Smith v The State of Western Australia - [2019] WASC 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 32
CORAM:   FIANNACA J
HEARD:   31 JANUARY & 7 FEBRUARY 2019
DELIVERED          :   7 FEBRUARY 2019
FILE NO/S:   MBA 4 of 2019
BETWEEN:   JASON EDWARD SMITH
Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail application - No reasonable conditions that could be imposed that would sufficiently reduce the risk of the applicant absconding or committing a serious offence

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Representation:

Counsel:

Applicant	:	Mr S Vandongen SC & Mr P Holmes
Respondent	:	Mr J Chu

Solicitors:

Applicant	:	Holborn Lenhoff Massey
Respondent	:	Director of Public Prosecutions (WA)

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

Smith v The State of Western Australia [2014] WASC 363
The Queen v Hillier [2007] HCA 13; 228 CLR 618; 81 ALJR 886; 233 ALR 634
YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

On 7 February 2019 I refused this application for bail, gave short reasons and said that I would publish more detailed reasons in due course. Those reasons follow.

The application and its history

The applicant, Jason Edward Smith, has applied for bail in respect of three charges that are pending in the Magistrates Court, being two counts of being in possession of property reasonably suspected to have been stolen or unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code), and one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA) (MDA).
The first charge under s 417(1) of the Code, being JO 8890/2018 ('the Joondalup charge'), relates to $99,180 in cash found during a police search on 12 April 2017 at the place where the applicant was residing in Tapping, although he was not present at the time. He was not charged with the offence until 16 July 2018. The charge was brought in the Joondalup Magistrate Court. He was granted bail, which remained in place at least until 26 September 2018.
The second charge under s 417(1) of the Code, being PE 49399/2018 ('the Perth property charge'), relates to $180,000 in cash found in the applicant's home in Hocking during a police search on 21 September 2018. The cash, which was in bundles inside a subwoofer, was found in the applicant's bedroom.
The charge under the MDA, being PE 49398/2018 ('the drug charge'), relates to 94.93 grams of methylamphetamine located in various places in the applicant's home during the same search on 21 September 2018.
At the time of that search, the applicant was on bail for the Joondalup charge.
The applicant was arrested on 21 September 2018 and has been remanded in custody since that time. He has applied for bail in respect of these matters on three occasions in the Magistrates Court. On each occasion bail has been refused, although in relation to the Joondalup charge, while the accused was remanded in custody from 26 September 2018, the court record shows that the first refusal of bail for that offence was on 2 November 2018, when an application was made for bail.
The first occasion on which the applicant applied for bail in relation to the Perth property charge and the drug charge was before Magistrate Potter on 8 October 2018. Although those charges bear Perth prosecution numbers, the application was heard in the Joondalup Magistrates Court. Bail was refused on that occasion primarily because of the risk which the magistrate considered to exist that the accused would interfere with witnesses and the prosecution case, and the risk that he would reoffend.[1]
[1] Ts 8/10/18, 22 – 23.
The applicant again applied for bail in the Joondalup Magistrates Court on 2 November 2018. The application was heard by Magistrate Campione. It was made in respect of all three charges. At least in respect of the Perth property charge and the drug charge, the applicant had to demonstrate a change in circumstances that justified fresh consideration of bail, given that bail had previously been refused. The applicant relied on his mother's poor health and the need for him to care for her as a change in circumstances. Magistrate Campione accepted, on the basis of an affidavit sworn by the accused's mother, Ms Smith, that there was a change in circumstances. However, her Honour was of the opinion that Ms Smith's medical history was 'not compelling enough to warrant a grant of bail against a background of very serious charges and [the applicant] having been declared a drug trafficker',[2] which had occurred in 2015. Like Magistrate Potter, her Honour considered that there was a risk that the applicant would interfere with witnesses. Her Honour declined a request made on behalf of the applicant that she order a home detention report, concluding that home detention would not remove the potential for interference with witnesses.
[2] Ts 2/11/18, 9.
On 28 December 2018, the applicant made a third application for bail in the Joondalup Magistrates Court. On that occasion, the applicant submitted there were changed circumstances in that there had been a late request by police for materials of interest to be forensically examined, and that would result in significant delay in the charges proceeding to trial, with the potential for the applicant to suffer an injustice. It was submitted that the delay was attributable to the non-compliance by the police with an order of the court to provide forensic material by 28 December 2018. Magistrate Randazzo concluded that, while there could be a level of criticism levelled at the police, he was not persuaded that there had been a material change of circumstances at that time and, consequently, there was no jurisdiction to grant bail.
The application before this court was filed on 23 January 2019. The application is brought under s 14(2) of the Bail Act 1982 (WA) (the Act). It invokes this Court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Act. It is not an appeal from the magistrate's decision refusing bail.
The application was heard on 31 January 2019. Prior to the application, the State, which is the respondent in these proceedings, forwarded to the Court the Statements of Materials Facts for a number of offences of which the applicant was convicted and sentenced in 2014 and 2015. At the hearing, the State also tendered photographs of the police search conducted at the applicant's home on 21 September 2018.
During the hearing, a question arose as to whether the applicant had been convicted previously of offences committed while he was on bail for other offences in 2014. The State subsequently brought to the Court's attention the decision of Hall J in Smith v The State of Western Australia [2014] WASC 363, which dealt with an application for bail made by the applicant in September 2014. His Honour set out the chronology of alleged offending by the applicant from 23 April 2013 to 10 July 2014, and the occasions on which the applicant had been placed on bail.
The applicant subsequently filed an affidavit, sworn 5 February 2019, in which he sought to clarify some of the circumstances referred to in the decision of Hall J.

