Stone v The State of Western Australia
[2014] WASC 271
•28 JULY 2014
STONE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 271
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 271 | |
| Case No: | MBA:29/2014 | 22 JULY 2014 | |
| Coram: | HALL J | 28/07/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | TERENCE STONE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail application Burglary and stealing charges Offences alleged to have been committed whilst on bail for other charges Likelihood of further offences being committed |
Legislation: | Bail Act 1982 (WA), s 14, sch 1 pt C |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Burglary and stealing charges - Offences alleged to have been committed whilst on bail for other charges - Likelihood of further offences being committed
Legislation:
Bail Act 1982 (WA), s 14, sch 1 pt C
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Ms M Cheshire
Respondent : Mr M G Hunter
Solicitors:
Applicant : Cheshire Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
1 HALL J: This is an application for bail under s 14 of the Bail Act 1982 (WA).
2 On 10 March 2014 the applicant was arrested and charged with burglary and stealing. He appeared on those charges in the Fremantle Magistrates Court on 11 March 2014. He was remanded in custody until 18 March 2014.
3 On 18 March 2014 the applicant entered a plea of not guilty to the charges and made an application for bail. The application was refused and the applicant was remanded in custody to a hearing of the charges on 11 September 2014. He now seeks that he be granted bail in respect of those charges.
4 An application under s 14 of the Bail Act is not an appeal and does not require the demonstration of error; it is an application in the original jurisdiction of this court to exercise the power to grant or refuse bail. Accordingly, such an application requires that the court consider afresh whether or not bail should be granted. That jurisdiction is to be exercised in accordance with s 13 and sch 1 of the Bail Act.
The application
5 The applicant submits that if not granted bail he will have been remanded in custody for almost six months by the time of the hearing of the charges. It is said that this is the equivalent of a 12 month sentence of imprisonment which may be longer than any sentence imposed for the offences if he is convicted. It is also submitted that, notwithstanding the applicant's long criminal history, including some recent breaches of bail, conditions could be imposed that would obviate any risk of the applicant failing to attend court or committing further offences.
6 The applicant is particularly desirous of being granted bail because his partner is presently remanded in custody in Bandyup Women's Prison and has received an eviction notice on her Homeswest rental property due to unpaid rent arrears. The applicant formerly lived at the rental property and believes that if released he could pay the arrears using his credit card.
7 The State opposes bail being granted. The reasons for that opposition are:
(1) the seriousness of the alleged offences;
(2) the likelihood of a significant term of immediate imprisonment in the event of conviction;
(3) the recent failure of the applicant to comply with bail; and
(4) the likelihood of the applicant committing further offences if granted bail.
Seriousness of the charges and likely outcome
8 The prosecution case is that between 5.00 pm on 30 January 2014 and 8.00 pm on 31 January 2014 the applicant attended at residential premises in Preston Point Road, Bicton. At the time the occupants of the house were not at home. It is alleged that the applicant went to the side of the house and using an unknown object smashed the bedroom window. He then entered the premises and removed a large number of items of property.
9 The property taken included a plasma television, a Blu-ray player, a home cinema system, an iPod dock speaker system, two digital cameras, a T-Box telephone system, a laptop computer, a portable DVD player, a wrist watch, perfume, numerous items of clothing and shoes, two handbags and matching wallets, hats, costume jewellery, a case containing a gold plated cutlery set, items of furniture, school books, alcohol, hair clippers, a Swiss army knife, Nokia mobile telephone, bed sheets, CDs and DVDs, a wooden Ukulele and various cosmetics to the total value of $8,982.42.
10 It is alleged that during the commission of the offence the applicant incurred an injury to his right thigh which caused him to bleed. Later that evening the applicant was observed standing near a motor vehicle outside the address by a police officer. He was spoken to by the officer and said that he was visiting a friend's address nearby. At this time the burglary offence had not been reported to police.
11 The resident of the burgled house later returned home, discovered that she had been broken into and reported the matter to the police. A forensic examination was conducted and blood was located. An examination of the blood identified it as being consistent with that of the applicant. In my view, the prosecution case appears to be strong.
