The State of Western Australia v Doherty
[2016] WASC 113
•11 APRIL 2016
THE STATE OF WESTERN AUSTRALIA -v- DOHERTY [2016] WASC 113
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 113 | |
| 11/04/2016 | |||
| Case No: | INS:75/2013 | 28 & 29 JANUARY, 15 & 16 FEBRUARY & 11 MARCH 2016 | |
| Coram: | CORBOY J | 11/03/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MARK JOHN DOHERTY |
Catchwords: | Criminal law Bail Whether home detention bail ought to be granted No new principles |
Legislation: | Bail Act 1982 (WA) |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
MARK JOHN DOHERTY
Defence
Catchwords:
Criminal law - Bail - Whether home detention bail ought to be granted - No new principles
Legislation:
Bail Act 1982 (WA)
Result:
Application for bail refused
Category: B
Representation:
Counsel:
Prosecution : Mr J L C Rivalland
Defence : Mr I D Hope
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Ian Hope
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
- CORBOY J:
(This judgment was delivered extemporaneously on 11 March 2016 and has been edited from the transcript.)
1 This is an application for bail, pending the applicant being sentenced.
2 The applicant has been charged on indictment with four offences against s 318(1)(i)(i) of the Criminal Code (WA). That section provides that any person who assaults a person who is working in a hospital is guilty of a crime and is liable to a term of imprisonment of 7 years.
3 The charges alleged by the indictment are that:
(1) On 27 February 2015 at Mount Claremont the applicant assaulted Sharon Pei Yui Scanlan, a person who was then working in a hospital.
(2) On 13 March 2015 at Mount Claremont the applicant assaulted Gift Mpundu Mwaka, a person who was then working in a hospital.
(3) On 13 March 2015 at Mount Claremont the applicant assaulted David Patrick Byrnes, a person who was then working in a hospital.
(4) On 29 May 2015 at Mount Claremont the applicant assaulted Valerie Tchapche Ngnie, a person who was then working in a hospital.
4 The applicant pleaded guilty to the charges in the Stirling Gardens Magistrates Court on 23 September 2015. The applicant also pleaded guilty to three further charges:
(1) On 17 June 2015 at Perth, being an offender subject to a community order made by the Perth Magistrates Court on 30 June 2015 in respect of the offence of assault person working in a hospital, he breached the community based order by failing to attend urinalysis on 17 June 2015.
(2) On 17 June 2015 at Perth, being an offender subject to a community order made by the Perth Magistrates Court on 30 January 2015 in respect of the offence of assault occasioning bodily harm, breached the community based order by failing to attend urinalysis on 17 June 2015.
(3) On 17 June 2015, being an offender subject to a community order made by the Perth Magistrates Court on 30 January 2015 in respect of the offence of obstructing public officers, breached the community based order by failing to attend urinalysis on 17 June 2015.
5 The applicant was a patient at Graylands Hospital at the time that he appeared in the Stirling Gardens Magistrates Court. He had been remanded on bail, and the State agreed that bail should be extended to the sentencing hearing. He was committed to be sentenced in this court on 28 January 2016. A psychiatric report was ordered.
6 An indictment was filed on 19 January 2016. However, the psychiatric report ordered by the Magistrates Court had not been provided immediately prior to the sentencing hearing on 28 January 2016. It was tentatively agreed between the court and the parties that the arraignment and sentencing of the applicant would be deferred to enable the report to be obtained. However, the court received a report from Dr Pascu on 27 January 2016.
7 Dr Pascu is a consultant forensic psychiatrist and head of clinical services at Graylands Hospital. Dr Pascu's report indicated that the applicant was to be discharged from Graylands Hospital the next day so that he could appear in court. Accordingly, the applicant appeared at short notice on 28 January and was remanded on bail to appear the next day. An application for bail was made but not determined on the following day. A home detention report was ordered, and the application for bail was subsequently heard on 15 and 26 February 2016.
8 The applicant has not been arraigned on the indictment, but there has been no indication of a change in his plea. His sentencing is currently listed for Tuesday, 12 April 2016. I also note that the home detention report that was provided to the court indicated that the applicant has a pending charge in the Perth Magistrates Court: possession of a prohibited drug. The offence was alleged to have been committed on 22 September 2015 while the applicant was subject to the community based order made by the Perth Magistrates Court on 30 January 2015.
9 The applicant was subject to a conditionally suspended imprisonment order at the time that he allegedly committed the offences to which he has pleaded guilty in the Stirling Gardens Magistrates Court. He had been convicted of a charge that on 15 November 2012, at Mount Lawley, he stole, with threats of violence, a sum of money, and that he was armed with an offensive weapon, namely a knife, and that he did bodily harm to the victim. Beech J made a pre-sentence order on 2 August 2013. The term of the order was six months. The applicant was subsequently sentenced on 7 February 2014 to a term of imprisonment of 12 months, suspended for 18 months.