Legislative provisions

As the Court's jurisdiction to grant bail arises by the operation of s 13 and sch 1 pt A of the Act, it must be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1.
Ordinarily, bail will be granted unless the court is satisfied that the accused should be kept in custody after considering the questions in cl 1 of pt C, having regard to the matters in cl 3 of pt C. The questions in cl 1(a) include whether the accused may fail to appear in court as required by his bail undertaking, whether he may commit an offence, whether he may endanger the safety or welfare of any person and whether he may interfere with witnesses. The court is also required to consider, under cl 1(e), whether there are conditions that could reasonably be imposed which would 'sufficiently remove the possibility' of the accused doing those things. In answering those questions, the matters the court must take into account under cl 3 include the nature and seriousness of the offence or offences and the probable method of dealing with the applicant if he is convicted; the accused's personal circumstances, including his character and antecedents, which include any previous convictions; the history of any grants of bail; and the strength of the evidence against him.
The proper approach to the questions and considerations in cl 1 and cl 3 was explained in YSN v The State of Western Australia [2017] WASCA 155 [15] ‑ [21]. The following principles extracted from that decision are relevant for present purposes:
(1)The risk or possibility referred to in cl 1(a) must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the judicial officer considers relevant;
(2)The court must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period;
(3)The reference in cl 1(e) to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced; and
(4)The possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
For convenience, I will refer to the question in cl 1(e) as whether the risk can be reduced to an acceptable level, which is to be understood in the context of the principles outlined in the preceding paragraph, in particular in points (3) and (4).

The evidence in the proceedings

The application was initially supported by two affidavits, sworn on 22 and 25 January 2019 by the applicant's lawyer, Mr Holmes, and an affidavit sworn by the applicant, sworn 23 January 2019.
Annexed to those affidavits are various documents to which I will refer in the course of these reasons. They include the prosecution notices for the three charges the subject of this application and the police Statements of Material Facts for the charges. They also include the transcript from the three bail applications in the Magistrates Court, to which I have referred.
The evidence also includes the Statements of Material Facts and photographs tendered by the State, referred to at [12] above, and the contents of the applicant's affidavit dated 5 February 2019, referred to at [13] above.

Alleged facts of offences

It is necessary to provide a summary of the facts alleged against the applicant in respect of each charge, as those alleged facts provide context for the issues in this application.

JO 8890/2018

On 12 April 2017, police officers executed a search warrant issued under the MDA at a house in Tapping where the accused resided, although he was not present at the time. During the search, they located a safe with a pin code. It was in the master bedroom, to which only the applicant had access. The officers found a significant quantity of cash inside the safe. They seized the safe, together with other items which are not the subject of this charge. The police also located $5,000 in Australian currency near the safe. That money was also seized. The applicant's partner was present during the search.
On 5 May 2017, officers opened the safe and seized the cash that was inside, which amounted to $94,180. Therefore, the total sum of money located at the applicant's house was $99,180.
On 4 May 2018, the accused was interviewed by police about the money found at his premises. He admitted to being in possession of the money. He said that approximately $65,000 of the money was being held by him for his father, Nigel Smith, and approximately $30,000 belonged to him, having come from the sale of his Holden Maloo utility vehicle.
The police Statement of Material Facts in respect of this charge asserts that an 'in‑depth financial investigation, retrieving bank records and Australian Tax Office information', along with a statement from the accused's father, did not support the accused's explanation. None of those materials have been tendered in these proceedings.
As I noted earlier, the applicant was not charged with the offence until 16 July 2018.

