevant.  I do not have a concern that the applicant needs to be held in custody for his own protection. 

18. I have already referred to the grounds put forward by the prosecution for opposing the grant of bail.

19. The next question is whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced.  I do not regard that on the material before me, as a significant risk.

20. The alleged circumstances of the offences with which he has been charged are as I have noted.  I note that the applicant is alleged to have possessed those items in a house he shared with his wife and young daughter.  These are serious matters, however, I do not regard the circumstances alleged as amounting to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

21. A matter that I consider relevant is that if the applicant is not granted bail, he will be held in custody until approximately March to May 2017.  This is my estimation having regard to the papers and the submissions I have heard today. 

22. The applicant's wife is trying to conceive through IVF.  That treatment is unable to continue while the applicant is in custody.  This is a personal matter for the applicant and his wife;  I do not regard it as being of significant relevance in the bail application.

23. The applicant's daughter is showing signs of separation anxiety while the applicant is remanded in custody.  This is referred to in a letter from a youth counsellor who has seen the applicant's daughter at the request of a member of the applicant's family.  This separation anxiety is understandable and unfortunate, but I do not regard it as a matter of significant relevance in the bail application.  The child is receiving appropriate support from extended family and from that youth counsellor. 

24. The applicant was born in Afghanistan and has lived in Germany.  However, he has lived in Australia since he came here as a child.  I do not regard the facts that he was born in Afghanistan and has lived in Germany, as having significant relevance.

25. I turn now to whether there are conditions that could be imposed, that would sufficiently remove the possibility of the applicant failing to appear in court with his bail undertaking, or committing an offence if he is granted bail.  Appropriate conditions could be:  a significant personal undertaking and surety; a residential condition, a curfew, a reporting condition and a condition of surrendering a passport, and not approaching a point of departure from the State. 

26. I have considered those matters and I have decided that on their own they are insufficient to remove the possibility of the applicant being tempted to fail to appear in court, that is to flee, having regards to the likely disposition of the case if he were to be convicted.  However, I need to balance all the matters that I have referred to, including the possibility of a further condition.  That is a home detention bail condition.  And having considered the matter, it is my view that with conditions along the lines that I have referred to in summary already in these reasons, and home detention, the risk of the applicant failing to appear in court and the risk of him committing another offence, would be sufficiently removed. 

27. For those reasons I desire to impose a home detention condition as one of the conditions of the grant of bail.  I therefore request a home detention bail report.