10 The conditionally suspended imprisonment order expired on 7 August 2015. Accordingly, the applicant is liable to be dealt with under s 84F of the Sentencing Act 1995 (WA) for the armed robbery offence committed in 2012. Section 84F provides that where a person has been convicted of an offence, the statutory penalty for which is or includes imprisonment and the offence was committed during the suspension period of a conditionally suspended imprisonment order, the court must deal with the person in one of four ways. It may order that the person serve the term of imprisonment that was suspended; it may order the person serve part of the term of imprisonment that was suspended; it may substitute another suspension period for the suspension period originally set; or it may fine the person not more than $6,000 and make no order in respect of the conditionally suspended imprisonment order. However, s 84F(3) provides that a court must order the person to serve the term or terms of imprisonment that were suspended, unless the court decides that it would be unjust to do so in view of all of the circumstances that have arisen or have become known since the conditionally suspended imprisonment order was made.
11 It is convenient at this point to refer to some observations made by Beech J in his sentencing remarks when making the pre-sentence order and the conditionally suspended imprisonment order for the armed robbery offence. In making the pre-sentence order, his Honour noted that he had received detailed psychiatric and psychological reports and a pre-sentence report for the purpose of sentencing the applicant. The psychiatric report indicated: that there had been several examples of the applicant exhibiting violent behaviour while in hospital; that he did not comply with his treating team's management suggestions; that he did not understand or accept that he regularly drank harmful quantities of alcohol; that his diagnosis included a disorder of polysubstance abuse and an antisocial personality disorder; that there were a number of risk factors about the risk of the applicant reoffending in a violent way; that if the applicant did not more effectively manage his substance abuse, his risk of reoffending would increase; that there was a high risk of reoffending; and that the potential for sound risk management was limited. However, his Honour accepted that at the time the offence was committed, the applicant was suffering from a mental illness and, that having spent the equivalent of six months in custody, the applicant had learned from what had been a distressing experience.
12 In making the conditionally suspended imprisonment order, Beech J stated that he was satisfied that the applicant had made real efforts to address the key factors that had contributed to his criminal behaviour. He had attended reporting consultations with Community Corrections and, at a point in mid to late 2013, he had voluntarily sought a referral to hospital for treatment as his mental health had significantly deteriorated. He had received support from his mother, the Perth Home Care services and from regular psychiatric treatment. However, the applicant had been admitted to Graylands Hospital on 21 October 2013, and a psychiatric report prepared in January 2014 indicated that the applicant's mental illness may have become treatment resistant and it could not be confidently predicted when the applicant might be released from Graylands Hospital. The author of the psychiatric report considered that the risk of violence on the part of the applicant was high and that this was directly related to his ability to contain his psychosis and to abstain from drugs and alcohol abuse. Beech J accepted a submission from the State that, in all the circumstances, the protection of the community was best served by enabling the applicant to continue as an involuntary patient at Graylands Hospital and to then move to a staged integration into the community with appropriate professional and family support and treatment programs. His Honour concluded by noting that it was extremely likely that the applicant would be sentenced to serve the term of imprisonment that had been imposed if he had breached the conditionally suspended imprisonment order by reoffending or by breaching a condition of the order.
13 Dr Pascu stated in her report that the applicant had a psychiatric diagnosis of chronic paranoid schizophrenia with a significant co-morbid polysubstance abuse and dependence, and emotionally unstable personality disorder with marked antisocial traits. The applicant was admitted as an acute patient to Graylands Hospital on 22 October 2013 and subsequently transferred to the hospital's extended care service on 14 July 2014. He remained in hospital until his discharge on 28 January 2016.
14 Dr Pascu reported that the applicant had several co-morbid medical issues related to his drug use and that there had been several episodes of wound infections relating to IV drug use. There was a history of non-compliance with oral medication and the applicant had received antipsychotic medication in the form of injectable, long-acting depot medication. He had been mainly compliant with medication in that form, and that this had been effective in controlling positive symptoms of his illness but fluctuations related to substance abuse and dependence had continued. Dr Pascu reported that there had been only limited success with management plans during the applicant's hospitalisation. The applicant's apparent lack of engagement, currently driven by his underlying personality style, was also noted by Dr Pascu. The applicant had been uncooperative with attempts at substance abuse counselling and with other forms of physical and personal counselling.