PE 49398/2018 and PE 49399/2018

The more recent offences are alleged to have been committed by the applicant while he was on bail for the Joondalup charge.
At 9.40 am on Friday, 21 September 2018, detectives stopped the applicant while he was driving in the suburb of Hocking, where he was living.
He was informed that the police had an MDA search warrant to search his home and he was placed under arrest on suspicion of drug offences. Police searched the applicant's wallet and found $795 in cash. The applicant said that the money was to pay for his legal fees.
The police then searched the applicant's home in Hocking. While searching in the kitchen, they found 11.04 grams of methylamphetamine in a large clip‑seal bag inside the microwave recess behind a block of knives.
The applicant denied any knowledge of the drugs.
While searching in the master bedroom, the police found $180,000 in cash concealed inside a subwoofer box that was situated between a laundry basket and a chest of drawers. The money was in bundles held together with elastic bands and neatly stacked up on both sides within the subwoofer box.
When interviewed, the applicant admitted that he had placed the subwoofer box in his bedroom to connect it to a television and a computer, but denied any knowledge of the money. I note that the applicant gave a similar explanation for the subwoofer being in his bedroom in his affidavit of 23 January 2019.
When the police searched the theatre room, they found a large clip‑seal bag concealed behind a sofa cushion. Inside that bag were three individual clip‑seal bags that contained methylamphetamine. The drugs were wrapped in toilet paper and held together by elastic bands. The weight of the first bag was 28.01 grams, the second 28.10 grams and the third 27.78 grams. The total weight of the drugs were 83.89 grams.
When interviewed about the drugs, the applicant denied any knowledge of them.
A further item that is potentially relevant to the drug charge was a set of digital scales found in the dining room area. The scales were in a drawer, next to a box of rubber gloves. The scales had on them visible traces of a substance, which police believe to be methylamphetamine. When interviewed, the applicant said he used the scales for weighing vehicle engine parts.
The affidavit of Mr Holmes, dated 22 January 2019, annexed a brief report from PathWest, the agency responsible for doing DNA testing of exhibits. It states that a particular swab matched the DNA profile obtained from the applicant's reference sample. At the hearing of this application, Senior Counsel for the applicant informed the court that Mr Holmes has been told by the investigating police that the swab was taken from the outside of the clip‑seal bag which was found behind the sofa cushion and which contained approximately 84 grams of methylamphetamine. It was accepted that the application should proceed on the basis that the evidence at trial will reflect that information.
Counsel for the respondent at the hearing also informed me that a list of names and figures (of a kind commonly referred to as a 'tick list' associated with drug dealing, showing sums of money owed by various individuals) was found on the applicant's mobile telephone. A photograph of that was among the photographs tendered by the State from the search. The photographs also show a money counting machine, which was found in a cupboard in the kitchen area. Further, elastic bands, consistent with those wrapped around the bundles of cash in the subwoofer and around the toilet paper packages containing the large amount of drugs, were found in a cupboard in the kitchen. Finally, the house had four CCTV security cameras fitted, which sent images of four different areas outside the house to a monitor inside the house, as depicted in one of the photographs.

Consideration of Clause 3 matters

I turn then to consider the matters under sch 1 pt C cl 3 of the Act.

Nature and seriousness of the offences and probable disposition

The alleged offence of possession of methylamphetamine with intent to sell or supply is very serious. The amount of the drug alleged to have been in the applicant's possession, 94.93 grams, was significant. A substantial term of immediate imprisonment will be inevitable if the applicant is convicted of that offence. Personal deterrence will be a particularly significant consideration, as the applicant has been convicted previously of the offence of attempting to possess methylamphetamine, with intent to sell or supply.
That offence was committed over a period from 27 May 2014 to 10 July 2014, and involved an attempt to possess 56 grams of methylamphetamine. He took possession of the package which he believed contained the drug he had ordered. The package which contained the drug he had ordered was intercepted. After an innocuous substance was substituted for the drug, the police conducted a controlled delivery of the package to the applicant. He took delivery with the intention of selling or supplying methylamphetamine.
On 18 August 2015, the applicant was sentenced in the District Court to a term of 3 years and 8 months' imprisonment with parole for that offence. The commencement of the sentence was backdated to 10 July 2014. Therefore, the earliest date on which he would have been eligible for release on parole was after serving 1 year and 8 months' imprisonment (i.e. on 10 March 2016), and the full sentence, including the parole period, would have been completed on 9 March 2018. He is alleged to have committed the later offences which are the subject of this application a little more than 6 months after that date.
Given the need for personal deterrence, and the fact that the amount of drug alleged to have been in the applicant's possession on 21 September 2018 was significantly greater than the amount he attempted to obtain in 2014, it would be expected that the term of imprisonment he would receive, if convicted, would be significantly greater than the term imposed in 2015.

