JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : STONE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 269 CORAM : HALL J HEARD : 23 JULY 2014 DELIVERED : 25 JULY 2014 FILE NO/S : MBA 30 of 2014 BETWEEN : DANIEL AARON STONE Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Aggravated reckless driving and multiple driving whilst suspended charges - Offences alleged to have been committed whilst on bail for other charges - Past failure to comply with bail - 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 : Mr S C Nigam
Respondent : Mr R P K Soh
Solicitors:
Applicant : Nigams Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):Stone v The State of Western Australia [2010] WASCA 801 HALL J: This is an application for bail under s 14 of the Bail Act 1982 (WA). 2 On 24 April 2014 the applicant was arrested and charged with four offences. The charges are as follows:
(1) reckless driving in circumstances of aggravation, namely driving a vehicle to escape pursuit by a member of the police force contrary to s 60(1) and s 60(4) of the Road Traffic Act 1974 (WA) (RTA); (2) failing to stop his vehicle when called upon by a member of the police force in circumstances of aggravation, namely whilst driving to escape pursuit by a member of the police force contrary to s 53(2A) of the RTA;
(3) driving a motor vehicle whilst suspended contrary to s 49(1)(a) and s 49(3C) of the RTA; and
(4) a second offence of driving a motor vehicle whilst suspended contrary to s 49(1)(a) and s 49(3C) of the RTA.
3 The first three offences are alleged to have been committed on 21 April 2014 and the fourth alleged offence on 24 April 2014. 4 On the arrest of the applicant the police refused him bail. An application for bail was made in the Perth Magistrates Court on 12 May 2014. On 13 May 2014 Magistrate Cicchini refused bail, principally on the ground that he could not be satisfied that the applicant would not commit further offences if released. His Honour also referred to the seriousness of the offences, the strength of the prosecution case and the risk to the safety of the public.
5 The charges are presently listed for mention in the Magistrates Court on 4 August 2014. If the applicant maintains pleas of not guilty to the charges a trial date may be set within four to six months from the trial allocation date. The applicant now seeks bail in respect of the charges.
6 Prior to being charged on 24 April 2014 the applicant was already on bail for 35 other alleged offences. Those charges included stealing a motor vehicle, multiple charges of fraud, several charges of driving whilst suspended, two charges of breaching bail, several stealing charges, driving a motor vehicle with false number plates, failing to stop and a further charge of reckless driving in circumstances of aggravation, namely to escape a police pursuit. Those other charges are still pending. I will refer to them in these reasons as the earlier charges.
7 The applicant had been released on bail in respect of the earlier charges and it is alleged that the offences that are the subject of the present application were committed whilst the applicant was on that bail.
8 An application under s 14 of the Bail Act is not an appeal and does not require the demonstration of error; rather, it is an application in the original jurisdiction of this court to exercise the power to grant or refuse bail in any case. 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 in sch 1 of the Bail Act.
The application
9 The applicant submits that as none of the alleged offences falls within the category of serious offences referred to in cl 3A of pt C, sch 1 of the Bail Act there is no presumption against bail or any requirement for the applicant to show exceptional circumstances. It is submitted that conditions could be imposed that would alleviate any risk that the applicant would fail to attend court or commit further offences. Whilst it is accepted that the applicant has a long history of committing serious driving related offences, including 26 prior offences of driving whilst under suspension, it is suggested that a home detention condition could be effective in ensuring that the applicant would not commit further offences if released on bail.
10 The applicant also points to the hardship caused to his family by his continued detention. An affidavit sworn by the applicant's de facto partner, Ms Sharon Moyle, attests to her ill health and reliance upon the assistance of the applicant. A doctor's report annexed to Ms Moyle's affidavit confirms that she suffers from chronic peripheral oedema. This condition causes swelling in Ms Moyle's hands, feet and ankles and restricts her ability to walk, use her hands or perform every day household tasks. She also suffers from extreme fatigue. These difficulties are compounded by the fact that the applicant and Ms Moyle have a 6-month-old son. Before being remanded in custody the applicant provided the majority of day-to-day care for the child. Ms Moyle deposes that there is only limited support available from family and friends and that she has had difficulty coping in the absence of the applicant.
11 The State opposes bail being granted. The reasons for that opposition are:
(1) the risk of the applicant re-offending; (2) the prior criminal history of the applicant; and
(3) the seriousness of the alleged offences.
Seriousness of the charges and likely outcome 12 The prosecution case is that on the morning of Monday, 21 April 2014 the applicant was at his home in Ballajura. He is alleged to have affixed a set of stolen registration plates to a silver Subaru at a time when he knew or ought to have known that those plates were stolen. He then drove from his home to a vehicle accessories store on Beach Road in Malaga. The applicant was under police surveillance at the time.