15 Dr Pascu noted that in addition to the assaults which were the subject of the charges alleged against him, there had been multiple episodes of threats of verbal and physical aggression towards staff by the applicant, and that, as a result of his lack of engagement in the available rehabilitation services at Graylands Hospital and the aggression that had been directed at staff and patients, planning for the applicant's transition towards discharge from the hospital had commenced. A schedule of incidents involving the applicant was attached to Dr Pascu's report. The decision had been taken to discharge the applicant as a result of concern about the applicant accumulating more charges and the possible legal consequences while he was in hospital balanced against any foreseeable benefit that the applicant might gain from continued hospitalisation.
16 Dr Pascu noted that over the previous three months there had been an apparent escalation in the applicant's substance abuse and resultant behaviour which included possession of an illicit substance and possible weapons on his return to hospital from leave absences. The applicant had been transferred from a rehabilitation ward back to an acute ward. The report identified steps that had been taken to manage the applicant's discharge and arrangements that had been made for community support if a custodial sentence was not imposed.
17 As I have indicated, the applicant was remanded on bail to appear before me on 29 January 2016. On 29 January an application for bail was made but not determined, and at the same time the applicant's counsel foreshadowed that he had sought instructions to obtain a psychiatric report in light of the report that had been provided to the court by Dr Pascu. A home detention report was ordered.
18 The applicant did not give evidence in support his application for bail at the subsequent hearing on 15 February 2016. However his solicitor and counsel, Mr Hope, made an affidavit in which he stated that if the applicant was granted bail he would reside at a unit that he rented from Homeswest and that his mother was prepared to act as surety in the sum of $5,000. The applicant would be assisted by a service previously known as Perth Home Care Services, now known as AVIVO. That service was referred to by Dr Pascu in her report. She noted that the applicant was very engaged with the service and that there had been no episodes of aggression towards their employees of which she was aware.
19 Oral evidence was provided by Mr Landuyt, area manager of AVIVO, on the hearing on 26 February 2016. He confirmed that there had been no episode of aggression directed to his staff during the period in which they had provided services to the applicant. Those services consisted of helping the applicant to maintain his unit in such a manner as to give him stability at home and in the community. Staff members would spend time with the applicant engaging him in activities, assisting him with appointments, collection of medication and dealing with other service and health providers.
20 The nature of the services provided by AVIVO was further outlined in a letter dated 24 February 2016 from Ms Christine Gibson, which was attached to Mr Hope's affidavit. The letter stated that the service would provide support and community management to the applicant in collaboration with his family and a community recovery team if the applicant was released to the community. The service provided approximately 10 hours of support weekly to the applicant during the period while he had been a patient at Graylands Hospital.
21 Mr Hope further stated in his affidavit that if the applicant was released on bail he would come under the management of an intensive community outreach team and a report dated 22 February 2016 by Dr Keith Bender, consultant psychiatrist to that team, was attached to Mr Hope's affidavit. The report indicated that the applicant would be allocated a psychiatrist and a clinical case manager if he was released to the community. Monthly appointments would be scheduled with the applicant's psychiatrist and twice weekly contact would be maintained with team staff. The applicant would be provided with antipsychotic medication in the form of a fortnightly depot injection. He would be treated under a community treatment order pursuant to the Mental Health Act 2014 (WA) if necessary. The report outlined steps that would be taken in the event that the applicant's mental health deteriorated while in the community.
22 Mr Hope also attached to his affidavit a letter from Ms Debora Colvin, chief mental health advocate. Ms Colvin provided a general description of a locked psychiatric ward and the Ellis Ward at Graylands Hospital. The applicant was alleged to have committed the offences the subject of the indictment while housed in the Ellis Ward. I understood Ms Colvin's evidence to provide some background to the circumstances in which the applicant allegedly committed the offences - material by way of explanation and mitigation.
23 Mr Hope also attached to his affidavit a long letter from the applicant's mother and she gave oral evidence at the hearing of the bail application on 26 February 2016. It was apparent from her letter and her evidence that the applicant's mother has provided, over a long period, dedicated and insightful care and support to the applicant. However, I also note that the psychiatric reports received by the court describe the applicant's attitude towards his mother as ambivalent and that there have been occasions on which he has allegedly acted aggressively towards her.
24 The home detention report provided to the court noted that the applicant had successfully completed a community based order in 2004/2005, but had reoffended while on a community based order in August 2008. He had completed a conditionally suspended imprisonment order made in April 2010 for 2 years. The report also noted that the applicant had been 'relatively compliant' with conditional bail and the pre-sentence order made in 2013 and had provided negative results to urinalysis testing during that time. He had attended appointments with mental health services and undergone detoxification to deal with his alcohol abuse.
