The State of Western Australia v Kirwan [No 2]
[2014] WASC 460
•5 DECEMBER 2014
THE STATE OF WESTERN AUSTRALIA -v- KIRWAN [No 2] [2014] WASC 460
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 460 | |
| 05/12/2014 | |||
| Case No: | INS:124/2014 | 1 DECEMBER 2014 | |
| Coram: | MITCHELL J | 1/12/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ALVIN GLENN KIRWAN |
Catchwords: | Criminal law Bail Turns on own facts |
Legislation: | Nil |
Case References: | Kirwan v The State of Western Australia [2014] WASC 425 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
ALVIN GLENN KIRWAN
Accused
Catchwords:
Criminal law - Bail - Turns on own facts
Legislation:
Nil
Result:
Bail refused
Category: B
Representation:
Counsel:
Prosecution : Mr B E F Tooker
Accused : M H Sklarz
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Sklarz Lawyers
Case(s) referred to in judgment(s):
Kirwan v The State of Western Australia [2014] WASC 425
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
- MITCHELL J:
(This judgment was delivered extemporaneously on 1 December 2014 and has been edited from the transcript.)
Application
1 This is an application for the grant of bail for the applicant's appearance before the Supreme Court at Perth on 22 January 2015 and then until trial. The applicant faces a number of charges on indictment in this court, comprising:
(a) two counts of aggravated armed robbery alleged to have been committed at Mount Claremont on 29 September 2013;
(b) one count of aggravated burglary at the same place and time;
(c) two counts of unlawful wounding at the same place and time;
(d) one count of stealing a motor vehicle at the same place and time; and
(e) one count of unlawful damage by fire on the same date at Wangara.
2 The applicant was arrested on 24 October 2014 and has been in custody since that time. His trial is set down to be heard from 21 - 28 April 2015.
3 On 16 October 2014, the applicant applied to be granted bail on conditions until trial. His application was heard by Simmonds J on 29 October 2014. At the conclusion of that hearing, Simmonds J ordered an assessment of the applicant for the purposes of home detention bail. Justice Simmonds published reasons for that decision1 in which he made a number of observations about certain considerations relevant to the bail application without finally determining that application. Justice Simmonds indicated that he did not yet need to determine how he would exercise his discretion with the weighing and balancing process referred to in Milenkovski v The State of Western Australia.2
4 A home detention bail report having now been made, the bail application has come before me today for final determination. Ideally, the bail application would have been listed before Simmonds J today. However, because of trial commitments, he Honour is unable to deal with the matter. It therefore falls to me to make the decision as to whether there ought to be a grant of bail to the applicant to trial.
5 Particularly in circumstances where Simmonds J has not made any determination as to the manner in which the discretion to grant bail should be exercised, it is incumbent upon me to review the whole of the material relied on for the purposes of the bail application and to form my own view of the matters relevant to the exercise of my discretion. Where Simmonds J has expressed views about those matters I will, of course, consider those observations and give them the respect they are due. At the end of the day, however, the assessment of all relevant considerations is a matter for my judgment.
Evidence
6 The application for bail is supported by the affidavits of the applicant and of the applicant's partner, who I shall refer to as Ms CTM. The State relies on the hand-up brief for the current prosecution in this court, a police incident report dated 28 October 2014 and a transcript of a sentencing hearing involving the applicant before McKechnie J on 21 October 2005.
7 I have also received a home detention bail assessment prepared by a community corrections officer, which attaches the applicant's criminal and traffic history.
Jurisdiction to grant bail
8 Section 13(1) of the Bail Act 1982 (WA) requires that the jurisdiction to grant bail be exercised subject to and in accordance with pt III of the Bail Act and further provisions in pt B, pt C and pt D of sch 1 to the Bail Act.
9 Subject to presently immaterial exceptions, cl 1 in pt C of sch 1 to the Bail Act provides that the grant or refusal of bail to the applicant is in my discretion. Clause 1 requires that this discretion be exercised having regard to questions posed by pars (a) - (g) of that clause. The matters specified in those paragraphs are non-exclusive mandatory relevant considerations.3
10 The discretion is also to be exercised having regard to other questions which are considered to be relevant. In Milenkovski,4 McLure P noted a number of significant points in the following terms:
First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting 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.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail. (original emphasis)
11 In the present case, the only foundation for refusing bail which was put forward by the State at the hearing on 29 October 2014 is its contention that, if he is not kept in custody, the applicant may commit an offence or endanger the safety, welfare or property of a person.
12 The State did not, at the hearing on 29 October 2014, suggest that the applicant may fail to appear in court or obstruct the course of justice (see cls 1(a)(i) and (iv)). While that position seemed to have changed at the hearing today, given the lateness of that change in position I will proceed on the basis that the applicant is not a significant flight risk for the purposes of the bail application.
