Petersen v The State of Western Australia - [2020] WASC 239

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PETERSEN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 239
CORAM:   FIANNACA J
HEARD:   18 & 23 JUNE 2020
DELIVERED          :   23 JUNE 2020
PUBLISHED           :   23 JUNE 2020
FILE NO/S:   MBA 25 of 2020
BETWEEN:   STUART MATHEW PETERSEN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail application - Bail refused - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Representation:

Counsel:

Applicant	:	S Rafferty
Respondent	:	R Sleeth

Solicitors:

Applicant	:	Seamus Rafferty Barristers & Solicitors
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 156 ALR 684; 103 A Crim R 372
R v Quaid [2009] WASC 202
Saka v The Queen [2001] WASC 92
YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

This is an application for bail in respect of two charges that are pending against the applicant in the Magistrates Court, being for the offences of aggravated burglary (contrary to s 401(2)(a) of the Criminal Code (WA)) and attempted aggravated sexual penetration without consent (contrary to s 326(1) of the Criminal Code).
In essence the applicant is alleged to have attempted to sexually penetrate his ex‑partner, Ms C, without her consent, in her home, and that he did so while he was in her home without her consent, having broken in while she was in bed at night. The offences are alleged to have occurred on 7 June 2020.
The circumstances of aggravation alleged by the aggravated burglary charge are that the place was ordinarily used for human habitation and that the applicant knew Ms C was in the place at the time. The circumstance of aggravation alleged in the charge of attempted aggravated sexual penetration without consent is that the applicant and Ms C were in a family relationship. More correctly, the alleged facts reveal that they had been in such a relationship. Such a circumstance is a circumstance of aggravation by the application of the definition of circumstance of aggravation in s 221 and s 319(1) of the Criminal Code, which, in combination, incorporate the definition of family relationship in s 4(1) of the Restraining Orders Act 1997 (WA). That definition includes a relationship between two persons:
(i) who are, or were, in a de facto relationship with each other (s 4(1)(b)); or
(ii) who have, or had, an intimate personal relationship (s 4(1)(f)).
Police responded to an emergency call by Ms C and entered the premises while the applicant is alleged to have been committing the offences. The applicant was arrested and charged that day, 7 June 2020.
He appeared in the Magistrates Court at Perth on 8 June 2020. He pleaded not guilty to both charges and the matter was adjourned to a Police Committal Mention Hearing in the Magistrates Court on 17 August 2020. The charges must be dealt with in the District Court, so eventually there will be a committal to that court for trial, as the applicant has that he will maintain his pleas of not guilty.
At the appearance on 8 June 2020, the applicant applied for bail. Magistrate Longden refused bail because of the seriousness of the offence, the strength of the prosecution case and the fact that she considered there were no conditions that could be imposed to protect the safety of the complainant, Ms C.
The application before this court was filed on 18 June 2020. The application is brought under s 14(2) of the Bail Act 1982 (WA) (the Act). It invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the jurisdiction to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act. It is not an appeal from the magistrate's decision refusing bail.
The application is supported by an affidavit of the respondent's counsel, Mr Rafferty, which attached the Statement of Material facts prepared by the police and the applicant's criminal record.
Although the proceedings in the Magistrates Court at this stage have been brought by the Western Australia Police Force, the application names the State of Western Australia as the respondent. In due course the State will assume the prosecution of the charges in the District Court, and Ms Sleeth, a lawyer with the Office of the Director of Public Prosecutions, filed submissions and appeared for the respondent in this court. In the circumstances it is convenient to refer to the respondent as the State.
The State has filed materials that I will refer to in the course of my reasons. They include Ms C's witness statement in the prosecution and an affidavit from the investigating officer, Sgt Murray. That affidavit contains expressions of opinion and argument, to which I will have no regard, because, in my opinion, this is not a case in which the opinions of a police officer carry any weight beyond the inferences I can draw from the factual circumstances disclosed in the materials. The aspects to which I will have regard in the affidavit are the summaries in the annexure of what was observed by the attending police officers and what was said by the applicant in his subsequent interview with the police, and certain statements made by Ms C about things said by the applicant to her after they separated. Although some of that information is hearsay, I am entitled to take it into account as I think fit, even though normally it would not be admissible in a court of law.[1]
[1] Section 22 of the Act.

Legislative provisions and legal principles

As I noted earlier, under s 14(2) of the Act, the court may exercise afresh the magistrate's jurisdiction to grant bail conferred by s 13 and sch 1 pt A of the Act. Therefore, pursuant to s 13(1), the jurisdiction must be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1.
Apart from in certain specified circumstances that are not relevant to this application, there is no express statutory presumption for or against bail.[2] When, as in this case, an application for bail is to be decided in accordance with cl 1 of pt C, 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) of cl 1 and to any other questions which the decision-maker considers relevant.[3] However, ordinarily, because of the structure of the statutory provisions, bail will be granted unless the court is satisfied that the accused should be kept in custody after considering those questions, having regard to the matters in cl 3 of pt C.[4]
[2] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 (Milenkovski) [39] (McLure P, Pullin JA & Hall J agreeing).
[3] Milenkovski [39].
[4] Milenkovski [41].
The questions in cl 1(a) include whether the accused may fail to appear in court as required by his bail undertaking, whether he may commit an offence, whether he may endanger the safety or welfare of any person and whether he may interfere with witnesses or otherwise obstruct the course of justice. Clause 1(b) requires the court to consider whether the accused needs to be held in custody for his own protection. The court is also required to consider, under cl 1(e), whether there are conditions that could reasonably be imposed which would 'sufficiently remove the possibility' of the accused doing the things referred to in subclause (a) or obviate the need referred to in subclause (b).
In answering those questions, the matters the court must take into account under cl 3 include: the nature and seriousness of the offence or offences and the probable method of dealing with the applicant if he is convicted; the accused's personal circumstances, including his character and antecedents, which include any previous convictions; the history of any prior grants of bail to the applicant; and the strength of the evidence against him.
The proper approach to the questions and considerations in cl 1 and cl 3 was explained in YSN v The State of Western Australia[5] at [15] ‑ [21], having regard to the analysis of those matters in Milenkovski at [31] ‑ [43]. The following principles extracted from YSN are relevant for present purposes:
(1)The risk or possibility referred to in cl 1(a) must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the judicial officer considers relevant;
(2)The court must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period;
(3)The reference in cl 1(e) to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced; and
(4)The possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
[5] YSN v The State of Western Australia [2017] WASCA 155 (YSN).
For convenience, I will refer to the question in cl 1(e) as whether the risk can be reduced to an acceptable level, which is to be understood in the context of the principles outlined in the preceding paragraph, in particular in points (3) and (4).

