Rinaldi v The State of Western Australia
[2014] WASC 253
•17 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: RINALDI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 253
CORAM: HALL J
HEARD: 17 JULY 2014
DELIVERED : 17 JULY 2014
FILE NO/S: MBA 28 of 2014
BETWEEN: JUSTIN GLEN RINALDI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Drug and firearm offences - Whether risk of failing to appear and commission of further offences - Whether significant sureties and bail conditions sufficient to obviate risks - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 13, s 14, sch 1 pt C
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr J Korn
Respondent: Mr N R Cogin
Solicitors:
Applicant: Lewis Blyth & Hooper
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
HALL J:
Introduction
This is an application for bail pursuant to s 14 of the Bail Act 1982 (WA).
The applicant was arrested on 21 February 2014 following the execution of a search warrant at his home in Belmont. He has been in custody since that time. He was refused bail by a magistrate on 1 May 2014. He is next due to appear in the Magistrates Court on 25 July 2014 for a disclosure committal hearing.
The applicant faces a large number of charges arising out of the execution of the search warrant by police. The most serious of those charges are two of possession of prohibited drugs with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). These charges relate to 1.65 kilograms of methylamphetamine and 881 grams of MDMA. He is also charged in respect of smaller quantities of other drugs including cannabis seeds, LSD and cocaine. In addition he faces a large number of charges relating to the possession of 19 firearms and various types of ammunition. Other charges include possession of stolen or unlawfully obtained property, unlawful possession of a radio communications jamming device and possession of prohibited and controlled weapons. In total the applicant faces 60 charges. He has not yet entered pleas to those charges.
The prosecution case
The prosecution case is that on 21 February 2014 police executed a warrant on the applicant's home in Belmont. They gained access through an unlocked back door. The applicant was located in his bedroom.
Police discovered a room constructed under the house which was accessible by a concealed trapdoor. In the room large quantities of drugs and firearms were found. Police seized 1.65 kilograms of methylamphetamine, 881 grams of MDMA and 7 grams of cocaine. The methylamphetamine was separated into three approximately equal amounts. The MDMA was found in two forms, five bags contained approximately 100 pills with a blue dove imprint, another bag contained 1,000 similar pills and two other bags contained approximately 200 to 300 grams of crystalline MDMA powder. Several other bags were located that contained traces of either MDMA or methylamphetamine.
The drugs were subsequently tested. The methylamphetamine had an average purity of approximately 60% with the largest bag of 586 grams having a 77% purity. The crystalline MDMA powder had a purity of between 71% and 73%. These levels are higher than drugs commonly available at street level and indicate the potential for these seized drugs to be further diluted. The MDMA tablets all had purity levels of approximately 25%.
The search of the house also resulted in the location of large quantities of cash. Police located a number of cryovac bags in a roof storage area which contained approximately $300,000 in cash. Bundles of cash in the amounts of $20,000 and $15,000 were located behind and inside the washing machine in the house. Several thousand dollars was also located in a bedside drawer.
A total of 19 unlicensed or prohibited firearms were located at the premises. Three of the firearms were prohibited from ownership in Australia. Those firearms included a Fabrique Nationale semi‑automatic rifle and an SKS semi‑automatic rifle which are described as military style assault rifles. The is a 30‑06 calibre high powered rifle which is capable of defeating level 3 body armour, such as that used by Western Australian police officers. Two hand guns were located that had compatible silencers. One of these weapons, a 0.9 millimetre Barretta hand gun, was readily accessible on a table in the underground room where the majority of drugs and other firearms were located. The serial number on this gun identified it as having been stolen in 1998. Another hand gun, a loaded 0.357 magnum revolver, was located in a bag in the floor well of the applicant's vehicle. A total of eight hand guns were found, two of which had their serial numbers removed and four of which had no visible manufacture markings. The absence of such markings indicates that these four hand guns may have been illegally manufactured. Several of the firearms were sealed inside cryovac bags with single magazines containing ammunition. The State allege that this is consistent with those firearms being intended for sale. In addition to the fire arms 2,500 rounds of ammunition, concealable shoulder holsters, magazines, laser sights, spent cartridge cases, firearm accessories and a replica submachine gun were also found.
