Stansfield v The Queen - [2001] WASC 353

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: STANSFIELD -v- THE QUEEN [2001] WASC 353

CORAM: WHITE AUJ

HEARD: 18 DECEMBER 2001

DELIVERED : 21 DECEMBER 2001

FILE NO/S: INS 80 of 2001

MATTER :the Bail Act 1982 (as amended) Section 14
an Application for Bail on No 80 of 2001

BETWEEN: DANNY FRANCIS STANSFIELD
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for bail - Applicant with extensive prior record including three convictions for breach of bail - Whether appropriate to grant bail

Legislation:

Bail Act 1982

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr S R C Senaratne
Respondent: Mr S E Stone

Solicitors:

Applicant: Legal Aid of Western Australia
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

WHITE AUJ: The applicant applies to be released from custody on bail pending his trial in this Court on 16 January 2002.
The indictment upon which he is to be tried alleges that:
"On 12 December 2000 at Mirrabooka Danny Francis Stansfield and Patricia Ann Jacobson stole from Brett Robert John Evenis with threats of actual violence, a mobile telephone, the property of Brett Robert John Evenis
And that at the time Danny Francis Stansfield and Patricia Ann Jacobson were armed with an offensive weapon, namely a syringe
And that at the time Danny Francis Stansfield and Patricia Ann Jacobson were in company with each other."
The applicant was born on 28 November 1979 and he has accumulated a significant criminal record since June 1994, when he was some 14 years of age, being convicted of 10 offences as a child. After attaining the age of 18 years, the applicant had been convicted of 22 offences, including three counts of aggravated burglary and one of breach of bail prior to his pleading guilty on 12 October 2001 to numerous charges; including three of stealing; one of possession of a weapon; two of breaching bail; one of using a prohibited drug; two of assault; one of failing to leave premises; and one of unruly behaviour on a railway. His convictions on the charges dealt with on 12 October 2001 breached the community based order and an intensive supervision order. On 30 November 2001, the applicant pleaded guilty to the remaining charge of burglary. The learned Magistrate imposed fines of $100 on each of the counts of breaching bail and of unruly conduct and a fine of $200 in respect of the charge of failing to leave premises. The learned Magistrate then cancelled the applicant's previous community based order and intensive supervision order and placed the applicant on a new intensive supervision order for 18 months with the requirement that the applicant attend psychiatric and drug counselling with psychological intervention as and when necessary as determined by the Department of Community Corrections.
There remains outstanding now only aforesaid the charge of armed robbery in company which has been listed for trial on 16 January 2001.
The applicant says that his mother and stepfather, who reside in the Northern Territory, are willing to stand as his sureties if bail be granted. His aunt has agreed that he may reside at her house in Yokine until the determination of the trial and he undertakes to abide by any other conditions the Court might impose. He says that if he were to be granted bail, this would greatly assist the preparation of his trial.
The deposition of the complainant shows that he is 16 years of age and resides at Balga. He knows the applicant. On 12 December 2000, the complainant, his 15 year old brother and another 16 year old lad were on a bus travelling from Nollamara to Mirrabooka. He saw the applicant whom he has known since the complainant was 13 years old. The complainant's mobile telephone rang, indicating that a message was coming through. He took the telephone from a pocket and noted that there was a message. The applicant grabbed the telephone from him. The complainant asked him to return it and the applicant said he did not have it. The complainant saw the applicant putting the telephone behind his back. The complainant kept asking for the telephone and the applicant, who looked angry, pulled out a "dirty pick" (that is to say, a syringe) out of the pocket of his jeans and said to the complainant: "I will stab you." The complainant could see that the syringe was stained with what looked like blood. When they got off the bus at Mirrabooka, the complainant again asked the applicant for the telephone and the applicant again pulled out the syringe and pointed it at the complainant and this time the cap was off the syringe.
Later, on 2 January 2001, the complainant saw the applicant at the Mirrabooka Shopping Centre and asked him where his telephone was. The complainant replied: "I don't have it, I sold it." When asked why, he said he needed money.
The 16 year-old witness says, in his deposition, that he knows the applicant and saw him grab the complainant's telephone from him and put it into the plastic bag that the applicant's girl friend was carrying. He also saw the applicant starting to pull a syringe from his pocket while saying to the complainant: "Look if you've got a problem with me and if you think I've got it, we'll have a fight about it." The complainant said he did not want to fight and the applicant put the syringe back in his pocket.
The complainant's brother also saw the applicant grab the telephone from the complainant, put it behind his back and give it to the applicant's girlfriend. He too saw the applicant pull out a syringe and threatened the complainant.
The case against the applicant, on the depositions, appears to be strong indeed. If convicted, the applicant is likely to receive a custodial sentence, particularly bearing in mind his choice of weapon.
The Crown opposes the grant of bail, pointing to the fact that the applicant has, on three previous occasions, breached conditions of bail. The proposed sureties are resident in the Northern Territory and, accordingly, unlikely to be able to exercise any control over the applicant. The applicant, while on bail for the present charge committed an offence of burglary. The Crown submits that there is a considerable risk in relation to the applicant of flight or of the commission of further offences.
Counsel for the applicant submits that bail should be granted so that the applicant can continue to perform under the intensive supervision order to which he was sentenced in the Court of Petty Sessions, in the hope that, if he can demonstrate that the has done so successfully during the few weeks remaining before his trial and if, at the trial, he is convicted, he may hope to receive a non‑custodial sentence.
The manner in which the jurisdiction to grant bail is set out in Pt C of Sch 1 of the Bail Act 1982. Among the matters which I must consider when deciding whether or not to exercise my discretion in favour of the grant of bail are those set out in cl 1 thereof, including:
"1(a)whether, if the applicant is not kept in custody, he may –
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;"
The fact that the applicant has, on no less than three previous occasions, breached the conditions of his bail undertaking suggests that there is a real risk that he may not honour any undertaking he might give if granted bail and, accordingly, that he may fail to appear in court in accordance with such undertaking.
It appears from a perusal of the applicant's criminal record and the depositions that he probably has a drug problem, involving the use of an intravenous syringe. In such a case, there is a real risk that, if granted bail, he will commit further offences.
The prosecutor has opposed the grant of bail.
The trial is listed in mid‑January next, as I have indicated.
In all the circumstances, I am of the opinion that this is not an appropriate case for the grant of bail and, in the exercise of my discretion, I dismiss the applicant's application to be released on bail.