Alleged facts of offences

It is necessary to provide a summary of the facts alleged against the applicant in respect of each charge, as those alleged facts provide context for the issues in this application. Having regard to the manner in which the aggravated burglary charge has been framed, there is an overlap, in that the offence alleged to have been committed by the applicant while in Ms C's place without her consent is the attempted aggravated sexual penetration without consent, which is the subject of the second charge.
The alleged facts are as follows. It is convenient to include at this stage some of the background facts that emerge from Ms C's statement and some of the other materials tendered by the State.
The applicant and Ms C were known to each other. They had been in what could properly be described as a de facto relationship for three years. They separated approximately seven months before 7 June 2020. When they separated, the applicant moved out of Ms C's home.
The materials tendered by the State indicate that the applicant continued to be in contact with Ms C after they separated and she had socialised with him on at least one occasion before 6 June 2020. I will say more about that later. According to Sgt Murray, Ms C has said that, after she separated from the applicant, he threatened to harm himself if she did not see him, and that he did attempt to do so by taking an overdose not long after the separation. The substance alleged to have been taken is not specified.
The materials include data extracted from Ms C's mobile telephone in respect of voicemail messages and missed calls, which show that in the month leading up to the incident the subject of the charges, she received 11 voicemail messages from the applicant, from 14 May to 28 May, and numerous missed calls from his mobile number from 12 May until the day of the incident.
The materials also include a series of text messages between the applicant and Ms C, initiated by the applicant. They show that around 11.16 am on 30 May 2020, the applicant sent a text asking Ms C if she would have coffee with him the following day. She declined, but said, 'next weekend if you behave'. From about 11.20 pm the applicant sent numerous messages to Ms C in a persistent attempt to persuade her to allow him to attend her place. Ms C consistently responded in the negative, and at one point said 'no means no'. She also told the applicant to think of her as a 'bro', not a 'ho'. The applicant responded that Ms C was his 'bro' and that he loved her like one. However, he persisted with further messages asking to come over and saying he would rather spend the night with her. Ms C repeatedly said 'no'. When, despite her responses, the applicant said he would be at her place in five minutes, she told him she would call the police. She said she was not joking, and he was not to come over. She said she would not see him the following weekend if he turned up uninvited. The applicant did not attend Ms C's house that night.
The text messages show that, on the afternoon of 31 May 2020, at the applicant's request, Ms C agreed to talk with him that night if he called.
On 2 June 2020 there are text messages from the applicant to Ms C asking if she had cheated on him in the last four years, and if she had slept with anyone else. He said he was 'feeling like shit'. Ms C replied that she was working and that he needed to speak to a counsellor. The applicant sent a further text saying Ms C had made him feel like that.
On 4 June 2020, there is a text from the applicant to Ms C saying he would call the following night to arrange lunch for Saturday or Sunday.
Ms C states that she was contacted by the applicant on Thursday, 4 June 2020. He said he wanted to catch up with her for lunch. Ms C eventually agreed to meet with the applicant for lunch at the Windsor Hotel in South Perth on Saturday, 6 June 2020. The applicant said he wanted to prove he could still be a friend.
They had lunch at the hotel as arranged on the Saturday. After lunch, they agreed to continue having drinks at the hotel. They drove their cars back to Ms C's place in Como and soon after returned to the hotel in an Uber vehicle.
Ms C says that she and the applicant had more alcoholic drinks at the hotel and socialised both together and separately with other people. At some stage they spoke about each other's relationships with other persons.
When the hotel closed, Ms C and the applicant returned to her home in Como. They arrived there around 1.30 am, Sunday, 7 June 2020.
Ms C told the applicant that he could not come inside and would have to get a taxi home or sleep in his car, which was in the driveway. She says that she was upset and 'slightly teary' because she knew she could not trust the applicant to come inside and sleep in the spare room or on the couch, but she felt sorry for him. She says she hugged the applicant and said, 'You know you have to leave and you know why.' The applicant said that was fine and he would sleep in the car.
I interpose that, during submissions at the hearing before me, Mr Rafferty argued that the conduct of both the applicant and Ms C, and Ms C's reliability as a witness, will need to be assessed in due course in the light that both of them were intoxicated. Mr Rafferty argued that, having regard to the amount of time the applicant and Ms C had been drinking that day, the inference could be drawn that they were significantly intoxicated. The only evidence before me as to the extent of drinking by the applicant and Ms C during 6 June 2020 an up to the time the pub closed after midnight is the statement of Ms C dated 12 June 2020. She states that after the pub closed, she was 'tipsy … but in full control of [her] actions'[6] and that the applicant 'also appeared tipsy but not too drunk and appeared in control'.[7] In my opinion, here is no basis at this stage for drawing any conclusion about the level of intoxication of either Ms C or the applicant beyond the description in her statement. Further, Ms C's description of the conversation outside her home before she went inside is consistent with both Ms C and the applicant being able to reason and exercise proper judgment.
[6] Statement of Ms C dated 12 June 2020 [39].
[7] Statement of Ms C dated 12 June 2020 [40].
Ms C says that she then said goodnight, went inside and locked the door. She went to her bedroom, undressed and went to bed.
Soon after, she heard knocking at her bedroom window but ignored it, as she was aware it was the applicant trying to get her attention, as he was calling out to her.
A short time later Ms C heard the sound of glass smashing from her back room. Ms C was still in bed and reached for her telephone. She dialled 000, but before she spoke with anyone, the applicant was in her bedroom and took the phone out of her hand. Ms C pulled the covers over her and told the applicant he could not be there and needed to get out. She asked him what he was doing. He said he thought there was someone in there. Ms C again told the applicant he had to get out.
The materials include a recording in which a Telstra employee, who appears to have been attempting to connect the 000 call, tells the 000 operator that the call has dropped out, and that it was a 'very distressed female' and that in the background 'she kept saying "stop, stop, get away from me"' and at one point said 'police'.
Despite the fact that Ms C was telling the applicant to get out, he removed his clothes and got on top of her. At that stage the covers were pulled off her, although she cannot recall how that happened. The applicant grabbed both of Ms C's hands with one of his hands and pushed down on her chest, while using his other hand to masturbate himself. Ms C struggled with the applicant and screamed at him to get off her. She says in her statement that she was screaming things such as, 'Why are you hurting me? No, this is rape. I'm not putting up with this. You are going to jail.' The applicant let go of her hands and put his hand over her mouth to stop her from screaming.
Ms C continued to struggle with the applicant as he attempted to become erect. It appears from the Statement of Material Facts that the applicant and Ms C are of similar height, but he is said to be of solid build and she is said to be of slim build. He is 40 and she is 45 years of age.
Ms C says that, while she was struggling with the applicant, she saw a flash light coming through the bedroom door and heard police yell out. She says that the applicant stopped restraining her, and she screamed out, 'Get him off me, he is trying to rape me.'
The police had indeed arrived and entered the house by that stage. Sgt Murray says in the Annexure to his affidavit that, upon the police arriving, the applicant was 'located naked "spooning" the victim', and she could be heard yelling, 'Please help me, he is raping me.' The police removed the applicant from the bed.
The Annexure to Sgt Murray's affidavit states that the police were wearing body cameras, and it appears they recorded the event as the police entered the bedroom. The recordings were not produced in these proceedings.
It follows from the facts as I have outlined them, that Ms C did not consent to the applicant breaking into her house, or remaining in the house, and she did not consent to any sexual act with the applicant.
It appears the applicant gained entry to the house by breaking the window of a rear room. The applicant is said to have admitted, under caution, that he broke the window because he did not want to sleep in his car.