Despite the apparent ease with which police gained entry to the premises the search revealed significant security work had been done to the house. The front security door was custom made and heavily fortified. It was a pivot style construction opening outwards with a magnetic lock and steel frame. CCTV cameras and a portable monitor enabled the applicant to view anyone approaching the house and to photograph vehicles parked nearby using his mobile telephone. Sensor lights had also been installed which could track people and keep them illuminated by a flood light as they moved outside the premises.
A mobile telephone was seized from the applicant and the contents downloaded. The State case is that the contents include images displaying what appear to be large quantities of drugs, images of the applicant apparently smoking methylamphetamine and images of him posing with firearms that appear to be similar to those seized. Three other mobile telephones were also seized from the underground room. Two of them contained no data and a third is awaiting further examination. A GPS jamming device was also located beside the applicant's bed.
On his arrest the applicant maintained his right to silence. He has made no admissions either at that time or subsequently. He has chosen to make no comment on the prosecution allegations in these proceedings. No possible defence to the charges has been raised at this stage.
Police investigations have confirmed that the Belmont house is owned by the applicant and has been owned by him for many years. He also has interests in two properties in Jurien Bay and one in Hopetoun. All four properties are now the subject of freezing notices. The applicant's wife also has interests in properties in Burswood and Kewdale. Enquiries are continuing in regard to how the purchase of those properties was funded. At the time of the search the applicant's wife and children were not living at the Belmont house but the applicant was.
Relevant provisions
The applicant has not yet been committed for trial or sentence to the District Court. In those circumstances a judge of this court can exercise a power to grant bail which is conferred upon any other judicial officer or any authorised officer by the Bail Act: s 14. That jurisdiction must be exercised subject to and in accordance with pt 3 and sch 1 pt B, pt C and pt D of the Bail Act: s 13.
Part C cl 1 of the Schedule provides that the discretion is to be exercised having regard to a number of questions that are listed in that clause subject to cl 3A or cl 3C, which do not apply here).
The questions provided for in cl 1 are as follows:
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(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 accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Whilst cl 1 mandates that these questions must be considered in the exercise of the discretion it also allows the judge to take into account 'any others which he considers relevant'.
In Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 McLure P with whom Pullin JA and I agreed stated:
… There are a number of significant points to note. First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, 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.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
The word 'may' in pars (a) and (d) of cl 1(a) means the possibility of the relevant event occurring: see cl 1(e)(i). For example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility he would fail to appear in court in accordance with his bail undertaking. In answering that and the other questions in cl 1(a), the court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C. It is self-evidently the case that the seriousness of the offence, with or without regard to the maximum penalty for it, does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The court is required to have regard to all of the questions in cl 1 and the matters in cl 3 in the exercise of the discretion to grant or refuse bail.
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 for it if the accused is convicted are sufficient to enable the court to conclude that the accused may fail to appear in court in accordance with his bail undertaking, and the existence and extent of that possibility may, having regard to the answers to all the other 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 of decision-makers under the Bail Act [39] - [43].
The application
In support of his application for bail the applicant has filed a number of affidavits. In an affidavit sworn on 16 July 2014 the applicant states that he was born in Western Australia and has lived all of his life in this State. All of his immediate relatives also reside here. He is married with two school aged children. If released to bail he intends to reside with his wife and children at a house owned by her in Burswood.
The applicant states that since his arrest he has been remanded in custody at Hakea Prison. He says that initially he was allowed several hours daily recreation but that changed in April 2014. At that time he was advised by prison officers that there were industrial issues that had resulted in prison staff shortages and that accordingly recreational time was substantially diminished. Since then there have been several periods of lock down when the applicant was confined to his cell and he has only had recreational time about once per week and in some weeks not at all. He states that he was previously able to relieve his stress by engaging in physical exercise. Since that opportunity has reduced he has episodes of anxiety and depression. He has taken the opportunity whilst on remand in Hakea to attend classes in relation to drugs, alcohol and anger management. This has included an eight week drug and alcohol therapeutic programme and a cognitive skills programme.
A number of affidavits have also been sworn by family and friends. These affidavits attest to the willingness of those people to act as sureties for the applicant and expressing their confident belief that he would comply with any bail undertaking. Each of the deponents has provided evidence of their ownership of assets. The amounts that they are willing to pledge are between $100,000 and $400,000 and total $1,810,000. The deponents express positive views of the applicant's character. None of them refer to the charges or allegations made by the State, though I am advised by the applicant's counsel that they are all aware of those allegations.
