JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE STATE OF WESTERN AUSTRALIA -v- CROMBIE [2015] WASC 9 CORAM : EDELMAN J HEARD : 9 JANUARY 2015 DELIVERED : 9 JANUARY 2015 FILE NO/S : INS 271 of 2014 BETWEEN : THE STATE OF WESTERN AUSTRALIA Prosecution
AND
JAMES ANTHONY CROMBIE
Accused
Catchwords:
Criminal law - Bail application - Exceptional circumstances required under Bail Act 1982 (WA) sch 1, pt C, cl 3A - Exceptional circumstances not present
Legislation:
Bail Act 1982 (WA)
Result:
Bail refused
Category: B
Representation:
Counsel:
Prosecution : Mr B E F Tooker
Accused : Mr A D Sullivan
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Legal Aid (WA)
Cases referred to in judgment:Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99EDELMAN J: (These reasons were delivered orally after the hearing and have been edited for grammar and syntax.)
Introduction 1 Mr Crombie has been in custody since 5 May 2014. He is charged with aggravated armed robbery. He is due to face trial on 10 - 12 March 2015. He has brought an urgent application for bail. One reason for his application is because he has been accepted on to the Teen Challenge programme as a resident seeking drug rehabilitation. The programme runs for 12 - 14 months and it commences on 15 January 2015.
2 Mr Crombie's desire to rehabilitate from drugs, including the steps he has taken while in custody, is commendable. However, in this case, exceptional circumstances must be shown before bail could be granted.
3 The reason why exceptional circumstances are required is because Mr Crombie has also been charged with aggravated burglary which is said to have been committed whilst he was on bail for the aggravated armed robbery.1 This application for bail proceeded on the basis that bail was sought for both the aggravated burglary charge (for which exceptional circumstances are required) and the aggravated armed robbery charge. Although it will almost invariably be preferable for a first application for bail to be made in the Magistrates Court, the need for bail to be considered before 15 January 2015 and the fact that the application was already before me, made it appropriate that it be dealt with in this court. It was common ground that I have jurisdiction to make an order for bail for both charges under s 14(1)(a) read with s 13(1) and cl 1(2) or cl 6 of pt A of sch 1 to the Bail Act 1982 (WA).
4 I would refuse bail. Exceptional circumstances have not been shown. In any event, I would exercise my discretion to refuse bail particularly due to the possibility that if Mr Crombie is not kept in custody, he may fail to appear in court in accordance with his bail undertaking or commit an offence. Even if he is resident in the Teen Challenge programme these possibilities are too substantial for me to grant bail in light of (i) Mr Crombie's criminal record, and (ii) his previous breaches of bail.
Legal principles to apply in relation to this bail application
5 The power to grant bail under s 14(1)(a) of the Bail Act is governed by pt C of sch 1 to that Act which provides for a number of questions which must be considered in the exercise of discretion as well as any other questions that I consider relevant.
6 In considering the questions in cl 1, there is generally no requirement for exceptional circumstances to be shown before bail can be granted.2 Mr Crombie does not need to show exceptional reasons for his bail application in respect of the aggravated armed robbery charge. He was previously granted bail for the aggravated armed robbery charge on 23 April 2014. But that bail was revoked after he was charged with aggravated burglary on 5 May 2014.
7 In relation to the charge of aggravated burglary there is a need to show exceptional circumstances because, as is common ground, cl 3A of pt C of sch 1 to the Bail Act applies. Schedule 1, pt C, cl 3A provides as follows:
(1) Notwithstanding clause 1, 2 or 4 or any other provision of this Act, where -
(a) an accused is in custody -
(i) awaiting an appearance in court before conviction for a serious offence; or …
and (b) the serious offence is alleged to have been committed while the accused was -
(i) on bail for; or (ii) at liberty under an early release order made in respect of,
another serious offence, the judicial officer … shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer … -
(c) is satisfied that there are exceptional reasons why the accused should not be kept in custody …; and
(d) is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child accused, clauses 2 and 3.
8 Burglary and robbery are both defined as a serious offence under cl 1 of sch 2 to the Bail Act. Therefore, since the aggravated burglary is alleged to have been committed while Mr Crombie was on bail for the armed robbery, Mr Crombie must show exceptional reasons why he should not be kept in custody, in addition to satisfying me that I should exercise my discretion to grant bail having regard to the questions in sch 1, pt C, cl 1. Bail in relation to aggravated burglary
9 No bail application has yet been made in the Magistrates Court for bail for the aggravated burglary charge. As I have explained, the most efficient course is almost invariably for an accused person to apply for bail in the Magistrates Court. Nevertheless, in the urgent circumstances I have described and in circumstances in which the matter is already before me, it is convenient for this court to deal with the application.
10 I turn to the consideration of whether (i) exceptional circumstances are present, and (ii) whether discretion to grant bail should be exercised.
