Roberts v The State of Western Australia
[2011] WASC 118
•3 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: ROBERTS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 118
CORAM: MURRAY J
HEARD: 2 MAY 2011
DELIVERED : 3 MAY 2011
FILE NO/S: MCS 10 of 2011
BETWEEN: DENVER MARK ROBERTS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Application for bail for serious offence - Applicant on bail for another serious offence - 'Exceptional reasons'
Legislation:
Bail Act 1982 (WA), Sch 1, Pt C, cl 1, cl 3, cl 3A
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr G Giudice
Respondent: Mr D Davidson
Solicitors:
Applicant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Rafidi v The State of Western Australia [2011] WASC 95
Rayney v The State of Western Australia [2011] WASC 3
Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285
MURRAY J:
The proceedings
This is an application for bail brought under s 14(1)(a) of the Bail Act 1982 (WA), by which this court is invested with jurisdiction to deal with an application for bail when the matter falls within the jurisdiction of another court, in this case the Magistrates Court at Geraldton.
The applicant has been in custody on remand since he was arrested on 10 January 2011, and charged with the offence of doing grievous bodily harm, allegedly committed in Geraldton on 9 January 2011. The offence is a crime defined by s 297(1) of the Criminal Code (WA), and in the circumstances alleged in this case, it is punishable upon indictment by imprisonment for 10 years.
The offence is a 'serious offence' as defined in s 3(1) of the Bail Act in that it is an offence mentioned in Sch 2 to the Act.
On 9 January, when that offence was allegedly committed, the applicant was on bail upon his own undertaking in respect of a charge of assault occasioning bodily harm allegedly committed in Carnarvon on 13 August 2010, about 5 months earlier.
That offence is defined by s 317 of the Code. It is a crime, but it is punishable summarily. On indictment, if the offence is committed in a circumstance of aggravation, it is punishable by imprisonment for 7 years. Otherwise, the maximum penalty is imprisonment for 5 years on indictment. In this case, the circumstance of aggravation that the applicant is in 'a family and domestic relationship with the victim of the offence', a woman, has been charged: Criminal Code, s 221(1)(a). The offence of assault occasioning bodily harm is also a 'serious offence' within the meaning of the Bail Act.
The law in relation to the grant of bail
In a case such as this, when the applicant is in custody on remand before conviction for a serious offence alleged to have been committed while the accused was on bail for another serious offence, cl 3A of Pt C of Sch 1 of the Bail Act requires me to refuse to grant bail unless I am satisfied, 'that there are exceptional reasons why the accused should not be kept in custody'. The onus is cast upon the applicant for bail to satisfy the court that there are exceptional reasons why he should not be kept in custody on remand. If he cannot do so, the court is required to refuse bail.
The term 'exceptional reasons' appears in a number of places in the schedule to the Bail Act in relation to the grant of bail. Where it appears, it is a threshold question about which the court must be satisfied before it embarks upon the consideration, having regard to ordinary principles, of the applicant's case for bail.
An applicant may have a good case for bail, and the judicial officer may consider that the discretion should be exercised by the grant of bail, but if exceptional reasons why the accused should not be kept in custody cannot be shown, bail must be refused. That is not to say that the exceptional reasons may not also be reasons related to the grant or refusal of bail, touching upon the matters identified in cls 1 and 3 of the Bail Act.
The term 'exceptional reasons' is not defined, nor has the court sought to establish a closed list of circumstances which might constitute exceptional reasons. Clearly it could not do so. There can be no closed list. But whatever the factual circumstance or circumstances relied upon may be, that circumstance alone, or those circumstances in combination, must be able to be described as exceptional, in the ordinary meaning of the word.
In Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285, 306 [15], I said (Steytler & Templeman JJ agreeing):
'Exceptional' is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.
I remain of the view that no more can or should be said about when a circumstance or circumstances may be described as exceptional.
I observe in passing that Tieleman was a case of an application by a chartered accountant for bail pending appeal after conviction, which relied particularly upon the delay which might be anticipated in the appeal being heard, with the consequence that the applicant could be required to serve a substantial portion of an 18 month sentence of imprisonment. He also relied upon harm which might be suffered by others by the adverse effect upon his business created by his absence, and the hardship that would be suffered by his children, his elderly and frail parents, for whose care he was primarily responsible, and his wife, whose emotional and psychological wellbeing was dependant upon her husband's presence.
