Suppressed - [2021] WASC 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   FLETCHER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 269
CORAM:   TOTTLE J
HEARD:   5 AUGUST 2021
DELIVERED          :   5 AUGUST 2021
PUBLISHED           :   18 AUGUST 2021
FILE NO/S:   MBA 34 of 2021
BETWEEN:   TREVOR STEVEN FLETCHER
Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - Where applicant has significant history of non-compliance with bail conditions - Where risk of applicant failing to appear in accordance with his bail undertaking - Where risk of applicant committing further offences while on bail - Where risk of applicant endangering the safety and welfare of other persons if not kept in custody - Whether there are any conditions which could reasonably be imposed to sufficiently remove the risks - Bail refused

Legislation:

Bail Act 1982 (WA), s 13(1), s 14, Sch 1

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr A Murad
Respondent	:	Mr J C Whalley SC

Solicitors:

Applicant	:	Damien Cripps Barrister & Solicitor
Respondent	:	Director of Public Prosecutions (WA)

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

YSN v The State of Western Australia [2017] WASCA 155

TOTTLE J:

(This judgment was delivered extemporaneously on 5 August 2021 and has been edited from the transcript.)

Introduction

By an application filed on 15 May 2021, the applicant applies for a grant of bail pursuant to s 14 of the Bail Act 1982 (WA) (the Act). On 16 April 2021 a magistrate refused to grant the applicant bail. This application first came before the court on 22 June 2021 and was then adjourned at the applicant's request.
The present application is not an appeal and I am required to consider afresh whether bail should or should not be granted. By s 13(1) of the Act, the jurisdiction to grant bail must be exercised subject to and in accordance with pt 3 of the Act and the further provisions in parts B, C and D of schedule 1 of the Act.
The principles applicable to an application such as this have been stated and reviewed in the Court of Appeal on a number of recent occasions. It is sufficient for me to refer to the decision in the case of YSN v The State of Western Australia[1] the principles discussed in that case by the Court of Appeal are the principles which I apply to this application.
[1] YSN v The State of Western Australia[1] [2017] WASCA 155.