Exceptional circumstances are not present
11 Mr Crombie's counsel properly concedes that Mr Crombie's efforts towards rehabilitation are, by themselves, insufficient to satisfy the requirement for exceptional circumstances.3 However, he submits that these efforts (including Mr Crombie's acceptance on to the Teen Challenge programme) in combination with his time in custody, including a substantial period in protective custody and with only a single week served in the general population of the prison, are sufficient to warrant a grant of bail.4
12 In this case, I am not satisfied that these circumstances are exceptional. In particular, the admission into the Teen Challenge programme is not an opportunity that will be permanently lost if it is not taken up now. As Mr Crombie's counsel explained, although there is a delay of potentially months between application for the programme and acceptance on to it (in this case Mr Crombie applied in July 2014 and was accepted on 4 December 2014) if Mr Crombie were to ask now for consideration of a place on the programme for some time after April 2015 then there is a possibility that he could complete the whole course after that date (if he were acquitted of the armed robbery charge or if any custodial sentence, including backdating, permitted parole prior to late April 2015). In any event, by seeking to commence the course after the outcome of his armed robbery charge is known he would have considerably less risk of failing to complete the programme. Of course, I take into account that Mr Crombie will probably be sentenced for the aggravated burglary sometime after April 2015. But, as counsel for the prosecution said, and I accept, there is a possibility that he may be given a pre-sentence order for the aggravated burglary if he is out of custody in April 2015 and if he commences the programme before his sentencing for aggravated burglary.
The exercise of discretion
13 In any event, separately from the lack of exceptional circumstances, I have considered all of the factors in sch 1, pt C, cl 1. Counsel for Mr Crombie focused particularly upon Mr Crombie's completion of a six week intensive drug and alcohol programme while he has been in custody and his acceptance onto the Teen Challenge programme. These matters do not go to any particular question in cl 1(a) to cl 1(g) but can be considered by me in exercising my discretion under sch 1, pt C, cl 1 as 'any other' questions I consider relevant.
14 Mr Crombie's desire to complete drug rehabilitation is highly commendable. This is particularly so in light of what his counsel and his mother describe as his long history of drug abuse dating back to when he was a juvenile. His withdrawal, whilst in prison, from methadone and engagement with the Teen Challenge programme are further powerful positive signs.
15 I also take into account the views expressed by Mr Crombie's mother that in the past he has lacked the ability to assimilate into the community when released from prison, and lacked the ability to manage without support. I accept that a programme like Teen Challenge would assist him with this transition. It would be highly desirable for him to engage in this Teen Challenge programme. I do note though that it was not suggested that he will be unable to do so at another time in the future. Rather, this is a real possibility.
16 Another factor which militates in favour of bail for Mr Crombie is the time he has spent on remand (including in protective custody).
17 In considering the matters that weigh against this, as a practical matter it is generally for the prosecution to provide the material identifying the matters from sch 1 which have not been satisfied to provide a proper foundation for refusing bail.5 The prosecution points to the possibility that Mr Crombie will breach the terms of his bail, either by committing an offence or by failing to appear in court in accordance with his bail undertaking.
18 The two factors relied upon by the prosecution fall within cl 1(a)(i) and cl 1(a)(ii) of pt C to sch 1 of the Bail Act which are concerned respectively with (i) the possibility that if the accused is not kept in custody, he may fail to appear in court in accordance with his bail undertaking or (ii) the possibility that the accused will commit an offence.
19 In considering these two matters, cl 3 of pt C to sch 1 of the Bail Act requires me to consider the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and the history of any previous grants of bail to him; and the strength of the evidence against him.
20 In relation to both the possibility of Mr Crombie offending whilst on bail and the possibility of a breach of bail, there are six particularly significant matters weighing heavily against the grant of bail for his aggravated burglary.
21 First, there is the length of time between Mr Crombie's release on bail for the aggravated armed robbery charge and his breach of that bail. Mr Crombie was released on bail for the aggravated armed robbery charge on 23 April 2014. He failed to appear in court in compliance with his bail undertaking on 29 April 2014. On 5 May 2014, he was arrested in relation to the aggravated burglary charge.
22 Secondly, the prosecution points to Mr Crombie's lengthy criminal history. As an adult, since 5 February 2003, he has been convicted of 154 offences, including:
(i) stealing, including stealing of a motor vehicle, and possession of stolen or unlawfully obtained property (23 convictions between 10 August 2007 and 21 March 2013); (ii) gaining a benefit by fraud, or obtaining property from a person by fraud (40 convictions between 8 October 2007 and 15 March 2013);
(iii) receiving (nine convictions on 28 September 2012);
(iv) assault (four convictions between 10 August 2007 and 15 August 2011);
(v) trespass (two convictions on 30 January 2009 and 6 May 2011);
(vi) aggravated burglary (one conviction on 10 August 2007);
(vii) wilfully and unlawfully destroy or damage property, or damaging property (five convictions between 30 January 2009 and 28 September 2012);
(viii) attempting to defeat or pervert the course of justice (one conviction on 30 July 2004);
(ix) robbery in company (one conviction on 30 July 2004);
(x) possession of a prohibited drug (six convictions between 18 March 2003 and 15 March 2013);
(xi) giving false personal details to police, or refusing to supply or provide information to police (five convictions between 3 December 2003 and 6 May 2011); and
(xii) a number of offences under the Road Traffic Act 1974 (WA) (10 convictions between 3 August 2004 and 6 May 2011).