Bail was refused at first instance by Roberts‑Smith J, and that refusal was upheld upon appeal, although, of course, Tieleman presented no risk of flight or the commission of further offences if he was granted bail. Of course, the case ultimately depended upon its particular circumstances, as such cases always do.
The applicant's criminal history
The applicant is now aged 33 years. He has a criminal history going back to May 1990, when he first appeared in the Carnarvon Children's Court. He was then aged 12. Thereafter there has been a steady series of offences: offences of dishonesty, offences of violence, very many motor vehicle offences, public nuisance offences and a smattering of drug offences.
There have been serious offences of violence. The applicant's first conviction of robbery in company occurred in the Children's Court on 28 March 1994. He was sentenced to 15 1/2 months detention. His first appearance in the Supreme Court was in January 1996. He was convicted of armed robbery in company, two offences of stealing a motor vehicle, two offences of burglary and two offences of assaulting a public officer. He was sentenced to an aggregate term of 4 years and 3 months imprisonment.
It must have been relatively shortly after he served that sentence that, on 12 October 2000, he was again before this court convicted of two offences of assault occasioning bodily harm, one of burglary and one of breach of bail. He was sentenced to an aggregate term of 8 years and 9 months imprisonment, backdated to 17 May 2000, no doubt the date upon which he was arrested. Various other matters of a summary nature, including another breach of bail offence, were dealt with the in Perth Court of Petty Sessions on 19 October 2000.
It is no surprise that his next appearance was in the District Court on 9 February 2004, when he was convicted of burglary and received a short term of imprisonment. Thereafter the offending resumes, predominantly traffic matters, but some violent offending and a drug offence, until, on 3 December 2007, in the Geraldton Magistrates Court, the applicant was convicted of assault occasioning bodily harm in a circumstance of aggravation, for which he was sentenced to 12 months imprisonment backdated to 30 October 2007.
Thereafter, there is only one offence of driving without the authority of a driver's licence, for which a fine was imposed on 26 August 2010. The record notes that the applicant has never held a driver's licence.
The disturbing aspects of the record, of course, are the constant repetition of offences over a very long period of time, the regular appearance of serious offences, the regular appearance of crimes of violence, from armed robberies down the scale, and the occasional breaches of bail and other community based orders, which reveal scant regard for the law.
The charge of assault occasioning bodily harm
The indication of the strength of the case is provided by the statement of material facts. The woman who is the alleged victim is said to be aged 39 and 'related' to the applicant. It is said that the offence occurred at a private address in Carnarvon at about 11.30 pm. The alleged victim was called by phone to go to that address to pick up her son, who said that the applicant and another person were threatening to fight him.
She drove there with her daughters. The details do not matter, but it is said that there was a confrontation between the victim and the applicant, as a result of which the victim was struck a blow by the applicant's fist, of sufficient force to cut her left temple. Three stitches were required to close the cut.
The charge of doing grievous bodily harm
This was quite a different incident which occurred on the side of a road outside a night club in Geraldton, at about 4.20 am. An argument developed between two groups of people. One group contained the applicant (and his partner, who was celebrating her birthday), and the other the alleged victim. It is said that the applicant rushed at the victim and punched him several times to the head, causing him to fall backwards and hit his head on the road, rendering him unconscious.
The victim was taken to the Geraldton Regional Hospital. He was placed into an induced coma and was conveyed to Royal Perth Hospital, where emergency surgery was performed to relieve the pressure inside his skull as a result of internal bleeding. I have been provided with a report, dated 15 April 2011, by Dr Qubian, a senior medical officer at the Geraldton Hospital, which details a number of skull fractures and an intracranial haematoma.
Until recently, it appears that the victim was critically ill and remained in a coma. The Geraldton Magistrates Court was told at one stage that it was proposed to bring the alleged victim out of the coma to determine whether he would survive. If he died, it was proposed to charge the applicant with a form of homicide. During appearances in the Magistrates Court, it appears that the applicant sought medical reports about the condition of the alleged victim. None have been provided as yet by RPH.
At a hearing on 8 April 2011, the applicant says the prosecutor informed the court that the hospital had agreed to provide a report concerning the victim, but none was yet available. That person was said to have been discharged from hospital, and that is all the information that has been provided to me. There is therefore no reliable information about the current state of health of the alleged victim.