The applicant subsequently participated in a video recorded interview with the police. After that interview he was charged with the offences that are the subject of this application. He has been in custody since his arrest.

The applicant's interview with the police

Although neither the video recording of the applicant's interview with the police, nor a transcript of the interview, was produced in these proceedings, the Annexure to Sgt Murray's affidavit contains an outline of what the applicant said. No issue was taken with that outline on behalf of the applicant in these proceedings.
The applicant is said to have made the following statements. He admitted breaking into the house by smashing a window at the rear with a brick. He claimed to have been worried because Ms C had been crying inside and had then stopped.
As I noted in outlining the alleged facts, Ms C says she was 'slightly teary' when she was outside, but she does not describe crying once inside. The applicant's explanation in the interview for breaking into the house appears to be inconsistent with the explanation he is said to have given to the arresting officers.[8]
[8] See [42] above.
The applicant said in his interview that Ms C had gone to bed and was not responding to his knocking on the bedroom window. He said that after he smashed the window and entered the house, he went straight to her bedroom. He admitted that Ms C said to him, 'Go. Get out of here.' He said he told her he just wanted to sleep on the couch. He said that Ms C then tried to get him out the front door. He claimed that he realised his phone was still in the bedroom and so they went back there and started 'scuffling' and rolled around on the bed. The applicant said the scuffle was because he did not want Ms C to call the police. He said the phone was ringing and he 'hung it up'. I understand from the description in the outline that Ms C attempted to call the police at that stage and that he ended the call, or at least believed he did.
It is open to conclude from the applicant's statements that he knew he did not have consent to be in Ms C's home, and that he prevented her from calling the police for assistance. Although his account is inconsistent with that of Ms C, who says she dialled 000 immediately after hearing glass smashing, it nevertheless corroborates her evidence that she wanted him out of the house and tried to call police.
The applicant told police that he took his clothes off 'while scuffling on the bed' and that he did so 'to be naked with [Ms C] and comfort/cuddle her'. While this is not the occasion for assessing the weight to be given to any particular aspect of the evidence, it is appropriate, in my opinion, to make the following observation in the context of considering the strength of the case against the applicant and issues relevant to whether he would comply with conditions of bail. The applicant's explanation for removing his clothing may well be thought to strain credulity, but if he had the belief he claimed, it would suggest a very distorted belief system, given that on his own account Ms C had told him to get out and had tried to call the police, and his presence was the cause of her distress. Further, the applicant told police that Ms C 'didn't want the cuddling as they had a mutual agreement'.
When the applicant was asked how Ms C had expressed that she did not want to cuddle, the applicant said that she tried to call police and was yelling for help. He also said Ms C was not happy with him and was trying to get him off, saying, 'Get off me.' The applicant admitted placing his hand over Ms C's mouth to stop her yelling for help.
The applicant said there had been no penetration and no sex. That is consistent with Ms C's account, but the State's case is that it can be inferred from all the circumstances that the applicant was attempting to sexually penetrate Ms C. When asked if he wanted to have sex, the applicant is said to have replied, 'Yeah, of course.' When asked if Ms C wanted sex, the applicant said, 'No.'
It would be open to a jury to conclude from the applicant's police interview, as outlined by Sgt Murray, that the applicant largely corroborated what Ms C says in her statement on the critical issues. In particular, whatever his intention in entering the house, it would be open to a jury to conclude, from the applicant's admissions, that he knew at the time that he was engaging in physical contact with Ms C while both of them were naked that he did not have consent to be in the house and Ms C was not consenting to any sexual contact. It would also be open to a jury to conclude from the applicant's admissions that he used force in an attempt to prevent Ms C from contacting the police or yelling for help.

Consideration of Clause 3 matters

I turn then to consider the matters under sch 1 pt C cl 3 of the Act.