Strength of the evidence against the applicant

The context for assessing the strength of the evidence against the applicant (under cl 3) is the consideration of whether there is an actual or real risk that the applicant will fail to answer his bail and the extent of that risk. Obviously, when combined with the probable disposition of a substantial term of imprisonment in the event of a conviction, the stronger the case, the greater the risk that an accused may abscond to avoid a trial. The assessment I am required to make is not of the likelihood of conviction.

The strength of the case is also relevant to the assessment of the risk that the applicant will commit an offence if not kept in custody. That is particularly so when the alleged offending is of a similar kind to offending of which the applicant has been convicted previously. The strength of the case against him is capable of affecting logically the determination of whether there is a real risk that he will offend again in a similar manner.
Where, as in this case, an applicant gives an explanation for certain circumstances on affidavit, it is not the task of the court to determine the veracity of the explanation, particularly as the evidence has not been tested by cross-examination. Questions of credibility and reliability will be for a jury to assess at trial. Nevertheless, it may be necessary to make some assessment of the weight that can be given to assertions made by the applicant when assessing the strength of the evidence against him, for the purposes of cl 3.
The case against the applicant is circumstantial. In assessing the strength of the evidence, it must be considered as a whole, not in a piecemeal manner.[3] Apart from the evidence of items found during the search of the applicant's home on 21 September 2018, including the contents of the applicant's mobile telephone, the State intends to rely on propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA), being evidence of the applicant's conviction of the offence of attempting to obtain methylamphetamine with intent to sell or supply. The State will need to make an application to adduce the evidence, but at this stage I should proceed on the basis that the evidence will be held to be admissible, as there is a rational basis for the application.

JO 8890/2018

[3] The Queen v Hillier [2007] HCA 13; 228 CLR 618; 81 ALJR 886; 233 ALR 634.

In relation to the Joondalup charge (concerning the possession of $99,180 in cash), the applicant has sworn that $30,000 of the cash was from the sale of a Maloo utility to a friend and $65,000 belonged to his father. The applicant annexed to his affidavit of 23 January 2019 documents relating to a Freezing Notice issued under the Criminal Property Confiscation Act 2000 (WA) (CPCA) in respect of all of the money. The documents include an Originating Summons lodging an objection to the confiscation of the money seized on 12 April 2017 and seeking an order that the Freezing Notice be set aside.[4] There is also a Statutory Declaration dated 19 October 2018 made by the applicant, in which he states, in effect, that he has an interest in the money and that his father, Nigel Smith, also has an interest in 'those items of property listed in the freezing notice'. The statutory declaration relates to two freezing notices, the one by which the $99,180 in cash was frozen and the other by which the $180,000 in cash and other items of property were frozen. Therefore, insofar as the statement claims an interest on behalf of Nigel Smith, it is ambiguous.
[4] The Originating Summons (dated 18 October 2018) also objects to the confiscation of certain items of property seized on 21 September 2018.
There is no statement from the applicant's father in the materials tendered in these proceedings. There is no statement from and no further information about the friend to whom the applicant says he sold the Maloo utility. There are no transfer of ownership or vehicle registration documents in the materials. Therefore, it is difficult to place any significant weight on the applicant's assertions in his affidavit about those matters. That would not matter if the Joondalup charge was the only matter under consideration. The applicant previously had bail for that matter, and, considered alone, bail would still be appropriate. However, the charge now needs to be considered in the context of the search conducted on 21 September 2018 and the charges that have arisen from that search.
Prima facie, the applicant's possession of such a significant sum of money in cash is relevant to the issue of whether the sum of $180,000 found in his bedroom on 21 September 2018 was in the applicant's possession or was concealed in his subwoofer, without his awareness, by a boarder.[5]

PE 49398/2018 and PE 49399/2018

[5] See below for the applicant's explanation.

