Robinson v The State of Western Australia

[2016] WASC 148

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   ROBINSON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 148

CORAM:   MARTINO J

HEARD:   12 MAY 2016

DELIVERED          :   12 MAY 2016

FILE NO/S:   MBA 10 of 2016

BETWEEN:   LLOYD EDWARD ROBINSON

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - On bail for serious offence when charged with another serious offence - Exceptional reasons

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Category:    B

Representation:

Counsel:

Applicant:     Mr S Vandongen SC

Respondent:     Ms S Markham

Solicitors:

Applicant:     O'Connor Lawyers

Respondent:     Director of Public Prosecutions (WA)

Cases referred to in judgments:

Hedgeland v The State of Western Australia [2011] WASC 181

Jones v The State of Western Australia [2014] WASC 234

Mikhail v The State of Western Australia [2010] WASC 238

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99

Roberts v The State of Western Australia [2011] WASC 118

The State of Western Australia v Sturgeon [2005] WASC 256

Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285

Wiltshire v Mafi [2010] WASCA 111

1. MARTINO J: The applicant applies under s 14 of the Bail Act 1982 (WA) for bail to his next appearance in the Magistrates Court.

2. The charges for which he applies for bail are a charge of possession of a prohibited drug with intent to sell or supply, a charge of possession of stolen or unlawfully obtained property and a charge of driving on a road while not authorised to do so.  All of those charges are alleged to have been committed on 14 January 2016.  At that time, the applicant was on bail on ten charges, namely aggravated failing to stop when driving, reckless driving, three charges of possession of stolen or unlawfully obtained property, possession of a prohibited drug with intent to sell or supply, possession of an unlicensed firearm, failure to ensure the safekeeping of a firearm, possession of a prohibited drug and possession of drug paraphernalia.

3. As the applicant was on bail on charges for serious offences when he allegedly committed the serious offence of possession of a prohibited drug with intent to sell or supply on 14 January 2016, I need to be satisfied that there are exceptional reasons why he should not be kept in custody and that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act before I can grant bail.[1]

   [1] Bail Act 1982 (WA) cl 3A pt C sch 1.

4. The applicant is 47 years old. He was born in New Zealand but has lived in Western Australia since 1987.  He has five children aged between 18 and 25 and two grandchildren.

5. He has a record of offending which includes three offences of possession of a prohibited drug with intent to sell or supply and an offence of assault occasioning bodily harm.  In 2004 he was sentenced to 6 years and 8 months' imprisonment for an offence of possession of a prohibited drug with intent to sell or supply.  In 2005 he was sentenced to imprisonment for the offence of assault occasioning bodily harm.  An appeal against that sentence was successful and the sentence was reduced to 11 months and 2 weeks' imprisonment.  In 2007 he was sentenced to a total of 2 years and 8 months' imprisonment for offences which included two offences of possession of a prohibited drug with intent to sell or supply.

6. The applicant applied for bail in the Magistrates Court on 8 March 2016.  Bail was refused.  The applicant does not need to demonstrate that there has been an error in the Magistrates Court in refusing bail.  This is a fresh hearing of the application for bail, which I am required to determine in accordance with the provisions of the Bail Act.

7. The applicant seeks home detention bail.  By reason of the provisions of s 24A(2) and cl 3 pt D sch 1 of the Bail Act, I cannot grant home detention bail unless I have requested and received a home detention bail report and am satisfied that both the accused and the place where it is proposed that the applicant will remain are suitable.  As I need to be satisfied that there are exceptional reasons why the applicant should not be kept in custody before I can grant bail, it is appropriate for me to determine whether exceptional reasons exist before I decide whether to order a home detention bail report.  It is also appropriate that I consider whether I would be likely to grant bail if the court were to receive a report and it were to be favourable.

Whether exceptional reasons exist

1. In Tieleman v The Queen, Murray J said:

   "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.[2]

   [2] Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285 [15] (Murray J).

2. There is no closed list of exceptional reasons.[3]

   [3] Roberts v The State of Western Australia [2011] WASC 118 [9] (Murray J).

3. Delay can constitute exceptional reasons, either alone or in combination with other factors.[4]

   [4] The State of Western Australia v Sturgeon [2005] WASC 256; Hedgeland v The State of Western Australia [2011] WASC 181; Mikhail v The State of Western Australia [2010] WASC 238 and Jones v The State of Western Australia [2014] WASC 234.