Nature and seriousness of the offences and probable disposition

The offences with which the applicant is charged are of a very serious nature. They are alleged to have been committed against a background of the applicant previously having forced himself sexually on Ms C and having engaged in behaviour that involved manipulative behaviour and persistent pursuit of Ms C for an intimate relationship when she had made it clear she did not want such a relationship with him. I will return to those matters shortly.
The seriousness of the offending is aggravated by the fact that it occurred in the alleged victim's home at night time, when she was entitled to feel safe. That is particularly so because she had made it clear to the applicant that he could not come inside the house, and he had agreed he would not.
It is also aggravated by the fact that the applicant prevented Ms C from calling the police, and used force by placing his hand over her mouth to prevent her from calling for help.
The seriousness of the offending is also informed by the penalties to which the applicant is liable. The maximum statutory penalty for aggravated sexual penetration without consent, under s 326 of the Criminal Code is 20 years' imprisonment: s 326(1). A person who attempts to commit that offence is guilty of a crime by virtue of s 552(1) of the Criminal Code, and is liable to half the penalty provided for in s 326(1): s 552(2)(b). Therefore, the applicant would be liable to 10 years' imprisonment if found guilty of aggravated attempted sexual penetration without consent.
Section 326(2) provides that a person who commits that offence in the course of conduct that constitutes an aggravated home burglary must be sentenced to a term of imprisonment of at least 75% of the term specified in s 326(1), notwithstanding any other written law. There is no equivalent provision providing for a mandatory minimum sentence in respect of an attempt to commit an offence under s 326. The State accepted that the penalty to which the applicant would be liable if convicted of the offence of aggravated attempted sexual penetration without consent would be 10 years' imprisonment, and that the court would not be bound to impose any mandatory minimum.
However, it was accepted on behalf of the applicant that a term of immediate imprisonment would be inevitable if the applicant were convicted of that offence. In my opinion, having regard to the standards of sentencing ordinarily observed for such offending, and the particular alleged circumstances of this case, it would be a substantial term of imprisonment.
Further, s 10E of the Criminal Code provides as follows:
10E. Charge of attempt, alternative convictions on
If a person is charged with attempting to commit an offence (the 'principal offence') other than an offence under section 283, the person, instead of being convicted as charged, may be convicted of —
(a) committing the principal offence; or
(b) committing, or attempting to commit, any alternative offence of which any person charged with the principal offence might be convicted instead of the principal offence,
but the person shall not be liable to a punishment greater than the greatest punishment to which the person would have been liable if convicted of attempting to commit the principal offence.
Section 326(1) provides that a person charged with an offence under that section may be convicted of an offence under s 324 of the Criminal Code. That is an offence of aggravated indecent assault, which is committed if a person unlawfully and indecently touches another person without that person's consent, in circumstances of aggravation, which are the same as for an offence under s 326. It is an offence of which the applicant could be convicted in this case, if he were found not guilty of the offence of aggravated attempted sexual penetration without consent.
The maximum penalty under s 324 is 7 years' imprisonment. Although an offence under s 324 ordinarily can be dealt with summarily, when the offence is committed in the course of an aggravated home burglary, it cannot be dealt with summarily. Further, s 324 also has a mandatory minimum provision as follows:
(3)If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1) (not being the term specified in the summary conviction penalty in that subsection).
It follows that, if the applicant were convicted of an offence under s 324 instead of the offence currently charged, he would be sentenced to at least 5 years and 3 months' imprisonment.
The aggravated home burglary offence would also properly be regarded as a serious example of that offence, having regard to the factors to which I have already referred concerning the seriousness of the aggravated attempted sexual penetration without consent. The likely sentence would also be a substantial term of imprisonment in the event the applicant were to be convicted of that offence, which would almost follow inevitably if he were to be convicted of either the offence of aggravated attempted sexual penetration without consent, or the offence of aggravated indecent assault. However, there would be an issue as to whether separate punishment could be imposed, having regard to s 11(1) of the Sentencing Act 1995 (WA).[9] It is not necessary to consider that further for the purpose of these proceedings, as the mandatory minimum sentence for the alternative offence under s 324 in this case is sufficient to reflect the seriousness of the offending at its minimum, and to inform consideration of the questions under sch 1 pt C cl 1 of the Act.

Strength of the evidence against the applicant

[9] See also Pearce v The Queen [1998] HCA 57; 194 CLR 610; 72 ALJR 1416; 156 ALR 684; 103 A Crim R 372.

The primary context for assessing the strength of the evidence against the applicant (under cl 3) is the consideration of whether there is an actual or real risk that the applicant will fail to answer his bail and the extent of that risk. Obviously, when combined with the probable disposition of a substantial term of imprisonment (and a mandatory minimum term on one scenario) in the event of a conviction, the stronger the case, the greater the risk that an accused may abscond to avoid a trial. The assessment I am required to make is not of the likelihood of conviction.
The strength of the case is also relevant to the assessment of the risk that the applicant will commit an offence if not kept in custody. That is particularly so when the offending is alleged to have been committed in the face of attempts by the victim to call the police and to scream for help, and when the applicant is alleged to have been apprehended in the course of committing the offence. The strength of the case against him is capable of affecting logically the determination of whether there is a real risk that he will offend again in a similar manner.
Although at this stage the police have not served all of the evidentiary material on which the State will rely at trial, the materials produced in these proceedings, to which I have referred, suggest that the evidence against the accused is strong in respect of the aggravated home burglary offence (in terms of the respondent having committed an offence while in the place without consent) and, at the very least, in respect of the alternative offence of aggravated indecent assault.
The applicant's written submissions stated that 'what occurred in the period immediately before police arrived and located the applicant will be in dispute'. However, on the materials before this court, while there is a difference between what the applicant is said to have told police during the interview and what Ms C has described of the events in her statement, in respect of critical matters that go to establish the offences, it would be open to a jury to find that Ms C's account is corroborated by admissions made by the applicant in the police interview, the observations of the attending police officers (and, it would appear, the recordings made on their body cameras) and the 000 call as relayed by the Telstra employee to the police operator.
At the hearing, Mr Rafferty informed me that the main issue at trial will be the applicant's intent at the time he engaged in the conduct in Ms C's bedroom that is alleged against him. To prove the charge of aggravated attempted sexual penetration without consent, the State must prove that he intended to sexually penetrate Ms C. If that element is not proved, then the grounding offence of the aggravated home burglary, as that offence is currently charged, also would not be proved. However, if the alleged criminal acts on which the State relies as constituting the offence committed by the applicant while in the place without consent are found to constitute the alternative offence of aggravated indecent assault, the applicant could be convicted of the aggravated home burglary offence on that basis.
In any event, the evidence against the applicant in respect of the charge of aggravated attempted sexual penetration without consent can also be regarded as strong if the jury were to be satisfied that, in acknowledging to the police that he wanted to have sex, the applicant was admitting that he intended to sexually penetrate Ms C. It was put on the applicant's behalf that a jury could not be satisfied that what the applicant said necessarily amounted to an admission of an intention to sexually penetrate Ms C. It will be a matter of assessment for the jury as to what the applicant meant, but that assessment will be made having regard to the surrounding circumstances, in particular as described by Ms C. On her account, the applicant continued to persist in holding her down and masturbating himself after she yelled at him that what he was doing was rape. In my opinion, it would be open to a jury to be satisfied that, in saying he wanted to have sex with Ms C, the applicant was admitting that he wanted to sexually penetrate her when he took off his clothes and got on top of Ms C.
The materials tendered by the State include an incident report from the Western Australia Police Force records in respect of an incident reported by Ms C on 10 May 2020. Given that the prosecution is in the early stages and the DPP does not yet have conduct of the matter (other than in respect of the bail application), it is not known what the State intends to do in respect of the information in the incident report. The report concerns a complaint made by Ms C to the effect that the applicant attempted to sexually penetrate her without her consent on 10 May 2020 when he was at her home for dinner, having been invited by Ms C. The report states that Ms C subsequently withdrew the complaint and that a 'withdrawal statement' is attached. That statement was not in the materials filed in these proceedings, and there is nothing further in the report to indicate the basis on which the complaint was withdrawn. A complaint may be withdrawn without the complainant negating the factual basis of the complaint. What is apparent from the report is that the complaint was withdrawn by 13 May 2020, when the note was made, and that Ms C was not willing to support the police investigation into that matter from that time.
It seems to me that if the State were to seek to rely on the previous incident as propensity evidence, assuming Ms C is prepared to give evidence about that incident, it would be difficult to see how the State could do so without a separate charge in respect of that incident. If evidence of that incident were adduced, it would be relevant to the assessment of the applicant's intention in respect of the incident of 7 June 2020. That is because the incident is alleged to have involved the applicant removing a tampon from Ms C and attempting to enter her vagina with his penis, which she prevented by placing her hands over her vagina. When she reported the matter, Ms C told police that the applicant had carried her to the bedroom and removed her clothing, despite her protestations. She said that when the applicant was trying to enter her vagina she told him it was rape and she would call the police. She said she told the applicant that she was on her period, and he stopped, although he appeared to be confused, thinking she was pregnant. She said he got off her and said he was not able to ejaculate.
The incident report also refers to earlier incidents referred to by Ms C. It is not appropriate to have regard to those matters in assessing the strength of the evidence against the applicant, as the report states that details were not disclosed to the police. For the same reason, it is not appropriate to have regard to those matters in determining whether the applicant may commit an offence or endanger Ms C if not kept in custody. However, the allegations are consistent with the relationship between the applicant and Ms C having been difficult.