The following factors support the conclusion that the case against the applicant in respect of the drug charge and the possession of the $180,000 in cash is a relatively strong case:
(1)The drugs were found in the applicant's home, in a kitchen cupboard and concealed behind a sofa cushion in the theatre room;
(2)The only persons in the house at the time were the applicant, his partner and his father;
(3)The drugs were methylamphetamine, a drug the applicant has previously attempted to obtain with intent to sell or supply;
(4)DNA matching the applicant's DNA has been found on the outside of the plastic bag, concealed behind the cushion, in which the large quantity of methylamphetamine was found;
(5)The methylamphetamine found behind the cushion was wrapped in toilet paper that was consistent with toilet paper found in the applicant's house;
(6)The packages of methylamphetamine and the bundles of cash were held together by elastic bands consistent in appearance with elastic bands found in a kitchen cupboard;
(7)A money counting machine was found in a kitchen cupboard in the applicant's home. That is an unusual item for an ordinary household. It indicates a need to count and bundle large amounts of cash, consistent with the bundles of cash found in the subwoofer;
(8)Digital scales were found in the applicant's dining room. They had on them a substance that police believe to be methylamphetamine;
(9)Entries consistent with a 'tick list' in respect of large sums of money owed were found on the applicant's mobile telephone;
(10)The subwoofer in which the sum of $180,000 was found belonged to the applicant and was in his bedroom;
(11)The manner in which the cash was stacked in the subwoofer would have required some dismantling of the subwoofer; and
(12)The applicant had a number of security cameras around the exterior of his home. Although security cameras are installed legitimately in homes that are not used for drug dealing, the use of several cameras is often a characteristic of residential properties where drug dealing takes place.
The scales, money counting machine, large amount of cash, list of names and figures and security cameras are items that together have been recognised as possible indicia of drug dealing in cases where drugs have been found on premises.
The applicant has said in his affidavit of 23 January 2019 that he has no knowledge of the drugs. He points out that his girlfriend has pleaded guilty to possession of the 11 grams found inside the microwave recess. That may be so, but he has been jointly charged in respect of that amount with his girlfriend, and the issue of whether he was in possession of that quantity will need to be assessed in the context of the whole of the evidence, including the presence of DNA matching his DNA on the plastic bag containing the larger amount.
The applicant states in his affidavit that there were four persons living at the house at the time. Apart from him, his girlfriend and his father, there was a boarder. However, that person was not home at the time of the search. The applicant states that the theatre room was a place where a boarder would sleep at night, or where people would 'crash' for the night. He also states that people who visited would sit on the sofa. Whether or not the applicant is telling the truth about such unidentified boarders or visitors, which will be for a jury to assess, it is necessary to consider the plausibility of the implied assertion that such persons would leave such a large and valuable quantity of methylamphetamine unsupervised in the applicant's home. The plausibility of that assertion needs to be assessed having regard to the applicant's history of drug offending.
As for the DNA evidence, Senior Counsel for the applicant conceded it is a factor that strengthens the case against the applicant in respect of the drug offence, but noted that the issue of transfer of DNA other than by involvement with the drugs would obviously be explored at trial. While I take that into account, a jury would not consider the evidence in isolation, but in the context of the whole of the evidence.
In his affidavit of 23 January 2019, the applicant has also denied knowledge of the bundles of cash in the subwoofer, although he admits moving the subwoofer into his bedroom and attempting to use it. He states that it did not work, and he just left it there. He states that, before he moved it, the subwoofer had been in a spare room for a long time, and that the room was used by 'another person who was a boarder' at his home. It is not clear whether that was the same or a different person from the boarder who, according to the applicant's earlier assertion, slept in the theatre room. The applicant also states that his girlfriend uses the spare room as an office.
As with the large amount of drugs, a jury would need to consider the plausibility of the implied assertion that the cash was hidden in the subwoofer by a boarder who, apparently, was either prepared to leave the money behind or made no enquiry as to the whereabouts of the subwoofer after it was moved by the applicant. Again, that assessment will be made having regard to the whole of the evidence, not by examining the evidence in a piecemeal way.
Taking all of those matters into account, the applicant's affidavit does not alter the conclusion that the evidence against him in respect of the drug charge and the Perth property charge is relatively strong.

