Soden v The State of Western Australia
[2018] WASC 309
•8 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SODEN -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 309
CORAM: FIANNACA J
HEARD: 20 SEPTEMBER 2018
DELIVERED : 8 OCTOBER 2018
FILE NO/S: MBA 42 of 2018
BETWEEN: ROSS ELLIOTT SODEN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Unacceptable risk - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Bail refused
Representation:
Counsel:
| Applicant | : | Mr S Vandongen |
| Respondent | : | Mr J Whalley |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in decision(s):
Preston v The State of Western Australia [2012] WASCA 64
YSN v The State of Western Australia [2017] WASCA 155
FIANNACA J:
The application and its history
The applicant, Ross Elliot Soden, has applied for bail in respect of thirteen charges that are pending in the Magistrates Court. The application was heard on 20 September 2018. At the conclusion of the proceedings I refused the application and gave brief reasons, with written reasons to follow. These are my reasons.
All of the offences are alleged to have been committed by the applicant on 6 August 2018. His next appearance in respect of all of the charges is on 26 September 2018 and is for mention in each case. The charges are set out in the table below:
Charge No.
Alleged offence
RO 6014/2018
Possession of stolen or unlawfully obtained property
RO 6015/2018
Unlicensed possession of firearm or ammunition
RO 6016/2018
Possession of drug paraphernalia in or on which there was a prohibited drug or plant
RO 6017/2018
Possession of a prohibited drug (dexamphetamine)
RO 6018/2018
Possession of a prohibited weapon
RO 6019/2018
Possession of a prohibited drug (cannabis)
RO 6020/2018
Possession of a controlled weapon
RO 6021/2018
Possession of drug paraphernalia in or on which there was a prohibited drug or plant
RO 6022/2018
Possession of a prohibited drug
RO 6023/2018
Possession of a prohibited drug
RO 6024/2018
Possession of a prohibited drug (cannabis)
RO 6025/2018
Possession of a prohibited weapon
RO 6026/2018
Possession of a Prohibited Drug With Intent to Sell or Supply (methylamphetamine)
The applicant has not yet entered a plea to any of the charges. Charge RO 6026/2018, which is a charge of possessing a prohibited drug with intent to sell or supply, must be dealt with on indictment, because of the alleged quantity of the drug. Therefore, in respect of that charge, the applicant will be committed eventually to the District Court.
The applicant applied for bail in the Magistrates Court on 17 August 2018. Bail was opposed by the prosecutor on two bases. First, that there was a risk the applicant would fail to appear because of the strength of the case against him and the likelihood that he would be imprisoned. Secondly, that there was a risk the applicant would commit an offence if not kept in custody. The applicant sought to satisfy the learned magistrate that there were conditions that could be imposed that would alleviate those risks, if they were found to exist. The magistrate refused bail, finding there was a risk of the applicant re‑offending and failing to appear. Her Honour had particular regard to the circumstances of the alleged offending and to the accused's history of similar offending and breaches of bail.
The application is brought in this court under s 14(2) of the Bail Act 1982 (WA). 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.
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 pt B, C and D of sch 1.
Bail will, ordinarily, 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 and whether he may commit an offence. 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 3 was explained in YSN v The State of Western Australia [2017] WASCA 155 at [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.
Both parties characterised the test in cl 1(e) as whether the risk can be reduced to an acceptable level. Understood as incorporating the principles in the preceding paragraph, in particular in points (3) and (4), the description is apt.
The evidence in the proceedings
The application is supported by two affidavits, the first sworn by the applicant on 3 September 2018 and the second sworn by the applicant's lawyer, Mr Plenderleith, on 4 September 2018. Annexed to Mr Plenderleith's affidavit are the transcript of proceedings before the magistrate on 17 August 2018; the statements of material facts in respect of the alleged offences; and certified prosecution notices in respect of the charges.