The proceedings in the Magistrates Court
I am told there have been applications for bail in the Geraldton Magistrates Court and that bail has been refused, on the ground that no exceptional reasons sufficient to invoke the jurisdiction of the court have been advanced. There is no transcript of any such hearing or any reasons given orally by his Honour Magistrate De Vries. It is necessary to rely upon the applicant's affidavit.
It appears that hearings have been conducted, monitoring the disclosure process, which is not yet complete, and at which applications for bail have been made, on 19 January 2011, 10 March 2011, 31 March 2011, 8 April 2011, 14 April 2011 and 21 April 2011. All that can be said with any certainty is that his Honour the magistrate was not satisfied that there were exceptional reasons why the applicant should not be kept in custody. It seems that much the same reasons are now advanced to this court.
The applicant's case - exceptional reasons
The applicant relies on a combination of two matters as constituting exceptional reasons why he should not be kept in custody. In the first place, he says that he will defend both of the charges described above, and he observes that the complainant in the grievous bodily harm case has now been discharged from hospital. I presume that he raises that to indicate that it is likely that the charge would remain one of grievous bodily harm, rather than that charge would be replaced, upon the death of the complainant, with a charge of a form of homicide. I do not know whether that would affect the speed with which the matter might be brought to trial before a judge and jury in the District Court, but I can see no reason why it should do so.
Nor would it affect the position if, in the now unlikely event of the death of the alleged victim, a charge of murder should be substituted for the charge of grievous bodily harm, resulting in an indictment being presented in this court. In any event, no information has been put before the court offering any prognostication about likely delay, merely an indication that the applicant's first appearance in the District Court may be on 15 July 2011.
In this court, matters can be brought to trial expeditiously where the circumstances require, and I am aware that the District Court has a capacity to give expedition to the disposition of cases where that is warranted. An application for an urgent case order can be made: Criminal Procedure Rules 2005 (WA), r 30.
In short, the material put before this court in relation to delay in disposing of the case, either alone or in combination with the second matter raised by the applicant, does not provide cogent evidence of an exceptional reason why the accused should not be kept in custody.
I would add that, although it is not expressly raised by the applicant, I have given consideration, so far as the material before me allows, to the likely strength of the prosecution cases on the charges brought. There is nothing before me to suggest that the cases are so weak and likely to result in dismissal that the fact that the applicant would spend some time in custody awaiting trial should be considered to be an exceptional reason why he should not be kept in custody.
I turn then to the second matter raised, upon which the applicant also relies. This matter concerns the hardship being occasioned to his partner and children by the absence of the applicant from their home. There is no doubt, I think, that the hardship which may be caused to another or others by reason of the detention in custody on remand of an accused person may, if it is a matter of sufficient weight, be regarded as an exceptional reason why an accused should not be kept in custody, considered either alone or in combination with other matters: Rafidi v The State of Western Australia [2011] WASC 95 [21] ‑ [26], citing most recently Rayney v The State of Western Australia [2011] WASC 3.
The applicant's partner, with whom he ordinarily lives in stable accommodation provided by HomesWest, cares full‑time for the four children that she and the applicant have had together; three boys aged 10, 5 and 3, and a baby daughter who, when the applicant swore his affidavit on 12 April 2011, was a mere 5 months old. She was born on 25 November 2010, about six weeks before the incident giving rise to the charge of grievous bodily harm.
In his affidavit the applicant says that his partner, 'is desperate for my support at home and she is finding it almost impossible to cope, looking after the children' [30c]. He adds, [35]:
[My partner] is under the care of a Doctor and is not coping with the stress of 4 young children. She tells me she is burnt out and losing weight. The fact that I am unable to help her is causing me much stress and I need Valium in order to cope.
I may say that, in my view, the distress about his partner's situation while he is in prison, suffered by the applicant, for which he has apparently been prescribed tranquillisers, provides no exceptional reason why he should not be kept in custody.
The applicant's partner has written to the court. It is best that I simply recite what she says:
I just need to tell you that since Denver has been in prison it has been almost impossible for me to cope out here alone looking after the kids. I have lost so much weight and have been sick with asthma. It is a mission to get up in the mornings to even get the kids off to school. I've been so stressed and everything's just gone downhill since all this happened. I don't think anyone understands the seriousness of being this stressed. It's not good at home and I just can't cope alone.