13 After leaving the shop in Malaga the applicant is alleged to have driven onto the west bound lane of the Reid Highway at the intersection with Alexander Drive in Mirrabooka. Police officers who were following in a vehicle behind the applicant activated their emergency lights and sirens signalling the applicant to pull over to the side of the road. It is alleged that he then accelerated heavily and continued in a westerly direction on Reid Highway, weaving around other road users and utilising the emergency lane to flee from the police. At this time the applicant was travelling at a speed of in excess of 160 km per hour. Due to the excessive speed the police officers were unable to maintain contact with the applicant's vehicle.
14 Several days later, on Thursday 24 April 2014, police officers were present in the vicinity of the applicant's home in Ballajura. He was observed to drive towards and park at the house in a black Ford utility. At all material times the applicant was not the holder of a valid motor drivers licence, that licence having been suspended as a result of previous offences.
15 The applicant was arrested on 24 April 2014 and taken to police offices where he participated in a recorded interview. He initially denied the offences but later made partial admissions.
16 On the hearing of the bail application in the Magistrates Court on 12 and 13 May 2014 it was said on behalf of the applicant that he denied being the driver of the vehicle on 21 April 2014. It was said that the applicant knew who the driver was, though he declined to say who it was at that time. It was put on his behalf that whilst police may have observed him at the shop in Malaga he did not drive there and was picked up from that place by 'his partner'. On the hearing of the application in this court the applicant's counsel named a woman whom the applicant claims was the driver of the vehicle pursued by police. The name is not that of his partner, Ms Moyle.
17 In the Magistrates Court the police prosecutor responded to the suggestions that some other person could have been driving the vehicle on 21 April 2014. The prosecutor said that there was evidence from police officers who had observed the applicant getting into the vehicle alone at his home address. This evidence would be supported by surveillance footage and photographs. He had then been observed getting out of the vehicle at the shop in Malaga. CCTV footage from the shop had been seized which showed the applicant entering the shop on his own. He was then observed by police officers to leave the shop and do some work on the vehicle which entailed him lying on the ground and examining the vehicle from underneath. He was then observed by two surveillance officers getting back into the vehicle and driving off. He was the only person in the vehicle at the time. He remained under surveillance until the police pursuit commenced on Reid Highway. Thus, although the vehicle was not pulled over and the applicant apprehended on 21 April 2014, the prosecutor submitted that the prosecution case was a strong one.
18 The maximum penalty on the charge of reckless driving in circumstances of aggravation is imprisonment for five years. The summary conviction penalty is imprisonment for two years: s 60(4) RTA. The maximum penalty on the charge of failing to stop in circumstances of aggravation is two years' imprisonment: s 53(2A)(b) RTA. The maximum penalty on the driving whilst suspended charges, where the offence is not a first offence, is imprisonment for 18 months: s 49(1)(c)(ii) RTA.
19 Given the seriousness of the alleged offences and the applicant's long record of similar such offences it is highly likely that in the event of conviction he will be sentenced to immediate terms of imprisonment. Whilst the applicant has suggested that he has a defence to the charges relating to the incidents on 21 April 2014, the presently available information suggests that the prosecution case is a strong one. No defence has been suggested for the offence of driving whilst suspended on 24 April 2014, which in itself would be likely to attract a sentence of immediate imprisonment.
20 The likelihood of a custodial sentence in the event of conviction does not in itself justify a denial of bail but it is a relevant consideration because it provides a significant incentive to abscond. It must, however, be accepted that that incentive is off-set by the applicant's strong ties in the community, particular to his partner and child.
Past failure to comply with bail
21 The applicant has committed offences of breaching bail in 2006 and 2009. The 2006 offence was a failure to appear in court for which the applicant was fined $300. The 2009 offence was more serious.
22 On 11 December 2009 the applicant was convicted of breaching a protective bail condition on 12 September 2009 contrary to s 51(2a) of the Bail Act. For this offence he was sentenced to 9 months' imprisonment concurrent with other sentences of imprisonment that were imposed at the same time for multiple offences of driving whilst under suspension and an offence of possessing an unlicensed firearm. The total effective sentence imposed on that occasion was 27 months' imprisonment. The applicant appealed against that sentence: Stone v The State of Western Australia [2010] WASCA 80.
23 The appeal judgment provides the facts in relation to the breach of bail offence (see [8]). On 12 September 2009 at 10.00 pm the applicant was stopped for a random breath test while driving on Canning Highway in Victoria Park. At the time he was subject to a bail undertaking that included a curfew condition that he be present at his home in Ballajura between the hours of 9.00 pm and 7.00 am daily. Being in Victoria Park at 10.00 pm was a breach of the undertaking.