In response, the State filed an affidavit of Mr Whalley, a Consultant State Prosecutor who is assisting in the carriage of the matter, sworn on 19 September 2018 (Mr Whalley's affidavit), with Annexures JW1 ‑ JW10, which include documentary evidence, including photographs, that will be included in the prosecution brief; a statement from one of the investigating police officers; the applicant's criminal record; statements of material facts in respect of offences for which the applicant has previously been convicted, including breaches of bail; and an incident report concerning a house fire at the applicant's home on 22 August 2018.
At the hearing the State also tendered three prints of stills taken from CCTV footage from the applicant's home. I will refer to their relevance in due course.
Section 22 of the Act provides that, in considering the case for bail, I may take into account such information as I see fit, whether or not the same would normally be admissible in a court of law.
Alleged facts of offences
The facts alleged in respect of the charges are set out in the statements of material facts annexed to Mr Plenderleith's affidavit. The State's case was further outlined in written submissions filed by the State. The case can be summarised as follows.
On Monday, 6 August 2018, at approximately 10.20 am, the applicant was driving a blue Ford Falcon motor vehicle on Smythe Street, Rockingham. He was the sole occupant of the vehicle. He was stopped by police, who spoke with him and decided there was cause to search him. Upon searching him, they found $970 in cash in his wallet and two cans of pepper spray (one in his pocket and one in his shoulder bag).
The officers then conducted a search of the vehicle and discovered, under the driver's seat, a vacuum sealed plastic bag containing a crystalline substance which was found to be approximately 55.22 grams of methamphetamine. They also found a set of digital scales, empty clip seal bags, a notebook with handwritten figures and $35,570 cash wrapped in black tape and contained within a cardboard box. The officers also found a pouch, inside which was a smoking implement. There were traces of drug residue on that implement. It appears that some of the methamphetamine found under the driver's seat was within the pouch in three clip seal bags. That amount was 27.95 grams.
The police also discovered a green and black bag containing two bottles of dexamphetamine, one sealed and one open. There were 120 tablets in total. The green and black bag also contained a black extendable baton.
Finally, on the front passenger seat, police discovered a brown backpack in which there was a clip seal bag containing 3 grams of cannabis.
Senior Constable Connelly, whose statement was annexed to Mr Whalley's affidavit, states that he was one of the officers who searched the applicant's vehicle, and that, when he opened the driver's door, his attention was immediately drawn to the clear plastic bag containing the 55.22 grams of methamphetamine. It was in the driver's foot well, positioned slightly under the seat, but clearly visible on opening the door.
As a result of finding the items in the vehicle, police searched the applicant's house where they found further sets of digital scales, more clip seal bags that were empty, notebooks with handwritten figures and more prohibited drugs. In the lounge room police found three smoking implements with traces of prohibited drugs. In a small kitchen fridge the police located seven vials of steroids. In a freezer in the kitchen the police located two clip seal bags containing 15 grams of cannabis. In a kitchen cupboard the police discovered two diazepam tablets. In the master bedroom the police found two extendable batons, 75 rounds of 9 mm luger ammunition and one round of 32 ‑ 20 Winchester ammunition. In the shed the police discovered a PVC pipe buried under the concrete slab and other items described by the police as 'concealable containers'.
The applicant has made admissions in relation to some of the less serious items discovered on his person and at his home. The presence of those items forms part of the States' circumstantial case in relation to RO 6026/2018, being the charge of possession with intent to sell or supply methylamphetamine.
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, 55.22 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 of similar offences previously, in October 2009, when he was sentenced to a total term of 2 years' imprisonment for two counts of possessing a prohibited drug with intent to sell or supply, one of which related to amphetamine.
Strength of the evidence against the applicant
As counsel for the applicant submitted, correctly, 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.
Prima facie, the prosecution case appears to be strong. The factual outline at [15] to [20] above reflects the evidence that will be given by police officers. Some of the facts are attested to by Senior Constable Connelly, whose statement is annexed to Mr Whalley's affidavit as 'JW 5'.[1]
[1] Connelly statement.