Applicant's character and antecedents

Other than his criminal record and what appears in the incident report, no evidence was tendered in respect of his personal circumstances. Information in respect of those circumstances was contained in the applicant's written submissions and referred to in Mr Rafferty's submissions at the hearing. Mr Rafferty submitted, correctly, that pursuant to s 22 of the Act the court is able to take into account any information it thinks fit in respect of the applicant's personal circumstances, whether or not it would be admissible in a court of law. While that is so, where such information may be important in the court's assessment of the issues, it would be expected that it be in evidentiary form. That is particularly so where the applicant wishes the court to take into account expressions of intent or commitment in respect of proposed conditions of bail, or statements intended to explain past events. The issue is not whether the information is being conveyed accurately by counsel, which the court accepts without question, but whether the applicant's claims can be relied upon. His preparedness to solemnly attest to such expressions or statements may affect the weight that the court will place on them.
Notwithstanding the above, I accept the following matters put on behalf of the applicant.
As I noted earlier, he is 40 years of age. He was born and raised in Western Australia, and it would appear that his family ties are to this State.
The applicant works full time for Ground Support Systems Australia (GSS) in dewatering. At the hearing, Mr Rafferty said that the applicant works long hours, usually leaving home at 6.00 am and returning at 6.00 pm. However, I have not been provided with any information about the continued availability of the respondent's employment, given the charges and the fact that he has been remanded in custody since 7 June 2020. I will assume the employment will continue to be available to him. If that were a determining issue, I would request confirmation from the employer.

The applicant says he has an annual income of approximately $70,000 from that employment. He also operates his own property maintenance business.
The applicant lives with his 90‑year‑old great-uncle in Fremantle.
The applicant's mother supports him and has indicated that she will act as surety if bail is granted.
The applicant has a history of criminal offending which commenced in 1997. Except for one occasion, the penalties imposed were fines.
The applicant has four convictions for driving while having more than prescribed levels of alcohol in his system. One of those offences was committed when the applicant was a youth, and two were committed when he was 22 years old. However, the most recent of those, on 15 February 2019 (concerning an offence on 4 February 2019) was for driving under the influence of alcohol.
The applicant also has the following convictions:
(i)breach of violence restraining order on 11 January 2001 (date of offence not shown), for which he was placed on a conditional release order for 6 months with a $250 recognisance, and in respect of which a spent conviction order was made;
(ii)home burglary on 22 February 2005 (the date of the offence is not shown), for which he was fined $1,000;
(iii)stealing on 20 January 2009 (offence date of 5 December 2008), for which he was fined $250;
(iv)aggravated assault occasioning bodily harm on 30 September 2009 (offence date of 1 July 2009), for which he was fined $750;
(v)breach of a police order under the Restraining Orders Act 1997 (WA) (Restraining Orders Act) on 23 June 2014 (offence date of 22 June 2014), for which he was fined $200; and
(vi)common assault on 6 October 2015 (offence date of 8 July 2015), for which he was fined $800.
I was not provided with the facts in respect of any of those convictions. Home burglaries can be committed in various ways that may not be relevant in the context of the present application. However, the offences of breaching a restraining order in 2001 and breaching a police order under the Restraining Orders Act in 2014 raise concerns about the applicant's preparedness to breach such orders, knowing the consequences.
I accept, as Mr Rafferty submitted, that only the order in 2001 was an order made by a court. In respect of that contravention, it would be fair to infer from the disposition that it was regarded as being at the lower end of seriousness, having regard to all the circumstances, including the applicant's personal circumstances at that time. Further, he was only 21 years old, and the court should be slow to rely on an offence committed 19 years ago as indicating any propensity to breach a court order now. However, while the conviction in 2014 was not in respect of a court order, it nevertheless demonstrates that the applicant has been prepared to act contrary to a restriction placed on his behaviour under the authority of a statutory power. While it has been six years since that conviction, I do not consider that period to be so great as to render the conviction as having little significance in the present context. Again, the disposition would suggest the offending was regarded as being towards the lower end, but it is nevertheless a relevant consideration in assessing whether the applicant would comply with conditions of bail, which would include a protective condition for the benefit of Ms C.
The other convictions that are of concern are for the offence of aggravated assault occasioning bodily harm in 2009 and common assault in 2015.

History of prior grants of bail

The applicant does not have a conviction for breaching bail. It may be assumed that a number of the offences of which he has been convicted would have required him to be on bail for various periods, so it may also be assumed he has previously been compliant with the conditions of bail. However, I have no information about the conditions of any previous grants of bail. Further, apart from the offence of driving under the influence and a traffic offence not listed above, both of which occurred in 2019, the applicant's offending appears to have occurred before his relationship with Ms C, which commenced, it would seem, in late 2016 or early 2017. The applicant's conduct towards Ms C is a significant consideration in assessing whether the applicant would comply with conditions of bail intended to protect her. In such circumstances, in the absence of any information about conditions of bail imposed for prior offending, the applicant's previous compliance with bail is not persuasive that he would comply with the proposed conditions in this case intended to protect Ms C and prevent the possibility of interference with the administration of justice.