Background

The applicant faces a large number of charges. In broad terms, the charges arise out of offending that is alleged to have taken place over a six day period between 11 March and 17 March 2021. For the purposes of this application the applicant's counsel divided the offending into three categories. The first relates to an incident that occurred in the early hours of the morning on 11 March 2021 in which it is alleged that the accused and at least 10 co-offenders attended at the front of a house at 5 Sirius Place, Port Kennedy. At that time there were present in the house a pregnant woman and her five year old daughter.
It is alleged that the accused and his co-offenders got out of three separate vehicles and ran towards the front of the house. Most of those present were armed with a variety of weapons. The incident was captured on CCTV footage and the prosecution allege that the accused was armed with a shotgun and pointed it in the direction of the front door of the house and the windows on several occasions. One of the offenders on that occasion discharged a firearm many times towards the windows and doors of the house.
What has been described as the 'attack' on the premises lasted for about 50 seconds before the offenders departed in the vehicles in which they had arrived. There is some DNA evidence which links the applicant to the offence committed on 11 March 2021 but for the reasons which I will come to explain, it is unnecessary for me to consider or review the nature and the strength of that evidence in any detail.
The second category of offending to which the applicant's counsel referred were driving offences and these offences were committed or allegedly committed on three separate dates: 13 March, 14 March and 17 March 2021 and, in overview, on each of those occasions it is alleged that the applicant drove at very high speeds and at speeds which exceeded the applicable speed limits by substantial margins and did so to evade arrest by police. In the course of those incidents the applicant, it is alleged, failed to comply with various directions given to him by the police officers.
The offences alleged to have been committed on 13 and 14 March 2021 involved a Subaru Impreza motor vehicle and there is DNA evidence linking the applicant to that vehicle and there is identification evidence by a police officer who the prosecution contends identified the applicant as the driver of the Subaru vehicle on 14 March 2021. The other evidence in relation to the offending on 13 and 14 March 2021 comprises CCTV footage taken from various service stations, which it is contended show that the applicant was the driver of the vehicle.
The other driving offences were allegedly committed on 17 March 2021 and on that occasion it is alleged that the applicant was driving a grey Ford Mondeo vehicle. When the police attempted to stop him it is alleged that the applicant drove off at high speed and that led to a police chase. The applicant denies that he was the offender on that occasion but the State point to the fact that when arrested later in the afternoon of 17 March (the chase having taken place at about 1.25 pm) he was found to have in his possession keys which the State will say link him to the Ford Mondeo vehicle.
On his behalf, counsel for the applicant has said that there is no conclusive evidence that the keys found on the applicant matched or were keys to the vehicle.
The next category of offending is a drug offence, that is, that when arrested on 17 March 2021 the applicant was allegedly found to be in possession of approximately 23 grams of methylamphetamine.
Initially, there was some question as to whether the drugs were found in a shirt pocket but it appears clear now that what is alleged is that the drugs were found in the applicant's trouser pocket. In addition, when arrested the applicant had $2,305 in cash in his possession. The applicant acknowledges that the quantity of methylamphetamine found in his possession gives rise to a presumption that he intended to sell or supply the drug but at least for the purposes of this application the applicant's counsel has foreshadowed that his intent will be in issue.
That said I observe that the strength of the prosecution case in relation to the possession of methylamphetamine is strong - and though it might be obvious to say so the strength derives from the possession of the methylamphetamine, the quantity and the statutory presumption. If convicted of that offence, the applicant will face a period of imprisonment of somewhere between three and five years and most likely close to the top of that range.[2]
[2] In the course of delivering judgment the applicant, who was present by video link, stated that I should have regard to the fact that at the time of hearing this application there was no laboratory evidence showing that the substance in his possession was methylamphetamine.
There is one further offence which I should mention because of its serious nature and which does not fall within the three categories identified by the applicant's counsel, that is, that the applicant is charged with having been in possession of a firearm, that is, a sawn-off shotgun and that offence was allegedly committed on 14 March 2021.
The applicant's case for bail is supported by an affidavit sworn by his counsel Mr Murad.
The focus of the application for bail largely rested on the proposition that there are conditions that can be imposed on the grant of bail which would sufficiently remove the possibility of either the applicant not answering his bail undertaking or not committing further offences whilst on bail. The applicant's counsel proposed a significant number of conditions intended to achieve that outcome and it has been foreshadowed by the applicant or by the applicant's counsel that the applicant would also be willing to abide by home detention conditions.
Whilst that, I think can be correctly characterised as the founding and most important aspect of the application, the applicant also challenges the strength of the prosecution case in relation to the Port Kennedy incident, that is, the offending alleged to have taken place on 11 March 2021 and in relation to the driving offences. The applicant's counsel has highlighted that in his submission the DNA evidence in relation to the driving offences is weak, or not as strong as one might think that it should be if the applicant had been the driver, and that the driving offences rely upon identification evidence and though this is not expressly stated by the applicant's counsel, there are of course well-known difficulties with identification evidence.
The applicant's counsel in effect acknowledges that the drug offending sits in a different category and that the evidence in relation to that could not be in any sense characterised as being weak.
The applicant also supports his application for bail by pointing to steps taken whilst on remand towards his rehabilitation and that he is tired of the pro-criminal lifestyle that he has lived and is seeking to, to put it colloquially, turn his life around and to that end has made contact with an organisation known as Thrive Integration.
The director of that organisation, Mr Bown, has provided some support for this application by indicating that if the applicant was released on bail the organisation with which he is connected can arrange for gainful employment for the applicant and will assist the applicant in leading a prosocial lifestyle.
The bases upon which the State opposes bail, are twofold: that there are no conditions that can be imposed to ameliorate or sufficiently remove the risk of the applicant not offending whilst on bail and remove the risk that the applicant will not answer his bail undertaking.
The State in their written submissions identify each of the occasions on which the applicant in the relatively recent past, which is from June 2018 to January 2020, has failed to appear in answer to bail undertakings given by him. Below I set out the relevant and the material facts of each breach of bail offence:[3]