In short, the applicant was driving a vehicle in which police found the drugs. He drove the vehicle for approximately one and a half kilometres from another person's house to his own home in Smyth Street, Rockingham. He was followed by police who stopped him, before searching the vehicle. The drugs were in a plastic bag which was in plain view in the driver's foot well. Also in the vehicle was a large sum of money in cash, contained within a cardboard box that was wrapped in tape and black plastic, which appeared to be shrink‑wrapped around it. CCTV footage was retrieved from the applicant's house. One of the investigating detectives has viewed the footage and has said that it clearly shows the applicant holding a box, wrapping back sticky tape around it, wrapping it in black plastic and using a blowtorch to 'cling wrap' it.[2] The stills from the CCTV footage, which were tendered in the hearing, depict part of that event.
[2] Mr Whalley's affidavit [8] - [9].
In his affidavit, the applicant denies knowledge or having possession of the items found in the car he was driving. In fact he appears to deny any connection with the car, claiming he was simply moving it to get access to his car. He acknowledges that the police say they have the CCTV footage that shows him carrying and wrapping a box, and that they allege it is the same box found in the car containing the $35,570. He suggests that the box found by the police in the car was not unique, and that he has several identical boxes in his house. He suggests it is possible that the person who had the box containing the money either took the box from the applicant's house or had the box already in his possession. The applicant states that he came into possession of his boxes by purchasing items online from a global retailer called Wish, and that the company has a large clientele, so that many people may have the boxes. He states that he has not seen the CCTV footage, but that he believes what the police have seen is him wrapping a Harry Potter wand, which was in the lounge room at the time of the search.[3]
[3] Applicant's affidavit [27] - [35].
The applicant's account fails to explain the apparent correlation between the manner in which the box in the car was wrapped and the unusual method of wrapping adopted by the applicant in the CCTV footage.[4] That correlation appears to provide a strong connection between the applicant and the box found in the car.
[4] Mr Whalley's affidavit, annexure JW 3 (photographs of the box found in the car before and after the outer layer of plastic was removed).
The applicant was also found to have a significant sum of money in cash in his wallet. He had a can of pepper spray on his person and another in a bag he was carrying. He has previously been convicted of assaulting a police officer by using pepper spray, an offence that occurred in August 2015.[5] In his home the applicant had ammunition and extendable batons. Drug dealers are known to use weapons, or items capable of being used as offensive weapons, to protect their cash and drugs, because they have no recourse to legal remedies in the event of the theft of such cash or drugs. Therefore, such weapons may be indicia of drug dealing.
[5] Mr Whalley's affidavit, annexure JW 7.
Lists of names and figures, consistent with 'tick lists' kept by drug dealers in respect of money owed for drugs, were found in the car and in the applicant's bedroom.[6] Whether those lists were 'tick lists' will be a matter for a jury to determine in due course, but at this stage they can properly be regarded as evidence which, in combination with the other evidence, provides a strong prima facie case against the applicant.
[6] Connelly statement [56] - [57]; Mr Whalley's affidavit, annexure JW 4 (photograph of the list found in the car).
Also found in the applicant's home were clip seal bags and a money counting machine.[7]
[7] Connelly statement [62].
In short, there is evidence that the applicant was in possession of a number of indicia of drug dealing.
Further, the State will rely on evidence that the Ford Falcon was registered in the name of the applicant's partner,[8] and that he had purchased stereo equipment for the vehicle on 31 July 2018, to the value of over $4,500 (including installation on 3 August 2018).[9] One of the detectives states that the equipment was installed in the Ford Falcon.[10] In his affidavit, the applicant suggested that there is 'strong evidence that the vehicle and its contents do not belong to [him]' because police found 'another person's documents and fines' inside the vehicle.[11] There is no indication of what those documents were. In my opinion, the obvious import of the applicant's claim is that, although he was driving the vehicle to move it out of the way of his vehicle, he did not have a connection to the vehicle or its contents. The evidence of the registration of the vehicle and the purchase of the stereo equipment tends to establish that he does have a connection, and indeed a vested interest in the vehicle.
[8] Mr Whalley's affidavit [3] - [4] and annexure JW 1.
[9] Mr Whalley's affidavit, annexure JW 2.
[10] Mr Whalley's affidavit [6].
