The State of Western Australia v Khan

[2014] WASC 250

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- KHAN [2014] WASC 250

CORAM:   EM HEENAN J

HEARD:   12 JUNE 2014

DELIVERED          :   12 JUNE 2014

PUBLISHED           :  16 JULY 2014

FILE NO/S:   INS 101 of 2014

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

MALLY CLIFFORD KHAN
Accused

Catchwords:

Breach of bail pending trial - Possibility of prosecution for breach of bail - Trial listed for hearing in eight months' time

Legislation:

Bail Act 1984 (WA)
Criminal Code (WA)

Result:

Bail renewed

Category:    B

Representation:

Counsel:

Prosecution                  :     Ms C A Fletcher

Accused:     Ms A McGregor

Solicitors:

Prosecution                  :     Director of Public Prosecutions (WA)

Accused:     Justine Fisher Barristers & Solicitors

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

Nil

1. EM HEENAN J: Mally Clifford Khan has been charged on indictment filed in this court on 23 May with two serious offences. They are, at this point, only allegations - that on 13 June 2013, at Beldon, while in the place of a named person without his consent, he committed the offence of stealing; and that at the time he was armed with an offensive instrument, namely a hammer; and that he was in company with others; and that bodily harm was done to the person who lived in that place; and that, immediately before the commission of the offence, Khan knew or ought to have known that there was another person in the place and that the place was ordinarily used for human habitation. This is an offence of aggravated burglary under s 401(2)(a) Criminal Code (WA).

2. By the same indictment, Khan is charged that, on the same date and at the same place, he stole from the named person, with violence, a sum of money, electronic goods and other things, the property of the named person and, at the time, he was armed with an offensive instrument, namely a hammer, and that he was in company with others and that bodily harm was done to the victim. This is an offence known as armed robbery under s 392 of the Criminal Code, and that offence exposes Khan, upon conviction, to imprisonment for a period up to and including life imprisonment. 

3. He was committed to appear before this court on those charges and another charge, and did so on 26 May 2014, when the other charge was remitted to the Magistrates Court for hearing.  These two other charges are listed for trial on 9 February 2015; that is, almost eight months away.

4. On 26 May 2014, Khan was released on bail on terms and conditions which had applied since shortly after his initial arrest and which were imposed in the Magistrates Court, as far as I can see, in or about December of 2013.  The terms of that bail require regular reporting to the police, home detention, compliance with a number of conditions, including being subject to lawful directions of his mother, and not to contact or attempt to contact by any means certain named other persons.  He is also required to submit for urinalysis as directed by the Community Justice Service, and any positive result is to be treated as a breach of the bail. 

5. He seems to have complied with those conditions from December of 2013 until he appeared before McKechnie J in May this year, as I have already mentioned.  But on 21 May 2014 he provided a positive result to methylamphetamine and amphetamine, which constituted breaches of the conditional bail requirements and, as a result, on 26 May 2014, his bail was revoked by the Chief Executive Officer by the Department of Corrective Services.

6. He was subject to a warrant for arrest as a result of that breach, and he was arrested on that warrant on 11 June and taken into custody, and is before the court today. In the circumstances, this court is sitting to consider whether there should be any variation or revocation of the existing terms of the bail that are provided for by s 54 of the Bail Act 1982 (WA).

7. I should point out that an accused person who, without reasonable cause, fails to comply with a requirement of his bail undertaking mentioned in the Act commits an offence. Such an offence is established by s 51 of the Bail Act, and exposes the offender to a fine not exceeding $10,000, or imprisonment for a term not exceeding three years, or both. There is provision then for a prosecution for such an offence which, in the case of an offence for non‑appearance in a Superior Court, is governed by s 52 of the Bail Act.  No such prosecution is before me, and I understand that no proceedings for such a prosecution have been initiated, perhaps by reason of the fact that Khan has only very recently been taken back into custody for this breach. 

8. I should say that Khan has today admitted this breach before me by his counsel.  Nevertheless, this is not an occasion to convict him for any offence involving a breach of bail, or to punish him for such an offence.  It is possible that proceedings for such a breach might be brought later by the DPP, but whether they are or not does not directly concern me today.  The question is whether or not his bail should be renewed. 

9. As I have said to counsel in the course of submissions, I consider this to be a serious breach of bail.  The use of methylamphetamines and amphetamines in these circumstances is a deliberate and knowing breach of the terms of his bail, and for a person with Mr Khan’s record, it is another example, there having been three or four previous such examples, of his non-compliance with orders of the court, whether pursuant to violence restraining orders or community based orders.  That circumstance, together with his record, is highly indicative of an irresponsible attitude, a lack of respect for the law and a defiance of obligations imposed upon him.  I do not consider that conduct of that kind should pass without adverse consequences.  However, as I have already said, I am not dealing with a prosecution for a breach of the terms of bail, but, rather, considering whether or not bail should be renewed, or varied or revoked. 

10. There does not seem to be any point in considering any variation to the terms of the bail already granted.  Those terms require close supervision, subject to the supervision of his mother, to live in a particular address, to be available for inspection by the police and to submit to urine analysis requirements.  Nothing is to be gained by attempting to impose other or more rigorous conditions. 

11. That being the case, the only practical alternatives are to either renew the bail on existing terms or to revoke it.  The consequences of revoking it would be that he would remain in prison from now until early February 2015, a period of nearly eight months, which is quite a long time.  There does not appear to be any prospect of an appeal or review from such an order, were I to make one.  There are some domestic concerns in that he is involved in the care of his mother, who I am told is ill.  Between him and his mother, they have the custody or care of his three young children, whose mother, in turn, is also ill, and there is concern for the welfare of the children. 

12. I think on balance, and it is only a matter of balance, that I should renew the bail on the existing terms, and leave it to the prosecuting authorities to consider what, if any, action should be brought by way of a prosecution for a breach of the bail, which, if a prosecution were to occur, would provide the court with an opportunity to impose a penalty commensurate with the seriousness of this irresponsible non-compliance. 

13. I will, therefore, renew the bail on the present terms.