Rehu v The State of Western Australia - [2015] WASC 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: REHU -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 6

CORAM: CORBOY J

HEARD: 3 DECEMBER 2014

DELIVERED : 17 DECEMBER 2014

PUBLISHED : 6 JANUARY 2015

FILE NO/S: MBA 42 of 2014

BETWEEN: CONDY HOANI REHU
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - Turns on its own facts - No new principles

Legislation:

Bail Act 1982 (WA), cl 1 and cl 3 pt C and pt D, sch 1

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Ms S M De Maio
Respondent: Ms C Fletcher & Mr J Grinceri

Solicitors:

Applicant: Sandra De Maio Criminal Lawyer Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
CORBOY J:
(These reasons were delivered orally and have been edited from the transcript.)

Mr Rehu, who I will refer to as the applicant, was arrested on 12 June 2014 and charged with seven offences:
(a)that on 6 June 2013 at Spearwood, he unlawfully used a motor vehicle within the meaning of s 371 of the Criminal Code (WA), namely a Honda Accord, registered number 1CQR041, the property of Ricardo Marinas, valued at $13,000, without the consent of Ricardo Marinas;
(b)that on 12 June 2014 at Port Kennedy, he was, without consent, in the dwelling of Cheryl Nairn and committed the offence of aggravated armed robbery in circumstances of aggravation, namely being armed with a dangerous weapon, being in company with another and knew there was another person in the place;
(c)that on 12 June 2014 at Port Kennedy, he stole from Cheryl Nairn, with threats of violence, an iPad and handbag, the property of Cheryl Nairn, and that he was armed with a dangerous weapon, namely a knife, and that he was in company with another;
(d)that on 12 June 2014 at Waikiki, he stole from Daniel Thomas Atkins, with violence, keys and a wallet, the property of Daniel Thomas Atkins, and that he was armed with a dangerous weapon, namely a hammer, and that he was in company with another, and that he did bodily harm to Daniel Thomas Atkins;
(e)that on 12 June 2014 at Waikiki, he was, without consent, in the dwelling of Daniel Thomas Atkins and committed the offence of aggravated armed robbery in circumstances of aggravation, namely he was armed with a dangerous weapon, was in company with another person, did bodily harm to another person and knew there was another person in the place;
(f)that on 12 June 2014 at Waikiki, he unlawfully used a motor vehicle within the meaning of s 371A of the Criminal Code, namely a Holden Commodore, registered number 1DHG703, the property of Daniel Thomas Atkins valued at $18,000, without the consent of Daniel Thomas Atkins; and
(g)that on 14 June 2014 at Singleton, he drove a motor vehicle, namely a Holden Commodore bearing registration plate 1DHG703, on a road, namely Safety Bay Road, at a speed exceeding the speed limit set under the Road Traffic Act 1974 (WA) for the place where the driving occurred by 45 km per hour or more and in a circumstance of aggravation, namely that he was driving the vehicle to escape pursuit by a member of the police force.
The applicant applied for bail in the Stirling Magistrates Court. His application was refused by Magistrate Davies. Her Honour's reasons were delivered on 2 October 2014 and are annexure 'F' to the affidavit of Sandra Maria De Maio made on 17 November 2014. The applicant has renewed his application to this court.

