R v Lyon

[2001] WASC 120

R -v- ROBERTSON [2001] WASC 120

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 120
Case No:	INS:173/2000	Heard:	8 MAY 2001
Coram:	ROBERTS-SMITH J	Delivered:	8/05/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Bail refused
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Parties:	THE QUEEN DAVID MCGREGOR ROBERTSON
Catchwords:	Criminal law Bail Serious offence Whether exceptional circumstances shown Risk of non-attendance or further offences Trial imminent
Legislation:	Bail Act 1982 (WA), Schedule 1, Part C
Case References:	WCVB v The Queen (1989) 1 WAR 279 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : R -v- ROBERTSON [2001] WASC 120 CORAM : ROBERTS-SMITH J HEARD : 8 MAY 2001 DELIVERED : 8 MAY 2001 FILE NO/S : INS 173 of 2000 BETWEEN : THE QUEEN

AND

DAVID MCGREGOR ROBERTSON

Catchwords:

Criminal law - Bail - Serious offence - Whether exceptional circumstances shown - Risk of non-attendance or further offences - Trial imminent

Legislation:

Bail Act 1982 (WA), Schedule 1, Part C

Result:

Bail refused

(Page 2)

Representation:

Counsel:

Crown : Ms C Barbagallo
Accused : Mr D C Manera

Solicitors:

Crown : State Director of Public Prosecutions
Accused : Mr D C Manera

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

WCVB v The Queen (1989) 1 WAR 279

Case(s) also cited:

Nil

(Page 3)

1 ROBERTS-SMITH J: This applicant appears before me today on an indictment dated 1 November 2000 containing a number of counts. He appeared before Scott J on 1 November 2000 and pleaded not guilty to those counts on the indictment, they being one count of wilful damage, one of burglary with intent to commit an offence and whilst armed with a shotgun and pistol and in company, and one armed robbery in company, all allegedly committed on 6 July 2000.

2 He was remanded to this court for a status conference on 11 December 2000. On that date he appeared before Wallwork J and a 5-day trial was set down for 14 May 2001. At that time an application for bail on behalf of the accused was foreshadowed. That was in due course made by application dated and filed 23 March 2001. The ground upon which bail was sought by that application was that the co-accused had been granted bail.

3 The application was supported by an affidavit from David Charles Manera, the applicant's counsel, dated and filed 23 March 2001. In that affidavit Mr Manera deposes to a number of relevant circumstances, including that the applicant is 43 years of age and was born in Western Australia, he is married, with twins aged 5 years and that the applicant had a daughter who was 14 years of age when she was murdered. He is self-employed, if not in custody of course, and it is said that if released to bail would reside at the home of his business partner.

4 The statement of material facts in relation to the charges presently before the court indicates that at about 5.45 am on Thursday, 6 July 2000 it is alleged that the applicant, in company with two other unidentified men, went to the complainant's premises. The applicant was attempting to recoup money he alleged was owed to him by the complainant.

5 The allegation is that when the applicant was refused entry he smashed a window at the front of the premises before decamping in a motor vehicle. Before leaving, one of the other unidentified men fired a single round from a shotgun at a front window to the premises, shattering it. Later the same morning the applicant and the same unidentified men re-attended the complainant's premises. The applicant went to the rear of the building and forced his way past a temporary barrier covering a doorway. He walked to the front of the premises, opened the door and let one of his co-offenders in. The applicant was armed with a single-barrel sawn-off shotgun whilst the alleged co-offender was armed with a hand gun.

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6 The applicant, it is said, was aware the complainant was inside the building. The complainant, it is said, confronted the applicant and co-offender whilst he himself was armed with an air rifle. Once aware that the applicant and his companions were armed, the complainant dropped his weapon.

7 The further allegations are that the applicant and a co-offender searched the premises, gathering electrical items and placed them inside their vehicle. They returned most of the property to the premises when they decided to steal the complainant's motor vehicle, an unregistered Holden sedan. The total value of property allegedly stolen was approximately $5000.

8 According to Mr Manera's affidavit, the applicant was next to appear at that stage in the Supreme Court in relation to these charges on 14 May for a status conference but, as I have already indicated, that date is in fact the date set for trial. That is next Monday. Mr Manera continues in his affidavit to depose that the applicant also faces charges in the Perth Court of Petty Sessions for another series of alleged offences, they being two offences of breach of bail, two of stealing a boat, two of driving whilst under a suspended motor driver's licence, giving a false name, possession of unlicensed ammunition, possession of a firearm and possession of a protective vest, amongst others.