Applicant's character and antecedents

The applicant is 33 years of age and a single child. He continues to have a strong relationship with his parents. He has a child aged 10, in respect of whom he is engaged in custody proceedings in the Family Court.
The applicant has an extensive history of criminal offending commencing in 2005. It includes a number of convictions for fraud offences. In terms of cooperation with police and respect for court orders, I note that he has a number of convictions for wilfully misleading police in 2005 and 2006 and two convictions in 2013 for breaching a violence restraining order in 2012.
The applicant also has a conviction for an aggravated burglary offence in November 2014, for which he was fined $750.
In relation to drug offending, I have already referred to the circumstances of the offence of attempting to possess methylamphetamine with intent to sell or supply, of which the applicant was convicted in August 2015. At the time he was sentenced, he was also declared a Drug Trafficker under the CPCA. Apart from that conviction, the applicant has convictions in November 2013 and September 2015 for simple possession of methylamphetamine, and a conviction in September 2015 for an offence of offering to sell or supply methylamphetamine in May 2014, for which he received a sentence of 6 months' imprisonment to be served concurrently with the sentence imposed on 18 August 2015 for the offence of attempting to possess methylamphetamine with intent to sell or supply.
The applicant was also convicted of simple possession of methylamphetamine on 3 May 2017. The offence was committed on 3 April 2017, while the applicant was on parole. His explanation for the offence indicates that he was 'technically' in possession while trying to remove someone else's drugs from his property, rather than seeking to be in possession of the drug. It appears the applicant's explanation was accepted when he was dealt with for the offence in the Magistrates Court, as no punishment was imposed, pursuant to s 46 of the Sentencing Act 1995 (WA), which required the court to be satisfied the offence was 'trivial or technical'. In light of that outcome, I have not taken that incident into account in assessing the risk of the applicant committing an offence if released on bail.
Apart from that incident, the applicant completed his parole period without further offending, although it must be noted that he was returned to custody for approximately two months, as a result of that incident, for breaching parole.
The applicant states in his affidavit that he completed a number of courses while serving the term of imprisonment, which included the Pathways (substance abuse prevention) program and a life skills program. He states that after he was released from custody, he 'took positive steps to remove [himself] from the situations that were the catalyst for his offending'.[6] He describes some of the steps he took, including changing his address and phone number. He also enrolled in a business course at TAFE and commenced a business, performing custom modifications to vehicles.
[6] Affidavit of Jason Edward Smith, 23 January 2019., [38].
He states that he has been a carer for his mother for the last 18 years. His mother, Ms Karen Smith, has a number of serious health issues. An affidavit sworn by Ms Smith on 23 October 2018 for one of the bail applications in the Magistrates Court is annexed to the applicant's affidavit and sets out her medical conditions. They include Crohn's disease, which resulted in significant medical complications that required removal of a significant part of her digestive tract, and kidney failure, which requires her to undergo dialysis three times a week. She has also been informed that she has issues with her liver. Apart from the dialysis, she is required to attend hospital appointments several times every month. She states that, as a result of her illnesses, she also suffers 'severe depression and mental illness'.
Ms Smith states that, before the applicant was remanded in custody, she relied on him to discuss her medical issues and to take her to appointments. She states that, at the time of swearing her affidavit, she was driving herself to dialysis, but felt that such an arrangement could not go on. She states that she cannot afford taxis or 'other form of transport'. In her reasons on 2 November 2018, Magistrate Campione suggested that Ms Smith could investigate obtaining assistance from an agency such as Silver Chain. I note that in his decision in 2014, Hall J referred to information in those proceedings that Ms Smith had previously utilised the services of Silver Chain, but had lost faith in that service after she had suffered an infection. However, there is no information in these proceedings to suggest that Ms Smith maintains that attitude. In any event, there is nothing before me to suggest other options cannot be explored.
It was proposed at the hearing that the applicant would go to live with his father if he is released on bail.

History of prior grants of bail

The applicant does not have a conviction for breaching bail.
However, he has previously been convicted of offences that were committed while he was on bail. The applicant was on bail from 16 September 2013 on a charge of receiving stolen property, which was alleged to have been committed on 23 April 2013. While subject to that bail, he committed the following offences of which he was subsequently convicted:
(1)Fraud committed on 23March 2014 (convicted on 27 November 2014);
(2)Offering to sell methylamphetamine (1.75 grams) committed on 19 May 2014 (convicted on 9 September 2015);
(3)Possession of drug paraphernalia (scales) committed on 22 May 2014 (convicted on 9 September 2015);
(4)Aggravated burglary committed on 7 July 2014 (convicted on 28 November 2014);
(5)Attempting to possess methylamphetamine with intent to sell or supply, which was committed over a period of time ending on 10 July 2014 (convicted on 18 August 2015).
The applicant, in his affidavit of 5 February 2019, states that the receiving charge was ultimately dismissed. That is not to the point. What is relevant for present purposes is that he committed a number of offences while on bail. Further, the fact that he was summonsed, rather than arrested, for a number of offences and was not on bail for them does not assist the applicant. His conduct from March to July 2014 demonstrated that being charged with offences, and awaiting the determination of such charges, did not deter him from continuing to offend.
Importantly, the applicant was on bail for the aggravated burglary offence (a serious offence for the purposes of the Act) when he engaged in some of the conduct constituting the attempt to possess methylamphetamine (another serious offence for the purposes of the Act). In fact, he took possession of the package which he believed to contain a substantial quantity of methylamphetamine within 3 days of being placed on bail for the aggravated burglary offence.
Finally, the applicant is alleged to have committed the drug offence and the offence in respect of the $180,000 in cash while he was on bail for the Joondalup charge. At the very least, he was the occupant of residential premises in which a substantial quantity of methylamphetamine and a large sum of money were found.