13 The State does not contend that the applicant needs to be held in custody for his own protection (cl 1(b)) or that the proper conduct of his trial may be prejudiced if he is not kept in custody (cl 1(d)). The offences with which the applicant has been charged are not alleged to have been committed in respect of a child, so cl 1(f) is not relevant. The State does not say that the alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate (cl 1(g)). The questions to which I have just referred are all to be answered favourably to the applicant.
14 In these circumstances, the remaining matters which I am required to consider are:
(a) whether the applicant may commit offences or endanger the safety, welfare or property of any person, which is a ground for refusing bail put forward by the prosecutor on 29 October 2014 (cls 1(a)(ii) and (iii) and cl 1(c));
(b) whether there is any condition which could reasonably be imposed under pt D which would sufficiently remove that possibility (cl 1(e)); and
(c) whether the applicant has raised other matters which are considered to be relevant favouring the grant of bail.
15 I then turn to consider each of these matters before considering the weighing or balancing process inherent in the exercise of a discretionary power.
Commit offences/endanger welfare
16 In considering the question of whether the applicant may commit an offence or endanger the safety, welfare or property of any person if he is not kept in custody, I am required to have regard to the matters referred to in cl 3 in pt C of sch 1 to the Bail Act, as well as to other matters which I consider relevant.
Offences charged
17 One of the matters which I am required to consider is the nature and seriousness of the offences with which the applicant is charged, there being no other offences for which he is awaiting trial. The offences with which the applicant is charged are serious, with the maximum penalty for the offences of aggravated armed robbery and criminal damage by fire being imprisonment for life.
18 The circumstances of the offences alleged by the State involve a serious example of the offence of armed robbery and aggravated burglary. In summary, it is alleged that the applicant entered the Mount Claremont residence of two persons by unknown means at 4.00 am on Sunday, 29 September 2013. He was with one co-offender at that time. It is alleged he entered the premises armed with a rifle and a knife. The applicant is alleged to have threatened and assaulted the residents, causing serious injury to both, while demanding money and drugs.
19 The applicant is alleged to have stolen various items of property, including the keys to a Holden Commodore which he has proceeded to steal and subsequently set alight, using oven cleaner as an accelerant.
20 These are, of course, merely allegations which have not yet been tested at trial. However, they are supported by statements and other evidence comprising the prosecution brief.
21 If the applicant were convicted of this offence or these offences, I consider that a substantial term of immediate imprisonment is likely to be imposed.
Antecedents
22 Another matter which I am required to have regard to is the applicant's character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position.
23 The basis of the State's objection to the grant of bail is the applicant's poor criminal record. At the age of 34 years, the applicant has been convicted of a large number of serious offences, including burglary and armed robbery.
24 On 21 October 2005, the applicant was convicted of offences including assault, aggravated burglary and armed robbery. The circumstances of those earlier offences have many parallels with the alleged offences with which the applicant is currently facing. They involve a home invasion in company with weapons, including a firearm, and an assault on the occupants.
25 The applicant was sentenced to a total effective sentence of 6 years' imprisonment for those offences. The offences were committed in January 2005, which was only a short time after the applicant's release from previous terms of imprisonment. Following sentencing in 2005, the applicant was released from custody on 20 October 2011.
26 On 19 July 2012, the applicant was convicted in the Magistrates Court at Perth of a series of offences. The dates on which those offences were committed ranged back to January 2012, only a few months after the applicant's release from prison. The offences of which the applicant was convicted in July 2012 include a series of firearms offences, receiving and possession of stolen or unlawfully obtained property and possession of a prohibited drug, namely methylamphetamine. The applicant was sentenced to a total effective sentence of 11 months' imprisonment on that occasion.
27 I am told that the applicant was released from prison in March or April 2013. The currently alleged offences are said to have been committed in September 2013, only a few months after the applicant's release from prison.
28 On 27 October 2014, the applicant was convicted of a number of offences committed in September and October 2013 in the Magistrates Court at Perth. One of those offences was the possession of a prohibited drug, namely heroin. The applicant was fined in respect of all of those offences.
29 I also note the entrenched history of illicit drug abuse which is described in the home detention report and which is a significant contributing factor to the applicant's offending behaviour. I take account of the applicant's recent participation in the methadone program while in custody but, given his history of relapses on release from prison, I am not entirely confident that his participation in the program would be maintained if the applicant was released on bail.
30 While the applicant has a place to live if released on bail, he would have no income and, I infer from the applicant's history of incarceration, few financial resources to fall back on. I do note that the applicant has a job offer; however, his capacity to perform this work would be compromised by his proposal to care for the son of Ms CTM and comply with his bail undertakings. He would, of course, have the benefit of Ms CTM's salary if she continued working in her fly-in/fly-out position, to which I will refer.
Strength of evidence
31 I am also required to consider the strength of the evidence against the applicant. In that regard, I agree with the assessment made by Simmonds J in Kirwan [34] - [39] that the case against the applicant is strong, and the reasons his Honour gives for that conclusion.
Conclusion as to likelihood of reoffending
32 Having regard to all of the matters to which I have referred, I am satisfied that there is a probability that the applicant would reoffend in a manner which would endanger the safety, welfare and property of members of the public if he is not kept in custody.