Other matters

Clause 3 of sch 1 pt C requires the court to take into account any other matters it considers relevant in considering whether the applicant may do any of the things mentioned in cl 1(a).
In my opinion, it is relevant to take into account the following matters which arise from the outline of the alleged facts above and the incident report to which I have referred.
The incident report states, in a section intended to identify 'behavioural factors' to be taken into account by the police investigating the incident (grammar as in the original):
According to the victim, since they have split in January if the victim attempts to stop contact then the suspect continues to constantly call and ask who else is she having sex with. Victim states the suspect calls and messages.
The 'perpetrator' is also described as excessively jealous. That conclusion and the assertion in the passage I have quoted are supported by the text messages I referred to in outlining the facts.
On the other hand, under the same section, the police have recorded that the 'perpetrator' does not try to control everything the victim does, and has never threatened to hurt or kill the victim.
However, there is nevertheless a risk of physical harm to Ms C if the applicant were to behave in the manner alleged in respect of the charges in this case, and there would ordinarily be expected to be a risk of psychological harm to a victim of such offending. The evidence discloses that the applicant has been jealous and obsessed with Ms C and has engaged in behaviour of a persistent nature with the intention of resuming a sexual relationship with her, despite the fact that she has repeatedly rebuffed his approaches in that regard and has sought to make clear that she is only interested in a non‑sexual friendship. In my opinion, the State's description of the applicant's attitude as an 'unhealthy obsession' is apt.
At [22] - [24] above, I referred to a series of text messages from the applicant to Ms C from 30 May 2020 to 2 June 2020, which demonstrate his level of obsession, his insecurities and his intentions. It will be recalled that on the evening of 30 May 2020 the applicant texted Ms C to say that he would attend her house. For some time during the text exchanges he ignored the 'no means no' directive from Ms C. Although he did not attend Ms C's place that night, he persisted in pleading with her to let him attend, and in saying he would attend, until Ms C said she would call the police and threatened not to see him on the weekend. It was then that he sent a text saying:
I'm not going to [abbreviation of Ms C's name], I'm respecting your/our wishes xx
It may be thought that the suggestion that the applicant joined Ms C in her 'wishes' was disingenuous, in light of all that had preceded that text. Further, the claim of respecting Ms C's wishes rings hollow, given that it followed a threat by Ms C to call the police.
Further, on the applicant's own account in his police interview, he prevented Ms C from calling the police when he knew she wanted him out of the house. His account also shows that, despite the fact he knew Ms C did not want to have sex with him and that they had 'a mutual agreement' in that regard, he took off his clothes and 'cuddled' her while they were both naked, and at some stage in the course of that conduct he placed his hand on her mouth to stop her from screaming.
On the applicant's own account, therefore, he has difficulty accepting 'no' for an answer, and was prepared to impose himself on Ms C against her will. While I do not lose sight of the presumption of innocence in respect of the offences with which the applicant is charged, his admissions are significant factors in my consideration of whether he would commit an offence against Ms C or interfere with her as a witness if not kept in custody, and whether he would comply with conditions intended to reduce the possibility of those things occurring.
As I noted earlier, if the applicant believed that his behaviour would comfort Ms C, it would be difficult to avoid the conclusion that he has a distorted belief system that is dangerous and tends to increase the risk of harm to Ms C and the risk that the applicant would not comply with protective bail conditions. His behaviour, as described by him to the police, also evinces a disturbing lack of insight into the wrongfulness of his conduct (acting in disregard of the wishes of Ms C and in a manner that violated her right to be safe in her home and to seek assistance, as well as her physical integrity).
There are a number of issues, therefore, in respect of which it may be thought that the applicant is in need of counselling if the risk of him committing an offence against Ms C and interfering with her as a witness is to be sufficiently reduced.

The risks under cl 1(a) - conclusions

It follows from what I have said that, having regard to the matters in cl 3 of sch 1 pt C of the Act, I am satisfied that there is an actual or real risk that the applicant would commit an offence against Ms C and endanger her welfare if he is not kept in custody. The risk arises from his apparent obsession with Ms C, his jealousy, his resistance to accepting 'no' for an answer to his entreaties, his preparedness to use force to subdue Ms C when she has physically resisted his entreaties and tried to call for help, and his apparent lack of insight. I have assessed that risk also having regard to the strength of the evidence against him, including his own account to the police.
It also follows from what I have said that I am satisfied there is an actual or real risk that the applicant may interfere with Ms C as a witness or otherwise obstruct the course of justice. It was acknowledged in oral submissions on behalf of the applicant that, the stronger the case against an accused, the greater the risk of obstruction of justice. In assessing the risk, I have taken into account also the information that indicates the applicant has previously engaged in emotionally manipulative behaviour towards Ms C, including his threats to harm himself if she did not see him (soon after their separation) and the text messages on 2 June 2020 telling her that she was to blame for the way he was feeling. The threats are said to have been followed by an attempt by the applicant to harm himself by an overdose. While that raises concerns about the applicant's welfare at that time, it tends to reinforce the reality of the risk that the respondent may interfere with Ms C as a witness by emotional manipulation. That is particularly so in circumstances in which Ms C has continued to demonstrate sympathy or concern for the applicant, as she did when she felt conflicting emotions as she left him outside in the early hours of 7 June 2020. It would also appear from the materials that the applicant's attempt at self-harm was a factor that influenced Ms C to have further contact with the applicant on a platonic basis.
The fact that the applicant has no history of interfering with a witness does not carry any significant weight in my opinion, given that he has never faced charges of the seriousness of the present charges or the inevitability of a substantial term of imprisonment.
I am also satisfied that the nature and seriousness of the offences, the inevitable outcome of a substantial custodial sentence if he is convicted (whether of the sexual offence currently charged or of aggravated indecent assault) and the strength of the case against him, give rise to an actual or real risk that the applicant may not appear as required by any bail undertaking, if released on bail. In my opinion, the fact that he has complied with bail conditions in the past carries little weight as a predictive factor in the circumstances of this case, given that he has not previously faced the inevitability of a substantial term of imprisonment (at least 5 years and 3 months if convicted of the aggravated indecent assault) in the context of a strong case against him.
The question is whether the risks I have identified can be reduced to an acceptable level by the imposition of reasonable conditions of bail, including the possibility of home detention.