25 The report dealt with the applicant's criminal history noting that it highlighted 'a propensity to offend with violence, exacerbated by [the applicant's] significant mental health issues and substance abuse'. The report noted that the applicant had occupied his unit for the last 10 years and concluded that the proposed accommodation was equipped to facilitate home detention bail. However, there were concerns regarding the applicant's suitability for such an opportunity and his ability to comply with the demanding requirements for this form of bail.
26 The author of the report, Ms Ewa Nowak, gave oral evidence at the hearing on 26 February 2016. [Suppressed]
27 [Suppressed]
28 The home detention report also made reference to a psychiatric report provided by Dr Wojnarowska and dated 21 January 2016. This report had not been provided to the court through, presumably, an administrative oversight. It was the report that had been ordered when the applicant had been committed to this court for sentencing from the Stirling Gardens Magistrates Court.
29 Dr Wojnarowska concluded that the applicant suffered from a major mental disorder, schizophrenia, but that his risk of reoffending was not directly related to his illness but rather, indirectly to his poor impulse control, antisocial attitudes and position of entitlement. She considered that the applicant required anger management counselling and drug and alcohol counselling. She also concluded that the applicant presented a moderate risk of violent offending towards members of the public. In Dr Wojnarowska's opinion, the risk would occur in the context of a perceived need that had not been met and there was a high risk of violent offending towards hospital staff and fellow inpatients and a moderate risk of offending towards the applicant's mother. That risk could be mitigated by strict supervision, which would include drug and alcohol intake monitoring, ensuring medication compliance, ongoing professional support and firm boundaries with predictable consequences for aggression.
30 It was also submitted on behalf of the applicant that if he was released on home detention bail he would be properly supervised and assisted and that he would be referred to hospital by those providing support if his mental condition deteriorated. That submission was supported by the evidence given by Mr Landuyt and the applicant's mother.
31 The respondent contended that bail ought to be refused having regard to the contents of the home detention report and the report of Dr Pascu. Those reports suggested that there was a risk that the applicant would offend if granted bail, particularly having regard to incidents involving other residents at the block of units at which the applicant would reside.
32 The principles to be applied for an application for bail are well established. They were stated by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. In summary:
(1) The Bail Act 1982 (WA) was intended to contain a comprehensive code on the subject of bail.
(2) The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may be properly granted, having regard to the provision of cl 1 and cl 3 of pt C of sch 1 to the Bail Act.
(3) Clause 1 of pt C contains no express statutory presumption for or against the grant of bail; rather the judicial officer is required to exercise the discretion having regard to the questions in pars (a) to (g) and to any other question that the decision-maker considers relevant; that is, the correct approach to the exercise of the discretion is sourced in and guided by the matters referred to in pars (a) to (g) of cl 1.
(4) The court is required to consider and answer the mandatory questions before commencing the balancing process inherent in the exercise of the discretionary power to grant bail. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion.
(5) All of the mandatory questions, with the exception of par (e), are directed to whether there are positive grounds for refusing bail. The matters in par (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The focus of the questions which direct attention to whether there are proper grounds to refuse bail is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
(6) The Bail Act does not place a legal onus on any party to the application. However, the structure of cl 1 of pt C is such that bail will be granted if there is no material before the court providing a proper foundation for refusing bail. Consequently, it will often be for the State to furnish the material required to provide a proper foundation for refusing bail.
(7) The word 'may' in pars (a) and (b) of cl 1 means the possibility of the event occurring. So, for example, the court is required to answer the question of whether, if the accused is not kept in custody, there is the possibility he will fail to appear in court in compliance with his bail undertaking.
(8) It may be that after having regard to all of the relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused upon conviction are sufficient to enable the court to conclude that the accused may fail to appear in court in compliance with his bail undertaking. The existence and extent of that possibility may, having regard to the answers to all of the other mandatory questions in cl 1, require or justify the refusal of bail. However the common law presumptive approach for or against bail is inconsistent with the approach required under the Bail Act.
33 I turn now to consider the matters to which cl 1 of pt 3 in sch 1 to the Bail Act refers. There are three findings that I can make about those matters which can be briefly stated.
34 First, the matters referred to in pars (d) and (f) are not relevant. Second, I do not consider that the applicant needs to be held in custody for his own protection or that the alleged circumstances of the offences to which he has either pleaded guilty, or indicated that he will plead guilty, are of such a serious nature as to make the grant of bail inappropriate. Third, I am satisfied that any risk that the applicant might fail to appear in court in accordance with his bail undertaking can be satisfactorily addressed by appropriate conditions - in particular, conditions relating to home detention and the provision of a surety.