4. The applicant submits that the following factors in combination constitute exceptional reasons:  delay, the reason for the delay, the impact on the applicant, his business and family, strength of the prosecution case and the likely disposition of the prosecution if the applicant is convicted.

5. The facts of the alleged offending on 14 January 2016 are that at approximately 9.50 pm the applicant was stopped while driving a Ford Falcon sedan on Great Eastern Highway in Belmont.  He was the only person in the car.  The applicant did not have a valid driver's licence by reason of demerit points suspension on 21 December 2015.  Police officers searched the car.  They found in the car a clip seal bag containing approximately 1.35 g of methylamphetamine in the centre console, a clip seal bag containing approximately 0.2 g of methylamphetamine in the cup holder and $6,335 in cash.  The applicant was searched at the Perth Watch House.  A clip seal bag containing approximately 3 g of methylamphetamine was found on him.  He had previously been searched on two occasions when the car was stopped.  No drugs were found on him in those searches.  The applicant's solicitor has deposed that he is instructed that the drugs found on the applicant were found in the back pocket of a pair of shorts that he was wearing, that the applicant had no knowledge that the drugs were in the shorts and that the shorts were one of many pairs of shorts kept in an office at the applicant's mechanical workshop and towing business that are supplied by the applicant for employees of the business and which are used and shared by all employees.

6. The applicant has filed in the Magistrates Court an affidavit by a woman employed in the applicant's business who owns the car that the applicant was driving.  A copy of that affidavit has been included in the papers for this hearing.  The woman deposes that she owned the methylamphetamine found in the car, that she intended to use that methylamphetamine and that the cash in the car was lawfully obtained money from the mechanical workshop business which was to be banked.  Attached to her affidavit are business receipts totalling $6,335.  Since making that affidavit, the woman has been charged and convicted of the possession of those amounts of methylamphetamine found in the car.

7. The prosecution has decided to send the items seized for forensic testing.  This will not be completed until approximately late July.  The results of that testing will then need to be considered.  The applicant's solicitor estimates that the applicant will be in custody until at least late August pending forensic testing on the product seized at the time of the applicant's arrest.  That forensic testing may determine the court of trial.  That is because if the applicant remains charged with possession of the drugs found in the car and the drugs found in the shorts, it is likely that the weight of the drugs will require that the trial take place in the District Court.  If the applicant is charged with possession only of the drugs found in the shorts, it is likely that the trial will take place in the Magistrates Court.

8. The applicant's solicitor has made enquiry of the Magistrates Court.  Trials of one day or less are currently being listed in December 2016.  There are no dates available this year for longer trials.

9. The applicant's solicitor has deposed that he is instructed that the applicant has been running his mechanical repair and tow truck business for almost three years.  The business is reliant on the applicant's management.  At the time of the applicant's arrest, it employed five people.  As a result of the arrest, one of those employees has been made redundant.  The business is operating at a loss as it relies on the applicant's management.  If he remains in custody, it is likely that the business will close, leading to the termination of the employment of the four employees.

10. The applicant has a mortgage on his home of approximately $350,000 for which he is responsible.  The house has a value of approximately $600,000, so the applicant's equity in the home is approximately $250,000.  The applicant lives in that home with his 18‑year‑old son and his partner.  The applicant is also responsible for monthly rental payments of $2,200 for the business premises.

11. The delay until trial is significant.  If the applicant is not granted bail, then it is likely that the applicant will spend a significant period in custody until the trial.  That period I estimate to be at least 18 months.  It may be longer.

12. The forensic testing will mean that it will take seven to eight months before the place of trial is determined.  Often, delay until trial relates to disclosure not to determining the court at which the trial will take place.  However, I do not regard the fact that determining the court at which the trial will take place being a reason for the delay as constituting an exceptional reason.

13. I do not regard that delay on its own as being an exceptional reason why bail should be granted.  That is, I do not regard the delay on its own as making the applicant's circumstances as being unusual or out of the ordinary, in some way special or an exception to the general run of cases.  However, the delay needs to be considered with the other factors of the case to determine whether exceptional reasons exist.

14. I accept that the applicant runs his own business and that the business will suffer and probably closed if the applicant is remanded in custody.  This will mean that the employees will lose their employment.  The applicant will suffer significant financial hardship.  He will remain liable for rent on the business premises and he will not be able to service the mortgage on his home.  This may mean that the home will have to be sold and the people living there will have to find other accommodation.