The applicant's submissions

The applicant submitted that, notwithstanding the history to which I have just referred, he has complied with his previous bail undertakings to attend court and was granted bail in respect of the Joondalup offence. Given those circumstances, it was submitted that this Court can be satisfied that the applicant's attendance at court on the current charges can be achieved by the imposition of appropriate bail conditions.
Secondly, it was submitted that the hardship that will be suffered by the applicant's mother if the applicant, who has been her primary carer, is kept in custody is a relevant factor favouring the grant of bail. On its own, family hardship must have some exceptional characteristic if it is to justify an accused's release on bail in circumstances where it would otherwise not be appropriate. It was not contended on the applicant's behalf that Ms Smith's circumstances are exceptional. Rather, Ms Smith's health is said to be relevant to the court's assessment of the applicant's links to the jurisdiction and the likelihood that he will surrender himself at the next hearing. His responsibility towards his mother is said to be a strong factor that would prevent him from absconding. In furtherance of his contention that the court can rely on him to answer his bail, the applicant has stated that he has significant family ties within the jurisdiction (including his daughter), he owns a business here, and he has never had a connection to any other state or territory of Australia.
It was submitted on behalf of the applicant that, if he were to reside with his father, as proposed, that would provide a protective measure against the applicant either committing an offence or absconding.
The third argument put on behalf of the applicant is that there will be an inevitable and lengthy delay before trial. The applicant has been in custody on remand for the offences the subject of this application since his arrest on 21 September 2018. At the time of the hearing, it was anticipated that the applicant would not receive a trial in the District Court before the expiration of a further 11 months. The timing is an estimate that may be affected by any number of variables, including the possibility of an earlier trial date upon an application by the applicant for an urgent trial if he remains in custody, but I will proceed on the basis that the applicant will have spent approximately 16 months in custody on remand before trial. It was submitted that the applicant will have suffered an injustice if he were to be acquitted after having spent that period of time in custody.

Proposed bail conditions

The applicant proposed the following conditions of bail:
(1) A personal undertaking;
(2) A surety in a sum up to $200,000;
(3)A residential condition requiring the applicant to reside with his father;
(4)A curfew;
(5)Reporting daily to the Officer‑in‑Charge of the Joondalup Police Station;
(6)The surrender by the applicant of any passports he may hold;
(7)A condition prohibiting him from approaching any international point of departure; and
(8)Regular and random urinalysis testing.
The last of those conditions would require the applicant to be subject to urine testing for prohibited drugs. It would be directed primarily at the risk of the applicant committing a drug‑related offence. However, there is no evidence before me that the applicant's previous offending in respect of attempting to possess methylamphetamine for sale or supply, or offering to sell or supply methylamphetamine, was connected with drug use by him.
I also note that the applicant's bail in respect of the aggravated burglary in 2014 included a curfew condition, and it did not prevent the applicant from committing the offence of attempting to possess methylamphetamine with intent to sell or supply.[7]
[7] Smith v The State of Western Australia [2014] WASC 363 [21].
The applicant submitted that, if I did not consider the proposed conditions to be sufficient for a grant of bail, the applicant would be prepared to be subject to a home detention condition. If I considered that home detention could be effective to overcome any risk I may find that the applicant would not comply with his undertaking or would commit an offence, I would need to order a home detention report to assess the suitability of both the applicant and any proposed residence for home detention.

The respondent's submissions

The respondent opposes bail. It submits that there is a real risk that the applicant will not comply with his bail undertaking. In support of that submission it relies on the strength of the prosecution case and the likely sentence that will be imposed if the applicant is convicted.
The respondent also submits that there is a real risk that the applicant will commit a drug offence if he is not kept in custody. It relies on the applicant's history while on bail previously and the fact that the drug offence the subject of these proceedings is alleged to have been committed by the applicant while he was on bail for the Joondalup offence.
The respondent submits that the Court can be satisfied that there are no conditions that could reasonably be imposed, which would adequately reduce the risk of the accused committing an offence whilst on bail.

Conclusions

I have come to the conclusion that, if the applicant is not kept in custody, there is a real possibility that he would commit a serious offence. I have also come to the conclusion that the strength of the prosecution case and the potential that the applicant would be sentenced to a lengthy period of imprisonment, if convicted of the drug offence, give rise to a real risk that he will not appear in accordance with any bail undertaking.

Risk that the applicant would fail to appear

Notwithstanding the applicant's compliance with his bail undertaking in the past, the prospect of a lengthier term of imprisonment in the present case gives the applicant a correspondingly stronger incentive to fail to appear in answer to his bail, particularly given the strength of the case against him, and there is a real risk that he will fail to comply with any such undertaking on this occasion.