[11] Applicant's affidavit [26].
In assessing the strength of the case, there is force in the State's submission (in due course to be put to a jury) that it is inherently improbable that someone other than the applicant would leave such a significant quantity of prohibited drugs and cash in a vehicle over which they did not have effective control.
The State has indicated that, if this matter proceeds to trial, it would seek to rely on the applicant's previous conviction in October 2009 for possession of amphetamine with intent to sell or supply as propensity evidence, the significant probative value of which derives from its tendency to negative any defence of innocent association with the methylamphetamine found in the car. Although the conviction is some 10 years old, that would not preclude its admission as propensity evidence.[12] The question of whether the evidence is to be admitted will need to be determined in due course in the light of the whole of the prosecution case and submissions made by the parties specifically on that issue. At this stage it can be assumed that the evidence potentially will be part of the State's case. If so, it would strengthen the State's case further.
[12] Preston v The State of Western Australia [2012] WASCA 64.
Counsel for the applicant conceded that, on the materials before the Court, the prosecution case could be described as strong. The concession is properly made. Having regard to the combination of the various strands of evidence, it is a strong circumstantial case.
Applicant's character and antecedents
The applicant has an extensive history of criminal offending commencing in 2009, when he was convicted in the District Court of two counts of possessing a prohibited drug with intent to sell or supply, the first in respect of amphetamine, the second in respect of cannabis. He was sentenced to 18 months' imprisonment for the amphetamine offence, and 6 months' imprisonment cumulative for the cannabis offence. Also in 2009, he was convicted of breaching a bail undertaking, for which he was fined $5,200.
After that, he committed a raft of offences from February to August 2015, consisting of numerous burglary and stealing offences, fraud, offences involving possession of drugs, criminal damage, obstructing police, breach of bail and offences of violence against police. On 29 June 2016, the applicant was convicted of those offences in the Rockingham Magistrates Court and placed on a presentence order. He was subsequently sentenced on 17 November 2016, when he received terms of imprisonment for some of the offences, the most significant being cumulative sentences for two of the burglary offences, resulting in a total effective term of 16 months' imprisonment.
On 30 January 2017, the applicant was convicted of two drug related offences, including possession of methamphetamine, which were committed on 4 November 2016. He was fined for those offences. On 11 June 2018, he was convicted of possessing cannabis and drug paraphernalia on 9 May 2018. Again, he was fined for those offences.
Although there appears to have been a period of a few years after the sentence imposed in 2009 when the applicant did not offend, the extensive period of offending in 2015 is relatively recent, and he has been convicted of further offending since completing the term of imprisonment imposed in November 2016.
The applicant's history of offending supports the conclusion that there is a real possibility that he would commit an offence if he is not kept in custody. That conclusion is reinforced by the fact that he has previously committed offences while on bail.
The applicant's record and the statements of material facts in respect of his prior breaches of bail show that he was on bail from 10 June 2015, when he was remanded to appear in the Mandurah Magistrates Court on 30 June 2015. It would appear that he had been charged at that stage with a number of stealing offences and perhaps one or more of the burglary offences. While on bail he committed two stealing offences, on 19 and 20 June 2015. He then failed to appear in court on 30 June 2015 and a bench warrant issued. He remained at large until he was arrested on 5 August 2015. During that period he committed other stealing and burglary offences.
The applicant's arrest on 5 August 2015 occurred after police tried to stop his vehicle in order to arrest him. He fled from the vehicle and violently resisted the attempt by police to arrest him. He sprayed pepper spray at the officers, striking two of them on face. He also threw a large concrete garden statue at one of the officers, striking the officer on the arm, causing injury. He was subdued only after police deployed a Taser on him.
History of prior grants of bail
The applicant has two previous convictions for failing to comply with a bail undertaking by failing to appear as required.
In 2008 he failed to appear in the Rockingham Magistrates Court and was arrested on a warrant some two weeks later.
In June 2015 he failed to appear in the Mandurah Magistrates Court, as I outlined above. He was arrested on a warrant some five weeks later. As I described earlier, he resisted violently when police arrested him after stopping his vehicle.