The facts alleged by the prosecution

The statement of material facts alleges in relation to the first charge that on 6 June 2014, the applicant was in Pennlake Drive, Spearwood. A black Honda Accord motor vehicle was parked in the driveway of a house located in that street. The engine was turned on and the keys were in the ignition. It is alleged that the applicant entered the vehicle and revved the engine. That alerted Mr Marinas to the applicant's presence. Mr Marinas attempted to pull the applicant from the driver's seat. He failed and the applicant drove away in the vehicle.
The statement of material facts further alleges, in relation to the second and third charges, that on 12 June 2014, the applicant and another person were in Belmez Turn, Port Kennedy. At about 6.55 pm the applicant and his companion knocked on the door of a residence located in that street. Ms Nairn called out and received an answer that led her to believe that it was a friend of her son who was outside. She opened the door and the applicant and his companion entered by pushing her out of the way and forcing her backwards. A knife was produced and the applicant and his companion demanded the keys of an orange Subaru WRX that was parked in the front driveway.
Ms Nairn's son heard his mother scream and rushed to the front of the house. He was confronted by the applicant and his companion. They made further demands for the keys to the vehicle, again brandishing a knife. Mr Nairn offered to get the keys to the vehicle from the rear of the house. The applicant and his companion took a handbag belonging to Ms Nairn and then left the house. They were seen by a witness to leave in a Honda Accord motor vehicle.
The statement of material facts further alleges in relation to the fourth to sixth charges that at about 7.40 pm on 12 June 2014, the applicant and another man knocked on the front door of a house in Fox Close, Waikiki. Mr Atkins answered the door and was threatened by the applicant and his companion. They demanded money. Mr Atkins refused their demand and attempted to push the applicant and his companion away.
A struggle developed during which the applicant produced a hammer and struck Mr Atkins to the head and shoulder area causing him to partially lose consciousness and stumble. The applicant stood near Mr Atkins and while holding the hammer in his hand, said words to the effect, 'Where's your money? Where's your keys? We're not mucking around'. The applicant's companion entered the house and Mr Atkins fled. The applicant and his companion then stole car keys and a wallet from inside the house and drove away in a Holden Commodore sedan that belonged to Mr Atkins.
Mr Atkins received a 3 cm wide deep tissue laceration to his left shoulder, multiple fractures to his left shoulder bone, a one centimetre puncture wound to his left upper arm, 3 cm laceration to the back of his head and bruising and swelling to his neck and chest.
The statement of material facts further alleges in relation to the seventh charge that at about 8.35 pm on 12 June 2014, the applicant drove Mr Atkins' stolen Holden Commodore sedan along Safety Bay Road near Old Mandurah Road, Baldivis. A marked police vehicle attempted unsuccessfully to stop the vehicle. The police then pursued the vehicle driven by the applicant, activating the emergency lights and sirens on their vehicle as they did so. The applicant accelerated and a pursuit continued for about 15 minutes.
The applicant failed to give way to other motorists, weaved in and out of traffic and drove at speeds reaching 150 km per hour during the pursuit. The pursuit ended when the vehicle was crashed. The applicant was apprehended as he attempted to flee the crash site.

The applicant's submissions

The applicant submitted that the State's case against him was weak having regard to a number of matters:
(a)none of the victims positively identified the applicant;
(b)there was no forensic evidence positively linking the applicant to the homes in which the offences were alleged to have occurred or to any weapon alleged to have been used in the commission of the offences;
(c)the police pursuit of the Holden Commodore occurred almost an hour after it was allegedly stolen following the second armed robbery;
(d)the applicant's fingerprints were located on the outside of the Honda Accord but the vehicle was allegedly stolen six days prior to the offences being committed on 12 June 2014;
(e)CCTV footage show the applicant driving the Honda Accord motor vehicle on 11 June 2014; however, that did not establish that he was driving the vehicle on the following day;
(f)the evidence established a link between the applicant and the Honda Accord and the Holden Commodore motor vehicles but that was insufficient to establish that the only reasonable inference available was that he had been involved in the armed robberies that allegedly occurred on 12 June 2014.
It was further submitted on behalf of the applicant that:
(a)It was likely that the applicant would be held in custody for approximately 12 months awaiting trial if bail was not granted.
(b)There was no evidence that he was a flight risk.
(c)The applicant's criminal history was associated with a drug addiction. He had abstained from drug use on his release from prison prior to committing the offences but had been persuaded to use again by his cousin who is suffering from cancer. The applicant was willing to undertake further treatment for his addiction.
(d)The applicant had very few convictions for violent offending.
(e)The applicant was in a stable relationship with a woman who, according to the home detention report, maintained a 'prosocial lifestyle' and did not tolerate drug use in her house. She was a stabilising influence in the applicant's life.

The relevant principles

The principles to be applied in determining an application for bail are well established and were identified by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
In summary:
(a)The Bail Act was intended to contain a comprehensive code on the subject of bail.
(b)The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may be properly granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 to the Act.
(c)Clause 1 of pt C contains no express statutory presumption for or against the grant of bail: Rather, the judicial officer is required to exercise the discretion having regard to the questions in pars (a) to (g) and to any other question that the decision‑maker considers relevant; that is, the correct approach to the exercise of the discretion is sourced in and guided by the matters referred to in pars (a) to (g) of cl 1.
(d)The court is required to consider and answer the mandatory questions before commencing the balancing process inherent in the exercise of the discretionary power to grant bail. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion.
(e)All of the mandatory questions with the exception of par (e) are directed to whether there are positive grounds for refusing bail. The matters in par (e) go to the question of whether it is possible to neutralise wholly sufficiently positive grounds for refusing bail. The focus of the questions that direct attention to whether there are proper grounds for refusing to grant bail is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
(f)The Act does not place a legal onus on any party to the application. However, the structure of cl 1 is such that bail will be granted if there is no material before the court providing a proper foundation for refusing bail. Consequently, it will often be for the State to furnish the material required to provide a proper foundation for refusing bail. The word 'may' in pars (a) and (d) of cl 1 means the possibility of an event occurring; so, for example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility that he or she would fail to appear in court in compliance with his or her bail undertaking.
(g)It may be that having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused upon conviction are sufficient to enable the court to conclude that the accused may fail to appear in court in compliance with his or her bail undertaking and the existence and extent of that possibility may, having regard to the answers to all of the mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach for or against bail is inconsistent with the approach required under the Bail Act.

