The State of Western Australia v Simion
[2012] WASC 330
•14 SEPTEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SIMION [2012] WASC 330
CORAM: McKECHNIE J
HEARD: 16 AUGUST 2012
DELIVERED : 14 SEPTEMBER 2012
FILE NO/S: INS 86 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
CLAUDIO GABRIEL SIMION
Accused
Catchwords:
Criminal law and procedure - Bail - Risk of further offending - No new principles
Legislation:
Bail Act 1982 (WA), sch 1 pt C
Result:
Application dismissed
Category: B
Representation:
Counsel:
Prosecution : Mr G J Huggins
Accused: Mr H Sklarz
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Henry Sklarz
Case(s) referred to in judgment(s):
Nicolaides v The State of Western Australia [2007] WASCA 203
Simion v The Queen (Unreported, WASC, Library No 970738A, 10 December 1997)
McKECHNIE J: By indictment dated 2 September 2012, the accused was originally charged with one count of armed robbery in company and one count of burglary in company, allegedly committed on 18 December 2011. The accused has been in custody since then.
The State has now filed a fresh indictment dated 2 September 2012 alleging one count of armed robbery in company. The two alleged co‑offenders are on bail.
Following committal, the accused first appeared in the Supreme Court on 23 July 2012 and was remanded to 23 August 2012 for a status conference.
The trial is estimated to take eight days and is unlikely to be listed before March 2013.
The accused applies for bail and supports the application with an affidavit detailing his principal reason for bail. His 70‑year‑old father is very sick and indeed recently injured himself. His father suffers from serious heart disease and diabetes as confirmed by a medical report tendered in evidence. The accused asserts that he previously cared for his father prior to arrest and upon being granted bail proposes to again care for him on a full time basis. Since incarceration, his father has not fared well and has no other assistance.
Dr Paul Babich has written:
When his son Claudio Simion was caring for him his nutrition and mental state were a lot better. He was able to get out of the house more. His mental and physical health and independence is much better when in the care of his son.
A visit for assessing home detention noted that Mr Simion senior's physical health has been further impaired by an injury to the ligaments in his arm.
Jurisdiction to grant bail
Questions in the Bail Act 1982 (WA) sch 1 pt C are relevant and are informed by the matters outlined in cl 3.
(a) the nature and seriousness of the offence ... and the probable method of dealing with the accused if convicted:
The offence is serious. If convicted of armed robbery in company the accused is liable to imprisonment for life and will undoubtedly face a lengthy term of imprisonment.
(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused:
The accused is of bad character and has a lengthy criminal record. After a prolific Children's Court record, the accused commenced adult offending in 1990 with convictions for burglary, and continued with further convictions for burglary in 1992, burglary and stealing in 1996, stealing in 1997, selling or supplying heroin in 1997, armed robbery in company in 1997, armed robbery and deprivation of liberty in 2006, aggravated robbery in 2006. I have highlighted only the major offences and passed over minor offences and traffic offences which also indicate a person of bad character with little regard to the norms and laws of society.
I have no information as to the accused's financial position. If granted bail he would live with his father at his father's place of residence.
(c) the history of any previous grants of bail to him:
The accused was convicted of breach of bail in November 1996 and 1990. Because they occurred a long time ago I leave them out of account. He has more recently answered his bail obligations.
(d) the strength of the evidence against him:
This matter was not addressed by counsel for the accused or counsel for the prosecution. I note that there is evidence capable of linking the accused to the crime.
The questions under to the Bail Act 1982 (WA) sch 1, pt C cl 1(a) whether, if the accused is not kept in custody, he may ‑
fail to appear in court in accordance with his bail undertaking:
As I have remarked, his previous breaches of bail were a long time ago. His mother is apparently prepared to be a surety on his behalf. He wishes to care for his father. I do not consider he would fail to appear in court in accordance with his undertaking.
commit an offence:
The accused is now 41. He has offended all his life, often violently. His father has suffered heart problems from at least 2004 but this has failed to deter the accused from committing other offences. It is highly likely that he will commit further offences in the time between now and trial if released.
endanger the safety, welfare, or property of any person:
The previous convictions indicate the accused is capable of considerable violence: Nicolaides v The State of Western Australia [2007] WASCA 203; Simion v The Queen (Unreported, WASC, Library No 970738A, 10 December 1997).
It is likely that the accused may endanger the safety or welfare of property of other persons. One co‑accused may cooperate with the prosecution and could be at risk if he does so.
interfere with witnesses or otherwise obstruct the course of justice:
There is no evidence that the accused will do either of those things apart from the possibility referred to in (iii).
(e) whether there is any condition which could be reasonably be imposed ... which would
(i) sufficiently remove the possibility referred to in paragraphs (a) and (d):
The only condition which might remove the possibility is one of home detention. A home detention report was commissioned and supplied in March 2012. I sought an updated report. The premises are suitable for the purpose. The earlier report did not support home detention. The later report does not disagree, although it does note that the applicant's prison conduct could be viewed overall as positive.
(g) and whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature to make a grant of bail inappropriate:
If proved, this was a serious and violent robbery committed in circumstances that would have been terrifying. Some weight is given to this ground but it is not decisive.
Conclusion
The probability of commission of further offences and the risk of violence, including to witnesses are decisive against the grant of bail, notwithstanding the suitable residence for home detention. I have little doubt the accused's entrenched behaviour will result in further offending.
While I acknowledge his father's ill health, that is not a countervailing circumstance of sufficient weight to allow home detention or bail.
Suppression
I order that these reasons are not uploaded onto a public database until the verdict of the jury is known or further order of a judge.
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