The letter is undated. It is handwritten. There is a note at the top of the first page, in a different hand, that it was handed to the Geraldton court. That note bears the date 31 March 2011. There was indeed a hearing before the Magistrates Court on 31 March, but it was short and, according to the applicant's affidavit, the question of bail was not ventilated at that time. The application for bail, which had originally been made and fully presented on 19 January 2011, was renewed on 8 April 2011. On that date, the applicant says, the request for bail was simply refused without a further substantive hearing.
The applicant says that his lawyer did make a thorough application on 19 January 2011 [26], and, in relation to the hearing on 19 January 2011, the applicant says in his affidavit that his Honour Magistrate De Vries, 'decided that the post‑natal depression of my de facto wife was not an exceptional circumstance'. I assume, then, that the letter was actually directed to the magistrate, and expresses the position as it was very shortly after the applicant's arrest on 10 January. Nothing is placed before me to provide updated information directly from the applicant's partner.
There is a report, under the hand of a Mr Bresland, a psychologist with the Geraldton Regional Aboriginal Medical Service. It is dated 18 January 2011, the day before the question of bail was thoroughly ventilated in the Magistrates Court. Again, it is best that the body of the report be set out in full:
This letter is to confirm that [the applicant's partner] has POSTNATAL DEPRESSION following the recent birth of her daughter (November 25 2010) and is currently being assessed for treatment. She has four children and having her partner at home in the coming period would be beneficial to her mental health.
The letter from the applicant's partner was undated, but I have concluded that it was written to and made available to Magistrate De Vries at the bail hearing conducted on 19 January 2011. I am of the same view with respect to Mr Bresland's report. It is only there that there is a reference to post‑natal depression, and I have noted that his Honour Magistrate De Vries made the observation on 19 January that the post‑natal depression suffered by the applicant's partner did not, in his view, constitute an exceptional reason why the applicant should not be kept in custody.
Again, no further information is provided as to the current position. I note that Mr Bresland said that the applicant's partner was being 'assessed for treatment'. I am told nothing about that.
To put the matter shortly, the applicant allegedly committed the offence of grievous bodily harm about 6 weeks after his daughter was born. There is no reference to the applicant's partner suffering from post‑natal depression during that period. On 10 January, the applicant was arrested and remanded in custody. An application for bail was made and fully presented, relying upon the post‑natal depression, about 9 days later.
It is not clear when Mr Bresland was first consulted. But if, on 18 January, the applicant's partner was being assessed for treatment, I presume he was first consulted shortly before that date. There is information before the court in relation to that short period, but none in relation to the period between 19 January and the date when this application was heard.
If, however, the position now is as it was on 19 January, I see no reason to suppose that, with proper care and treatment, and perhaps other assistance, the applicant's partner cannot be assisted to cope with the children during the period when the applicant remains in custody on remand. Like his Honour the magistrate, I am unpersuaded that the condition of the applicant's partner is such as to provide an exceptional reason why the applicant should not be kept in custody as the law requires. In the circumstances, the jurisdiction of the court under s 14 of the Act may not be invoked.
The applicant's case for bail
As I understand the way the applicant puts his submissions, he argues that the applicant would have a strong case for bail because he is not a flight risk, in that he has family commitments. He has strong support in the community, particularly in football circles. He can get work in the district, and he would be willing to abide by any conditions which might be imposed, including that he refrain from the consumption of alcohol. He says that under those circumstances, given the delay that has already occurred, and given the uncertainty as to when the matter might come to trial, but given the inevitability that there will be some further delay, the strength of the case for bail should, of itself, be regarded as an exceptional reason why the applicant should not be held in custody.
I doubt that the legislation can be so interpreted, although I accept that matters such as delay which would be relevant to the question whether the discretion should be exercised to grant bail, may also strengthen an applicant's case and may constitute exceptional reasons why he should not be kept in custody.
However, cl 3A(1) of Pt C of Sch 1 to the Bail Act requires, in a case where the clause has application because the accused is alleged to have committed a serious offence while on bail for another serious offence, that bail should be refused unless there are, not only exceptional reasons why the accused should not be kept in custody, but also, under subpar (d), the court is satisfied that bail may properly be granted having regard to the provisions of cls 1 and 3, which set out the matters relevant to the exercise of the discretion to grant or refuse bail.
As I have endeavoured to make clear, in my view the existence of exceptional reasons simply provides an answer to the threshold question, whether the court must refuse bail to a particular accused person. If there are exceptional reasons why he should not be kept in custody, the court is still required to go on to consider whether bail should be granted or refused, and bail will only be granted if, having regard to ordinary considerations, that is a supportable exercise of the discretion.