The mandatory questions

As to the mandatory questions posed by cl 1 pt C first, the questions contained in pars (b) and (f) do not arise; second, no evidence has been presented from which it may be inferred that the proper conduct of the trial could be prejudiced if Mr Rehu is granted bail (par (d) of cl 1), or that he might interfere with witnesses or otherwise obstruct the course of justice if he is not kept in custody (par (a)(v) of cl 1).
It is necessary to consider the remaining questions posed in par (a) cl 1 having regard to the matters specified in cl 3. The evidence and considerations relevant to those questions will also inform the answer to the questions contained in pars (e) and (g) of cl 1.
The applicant has a substantial criminal history as an adult extending back to November 1998. He has been convicted of stealing, aggravated burglary, dangerous driving, failing to report an accident, breach of bail, breach of a community based order, reckless driving, failing to stop, driving without a motor vehicle driver's licence, fraud, possessing drugs and drug paraphernalia, breach of an intensive supervision order, assault to prevent arrest, assaulting a public officer, escaping legal custody, wilfully misleading the police, failing to obey the directions of a police officer, threatening to kill and being armed in public in a way that may cause fear. The applicant has also been convicted of offences committed in Queensland and Victoria. Obviously the applicant would be sentenced to a substantial term of imprisonment to be immediately served, if he is convicted of either of the armed robbery charges or the motor vehicle stealing and driving offences.
There is nothing in the applicant's criminal history that could be taken into account in his favour for the purposes of sentencing. In my view, the nature and frequency of the applicant's offending raises a real concern about the risk of him offending if granted bail, including by endangering other persons or the property of other persons.
The offences with which the applicant has been charged are most serious. The maximum penalty for armed robbery is life imprisonment. The circumstances alleged in relation to the armed robbery offences involve home invasions and actual violence. The applicant is alleged to have then driven a stolen motor vehicle dangerously in order to avoid being apprehended by the police. The danger posed to members of the public by the alleged circumstances of that offence is obviously significant.
Further, the applicant's criminal history discloses that he has been twice convicted in Western Australia for breaching bail conditions, twice convicted of breaching community based orders and convicted of breaching an intensive supervision order. He has also been convicted of escaping legal custody.
A home detention bail assessment was undertaken in August 2014 in relation to the Application for bail made in the Magistrates Court. The assessment report further disclosed that the applicant has been convicted of breaching his personal undertaking in Queensland and a warrant was issued in the Northern Territory in relation to an alleged breach of bail.
The applicant's breaches of bail conditions and his past response to community based and supervision orders as disclosed by his criminal history and the home detention report also raise a real concern regarding the risk of him offending, if he is granted bail, or the risk of him failing to comply with the conditions on which any bail might be granted. That concern is reinforced by the fact that the applicant is alleged to have committed the offences with which he has been charged approximately 2 months after being released from custody on completing a sentence of imprisonment imposed by the District Court in January 2012.
It is apparent from his record of interview and the home detention report that the applicant has a history of substance abuse. That is acknowledged in the submissions made on his behalf in this application. That history is also relevant to assessing the risk of the applicant offending if he is released to the community on bail.
It was said on behalf of the applicant that he has abstained from using illicit substances after his release from gaol and that he had only relapsed into use under the influence of his cousin. However, I note that these offences are alleged to have been committed some two months after he was released from custody and that in the course of his electronic record of interview the applicant stated that he had been using methamphetamine and heroin for a number of days prior to committing these offences. Accordingly, any period of abstinence after the applicant was released from custody in 2014 must have been of a relatively short duration.
The applicant was given an opportunity to provide further evidence as to what steps he proposed to take to address the risk of him further offending or failing to adhere to his bail conditions, if bail was granted, as a consequence of his substance abuse problems.
He provided a letter from the Whitehaven Clinic indicating that a counsellor from the clinic had been orally advised by Fresh Start Northam that they would have a placement available for Mr Rehu if he was released on parole. It was not apparent whether the reference to parole in the letter was deliberate or whether there was confusion in the counsellor's mind between bail and parole and whether the difference between parole and bail had any significance to the operators of the Fresh Start program.
A further letter from Fresh Start was subsequently provided that gave further details of the Fresh Start program. However, the letter indicated that the applicant had not been assessed for his suitability to participate in the program and had not been guaranteed a place. The letter did not provide much information from which an assessment of the impact of the program on the risk of the applicant offending could be made.
It is proposed that the applicant would reside with his partner, Ms Simone Pascu. The home detention report was undertaken in relation to a proposal that the applicant reside with Ms Pascu. The report was generally unfavourable. The author of the report concluding that:
The applicant was released at his sentence maximum in March 2014 and he has served previous custodial sentences. He has amassed an extensive criminal history in three states spanning 16 years and has an entrenched substance use history commencing at 13 years of age. His previous response to supervision has been poor with non-compliance and/or reoffending occurring during all orders.
Whilst not apparent to his current partner the writer has concerns regarding the potential risk the applicant poses to her and her children, particularly in the event he relapses to illicit substance abuse. His partner will also be away from home for planned holidays and concerns are held in regard to the applicant being able to comply with his methadone regime in the absence of close oversight by a prosocial support person.
There is nothing in the evidence presented to indicate that the concerns expressed by the author of the pre‑sentence report can be appropriately addressed by conditions to be imposed on any grant of bail. I share the concerns that were expressed by the author of the report.