12 At the time of these alleged offences the applicant was on bail on other charges of stealing. On 26 September 2013 he was charged with stealing jewellery consisting of rings and bracelets from Prouds Jewellers in Kwinana on 12 September 2013. He was released on bail in respect of that charge. That charge is still pending and is presently listed for mention in the Rockingham Magistrates Court on 22 August 2014. According to court records the applicant appeared in the Rockingham Magistrates Court on this stealing charge on 29 January 2014, two days before the aggravated burglary and stealing offences that are the subject of this application were allegedly committed.
13 On 11 December 2013 the applicant was further charged with stealing jewellery to the value of $25,000 from Zamels Jewellers in Perth on 18 October 2013. He was also bailed on that charge. That charge is also presently pending in the Magistrates Court. The applicant is to appear for a committal mention in respect of that charge on 7 August 2014.
14 It is apparent that the alleged offences that are the subject of this application occurred at a time when the applicant was on bail in respect of two other unrelated matters. If convicted that would be seriously aggravating factor. That fact, together with the fact that the applicant has a significant prior record for stealing offences, for some of which he has received sentences of imprisonment, means that personal deterrence will play a significant role in sentencing in the event of conviction. The likely outcome would be one of immediate imprisonment.
15 A conviction on these charges would also result in the breaching of two suspended imprisonment orders made on 28 January 2014; that is, three days before the present offences were alleged to have been committed. On 28 January 2014 the applicant was sentenced in respect of two offences of stealing for which he received terms of 7 months and 3 months' imprisonment suspended for a period of 12 months. It is probable that these sentences would be activated and made cumulative on any sentence imposed on the present charges.
16 In these circumstances it is unlikely that if the applicant is convicted on the present charges any sentence imposed will be less than the time that the applicant will already have spent in custody. In itself that would not justify a denial of bail, but it does answer the submission that was raised to the contrary. The strong likelihood of a custodial sentence also provides an incentive to abscond.
Past failure to comply with bail
17 Since 1998 the applicant has committed six offences of breaching a bail undertaking. The most recent of those was for offences committed on 5 November 2013 and 3 December 2013, for which the applicant was fined. In respect of one of those breaches the applicant's explanation was that he got his dates mixed up and in respect of the other that he went to the Perth Magistrates Court rather than the Rockingham Magistrates Court.
18 It is submitted on behalf of the applicant that given his long record and the lengths of time that he has been on bail, the number of breaches is comparatively small. Even if that is true and even accepting the applicant's explanations for his recent non-compliance, I do not have confidence that he could be relied upon to meet the conditions of his bail if released. I also note other offences in the applicant's record that are relevant to the risk of absconding, including two offences of escaping legal custody.
The likelihood of the applicant committing further offences
19 As has been noted above, the applicant has a long criminal record and it is alleged that the current offences were committed whilst he was on bail. Information provided by the State on the hearing of this application shows that in the past the applicant has committed offences whilst on bail. On 18 January 2013 the applicant was charged with stealing and receiving and released on bail. Whilst on that bail he committed a further offence of stealing on 19 February 2013. On 11 September 2013 the applicant was again charged with stealing and released on bail. The following day, whilst on that bail, he is alleged to have committed a further offence of stealing. It is apparent that conditional release on bail has not been effective in preventing further offending on those occasions.
20 In my view there is a very clear risk that if released to bail the applicant would commit further offences. Given his past history of committing offences whilst on bail I am not convinced that any conditions could reduce that risk to an acceptable level.
Conclusion
21 Whilst this application only relates to the burglary and stealing charges alleged to have been committed on 31 January 2014 it is relevant to take into account that the applicant is also facing other charges. The prosecution case in respect of one of those other charges, the stealing from Zamels Jewellers, appears to be very strong. The State provided photographs from CCTV footage in respect of that charge which supports that conclusion. If convicted on that charge the applicant would also likely receive a term of immediate imprisonment. That is a factor that adds to the incentive to abscond if bail were granted on the present charges.
22 Having taken the factors referred to in sch 1, pt C, cl 1 of the Bail Act into account I do not consider it appropriate that the applicant be granted bail. I have come to that conclusion because of the seriousness of the offences, the likelihood that the applicant faces terms of immediate imprisonment if convicted, his poor past history of compliance with bail and the significant likelihood that he would commit further offences if released on bail.
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