33 He has been charged with very serious offences and can anticipate a lengthy custodial sentence if convicted of those offences. He has, for more than a decade, an established pattern of offending shortly after being released from prison, associated with an entrenched addiction to prohibited drugs. In all the circumstances, I regard the prospects of further offences being committed as high.
Conditions
34 Clause 1(e) requires me to have regard to whether there is any condition which could reasonably be imposed under pt D of sch 1 to the Bail Act which would sufficiently remove the possibility that, if the applicant is not kept in custody, he may commit further offences that will endanger the safety, welfare and property of other persons. In my view, conditions which may be reasonably imposed under that part in this case would not sufficiently deal with that possibility.
35 The conditions initially suggested by the applicant include a condition for surety, residence at the home of Ms CTM, reporting to police three days a week and a curfew between 7.00 pm and 6.00 am each day. Those conditions would not, in my opinion, pose a substantial barrier to the applicant reoffending.
36 I have also considered whether a home detention bail condition should be imposed in light of the contents of the home detention report.
37 Clause 3 of pt D of sch 1 to the Bail Act provides that I should not grant home detention bail to the applicant unless satisfied that:
(a) the applicant is suitable to be subject to a home detention condition;
(b) the place where it is proposed the applicant will remain while subject to the home detention condition is a suitable place; and
(c) unless a home detention condition is imposed, the applicant will not be released on bail.
38 I am satisfied that the place proposed for home detention is suitable and that the applicant will not be released on bail unless a home detention condition is imposed. However, having considered the community corrections officer's home detention report, I am not satisfied that the applicant is suitable to be the subject of a home detention condition. The applicant has a history of poor compliance with conditions on parole and failing to comply with the rules in prison, described in that report. I share the community corrections officer's concern that the applicant would be left alone for two weeks at a time while Ms CTM is away on a fly-in/fly-out roster.
39 Therefore, in my opinion, a home detention condition cannot be reasonably imposed in the present case.
Other matters
40 Turning to other matters, counsel for the applicant points to a number of matters in favour of the grant of parole. The applicant deposed that Ms CTM, who he described as his wife, and a boy, who he described as his 12-year-old son, would suffer hardship if he were not granted bail.
41 He explained that Ms CTM works on a fly-in/fly-out basis in the north of Western Australia. He explained that, since his incarceration in October 2013, Ms CTM had been assisted by a cousin who provided the child with accommodation and care while Ms CTM was away. However, the cousin was moving at the end of October to South Hedland. It was suggested that, as a result, Ms CTM would be forced to resign from her position with her employer to resume full-time care of the child. The applicant said that, if he were granted bail, he would be able to resume the full-time care of the child, which had previously been the case.
42 Inquiries by the police investigating officer revealed that the child was not related to the applicant and the applicant was not actually married to Ms CTM. Ms CTM, according to the investigating officer's inquiries, first formed a relationship with the applicant when he was in custody in March 2013, although I note that today the applicant indicated that the relationship with Ms CTM really started at the end of June 2014.
43 Further, an incident report of an event on 29 September 2013 indicates that, on that date, the applicant had been in a domestic dispute with a woman, not Ms CTM, who was said to be his former partner, from whom he had separated some months earlier. This material indicates that the applicant's relationship with Ms CTM is relatively short-lived and may have been interrupted by another relationship during the few months when the accused was released from prison in 2013.
44 On any view, the evidence does not demonstrate an established role for the applicant in the long-term care for Ms CTM's child. There is an indication in the home detention report that Ms CTM has not lost her job and has made arrangements with her mother and sister-in-law to take care of the child whilst she is away. However, I am informed by counsel for the applicant that, in fact, the arrangements involving the sister-in-law are short-term only and that Ms CTM maintains the position that she will need to quit her job if the accused is not granted bail. That is a factor which counts in favour of the exercise of discretion to grant bail.
45 Counsel for the applicant also referred to plans for the applicant to take care of other sick family members and to undertake employment. Those various proposals do not appear to me to be entirely compatible with each other.
46 Counsel for the applicant also points to the fact that the applicant has been in custody since October 2013 and will not go to trial until April 2015. He will have spent some 18 months in custody awaiting a trial. This is clearly a very highly undesirable state of affairs, and the fact that the accused has spent so long in custody is a significant factor pointing towards the grant of bail.
Conclusion
47 Having considered all of the above matters, I have concluded, however, on balance, that bail should be refused. In my view, the significant possibility that the applicant will commit further violent offences if he is not kept in custody makes bail refusal appropriate. That consideration outweighs the issues concerning hardship and the length of time spent in custody to which Mr Sklarz has referred.
48 For these reasons, I refuse to grant bail in this matter.
1Kirwan v The State of Western Australia [2014] WASC 425.
2 [2011] WASCA 99; (2011) 42 WAR 99.
3 See Milenkovski [24] - [25], [37].
4Milenkovski [39] - [41].
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