[3] Affidavit of Justin Campbell Whalley affirmed 9 June 2021, annexure D.
(1)21 June 2018:
On the Thursday 7th June 2018 the accused was released to bail from Albany Magistrates Court after signing a bail undertaking which was entered into on the Friday 16th March 2018. Part of the undertaking was the accused would appear at the Albany Magistrates Court on Thursday 21st June 2018 at 10.00 am. The accused failed to appear on that date and as a result a warrant for their arrest was issued. On Saturday 3rd November 2018, the accused was arrested on the warrant and the present charge preferred. Explanation - Nil
(2)29 June 2018:
On Sunday 3rd of June 2018 the accused was released on bail from the Armadale police station after signing a bail undertaking. Part of the undertaking was the accused would appear at the Rockingham Magistrates Court at 10:00 am on the 29th of June 2018. The accused failed to appear on that date and as a result a warrant for their arrest was issued. On 3rd of November 2018 the accused was arrested on the warrant and the present charge preferred. EXPLANATION – 'nil given'.
(3)5 June 2019:
On Wednesday 17 April 2019 the accused was released on bail from the Rockingham Magistrates Court to reappear at the court on 5 June 2019. On 5 June 2019 the accused failed to appear and an arrest warrant was issued by the magistrate. On 26 September 2019 the accused was arrested for this warrant. The accused claimed that he had not appeared because he did not want to go to gaol. The accused was charged accordingly and his bail refused due to the arrest warrants.
(4)18 June 2019:
On Wednesday 17 April 2019 the accused was released on bail from the Perth Magistrates Court to reappear at the court on 18 June 2019. On 18 June 2019 the accused failed to appear and an arrest warrant was issued by the Chief Magistrate. On 26 September 2019 the accused was arrested for this arrest warrant. The accused claimed that he had not appeared because he did not want to go to gaol. The accused was charged accordingly and his bail refused due to the arrest warrants.
(5)14 January 2020:
On the 3rd of January 2020 the accused was released from Perth Magistrates Court after signing a bail undertaking. Part of the undertaking was the accused would re-appear at the Perth Magistrates Court at 10.00 am on the 14th of January 2020. The accused failed to appear on that date and as a result a warrant for his arrest was issued. On 17th January 2020, the accused was arrested on the warrant and the present charge preferred. Nil explanation offered.
As to the applicant's history of offending, which goes to the risk that he will offend if granted bail, the State points to the applicant's lengthy criminal record, which is itself acknowledged by the applicant, and which extends to some 19 pages. That criminal history includes convictions for assaults, burglary and for a large number of driving related convictions.
The State characterise the applicant as a recidivist in terms of his driving offences and submits that it is only a matter of time before the applicant seriously injures or kills someone in the course of driving at high speed to avoid arrest or detention by the police. Having regard to the applicant's record of offending, I think that is a submission that is well made and having regard to, again, the applicant's record of offending, the State's submission that the applicant has displayed a pattern of behaviour characterised by indifference or contempt to the law is a submission that I accept.
It is, of course, to be accepted that even the most hardened recidivist can change his or her ways and, as the applicant's counsel has said, the applicant is 46 years of age. He has spent much of his life in prison and one would hope that the applicant can now see that there is an approach to living life that is infinitely preferable for him and for all of those with whom he comes into contact, rather than a continuation of his previous criminal behaviour.
When I turn to consider the questions which bear upon the primary questions of whether if the applicant is not kept in custody he may fail to appear in court in accordance with his bail undertaking or may commit an offence or endanger the safety, welfare or property of another person, I must of course take into account the matters identified in cl 3 of pt C of sch 1 of the Act and those matters are, first, the nature and seriousness of the offences and the probable method of dealing with them if convicted.
All of the offences with which the applicant has been charged are serious. I will focus upon the drug offence because that is the offence in respect of which the State's case is the strongest. If convicted of that offence, as I have indicated, the applicant faces a term of imprisonment of three to five years and probably closer to five years. If convicted of the other offences, certainly if convicted of the driving offences, the mandatory minimum sentences would see the applicant committed applicant sentenced to a period of imprisonment which as I understand it would be at least 18 months, being a mandatory minimum of six months in respect of each offence, it not being open to the sentencing court to suspend that term of imprisonment. In my view, it is unlikely that such a period would be reduced for reasons of totality.
I have already remarked upon the applicant's previous convictions and antecedents. It is said on the applicant's behalf that he can be accommodated at an address in Maddington which is the address of a friend and that is a factor that favours bail.
The history of the previous grants of bail to which I have alluded constitutes a reason for not granting bail because it points to the risk that if not kept in custody the applicant will fail to answer his bail undertaking.
As to the strength of the evidence against him, I have remarked upon the strength of the State's case in relation to the drug offence. I accept the State's position in relation to the Port Kennedy incident is, in effect, a neutral one. The State does not contend that the evidence in relation to that case is strong. In relation to the driving offences, whilst I acknowledge that there are issues in relation to identification, on the basis of the materials that have been put before the court my assessment of the evidence in relation to those offences is that the evidence is strong. Not overwhelming, but not weak either.
On the basis of the matters to which I have referred, I think there is a very significant risk that if the applicant is not remanded in custody he will either fail to appear to in court in accordance with his bail undertaking, commit an offence and in the course of committing an offence, in particularly a driving offence, endanger the safety of members of the public.
When I turn to consider whether there are any conditions which could reasonably be imposed to sufficiently remove that possibility, I conclude with an unfortunate degree of confidence that there are no conditions that I think could be imposed which would sufficiently remove the possibility of either of the three things to which I have just referred occurring. What leads me to that conclusion and points very powerfully to that conclusion are the two factors to which the State have referred, that is, the applicant's poor record (and poor, really, is an adjective that doesn't do this justice), appalling record, in relation to previous grants of bail and to his extensive criminal record and the applicant's seeming inability when not in custody to avoid criminal behaviour of the kind manifested by his record.
For those reasons, and regrettable though it may be given that the applicant faces what I accept would be a considerable period on remand, the application for bail will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Associate to the Honourable Justice Tottle
18 AUGUST 2021