15. I do not regard the whole of the prosecution case as being weak.  On the evidence presently available to me, I regard the prosecution case in respect of the cash and drugs in the car as being weak.  The cash seems to have been lawfully earned in the business and the drugs in the car seem to be the property of the applicant's employee and in her car without the applicant's knowledge.  However, in respect of the drugs in the shorts, I do not regard the case as being weak.  I have regard to the fact that the drugs were not found in two earlier searches and that the shorts were with other shorts that were shared by employees of the applicant's business.  However, on the evidence presently available to me, it seems to me that a tribunal of fact could be satisfied beyond reasonable doubt that the drugs were not left in the shorts by an employee of the applicant's business, that the drugs were in the shorts but not found when police officers searched the applicant on two occasions before he was taken to the watch house and that the applicant had knowledge of the drugs in the shorts that he was wearing.

16. On the present state of the evidence, if the tribunal of fact is satisfied that the applicant had possession of the drugs, then there will be nothing to rebut the statutory presumption of an intention to sell or supply that will apply if the drugs weighed approximately 3 g.

17. If the applicant goes to trial in the Magistrates Court and is convicted, the maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply will be a fine of $5,000 or imprisonment for 4 years, or both.  This is a jurisdictional limit.  It is the statutory maximum that is relevant in assessing the seriousness of the offence.[5]  The statutory maximum is a fine of $100,000 or imprisonment for 25 years, or both.  The applicant's record will not attract much mitigation.  If convicted, the applicant is likely to be sentenced to a term of imprisonment in the vicinity of 2 years.

    [5] Wiltshire v Mafi [2010] WASCA 111.

18. In all the circumstances, despite the delay and the financial hardships to which I have referred, I do not regard the case as being one in which there are exceptional reasons why the applicant should not be kept in custody.  I do not regard the prosecution case as weak.  If the applicant is convicted, I regard it as likely that he will be sentenced to a significant term of imprisonment.

19. The application for bail therefore does not succeed.

Whether bail could properly be granted if exceptional reasons existed

1. As I have heard submissions on whether bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act, I will give my reasons on that matter bearing in mind that it is home detention bail that is being requested.

2. If the discretion arose, I would be required to exercise the discretion to grant or refuse bail having regard to the questions set out in cl 1 of pt C of sch 1, as well as any other questions which I consider to be relevant.

3. In considering whether the applicant may do any of the things mentioned in cl 1(a) of pt C of sch 1, I would have regard to the matters set out in cl 3 of pt C of sch 1, namely the nature and seriousness of the offences with which the applicant has been charged (including any other offences for which he is awaiting trial) and the probable method of dealing with the applicant for them, the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant, the history of previous grants of bail to the applicant and the strength of the evidence against the applicant, as well as to any other matters that I consider relevant.

4. In Milenkovski v The State of Western Australia, McLure P said that the Bail Act does not place any legal onus on any party to a bail application.[6]  However, 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.

   [6] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [41] McLure P.

5. As I have said, the applicant has a record of offending which includes three offences of possession of a prohibited drug with intent to sell or supply and an offence of assault occasioning bodily harm.  He was on bail for a charge of possession of a prohibited drug with intent to sell or supply when he was charged with the offences on 14 January 2016.  That charge was that he possessed in excess of 200 g of high purity methylamphetamine.

6. Having regard to the strength of the prosecution case in relation to the charge on 14 January 2016, the applicant's record and the charge for which he is awaiting trial on which he was on bail on 14 January 2016, I conclude that there is a significant risk that the applicant will commit further offences if released to bail, namely drug trafficking offences.  I also conclude that there is no condition that could reasonably be imposed which will sufficiently remove that risk.

7. A home detention bail condition would restrict the applicant's physical movements, but it would not prevent him having access to people at his home and, subject to the approval of a community corrections officer, at his place of business.  There is a significant risk that drug dealing could take place or be organised in his dealings with those people.  I bear in mind that if he were to be convicted of drug dealing from his home the applicant would be likely to lose his home.  I also bear in mind that the risks of the applicant being apprehended if he were to deal in drugs while on home detention bail would be significantly increased.  However, they would be risks only.  Having regard to the matters to which I have referred, I do not regard those risks as sufficiently removing the risk that the applicant would commit further drug trafficking offences if released on bail.

8. I conclude therefore that bail could not properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act.

9. For those reasons bail is refused.