Smith v The State of Western Australia

[2014] WASC 363

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 363

CORAM:   HALL J

HEARD:   4 SEPTEMBER 2014

DELIVERED          :   4 SEPTEMBER 2014

PUBLISHED           :  30 SEPTEMBER 2014

FILE NO/S:   MBA 34 of 2014

BETWEEN:   JASON EDWARD SMITH

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail application - s 14 Bail Act 1982 (WA) - Sch 1, pt C, cl 3A - Whether exceptional circumstances established

Legislation:

Nil

Result:

Application for bail refused

Category:    B

Representation:

Counsel:

Applicant:     Mr S Vandongen SC & Mr A J Williams

Respondent:     Mr D Jubb

Solicitors:

Applicant:     Andrew Williams

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. HALL J:  On 4 September 2014 I refused this application for bail, gave short oral reasons and said that I would publish more detailed reasons in due course. 

2. This is an application for bail pursuant to s 14 of the Bail Act 1982 (WA). Such an application is not an appeal but a review of bail undertaken in the original jurisdiction of this court.

3. On 28 July 2014 the applicant appeared in the Perth Magistrates Court on two charges of attempting to possess a prohibited drug with intent to sell or supply contrary to s 6(1)(a) and s 33 of the Misuse of Drugs Act 1981 (WA). Those offences were alleged to have been committed on 10 July 2014. At that time the applicant was on bail on a charge of aggravated burglary. As an attempt to possess prohibited drugs with intent to sell or supply and aggravated burglary are both serious offences within the meaning of s 3 of the Bail Act 1982 (WA) the applicant could not be released on bail unless the magistrate was satisfied that there were exceptional reasons why he should not be kept in custody: sch 1 pt C cl 3A of the Bail Act.  The magistrate was not so satisfied, refused bail and the applicant then applied to this court.

4. The applicant is presently facing a large number of unresolved charges in addition to those just referred to.  The alleged offences were committed at different times, charges were preferred on different dates and in respect of some of them the applicant was summonsed and not placed on bail in respect of the charge until sometime after the charge was first preferred.  This made it difficult to establish a precise chronology.  The bail application was adjourned for a short time to enable copies of the original prosecution notices to be obtained.  On the basis of those prosecution notices the chronology is as follows:

23 April 2013

1. The applicant is alleged to have committed an offence of receiving stolen property (a diamond ring).  He was not charged with this offence until 16 August 2013.  He first appeared on the charge on 16 September 2013 and was bailed on a personal undertaking.  That bail has been continuing at all material times.

23 March 2014

1. The applicant is alleged to have committed an offence of fraud by obtaining use of a hotel room by using false documentation.  He was not charged with this offence until 31 May 2014.

19 May 2014

1. The applicant is alleged to have committed an offence of offering to sell methylamphetamine (1.75 grams).  A summons was issued in respect of this charge and he did not appear in court in respect of it until 27 August 2014.  This is a serious offence within the meaning of the Bail Act, but the applicant was not on bail in respect of it at any material time.

22 May 2014

1. The applicant is alleged to have committed an offence of possessing drug paraphernalia (scales).  The prosecution notice for this charge could not be obtained and it is not clear when he was first charged or appeared in court. 

31 May 2014

1. The applicant was charged with the fraud alleged to have been committed on 23 March 2014.  It would appear that a summons issued that was returnable on 2 July 2014.  It is not clear whether he was on bail on this charge after that date.

7 July 2014

1. It is alleged that the applicant committed an offence of aggravated burglary.  He was arrested and charged with that offence the following day and released on bail.  This is a serious offence within the meaning of the Bail Act.

10 July 2014

1. It is alleged that the applicant committed the two offences of attempting to possess methylamphetamine with intent to sell or supply.  He was charged with those offences on 11 July 2014 and refused bail.

2. When the matter came before the magistrate for a bail application on 27 August 2014 he was told that the applicant was a schedule 2 offender because the drug offences allegedly committed on 10 July 2014 occurred at a time when he was on bail for the offer to sell methylamphetamine that had allegedly occurred on 19 May 2014.  That is not correct.  He did not appear in court on the earlier charge until 27 August 2014.  By that time he was already in custody.  Accordingly he was not on bail for that charge when the drug offences of 10 July 2014 were alleged committed.

3. The applicant was however a schedule 2 offender by virtue of the fact that he was on bail on the aggravated burglary charge as at 10 July 2014.  Indeed he had been released on that bail only two days earlier, on 8 July 2014. 

4. On the hearing of this application it was submitted that the two offences of attempting to possess methylamphetamine allegedly committed on 10 July 2014 had in fact occurred at an earlier date and the date on the charge simply reflected the time of the applicant's arrest.  In response to that submission the prosecutor provided details of the prosecution case in respect of those two drug charges. 