The risk of the applicant failing to answer bail
The applicant's previous failures to appear in accordance with bail undertakings in 2008 and 2015, and his resistance to being apprehended in 2015, support the conclusion that there is a real and significant risk that he will fail to comply with any grant of bail on this occasion. That is particularly so, given that 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.
The risk of the applicant committing offences if not kept in custody
It is obvious from the applicant's history that, in the past, he has demonstrated flagrant disregard for the trust placed in him by a court not to offend while on bail. It is noteworthy, also, that he has admitted possession of some of the items in respect of which he has been charged. Further, while giving due weight to the presumption of innocence, the evidence in respect of the present charges provides a further basis for concern that the applicant may commit an offence if not kept in custody. Having regard to all those circumstances, the possibility that he would do so is real and, in my view, significant.
The applicant's current personal circumstances
The applicant is 30 years of age and had been living with his partner and her two children (his step‑children), aged five and three, until he was arrested. He states that he has been together with his partner for around four years.
The home they had been renting (where he was apprehended) and a significant part of the contents were damaged by fire on 22 August 2018, soon after midnight. The police incident report indicates that the fire was deliberately caused by persons acting criminally. An intact Molotov cocktail was found at the scene. However, it has not been suggested that the safety of the applicant is a factor relevant to the application. The relevance of the incident is that the applicant will need to live elsewhere if released. He has said that he would live with his brother‑in‑law.
The applicant claims that he is the sole provider for his partner and his step‑children, but has said that she is on Centrelink payments. He states that he was earning approximately $1,500 to $1,700 per week in his limestone business prior to his arrest, and that his family has been struggling financially since he went into custody. No supporting evidence has been provided by the applicant in respect of those claims.
The applicant states that his (and his partner's) only assets are his business, a work car, a work utility, his tools and household contents, all of which he estimates to be worth $18,000. He says he does not have any outstanding liabilities, but later in his affidavit says that his business has outstanding creditors which he has been unable to pay since going into custody and being unable to work.
The applicant states that his limestone business has three employees, and they have been out of work since it stopped trading when he went into custody. He states that he is the company's director and shareholder and is responsible for providing quotes to clients and paying creditors. In essence, he submits that the viability of his business will be imperilled if he is not released on bail to continue in the business.
Assuming the applicant is correct in stating that his employees cannot conduct the business in his absence and will lose their jobs, that is a regrettable but ordinary consequence that will result in some cases because of the nature of the charges and the accused's history, which require the accused to be remanded in custody.
The applicant states he has been operating the business since 2014, but says 'it was not actively trading throughout this time'. It is evident enough from his criminal record that he was in no position to run a business for a significant period of time while he was incarcerated. Further, if he was conducting the business during 2015, it did not prevent him from engaging in an extensive course of criminal offending from 21 February 2015 to 5 August 2015 that involved, among other things, the theft or unlawful possession of property that included power tools, such as angle grinders, and equipment such as an industrial compressor.
Where bail is otherwise inappropriate, hardship to family will not be a factor that tips the scales in favour of a grant of bail unless the hardship is of an exceptional kind. The circumstances in this case are not of that kind. The applicant states that he has been in a relationship with his partner for around four years. That period includes his most recent period of imprisonment, during which presumably his partner was able to get by financially.
Further, I consider there is merit in the State's submission that the applicant’s claim of financial hardship and his reference to having only a 'small amount of money' in savings' sits uneasily with his expenditure of $4,580.00 on car stereo equipment shortly before his arrest.
The applicant was born in Western Australia and his parents live here. It was submitted on his behalf that his ties to this State militate in favour of the conclusion that he would answer his bail.
Whether the applicant is trustworthy
The trustworthiness of an applicant for bail is an obvious relevant consideration in assessing whether the applicant will comply with conditions of bail when there is a real possibility that he will fail to appear or commit an offence while on bail. If an applicant for bail is dishonest in an affidavit filed in support of the application that circumstance will be relevant to assessing whether he can be trusted.