In this case, I would be far from persuaded that that is so. I have mentioned something of the applicant's circumstances. He is no longer a child. He is a person of mature years, who enjoys a long‑standing de facto relationship with his partner. There are four children. They are all young and, of course, one of them is a mere baby. The applicant has stable accommodation and, until recently, was employed in the building industry as a brickies labourer. He has good prospects of regaining such employment in the Geraldton region.
I should say something more about that. The applicant is a senior playing member of an Australian Rules football club known as the Rover Football Club. It seems he is a footballer of some real ability and he is looked up to by more junior members of the club. There are a number of references before the court, all of which speak highly of him.
One of them is from the president of the club who has known the applicant for about 12 months. There is another reference from a director of the club who has the same surname as the president, and is a lawyer practising in Geraldton. A chartered accountant, who is a director of the club and was closely associated with the applicant in July 2010, while he was engaged in country week football championships, speaks well of him.
The president of the Great Northern Football League provides a reference supportive of the applicant, whom he has known for the last 5 years. Finally, a Mr Simms, a building supervisor with the company WA Country Builders, who first met the applicant in 1998 and speaks well of him, was the person who secured a position for him as a brickies labourer with one of the company's subcontractors. Because the subcontractor is moving away from the district, that work is at an end. But Mr Simms says that he can see no problem in the applicant securing further employment within the building industry, and he proposes to assist him to do so.
The president of the club says, 'We' would be prepared to provide the applicant with support by way of a surety in the sum of $2,000, but, of course, that could not be done by the club as an incorporated body. Under the Act, s 35, a surety must be a natural person approved to stand surety in the sum required.
All of these matters are circumstances favourable to the grant of bail. But on the other hand, the applicant has a long record, extending back some 20 years, which includes not only previous convictions for very serious offences, including offences of violence, but also occasional breaches of court orders, including for bail.
In relation to neither of the two offences with which he is charged, is there any indication that the prosecution case may be incapable of proof beyond reasonable doubt. There is nothing to indicate that the evidence against the applicant lacks the requisite strength, indeed quite the contrary. Both offences are serious, and the grievous bodily harm charge, in particular, apparently involved the receipt of life‑threatening injuries by the victim.
The applicant would surely understand that if he is convicted of the offences with which he is charged he will receive substantial terms of imprisonment by way of punishment. If he is convicted of both offences it is very likely that those sentences would be imposed to be served cumulatively. In those circumstances, the incentive to abscond is increased.
Further, if the applicant committed the offence of grievous bodily harm with which he is charged, he did so while on bail. Both offences as alleged involve aggressively violent behaviour, no doubt by a person under the influence of alcohol. If the applicant committed the second offence, he was not deterred from doing so by being admitted to bail in respect of the first charge.
In those circumstances, it would be doubtful that conditions which might be imposed upon the grant of bail would be effective to reduce the risk of the commission of further offences.
In relation to the risk of flight, the applicant could be required to disclose his place of residence and employment, if and when he obtained such employment. Home detention bail would be out of the question. The applicant could be required to report regularly to a local police station, but he could abscond and lose himself between reports. If the applicant felt he had no alternative but to abscond, I doubt that one or two surety obligations in the amounts which he might reasonably be able to organise would be sufficient to hold him, out of a desire not to endanger the surety who might lose the money involved.
In relation to matters concerned with the risk of the commission of further offences and risk to the interests of justice on the applicant's trial, there is, I think, little that could be done. The applicant might be ordered not to drink alcohol, but as he himself says, he could not be required to stay away from licensed premises, particularly those of the Rover Football Club. A curfew would be of little use because it could not be effectively monitored.
The applicant has revealed a tendency to commit serious violent offences in the past. The two offences charged apparently arose out of social situations. They may not have been premeditated offences. If the applicant committed them, he shows himself to be a person who may act violently on impulse to commit such offences and endanger the safety of other persons. In my view, none of the suggested conditions, nor any others that might be devised, could sufficiently remove the dangers to which I have referred.
My consideration of the applicant's case for bail, on the basis of the information before me, leads me to the view that I may not be satisfied that bail may be granted, having regard to the provisions of cls 1 and 3 of Pt C of Sch 1 to the Act. Bail is refused.
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