The applicant's wife has sworn two affidavits. She confirms that the applicant has strong ties to Western Australia. They have known each other for 22 years and began living together in 1999 and were married in 2006. She says that they separated for 7 months in 2010 and that during this period the applicant commenced renovations on the Belmont house. She says that when they resumed their relationship a decision was made that she and the children would not return to 'fully' live back at the Belmont house until the renovations were complete. She and the children continued to live at Burswood but kept clothes and personal items at both houses. She makes no specific reference to the modifications referred to by the State, in particular the underground room. She expresses the view that the applicant is devoted to his family and is a loyal, honourable and respected man who would not run away from his obligations. In her supplementary affidavit she sets out details of the applicant's bank accounts and her belief that he has no hidden assets.
A family friend, Gordon Davidson, has written a letter stating that in the event that the applicant was granted bail he would be prepared to employ the applicant. Mr Davidson has an interest in a construction and engineering company. He states that the company would employ the applicant as a trades assistant and that arrangements would be made for a company employee to collect the applicant from home each working day and deliver him back at the end of the day.
On behalf of the applicant it is submitted that the proposed sureties should give the court confidence that there would be no realistic risk of absconding if the applicant was released to bail. This is said to be not only due to the number of proposed sureties and total amount that would be pledged, but also the good character of those people and their willingness to put up their homes as security for the applicant's release.
It is also submitted that any risk of absconding or of committing further offences could be obviated by imposition of strict conditions. It is suggested that these conditions could include a requirement to live at a nominated address with his wife and children, reporting to police twice a day, a curfew, surrender of passport, prohibition on approaching points of interstate and international departure and a limitation on the telephones that the applicant could use.
Grounds for opposition
The State opposes bail. The grounds for that opposition are that the applicant is a flight risk, that there is a risk that he may commit further offences if released and that if he further offended it may endanger the safety, welfare or property of other people.
The State do not accept that willingness of the proposed sureties to put at risk their own assets provides good reason to grant bail. The State says that the nature and seriousness of the charges, strength of the prosecution case and the likely outcome if the applicant is convicted provide a strong incentive to abscond.
The State also questions the assessments of the applicant's character given by the proposed sureties. It is submitted that no reliance can be placed on those opinions given that they appear to have been made in ignorance of, or possibly in contradiction to, the available evidence indicating that the applicant was both using and dealing in drugs. Whatever the reason for the opinions the State says that the court could not place any great weight on them given that they appear to be inconsistent with available objective evidence.
The State submits that the proposed conditions would not sufficiently obviate the risks of absconding or re‑offending. They accept that reporting conditions may reduce the risk of flight. However, in my view, that has to be measured against the degree of risk involved.
As to re‑offending the State notes that the available evidence indicates that the applicant did not commit an isolated offence but was involved in a sophisticated and continuing illegal drug and firearm dealing enterprise. They say that there is a risk that if released he could renew contact with a criminal network. They also point to the fact that the evidence indicates that the applicant has the ability to source highly dangerous firearms. The finding of a loaded gun in his car also indicates that he was willing to use firearms. This, it is said, shows that there is a risk that the applicant could commit further offences of a type which may endanger the safety of others.
The State's opposition is supported by an affidavit of Detective Senior Constable Jason Barber. Detective Barber has provided details of the prosecution case. He has also referred to the possibility that the applicant may have other assets and that investigations in that regard are continuing.
Merits of the application
This case has not yet reached the committal stage so there is no prosecution brief. However, on the information provided by Detective Barber the prosecution case would appear to be strong. The charges are very serious. Furthermore, the nature of the allegations, particularly in regard to the drug and firearm offences, place those matters towards the high end of seriousness for offences of these types. This is not only due to the quantities of drugs and firearms involved but the high purities of drugs, large amounts of cash and other indications that the applicant was involved in a significant commercial drug dealing enterprise. If convicted it is likely that the applicant would face a very lengthy term of imprisonment. The applicant has a very strong incentive in these circumstances not to comply with any bail undertaking.