35 However, I find that it is possible that the applicant may commit an offence or endanger the safety, welfare or property of another person if he is not kept in custody pending sentencing. I make that finding having regard to a number of matters:
(a) the applicant's previous conviction for armed robbery;
(b) the observations made by Beech J in sentencing the applicant for that offence including the psychiatric report that was received by his Honour and the nature of the charges alleged against the applicant and his pleas of guilty to those charges in the Stirling Gardens Magistrates Court;
(c) the opinions expressed and the observations made by Dr Pascu concerning the applicant's history and behaviour while a patient at Graylands Hospital;
(d) the further incidents at Graylands Hospital to which Dr Pascu's report refers;
(e) the opinions expressed by Dr Wojnarowska, including her assessment of the risk of the applicant offending in the future; and
(f) the incident report concerning the incident on 6 January 2016 at the applicant's unit.
36 In my view, those matters establish that the applicant can behave aggressively and violently towards others, particularly when he becomes frustrated or is challenged. The risk of him offending is significantly heightened by substance abuse and it is apparent that the applicant has a chronic and entrenched problem with alcohol and various illicit drugs.
37 The remaining question is whether it is possible to impose conditions on the grant of bail that would sufficiently ameliorate the risk of the possibility of the applicant committing an offence or endangering the safety, welfare or property of another person. The applicant points to various matters to contend that conditions can be imposed to sufficiently address that risk:
(a) his willingness to be subjected home detention;
(b) the support that he would receive to ensure, among other things, that he was compliant with his medication regime;
(c) his mother's evidence as to how he would be likely to respond to home detention;
(d) the availability of medical support and counselling;
(e) the evidence of Ms Colvin about the circumstances in which the applicant was housed as a patient at Graylands Hospital and the circumstances in which the offending occurred; and
(f) the imposition of a condition requiring routine drug testing.
38 However, I have come to the conclusion that those protective conditions are not sufficient to ameliorate the risk of the applicant offending or doing some act that may endanger the safety, welfare or property of another person if he is not held in custody. I have reached that conclusion primarily because of the applicant's problems with substance abuse and the effect that it has on his behaviour and the evidence that is contained in the psychiatric reports that have been received by the court.
39 In particular, I note the evidence of Dr Wojnarowska as to the steps that might be required to mitigate the risk of the applicant offending in the future. She states that the risk might be mitigated by strict supervision which would include monitoring the applicant's drug and alcohol intake, ensuring medication compliance, ongoing professional support and the need for firm boundaries with predictable consequences for aggression. However, it is not possible, in my view, to impose protective conditions on a grant of bail that would provide the degree of strict supervision to which Dr Wojnarowska has referred. The fact that the applicant now has a chronic and entrenched problem with substance abuse is very apparent from Dr Pascu's report of his behaviour while a patient at Graylands Hospital. The time that the applicant would be remanded on bail would be short and would not allow him to receive any meaningful assistance with his drug and alcohol dependence.
40 That leaves an unacceptable risk that the applicant would seek to have illicit substances supplied to him even if home detention bail was granted. This is especially so as there is a real risk that the applicant will be sentenced to a term of immediate imprisonment for the offences to which he has pleaded guilty and on the resentencing for the armed robbery offence. Urinalysis would, of course, only detect the fact that an offence involving the possession or use of an illicit substance had occurred.
41 I am also concerned from the reports by Dr Pascu and Dr Wojnarowska, and the matters to which Beech J referred in sentencing the applicant for his armed robbery offence that the applicant can become aggressive and violent when attempts are made to control his behaviour to set appropriate boundaries. I accept that the applicant has a strong relationship with AVIVO but I am not satisfied that the risk that the applicant might behave aggressively towards care workers or even his mother – particularly if he was to obtain drugs or alcohol - can be sufficiently controlled by conditions imposed on a grant of bail. I am also concerned by what might happen if the applicant's mental health deteriorated. The proposal is that he would be hospitalised if necessary. However Dr Pascu's report indicates that this is not a satisfactory solution in the short term; that is, until the applicant can overcome his abuse of alcohol and drugs.
42 [Suppressed]
43 I should make one further observation: I am aware of the extent of the applicant's mental illness and that many in the community, including health professionals, might consider that prison does not provide a suitable environment for accommodating and treating those who suffer from a mental illness such as paranoid schizophrenia. I am acutely aware, in particular, of the applicant's mother's concern for the welfare of her son. Her patience and devotion to her son were very evident in these proceedings. However the Bail Act requires the court to balance a number of factors including a need to protect the community. In the circumstances, and for the reasons that I have given, the application for bail will be refused.
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