23 Mr Crombie also has 32 convictions in the Children's Court between 8 July 1999 and 14 January 2003. 24 Thirdly, of some relevance to the possibility of Mr Crombie committing an offence, but of particular relevance to the possibility of Mr Crombie failing to appear in court in accordance with any bail undertaking, is that Mr Crombie has committed four breaches of bail undertaking as an adult prior to his failure to appear in court on 29 April 2014 in accordance with his bail undertaking. He has also been convicted of breaching his bail in the Perth Children's Court on 14 January 2003, and has previous breaches of a Community Based Order in 2003 and an Intensive Supervision Order in 2004 respectively. Neither counsel was able to provide details of the facts of any of these breaches.
25 Also, on 28 September 2012, Mr Crombie was sentenced to a pre-sentence order in relation to 45 offences. During the course of that pre-sentence order, he committed an additional 23 offences.
26 Fourthly,as to the strength of the case against Mr Crombie for aggravated burglary, in his affidavit in support of the application, Mr Crombie's counsel says that it is anticipated that a plea of guilty will be entered for the aggravated burglary charge.6
27 Fifthly, the offence of aggravated burglary is a serious offence. However, on the information before me at the moment I do not consider that the inevitable result will be immediate imprisonment although that is a possibility.
28 The statement of material facts alleges the facts of the aggravated burglary to be as follows.
29 At about 1.45 am on 5 May 2014, Mr Crombie entered a house occupied by two women and two children under the age of five. Mr Crombie was in company with two other alleged offenders and a dog. A bathroom window was smashed and the occupants of the house barricaded themselves in a front bedroom and called police. Mr Crombie is alleged to have removed his wet shoes and put on the victim's Reebok running shoes.
30 Counsel for Mr Crombie said that he did not have complete instructions but that Mr Crombie may have simply been seeking shelter as he was homeless at the time. Counsel said that Mr Crombie may not have known that the house was occupied.
31 Sixthly,as I have explained, a further consideration which militates against the grant of bail is that even if bail were granted to allow Mr Crombie to attend the Teen Challenge programme, that programme would take Mr Crombie 12 to 14 months to complete.7 He is due to stand trial in relation to the aggravated armed robbery charge from 10 to 12 March 2015. If he is found guilty at trial and sentenced to imprisonment for a term that exceeds the period he has already served, the benefits Mr Crombie would gain from having attended the Teen Challenge programme for a period of less than 2 months are considerably more limited than those from completing the 12 - 14 month programme. On the other hand, the possibility of completing the whole programme at some time after March 2015 will still exist for Mr Crombie.
32 All these matters are strong reasons why I should not exercise my discretion to grant bail in respect of the aggravated burglary charge having regard to sch 1, pt C, cl 1 to the Bail Act.
Bail in relation to aggravated armed robbery
33 As I have refused Mr Crombie bail in respect of the aggravated burglary charge, a grant of bail in respect of the aggravated armed robbery charge would achieve nothing.
34 However, and in any event, for the same reasons I have expressed above, and having regard to the questions in sch 1, pt C, cl 1 to the Bail Act, I am not satisfied that Mr Crombie should be granted bail in respect of the aggravated armed robbery charge.
35 For completeness, and although no submissions were made about the strength of the prosecution case in relation to armed robbery, the facts of the aggravated armed robbery are alleged as follows. In summary, Mr Crombie and another man robbed a female victim known to Mr Crombie on 22 April 2014. Mr Crombie is alleged to have gone to her house armed with a knife, and he and his co-accused are alleged to have forced their way into the bedroom where the victim's partner was present. Mr Crombie is alleged to have yelled and sworn at the victim and held the knife up against her cheek while his co-accused is alleged to have stolen things including her mobile phone, her partner's mobile phone and a portable modem. After an altercation which resulted in an injury to Mr Crombie's co-accused, Mr Crombie is alleged to have thrown the victim's mobile phone at her, and handed back her partner's mobile phone and the portable modem and to have said 'I'm sorry, we're leaving, I didn't mean for it to go this far'.
Conclusion
36 My conclusion is that bail is refused.
______________________________________
1 Affidavit of Mr Sullivan, 5 January 2015, [10]. 2Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [44] (McLure P, Pullin JA agreeing, Hall J agreeing on this point).3 Applicant's submissions, 8 January 2015, [36].4 Applicant's submissions, 8 January 2015, [36].5Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 110 [41].6 Affidavit of Mr Sullivan, 5 January 2015, [9].7 Affidavit of Mr Sullivan, 5 January 2015, Attachment 2.