9 He deposes that these various matters have been remanded to come before the Perth Court of Petty Sessions on 14 May for mention.

10 Annexed to his affidavit are the statements of material facts in respect of some of those summary matters. In relation, for example, to a charge of stealing, it alleged that on 21 December 1999 the applicant cut the padlock to the gates of a property at Henderson to gain entry, reversed his white Toyota Coaster style bus into the yard, attached the rear of his vehicle to the complainant's fishing boat and drove off. It appears, according to the statement of material facts, that the applicant then is alleged to have driven south along Cockburn Road before losing control of the vehicle and becoming stuck in bushland just off Cockburn Road.

11 In relation to the two alleged offences of breach of bail, it is said in the statement of material facts that the applicant was released to bail from the Fremantle lockup on 9 May. Before being released, he signed a bail undertaking but he failed to attend the Fremantle Court of Petty Sessions on 1 May 2000, as he was required to do by that undertaking. He likewise failed to appear on 3 July, which was a requirement of a further

(Page 5)

undertaking. According to the statement of material facts, the explanation given by the applicant for non-attendance on those occasions was that he did not want to go to court.

12 The statement of material facts in relation to the alleged motor vehicle offences is also annexed and also addresses the alleged offences relating to possession of firearms and ammunition. Put shortly, that statement reveals that the applicant was found in a vehicle containing a protective vest together with 450 rounds of .177 calibre ammunition; that, in effect, being air rifle pellets on the front seat. An air rifle was subsequently located in his premises. The air rifle was unlicensed and had been stolen the previous day during a burglary in Bayswater. Those matters, as I say, are still undetermined and it is not to be assumed by any means that the applicant will be found guilty of them. He is, of course, presumed innocent.

13 There was a further affidavit from Mr Manera dated and filed 29 March 2001 by which he deposed that the applicant has been in custody since 8 August 2000, that his co-accused was on bail, that his co-accused's record of criminal convictions is long and contains, it is said, more convictions for more serious offences than appear on the applicant's record of criminal convictions.

14 The affidavit then addresses two other matters not previously raised, they being that the applicant has suffered from heart problems since the murder of his then 14-year-old daughter on 22 February 1999. It said that he has suffered from two heart attacks, the last being in November 2000, and that he is currently being treated by a cardiologist, Mr Hendriks, and attends the Fremantle Hospital in relation to those heart problems once a month.

15 Finally, Mr Manera deposes that the applicant is also receiving psychiatric or psychological counselling for issues associated with the murder of his daughter and is being treated by, amongst other people, a psychiatrist, Dr Pullella.

16 When the application came before Murray J on 29 March, his Honour noted that the applicant was being treated by a psychiatrist, that being Dr Pullella, to whom I have already referred. Mr Manera made some submissions in relation to that and requested an adjournment to enable a report to be obtained from Dr Pullella. That was acceded to and the matter was adjourned to 10.30 on 7 May. For some reason, it did not come on that day and has now come before me today. In fact, I have been

(Page 6)

listed to sit as the trial judge on Mr Robertson's trial, which, as I have said, is to commence on 14 May - next Monday.

17 Following the appearance before Murray J a further application was filed on behalf of the applicant, that dated 7 May 2001. It contains two additional grounds. Apart from the former ground that the co-accused had been granted bail, the two additional grounds are stated simply as:

"(1) The applicant's health conditions and

(2) medical conditions require treatment more readily available outside custody."

18 In the meantime I have received a report from Dr Pullella, dated 1 May 2001.

19 The principles applicable to an application such as this are, I think, quite clear and require no lengthy exposition by me. They were set out comprehensively by Ipp J in WCVB v The Queen (1989) 1 WAR 279. In short his Honour held there that the jurisdiction to grant bail under the Bail Act 1982 has not altered the common law in regard to the relevant factors to be taken into account when such an application is made nor in regard to the onus of proof, but in cases where the charges fall into the class which can be described as extremely serious, the applicant must show extremely exceptional circumstances to justify bail."