The fact that a large number of friends and relatives of the applicant speak well of him and are willing to pledge their assets to act as his sureties is a relevant consideration. A wish not to adversely impact those friends and relations may encourage compliance with bail but it cannot completely offset that risk. Furthermore, the State has raised a doubt as to the suitability of the applicant's wife to act as a surety. She has promised to pledge $400,000 as a surety but the two properties she refers to in her affidavit are the subject of further investigations as to how they were acquired. The police also say that enquiries in regard to the applicant's assets are incomplete and that there is some evidence that indicates the existence of other assets which have not yet been located. This raises a concern that the applicant retains the ability to fund a departure from the State. I give little weight to assertion by the applicant's wife that he has no hidden assets. It is difficult to see how she can be confident in that regard given that she was presumably unaware of the $337,000 in cash found at the Belmont house.
I do not doubt the sincerity or character of the proposed sureties. However, I am unable to place significant weight on their favourable assessments of the applicant's character. It is not possible to reconcile their opinions with available evidence indicating that the applicant has been involved in drug use and dealing for some time. I also have some concern as to whether the applicant's wife would be a suitable surety. Her apparent ignorance of the applicant's drug use, dealing and modifications to the family home is difficult to accept. I am not confident that she would be able to perform her obligations as a surety without being affected by her evident love for, and loyalty to, the applicant.
In his affidavit the applicant has referred to his work history. This has included primarily working as a qualified plumber either on a full or part time basis over several years. Whilst the information is not detailed that work history is difficult to reconcile with the accumulation of assets and the large quantities of cash found in the applicant's home. The available inference is that the applicant has been primarily deriving his income from illegal drug dealing for some time prior to his arrest. For this reason there are good grounds for concern that if released to bail the applicant would re‑establish contact with his criminal network and commit further offences. Whilst I note the offer to provide paid work as a labourer to the applicant if he were released, I am not satisfied that this would significantly reduce the risk of re‑offending.
The number and nature of the firearms that were seized at the applicant's home is a matter of significant concern. The fact that some of those firearms were stolen and others had the appearance of being illegally manufactured indicates that the applicant has the ability to readily acquire such firearms. The fact that one of the handguns was found in his car and another was in an apparent state of readiness on a table in the underground room tends to show that he is not merely dealing in firearms but was willing to use them if the occasion arose. In these circumstances issues of the safety and welfare of others is a relevant consideration.
As to the proposed conditions, I accept that they are onerous and stringent. However, this is a reflection on the seriousness of the charges, the powerful incentive to abscond and the real risk of further offending. In some cases no conditions, however onerous, can reduce those risks to an acceptable level. This is such a case. In any event I doubt the efficacy of some of the proposed conditions. A condition requiring reporting would not prevent absconding entirely it would only ensure that if the applicant did abscond that fact would be discovered when a reporting obligation was missed. Residential and curfew conditions would substantially rely on the applicant being trusted to comply. Telephone restrictions would be unenforceable.
For the above reasons I make the following conclusions having regard to the questions in sch 1, pt C, cl 1 of the Bail Act. If not kept in custody there is a real possibility that the applicant may fail to appear in court in accordance with his bail undertaking: (sch 1, pt C cl 1(a)(i)). There is also a possibility that he may commit an offence and thereby endanger the safety or welfare of other persons: (cl 1(a)(ii) and (iii)). There is nothing to indicate that he would interfere with witnesses or otherwise obstruct the course of justice: (cl 1(a)(iv)). There is no need for him to be held in custody for his own protection: (cl 1(b)).
The prosecutor has put forward grounds for opposing the grant of bail, namely the seriousness of the offences, the risk of further offences being committed and the risk to the safety or welfare of others: (cl 1(c)). There is no reason to think that if the applicant is not kept in custody the proper conduct of the trial may be prejudiced (other than by a failure to appear): (cl 1(d)). There are no conditions which would sufficiently remove the possibility of a failure to appear, the commission of further offences or the endangerment of others: (cl 1(e)). The combined total surety, whilst substantial, does not sufficiently offset these risks. Finally, the alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make the grant of bail inappropriate (cl 1(g)).
The prison conditions referred to by the applicant may be unpleasant and potentially detrimental to his mental health and that is a factor that I have taken into account. However, it is not a factor that could possibly justify a grant of bail in all of the circumstances referred to above.
For these reasons the application is refused.
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