The State submitted that I should find the applicant was dishonest, or at least misleading, in two aspects of his affidavit in these proceedings. I referred to those aspects in outlining the strength of the evidence against the applicant. The first was his claim that the box in which the money was found was of a generic kind, and the second was his claim that he had no connection with the vehicle. The State submitted that I can be satisfied the applicant attempted to mislead the court by his statements in respect of those matters, when one has regard to the evidence presented by the State at the hearing. The state submitted that the Court, therefore, cannot have confidence that the applicant would comply with bail conditions.
Senior counsel for the applicant accepted that, if the Court were to draw the conclusion from the materials produced in the hearing that the applicant has been dishonest in his affidavit about matters going to the strength of the case against him, the conclusion would be relevant beyond assessing the strength of the case. However, it was submitted on behalf of the applicant that it would be difficult for me to reach a conclusion that the applicant was dishonest or had attempted to mislead the court in the absence of a full prosecution brief and seeing the applicant give evidence on oath and be tested.
I agree that the court should be cautious before making such assessments in the circumstances referred to by the applicant's counsel. However, as the State submitted, it is not difficult to conclude that the applicant has not been candid about his connection to the vehicle, as he did not see fit to mention that the vehicle was registered in his partner's name or that he had installed stereo equipment in the car valued at some four and a half thousand dollars, which he had bought.
In my opinion, the applicant's affidavit had a tendency to mislead the court in relation to any connection he had to the vehicle and in proffering a theory for how someone else may have come into possession of the box containing the money, on the basis that it was not a unique box and that many people would have identical boxes in their possession. The relevance of facts he omitted to mention, both in respect of the vehicle and the precise condition in which the box with money was found, is obvious and it would strain credulity to suggest the omission may have been inadvertent. At the very least, it is cause for considerable disquiet about the applicant's trustworthiness when he claims that he would comply with conditions of bail.
Whether conditions can reduce the risks to an acceptable level
The applicant proposed the following conditions of bail:
(1)That he reside at specified premises;
(2)A surety in the sum of $50,000 (or greater);
(3)That he report to police three (or more) days a week;
(4) That he surrender his passport and not approach any points of international or domestic departure; and
(5)Any other condition the court considers appropriate.
The surety initially proposed by the applicant became unsuitable. The applicant submits there is another person who would be able to provide a significant surety in excess of $50,000, if necessary.
At the hearing, it was also put on behalf of the applicant that the court could consider a condition requiring the applicant to undergo random urinalysis testing, given that he has a history of drug possession and items consistent with drug use were found.
The applicant submits that the proposed conditions and any additional condition the court might consider necessary, would reduce the risk of the applicant failing to answer his bail or committing an offence while on bail, and the residual risk would be acceptable in terms of potential interference with the administration of justice and the protection of the community. In other words, the residual risk would no longer justify the remand in custody of an accused who is presumed innocent and is at risk of an injustice if he is ultimately acquitted after being held in custody for a lengthy period.
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.
Although it was not one of the proposed conditions, I have considered whether home detention bail would reduce the risks I have identified to an acceptable level. If so, a report would need to be obtained to assess the applicant's suitability for home detention. 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 drug offences. 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.
Conclusion
In summary, having regard to:
(1)the degree of risk that the applicant would not answer bail and would commit an offence while on bail, given:
(a)his history of breaching bail and resisting his lawful arrest;
(b)his history of committing offences while on bail or at large after breaching bail;
(c)the strength of the evidence against him and the probable disposition if he is convicted; and
(2)the concerns about his trustworthiness.
I am satisfied that there are no conditions that could reasonably be imposed that would be adequate to reduce the risks to an acceptable level, so that the applicant's remand in custody would no longer be warranted. I am satisfied that, if reasonable conditions were imposed, there would remain an unacceptable risk that the applicant would commit an offence and/or fail to appear in court in accordance with his bail undertaking.
Therefore, the application for bail is refused.
This judgment will be the subject of a non‑publication order until the proceedings in respect of all outstanding charges faced by the applicant have concluded.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BC
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE FIANNACA
9 OCTOBER 2018
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