The applicant's submissions

Proposed bail conditions

The applicant submitted that the risks I have identified can be sufficiently reduced to an acceptable level, if the applicant were to be released on bail, by the imposition of reasonable conditions.
In relation to the risk of flight, the applicant submitted that the combination of the following conditions would sufficiently reduce the risk:
(1)A requirement that the applicant enter into a personal undertaking by which he would forfeit a substantial sum of money if he failed to appear. It was submitted that a personal undertaking in the sum of $5,000 or for such larger sum as the court thinks fit would be appropriate;
(2)A requirement that there be a surety in the sum of $5,000. It is proposed that the applicant's mother would be his surety. It was submitted that the fact the surety would be the applicant's mother is a factor the court could take into account to be satisfied that the requirement of a surety would meaningfully contribute to the reduction of the risk that the applicant would not appear. I note that I do not have any information in respect of the applicant's mother that would enable me to make any assessment in that regard. However, I am prepared to accept that the applicant's mother would have an emotional interest in ensuring her son does not abscond;
(3)A residential condition requiring the applicant to reside with his great‑uncle. Such a condition would ensure the police were aware of where the applicant was required to be when not working or attending to legitimate personal business;
(4)A curfew condition, which would require the applicant to be at his home within specified hours. Such a condition would need to take into account the applicant's likely hours of work, but the hours of curfew would still be sufficient to ensure that the police could check that he had not absconded;
(5)A condition that the applicant surrender his passport to the court and not apply for another passport for the duration of bail;
(6)A condition that the applicant must not leave Western Australia, and must not approach within a specified distance of domestic or international departure points; and
(7)A condition that the applicant report to his local police station, being a 24‑hour station, on such days and at such times as the court thinks fit.
The applicant submitted that the combination of those conditions would provide the authorities with sufficient opportunity to ensure the applicant has not absconded, and to promptly put in place measures to find him if he fails to report or is not at his residence when he should be. In the alternative, it was submitted on behalf of the applicant that, if I were not satisfied that the risk would be sufficiently reduced by those conditions, but I considered that it may be so reduced by the imposition of a home detention condition, then the applicant would be prepared to be subject to such a condition and it would be necessary for the court to obtain a report about the suitability of the applicant and the proposed residential premises for home detention. That is notwithstanding the submission made on behalf of the applicant that 'for a person to effectively be deprived of their liberty in the community for a significant period of time is a very large step to take, particularly [given] how long [it is] going to take to get to trial'.[10]
[10] Ts 15, 18/6/20.
In relation to the conglomerate risk that the applicant may commit an offence, endanger Ms C and interfere with her as a witness, the applicant submitted that the curfew condition, in combination with protective conditions and conditions that would prohibit the applicant from consuming alcohol, would reduce that risk to an acceptable level. The significance of the curfew condition is that the offending occurred at night. The prohibition on the use of alcohol would be appropriate if I consider that intoxication was a relevant factor in the alleged offending and the lack of insight to which I have referred. The risk that the applicant may consume alcohol can be dealt with by a number of conditions apart from the prohibition: for instance, a condition prohibiting the applicant from being on licensed premises and a condition requiring him to submit to breath testing to determine whether he has been drinking alcohol.
The applicant submitted that the protective bail conditions would include a condition that the applicant must not contact Ms C directly or indirectly by any means, and a condition that he must not be within 50 m of any place at which Ms C lives, works or is educated. It was submitted that the applicant is aware that if he were to be charged with any breach of such conditions he would come within cl 3A of the Act, with the consequence that the court would be obliged to refuse bail in the absence of exceptional reasons why the applicant should not be kept in custody. Mr Rafferty said that the applicant understands he would have little if any hope of being granted bail in such a situation, having regard to all the circumstances, and he would remain in custody for a lengthy period before trial. It was submitted that would provide a significant deterrent to the applicant, which would prevent him from contacting Ms C.
It is part of the State's argument in opposing bail that the applicant's persistent pursuit of Ms C in the months leading up to the alleged offences is a sound basis for concluding that he may not comply with protective bail conditions. In response, the applicant submitted that there was previously nothing to prohibit him from making contact with Ms C, either by way of a violence restraining order, a police order or protective bail conditions. That is so, but it overlooks the fact that on 10 May 2020, Ms C had complained to the police about his behaviour, which she had described in terms consistent with a sexual penetration without consent. According to her account to the police, she told the applicant on that occasion that what he was doing was rape and she was going to call the police. Although subsequently Ms C did not want to pursue the complaint, the applicant's statements in his police interview, as summarised by Sgt Murray, indicate that the applicant was aware Ms C did not want any intimate physical contact with him 'as they had a mutual agreement'.[11] As the State submitted in response, a text message sent by the applicant to Ms C at 11.20 pm on 30 May 2020, tends to support the conclusion that he had previously at least indecently touched her without her consent. The text reads:
I can come over now, I'm not far away, I won't touch I promise.
[11] Annexure to affidavit of Clinton Murray made 17 June 2020.
It must have been abundantly clear to the applicant that any attempt by him to have intimate physical contact with Ms C was not only unwelcome, but could result in the matter being reported to the police. Yet, on his own account, he entered her home in the early hours of 7 June 2020 without her consent and had intimate physical contact with her against her wishes and when she had made an attempt to call the police. That tends to diminish the force of the argument that the threat of imprisonment if he breaches a court order would be a significant deterrent.

In any event, the absence of any previous court order preventing the applicant from contacting Ms C does not detract from the fact that his past behaviour tends to demonstrate an unhealthy obsession with Ms C and a lack of insight that lead to a failure to exercise proper judgment. It is that potential failure that erodes the capacity of protective conditions to reduce the relevant risk to an acceptable level.
The applicant submitted that I can infer that the period the applicant has already spent in custody (11 days at the time of the hearing) has been a salutary lesson for him, and will have provided him with insight into the potential consequences of the troubling behaviour to which I have referred. There is no evidence about the impact of the period of custody on the applicant's thinking. If, as I suggested earlier, it appears from the information before me that the applicant has a distorted belief system, it would not be appropriate to draw any inference about the impact of imprisonment upon his attitudes from what might be expected in the general population.
The applicant submitted that it could also be a condition of bail that he undergo counselling to address factors that have contributed to the behaviours that are of concern to the court. There is no evidence before me as to what counselling would be available, how frequently it would be undertaken and what issues would be addressed. Further, it seems to me that the applicant's behavioural issues and apparent lack of insight, to which I have referred, need to be addressed, at least to some degree, while he is in custody, with a view to effecting change that would enhance the capacity of bail conditions to reduce the relevant risk to an acceptable level.
As with the risk that the applicant would fail to appear, it was submitted on his behalf that, if I am not satisfied that the proposed conditions would sufficiently reduce the risk of the applicant committing an offence, endangering Ms C's welfare, or interfering with her as a witness, the applicant would be prepared to be subject to a home detention condition. It was submitted that such a condition would provide additional protection to that provided by a curfew, in that the authorities would become aware by means of the electronic monitoring device if the applicant left his home otherwise than as permitted by a Community Corrections Officer.