It was submitted that arguably the record of interview conducted by the police with the applicant should be excluded on grounds of unfairness. The applicant advised the police that he had taken methamphetamine and heroin the day before he was interviewed. It was not clear whether he meant that he had consumed those drugs on the day that he is alleged to have offended or on the day before, that is on 11 June 2014, given that the interview was conducted in the early hours of 13 June 2014. In any event he indicated that he was tired.
The interview commenced at 2.31 am in the morning. The applicant indicated that he could not recall much of the previous few days because of the drugs that he had consumed. Many of his answers were equivocal and it is not clear at times whether he was merely adopting what was put to him because he had no independent recollection of what had occurred or whether he was voluntarily providing information based on his actual recollections.
I do not consider that it is necessary or appropriate to determine as part of this application whether the record of interview ought to be or is likely to be excluded. That should be left to a separate directions hearing, if the prosecutor seeks to tender the record as part of the State's case and the objection is maintained. It is sufficient to note that there is a reasonable basis for contending that the record might be excluded in the circumstances that I have very briefly outlined. Accordingly, I have disregarded the record in assessing the strength of the State's case against the applicant.
In relation to the first charge alleged against the applicant, I note that Mr Marinas and his daughter, who each provided statements to the police, described the offender as being a person with light‑coloured hair. The applicant has dark‑coloured hair. I also note that Mr Marinas participated in a digiboard identification in which he stated he was unable to identify the person who had stolen his vehicle. I also note that Mr Marinas' daughter participated in a digiboard identification in which she stated positively that the person who she saw involved in taking her father's vehicle was not among the digiboard photographs presented to her. The applicant's photograph was, of course, one of the photographs contained in the digiboard.
Accordingly, it appears to me that the State's case against the applicant in respect of the first charge alleged against him is, at best, tenuous. There is evidence that the applicant was driving the Honda Accord motor vehicle five days later and that might disclose an offence but the offence with which he is presently charged is that on 6 June 2013 he unlawfully used the motor vehicle, and not on some later date.
The State's case in respect of the offences allegedly committed on 12 June 2014 rests on the sequence and timing of the events that are the subject of the charges. The sequence commences with the robbery of Ms Nairn. Mr Nairn has stated that his mother's assailants left in the black Honda Accord that the applicant was captured on CCTV film driving the day before. He made a note of the registration number of the vehicle.
There was approximately two hours between when Ms Nairn was allegedly robbed and when the applicant was apprehended after Mr Atkins' Holden Commodore motor vehicle was crashed. The inference available from those circumstances cannot be dismissed as being merely tenuous nor do I think it is appropriate in those circumstances to describe the State's case as being inherently weak.
I note that the descriptions given by Ms Nairn, her son and Mr Atkins refers to at least one of the persons involved in the offences having dark hair, although the offenders are alleged to have worn hoodies with the hood up at the time that the offences were committed.
In the circumstances, I am satisfied that there is a risk that if the applicant was not kept in custody he may fail to appear in court in accordance with his bail undertaking or commit an offence which might involve endangering the safety, welfare or property of any person. I am also satisfied that there are no conditions that could be reasonably imposed under pt D of sch 1 to the Bail Act that would sufficiently remove the possibility of those matters occurring.
I am also satisfied that the alleged circumstances of the offences committed on 12 June 2014 amount to wrongdoing of such a serious nature as to make it inappropriate that bail be granted (cl 1, par (g)). For those reasons, I refuse the application. Mr Rehu will be remanded in custody to appear again in the Stirling Garden Magistrates Court on 4 February 2015.