20 It is, I think, apposite to point out here that whatever strict definition of serious offences or extremely serious offences may be adopted, those on this indictment, in my view, certainly fall within them. The armed robbery in company charge in particular, of course, carries a statutory maximum penalty of imprisonment for life, but the nature of the charges themselves, (apart from perhaps the wilful damage charge) and the circumstances alleged in relation to them, would certainly put them in the category of extremely serious for the purposes of an application for bail.

21 The relevant considerations to which I must have regard are those which are set out in Schedule 1 Part C of the Bail Act 1982. Some of the relevant considerations include under Part C par 1, for example:

(a) whether, if the defendant is not kept in custody, he may -

(i) fail to appear in court in accordance with his bail undertaking;

(ii) commit an offence;

(Page 7)

(iii) endanger the safety, welfare, or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) whether the defendant needs to be held in custody for his own protection;

(c) whether the prosecutor has put forward grounds for opposing the grant of bail and various other considerations.

22 Under that paragraph a court is also required to take into account and consider whether there is any condition which could be reasonably imposed which would overcome the obstacles to the grant of bail which might otherwise be perceived.

23 Paragraph 3 of Part C of Schedule 1 also sets out further matters relevant to consideration of subpar (1)(a) of that Schedule. They include the nature and seriousness of the offences and the probable method of dealing with the applicant if he is convicted, the applicant's character, previous convictions, antecedents and so forth, the history of any previous grants of bail and the strength of the evidence against him.

24 First of all, in relation to the ground that the co-accused has been granted bail, I would have to say that I would not regard that as a relevant consideration. Parity has a bearing on the exercise of the sentencing discretion, but not in relation to the discretion to grant or refuse bail.

25 I therefore turn to the other two grounds on which the application is made, they being the applicant's health condition and that his medical condition requires a treatment more readily available outside custody. I shall deal with both of those together.

26 The evidence in support of these two grounds really goes no further than assertions that the applicant has a heart condition, that he had a heart attack in November 2000 most recently and that he is currently undergoing and requires further treatment. There is no evidence nor, I think, even suggestion, that treatment cannot properly be given to the applicant while he is in custody on remand.

27 Indeed, as I see it, the evidence indicates that he is in fact being given that. Dr Pullella's report, as was frankly conceded by Mr Manera, does give cause to have some concern. Dr Pullella in that report says that he had seen Mr Robertson on 26 April 2001 at the Hakea Prison complex. At that time the applicant had been in Hakea approximately for 1 year. Dr Pullella had seen him on occasions previously.

(Page 8)

28 It is, I think, a theme throughout Dr Pullella's report, and perhaps not a surprising one and sadly so, that the applicant has been stressed out and over a period of time has experienced considerable difficulty in coping with the grief he has been experiencing as a result of the tragic death of his daughter.

29 Dr Pullella has some concerns about that, although I am prepared for present purposes to accept Mr Manera's submission made to me this afternoon that the applicant is coming to grips now with the problems associated with the grief he is experiencing for that reason.

30 I have had regard to the family history and social background of the applicant as set out in Dr Pullella's report and it is probably sufficient, again for present purposes, to note that according to Dr Pullella's observation which, from the applicant's criminal history, is obviously correct, that the applicant has been in trouble with the law for well over 30 years. His criminal record indicates offences starting from October 1970, ranging from breaking and entering, unlawful assault, stealing with violence, a number of motor vehicle offences, escaping legal custody on two occasions, disorderly conduct at the one end, to serious charges of armed robbery on the other.

31 As Dr Pullella points out, the applicant's criminal record also indicates a breach of community sentence, with assault and disorderly conduct occasioning bodily harm, resisting arrest and drug possession. There is a history of poly-drug abuse over a number of years, although, as Dr Pullella notes, the applicant does not appear to believe that he still has a problem, although he was abusing drugs until his imprisonment.

32 It is significant in that regard that Dr Pullella observes the applicant's insight into his past drug problems is poor. Under the heading "Premorbid Personality" Dr Pullella describes that the applicant claims to have accepted the fact that he probably has problems in controlling his anger but at present claims he's very much focused on his daughter's death and still going through a grief process.

33 Dr Pullella says the applicant claims to have poor coping strategies and also gave a history of being emotional in life by nature, with mood swings which the doctor describes as emotional lability. He notes further that Mr Robertson claims he has no intention of harming anyone and points to the fact that he was in the community for approximately 12 months after his daughter's death.