Time in custody before trial

The applicant also submitted that I should have regard to the time that is likely to elapse before the charges can proceed to trial. It was submitted that it is likely to be a period of 18 months to two years. That is based on the time it is likely to take for the applicant to be committed to the District Court (said by Mr Rafferty to be about 6 months) and the time between committal and trial that is normal at this juncture (said to be between 12 months and 18 months). Some of the delay is due to the suspension of jury trials for a period since March of this year as a result of restrictions put in place due to the Covid‑19 pandemic. I accept the estimates given by counsel, although there is an element of speculation, as it is not known what measures may be put in place to expedite the cases of persons in custody in the long term.
The prospect of a lengthy period of custody before trial gives rise to a concern that an accused, who is presumed to be innocent, will have suffered a grave injustice if he is ultimately acquitted. The applicant referred to the following passage from the decision of McKechnie J in Saka v The Queen:[12]
The detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.
A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice.
[12] Saka v The Queen [2001] WASC 92 (Saka) [38] – [39].
The views expressed by his Honour remain pertinent. As his Honour also noted at the commencement of his decision:[13]
In common with many applications for bail, this application raises acutely the tension between the presumption of innocence of an accused person in respect of the charge which has been brought, and the need to ensure the integrity of the trial process.
The balancing of these competing, and sometimes irreconcilable, considerations is never easy.
[13] Saka [1] – [2].
As in that case, the issues to be determined in these proceedings involve a balancing of considerations. A significant consideration in assessing the risk of a serious injustice to the applicant is the strength of the case against him. The stronger the case, the less the weight that can be placed on the risk of such an injustice. Such an approach does not diminish the fundamental importance of the presumption of innocence. As McLure P stated in Milenkovski:[14]
The focus of the questions [in cl 1(a)], 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.
[14] Milenkovski [40].
The strength of the evidence against an accused and the likely disposition if convicted are relevant considerations under cl 3. In this case, the evidence against the accused is strong, even without the applicant's admissions to the police, and arguably reinforced further by those admissions, particularly in respect of the alternative offence of aggravated indecent assault. The applicant would be sentenced to a minimum of 5 years and 3 months' imprisonment if convicted and found to have been in Ms C's place without her consent at the time the offence is alleged to have been committed. In those circumstances, while I am concerned about the potential for injustice in the length of time the applicant will remain in custody before trial, it is not a matter that would justify the grant of bail if otherwise I am of the view that the risks I have identified would not be reduced to an acceptable level by the imposition of reasonable bail conditions.
The prosecution is at a very early stage. There may be scope for expedition of the applicant's trial. That should be explored. If the applicant is remanded in custody and it appears in due course that the longer estimate is likely to be correct, the question of bail can be revisited and the risks assessed at that time.

The respondent's submissions

The State opposes the application. Its arguments are largely reflected in the matters I have identified as going to the strength of the evidence against the applicant, and the risks I have identified, in particular the risk to the welfare of Ms C and the administration of justice.
The State submits that there are no conditions that could reasonably be imposed which would sufficiently reduce those risks. It submits that there would always be scope for the applicant to breach any of the conditions that have been proposed, including home detention, and even if that risk is relatively small, the court should find that it is not acceptable, because the potential harm to Ms C is significant, given the nature and seriousness of the offences the applicant may commit, which is informed by the alleged offending of 7 June 2020, and the potential for interference with the administration is also significant if the applicant were to contact Ms C in the manner he has done previously.

Whether conditions can reduce the risks to an acceptable level - conclusions

In deciding whether the bail conditions that have been proposed would reduce the risks I have identified to an acceptable level, I have had regard to the observation of McKechnie J in Saka that:
[W]here there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention.
Having given careful consideration to the proposed conditions and whether other conditions could reasonably be imposed, I am of the view that the risk of the applicant failing to appear could be reduced to an acceptable level by the imposition of conditions of the kind outlined by the applicant. Those conditions include the assumption of responsibility by the applicant's mother to ensure his attendance at court. The effect of the conditions, including home detention, if I considered that to be appropriate, is to provide early notice that the applicant has fled or is fleeing.[15] The conditions do not entirely remove the possibility that the applicant may fail to appear in court. Nevertheless, I would regard the level of risk in that regard to be acceptable. That is particularly so in light of the likely delay before trial.
[15] R v Quaid [2009] WASC 202 (Le Miere J) [43].
However, I am not satisfied that the conditions that could reasonably be imposed would reduce to an acceptable level the risk of the applicant committing an offence against Ms C, endangering her welfare or interfering with her as a witness in the manner I have discussed above.
The protective bail conditions will only be effective to the extent that the applicant is prepared to comply with them. I have explained in some detail above why there is a real risk that he would not.
In considering the potential effectiveness of the other proposed conditions, it is necessary to have regard to the nature and seriousness of the conduct in which the applicant may engage, consistent with the risks I have identified. That conduct would involve the applicant communicating with Ms C or travelling to Ms C's home and endangering her welfare in the manner I have identified.
A curfew is only effective to the extent that the applicant's presence at his home between the hours of curfew can be monitored. I assume that the authorities would deploy all necessary resources to ensure that the curfew is not breached. However, any monitoring would occur at a particular point in time. If the applicant has breached the curfew before police attend his house and is in the process of engaging in conduct consistent with the risks I have found to exist, it may be too late to avoid the potential harmful consequences of that conduct. A curfew check will not prevent a breach after the check has occurred.
Even with home detention there is a residual risk. That risk, if realised, would potentially result in significant harm to Ms C, in particular psychological harm, having regard to the nature and seriousness of the alleged offending and the matters admitted by the applicant during his interview with the police. It is not to the point that Ms C had agreed to speak with the applicant from time to time and had socialised with him, even after the alleged event of 10 May 2020. It is apparent from her behaviour when the applicant broke into her home on 7 June 2020 that she was in fear and wanted the assistance of the police. She also states that she believed the applicant would have raped her if the police did not arrive. It is open to infer from her behaviour and statement that if the applicant were to engage in similar conduct against her, it would result in significant psychological harm.
Conditions that would prohibit the applicant from consuming alcohol and requiring him to submit to breath analysis would be effective only if he is compliant with the former and tested at a time sufficiently proximate to when he has consumed alcohol. In any event, having regard to the other factors I have identified concerning the applicant's obsession with Ms C and his distorted thinking, I do not consider that the applicant would be at risk of committing an offence, endangering Ms C or interfering with her as a witness only if he is intoxicated. His persistent communications on 31 May 2020 appear to have occurred while he was driving, and there is no suggestion he was intoxicated at that time, notwithstanding his prior convictions for driving while affected by alcohol.
I have already indicated that, in respect of counselling, I am not able to draw any conclusion about the effectiveness of such a condition without evidence of what would be proposed.
In summary, I have concluded that there are no reasonable conditions that I could impose, which would sufficiently reduce the risk of the applicant committing an offence against Ms C, endangering her welfare or interfering with her as a witness to a level where his detention pending the determination of the charges is no longer warranted. Notwithstanding the proposed conditions, including home detention, there would be a residual risk that, in my opinion, is not acceptable, for the reasons I have given.
I am satisfied that the remaining risk remains a proper basis for refusing bail.

Order

Accordingly, the application is refused.
These reasons are suppressed until the completion of the proceedings involving the charges the subject of this applications.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to the Honourable Justice Fiannaca
15 MARCH 2021