Risk that the applicant will commit an offence

In coming to the view that there is a real possibility the applicant would commit a serious offence if not kept in custody, I have had regard to the following matters in particular:
(1)the applicant's prior history of offending;
(2)the fact that the applicant has previously been convicted of a serious drug offence that was committed while he was on bail for another serious offence of a different kind;
(3)the fact that a little more than 6 months after the applicant completed the parole period of a term of 3 years and 8 months' imprisonment imposed for an offence of attempting to possess 56 grams of methylamphetamine, a total of nearly 95 grams of methylamphetamine was found in his home, along with $180,000 in cash; and
(4)the fact that there is a relatively strong prima facie case that the applicant was in possession of the methylamphetamine and cash.
On the applicant's own account, someone with access to a large quantity of the drug and a large sum of money in cash has stayed at his home and has used his home to store those items. Therefore, even on the applicant's account, I cannot give any significant weight to his assertions that he has rehabilitated and has taken steps to remove himself from the situations that were the catalyst for his drug offending in the past. I do not consider that his assertions can give the court any confidence that he would not commit an offence if released on bail.

Whether conditions can reduce the risks to an acceptable level

I am satisfied that the conditions that have been proposed would not be sufficient to reduce to an acceptable level the risk of the applicant failing to appear or committing an offence.
I do not consider that a reporting condition, even on a daily basis, would be adequate to reduce to an acceptable level the risk that the applicant would commit an offence while on bail. That condition would ensure that the police were aware that the applicant had not absconded, but it would not prevent the applicant from committing offences, particularly in relation to possessing or dealing in drugs at times other than when he was at a police station.
A condition that he be subject to urinalysis testing, and making it a breach of bail if he were to return a positive result for an illicit drug, would allow for detection of drug use, but not whether the applicant was engaged in drug dealing. The materials before me do not necessarily demonstrate a link in the past between drug use and drug dealing by the applicant. If the applicant remained abstinent while on bail, it would not necessarily mean he was not involved in selling or supplying drugs. To identify that distinction is not to deny the applicant the presumption of innocence in respect of the charge of possession with intent to sell or supply, but to identify that the real possibility he would commit an offence while on bail would not be reduced to an acceptable level by the proposed condition.
I have considered whether home detention bail would reduce the risks I have identified to an acceptable level. If the risk of the applicant offending while on bail was confined to offending that required him to leave his home, then home detention might be considered as sufficient to reduce the risk to an acceptable level. However, the applicant's offending in the past has included at least one drug offence that involved him attempting to receive a prohibited drug at his home. Home detention would not necessarily prevent such offending. In addition, given the applicant's expressed intention to conduct his business, it would be expected that directions would be given by a Community Corrections officer to enable the applicant to leave his accommodation to attend work. That would tend to reduce the efficacy of home detention as a measure to prevent the applicant from committing an offence while on bail.
Further, I am not satisfied that requiring the applicant to reside with his father would provide an adequate measure of protection against the risk of the applicant committing an offence. The applicant is alleged to have committed the offences of 21 September 2018 while his father was living with him. Presumably his father was not aware that a large quantity of methylamphetamine was secreted behind a cushion on a sofa that was for communal use, or that $180,000 in cash was concealed in a subwoofer either in the theatre room or in the applicant's bedroom.
I have concluded that there are no reasonable conditions that I could impose, including home detention, which would sufficiently reduce the risk of the applicant absconding or committing a serious offence to a level where his detention pending the determination of the charges is no longer warranted.

Applicant's need to care for his mother

I have had regard to the potential hardship to the applicant's mother. However, it is apparent that Ms Smith has been cared for by others, including for a substantial period while the applicant was in prison. Her health problems and the need for the applicant to be available as her carer were raised in support of the bail application made by the applicant in September 2014, the subject of Smith v The State of Western Australia. On that occasion, Hall J rejected those circumstances as a basis for the grant of bail, having regard to the risk that the applicant would abscond or would commit an offence, which his Honour found to exist at that time.
Similarly, while I am sympathetic to Ms Smith's circumstances, I am of the view that they do not provide a basis for the grant of bail at this time, in light of my conclusion that no conditions could reasonably be imposed to sufficiently reduce the risk of the applicant absconding or committing a serious offence.

Time in custody before trial

I have also had regard to the fact that it is likely to be at least 11 months before the applicant can be brought to trial in the District Court. Such delay is regrettable, and I have taken into account the risk of injustice to the applicant if ultimately he were to be acquitted after being held in custody for a lengthy period. However, having regard to the apparent strength of the case against the applicant in respect of both the Perth property charge and the drug charge, and the likely sentence if the applicant is convicted, I do not consider that the delay is such as to justify a grant of bail when I have concluded that otherwise bail cannot properly be granted.
Of course, once the applicant is committed to the District Court, the issue of delay can be revisited in light of available trial dates and the readiness of the matter for trial. As matters stand at present, the application must be refused.

Order

Accordingly, the application is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Secretary
9 AUGUST 2022