24 In its judgment the Court of Appeal also referred to the driving under suspension charges. The court noted that on seven different occasions over about 12 months the applicant had shown 'a blatant and flagrant disregard for the law and for his responsibilities to the public as a driver of a motor vehicle'. The court said that general and personal deterrence were important considerations and that the applicant had an extensive history of traffic offences between January 2003 and July 2009. The court also noted that 'mere licence suspensions had done nothing to convince the appellant that he had to mend his ways'.
25 I have noted earlier that at the time the offences the subject of this application were alleged to have been committed the applicant was on bail on the earlier charges. Those charges include one of breaching a protective bail condition. The prosecution case in that respect is that at 5.17 am on Saturday, 21 December 2013 the applicant was driving a Holden Commodore on Mitchell Freeway. He was observed by police to be travelling at speed and, using laser speed measuring equipment, his speed was calculated to be 92 km per hour in an 80 km per hour zone. Police followed the vehicle and observed the applicant and a female passenger swapping positions as the vehicle was moving. The applicant had no authority to drive at the time as his licence was suspended. He was also subject to a bail undertaking that included conditions that he not drive a motor vehicle, produce photographic identification to police on demand and be subject to a curfew that required him to be at his home in Alexander Heights between 9.00 pm and 6.00 am each day. It is alleged that he breached all of those conditions on this occasion. In addition to being charged with a breach of protective bail conditions the applicant was also charged with exceeding the speed limit and driving whilst under suspension. The applicant has not been convicted of those alleged offences but the prosecution case against him would appear to be strong.
26 There is a second pending charge of breaching bail. The allegation in that regard is that the applicant failed to appear in court on 20 March 2013. On the hearing of this application counsel for the applicant said that the applicant had been seriously assaulted the day before and has a medical certificate from the hospital he attended. For the purposes of these proceedings I accept that explanation and place no weight on the failure to appear on 20 March 2013.
27 It should also be noted that both the charges that are the subject of this application and a number of the early still pending charges are alleged to have been committed at times that the applicant was subject to bail. Whilst taking into account that the applicant has not been convicted of these offences, I have been provided with statements of material facts in respect of them. I have already noted the strength of the prosecution case in respect of the offences alleged to have been committed on 21 and 24 April 2014. The prosecution case in respect of many of the earlier charges also appears to be strong. The commission of offences whilst on bail would be a seriously aggravating feature that would enhance the need for personal deterrence. It also strongly indicates that the existence of bail conditions has not acted to prevent the applicant committing further offences.
The likelihood of the applicant committing further offences
28 As has been noted, the applicant has a long criminal record and it is alleged that the current offences were committed whilst he was on bail. The bail conditions at the time required the applicant to report to police each day, to reside at a nominated address and to abide by a curfew.
29 The applicant has some 26 prior convictions for driving without authority. He has previously been imprisoned for such offences in 2009. He also has prior convictions for reckless driving and failing to stop when called upon by police in 2007 and careless driving in 2003. His past history and the circumstances of the presently pending charges lead me to conclude that there is a very significant risk that if released on bail the applicant would commit further offences. Such offences are unlikely to be merely confined to driving whilst under suspension. There is a real possibility that the applicant would not only drive a vehicle when he was prohibited from doing so but drive it in a manner that was dangerous to the public.
30 It was submitted on the applicant's behalf that he had had a change of attitude since the birth of his son on 26 January 2014. He had now resolved not to commit further offences and to dedicated himself to caring for his wife and child. This submission appears to be at odds with some of the pending charges. One of those charges is that on 26 January 2014, the day his son was born, the applicant drove a Holden utility whilst he was not authorised to drive. His actions on that occasion are alleged to have been captured on CCTV footage. Further, on 29 January 2014 it is alleged that the applicant drove another Holden utility and was pursued by police. On this occasion he is alleged to have driven in excess of 155 km along Reid Highway and then through residential streets. Further the charges the subject of this application are alleged to have been committed on 21 and 24 April 2014.
31 It was submitted that a home detention condition could be more effective in preventing further offending than previous bail conditions had been. This is said to be because police would be alerted immediately on the applicant leaving his home. Given that the applicant has shown a strong propensity to commit traffic offences in the past, that he has not been deterred from doing so by being on bail and that if he re-offended there is a significant possibility that any such offence could be one that endangers the public, I am not satisfied that a home detention condition could sufficiently obviate this risk. I also note that the applicant operates a mechanics workshop from his home and the presence of motor vehicles may well increase the opportunity for further offending.
Conclusion
32 I have taken into account the hardship faced by the applicant's partner. I accept that her need for assistance is genuine and could be best met by the applicant. However, that factor does nothing to minimise or outweigh the other factors that strongly militate against bail.
33 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 alleged 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.