(Page 9)

34 He does deny threatening anyone, either the offender who killed his daughter or the offender's family, but did admit to the fact that he did visit that family on four to five occasions and on one occasion threw a rubbish bin through the window and on a second occasion assaulted the offender's brother. These incidents eventually caused the family to take a restraining order out against him.

35 Again, as Mr Manera points out, this would seem to be a matter of focus on the offender or alleged offender in relation to the death of the applicant's daughter rather than a general concern. Under the heading "Mental Status Examination" Dr Pullella discusses to some degree the emotional lability of the applicant as he perceives it and he expressed the opinion:

"From an objective point of view the applicant was noted to be aroused during the interviews. He becomes easily emotionally labile when discussing his daughter's death. He's rather over-controlled in his aggression in an interview setting and categorically denies any wish to harm others or himself."

36 Further on, however, the doctor repeats that the applicant is rather insightless and that from a personality point of view has significant personality deficits of antisocial borderline cluster with impulsivity, probable difficulties in controlling his anger and poor coping strategy.

37 His previous psychiatric admission to Graylands Hospital in December 1987 gave him a diagnosis of a personality disorder with predominantly sociopathic traits. In addition, he was further reassessed by another psychiatrist in February 2000 and the psychiatrist's impression was that he presented with a mild depressive disorder and taking into consideration his impulsive features of his personality, Mr Robertson could be unpredictable.

38 Further on, Dr Pullella says that given Mr Robertson's extensive criminal record with ingrained maladaptive patterns of behaviour of an antisocial nature and impulsive traits of his borderline personality, he is of the professional view that Mr Robertson poses a risk for reoffending in future:

"At this point in time, however, he is currently entrenched and rather self-absorbed and preoccupied with his daughter's death. He appears to have been channellising his aggression and focusing it on the injustice done to his daughter by the perceived offender."

(Page 10)

A little later Dr Pullella says:

"Mr Robertson is prone to mood swings and has impulsive traits in his personality. He did present with features suggestive of a depressive disorder on occasions during his prison term, warranting antidepressant therapy. People in general with borderline personalities" -

says Dr Pullella -

"tend to experience mood swings and they have low threshold tolerance for stress, thus they tend to react rather impulsively in times of stressful life circumstances."

and he is of the professional view that this could be the case with the applicant. He considers that if the applicant resorts to illicit drugs, his risk of reoffending of any nature would be high and that he requires ongoing psychological counselling and guidance, along with anger management and grief counselling. In terms of any court disposition, whether on bail or otherwise, he would recommend an in-depth drug assessment and rehabilitation program as intervention in these areas would be likely to minimise his risk of reoffending.

39 So far as the position of the Crown is concerned, that being one of the considerations to which I am required to have regard, the Crown strongly opposes the application, noting that the applicant's criminal history is extensive and serious and includes offences of escaping from legal custody. I am also informed that the offences here allegedly committed were committed, so it is said, during a period during which the applicant was on a suspended sentence.

40 In reply to the Crown's submissions, although not strictly of that nature, Mr Manera puts some additional information before me at the specific request of the applicant; namely, that he has a particular concern about obtaining bail to assist his wife caring for a child who has cerebral palsy and has recently had an operation. There is also a concern about a threatened repossession of the headstone for his other daughter unless the firm is paid.

41 So far as the last is concerned, the suggestion, as I understand it, is that if he were released the applicant could be in employment and would therefore be in a position to provide the money to pay that bill. When it was pointed out by me to Mr Manera that this trial is listed for next week and clearly the applicant would not be in a position to be in employment whilst the trial was on, he indicated to me that at least being out of

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custody would enable the applicant to make arrangements to obtain a loan or other money to pay that account. I would have thought that if it were possible to do that, it could be done in any event.

42 In light of the applicant's history, I would have a very real concern that he would not attend for his trial should bail be granted and that he would be at risk of further offending. His unpredictability and potential for violence to my mind are serious concerns. I am not satisfied that these matters could be adequately addressed even by stringent conditions.

43 Furthermore, there is no question of the prospect of a further significant period in custody pending trial. The trial is listed to begin next Monday. Once it is concluded, the situation in relation to bail obviously will be dramatically different. Either he will be acquitted and entitled to release or he will be convicted and would then stand as a prisoner to be sentenced.

44 On the material before me, the applicant has failed to show exceptional circumstances justifying a grant of bail and there are, to my mind, in addition cogent reasons why he should not be released on bail in the present circumstances. The application is accordingly refused.