5. The prosecution case is that on or about 27 May 2014 the applicant placed an order for methylamphetamine with an internet drug supplier.  The amount that was ordered was 2 ounces or 56 grams.  A parcel containing the drugs arrived in Australia on or about 18 June 2014 and was intercepted by Customs.  The applicant was unaware of that seizure and, due to the delay in receiving the package, re‑ordered 2 ounces of drugs on 21 June 2014.  The second package arrived in Australia on 9 July 2014.  It was also seized by Customs.  The contents of the two packages were confirmed to be methylamphetamines weighing 55 grams in each case.  The purity of those drugs is yet to be determined. 

6. Police officers substituted the drugs in the first package for an innocuous substance and then conducted a controlled delivery to the house where the applicant was residing.  That controlled delivery occurred on 10 July 2014.  At the time of the delivery the applicant was at home, being subject to a curfew condition of the bail imposed on the aggravated burglary offence.  He received the parcel.  A short time later police executed a warrant and found the parcel on the premises.  Accordingly, the two attempt offences are alleged to be constituted by a course of conduct that commenced on 27 May 2014 and was continuing up until 10 July 2014.  As at 10 July the applicant is alleged to be still actively engaged in the offence in that he received the first parcel on that day.  In those circumstances I am satisfied that he falls within the terms of cl 3A.

7. The applicant submits that even if cl 3A applies exceptional circumstances exist for him to be released on bail.  Those circumstances relate to the health of the applicant's mother and her need for a carer.  The applicant's mother has sworn two affidavits in which she has set out the details of her medical condition.  She suffers from Crohns Colitis.  The symptoms of this condition include abdominal pain, diarrhoea, weight loss, severe blockages of the bowel and renal failure.  She also suffers from peripheral neuropathy as a result of her renal failure.  Peripheral neuropathy is damage to the peripheral nervous system in her legs and feet.  The symptoms of this condition include numb feet, pins and needles, severe pain in the knees, legs and feet and cramping in the calves.  This condition has worsened over the past four years and over the past six months her ability to walk distances has been restricted significantly.

8. The applicant's mother attests that the applicant has been her full time carer for the past four years until his incarceration on 10 July 2014.  She states that the applicant assists her with everyday tasks including shopping, general household duties, transport to and from hospital appointments and other medical appointments.  He assists in drying her legs after she showers and in having her clothes ready to enable her to dress.  Since the applicant has been in custody his mother has relied upon her father, the applicant's grandfather, who is 82 years of age.  She states that due to her father's age and ill health he is unable to do some of the things that the applicant could do and that caring for her is placing strain upon him both mentally and physically.  She states that there is no‑one else who can care for her.  She has one sister who has family obligations and has no other children other than the applicant.  Her husband has cared for her in the past but they are now separated and he works in full time employment.  She is on a disability pension and unable to pay for a full time carer.  The applicant was receiving a carer's benefit when he was acting in that role.  She has previously utilised the services of Silver Chain but, after an incident where an infection was not properly treated and she ended up in hospital, she no longer has faith in that service.

9. The applicant's mother's medical conditions are not disputed.  Nor can it be disputed that she is in need of significant assistance to conduct daily chores.  I accept that the most suitable person to act as her carer is the applicant.  However, that need must be balanced against other relevant factors. 

10. Between March and July the applicant is alleged to have committed a series of offences.  Some of these offences are extremely serious in nature, in particular the aggravated burglary and the attempts to possess methylamphetamine with intent to sell or supply.  The prosecution case in respect of those offences appears to be strong.  The aggravated burglary is alleged to have been committed at night in company on commercial premises.  The applicant and his co‑offenders were caught at the scene and apprehended whilst trying to flee.  The drug offences involve the applicant making an order for drugs and then receiving one of the parcels at his home.  On conviction for such offences the applicant would likely receive substantial terms of imprisonment.  The strength of the prosecution case and the likelihood of imprisonment on conviction must act as a strong incentive to abscond. 

11. Over the period of March to July 2014 the applicant is alleged to have committed a series of offences of varied nature.  During that period he has been charged and bailed and that fact does not appear to have acted as a deterrent to committing further offences.  Furthermore, and significantly, the applicant is alleged to have committed serious offences whilst on bail for the aggravated burglary.  The bail conditions at that time included a curfew condition.  In the circumstances I am not satisfied that any conditions could be imposed on a grant of bail that would sufficiently obviate the risk of further offending.

12. I have also had regard to the factors referred to in pt C cl 1 of the Bail Act.  I have considered the possibility of whether conditions could minimise any risk of absconding or risk of reoffending.  I do not consider that home detention would sufficiently obviate that risk.

13. Accordingly, whilst the need for the applicant's mother to have him as her carer may well constitute exceptional circumstances, I am not satisfied that bail can properly be granted having regard to cl 1 and cl 3: cl 3A(1)(d).

14. For these reasons the application for bail was refused.