The State of Western Australia v Thomas - [2014] WASC 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- THOMAS [2014] WASC 82

CORAM: SIMMONDS J

HEARD: 26 FEBRUARY 2014

DELIVERED : 26 FEBRUARY 2014

FILE NO/S: INS 165 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DAVID LEON THOMAS
Accused

Catchwords:

Criminal procedure - Bail - Application in respect of appearance at adjourned sentencing hearing - Prior non-appearance

Legislation:

Bail Act 1982 (WA), s 22, sch 1 pt C cl 1, cl 3

Result:

Application dismissed

Category: B

Representation:

Counsel:

Prosecution : Mr J L C Rivalland
Accused: Ms A A Woldan

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Aboriginal Legal Service (WA)

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

Hedgeland v The State of Western Australia [2011] WASC 181
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
SIMMONDS J:
(This judgment was delivered extemporaneously on 26 February 2014 and has been edited from the transcript.)

Introduction

I should indicate that the time it has taken me in this hearing, which is relatively lengthy by the standards of a bail application, and the time it has taken me to reflect on the most useful submissions I had from counsel today, indicate the difficulty of the decision that I am called upon to make.
In my view, however, I must refuse this application for bail. That is to say, in the exercise of the discretion reposed in me by the Bail Act 1982 (WA), properly approached, as I will indicate, that decision is the one which I find myself making.
I need to provide a background to this application, in large part because, as the hearing unfolded, it became evident that that background needed to be properly understood in order for me to understand and assess the respective cases put to me for and against the grant of bail.
I will then turn to review briefly the approach to bail that I must take, being the approach to preparing myself to exercise the discretion the Bail Act reposes in me and how that discretion's exercise itself is to be approached.
Then I will apply that approach, and in the course of doing that I will consider the respective cases put to me for and against a grant of bail.

Background

The history here is complex. The application, as was clarified with counsel for the state at the outset, is one to permit the offender - the applicant, as I will call him from now on - who is presently in Casuarina and appeared by video link from that facility today to be released to bail for an appearance before Corboy J. That appearance is to complete a sentencing, on 22 April 2014, that began back on 12 September 2013. The applicant had previously enjoyed bail in respect of his conviction, which I now need to describe.
The conviction was on the applicant's admission at a previous sentencing hearing before Corboy J on 12 September 2013. That conviction was in the terms of the admission that the applicant, being a person who had been sentenced on 1 February 2013 to a term of imprisonment for 12 months, conditionally suspended for 12 months, for the offence of aggravated burglary had breached that order by failing to report on 2 April 2013, as directed on 21 March 2012. That is what the transcript says. That, however, cannot be correct. It must be 2013, because Hall J had imposed that sentence, as the admission indicated, on 1 February 2013; and in any event, the statement of breach facts before his Honour clearly indicated the direction was on 21 March 2013.
At the hearing on 12 September 2013, Corboy J received oral submissions from both counsel for the state and counsel for the applicant, at the conclusion of which his Honour adjourned the sentencing to 4 November 2013 and renewed the applicant's bail for him to appear again by video link from Kalgoorlie. I take it the bail had previously been granted in respect of what was then the allegation of breach, being the offence under s 84J of the Sentencing Act 1995 (WA).
His Honour explained the reason for the adjournment in terms which I find it useful to quote, notwithstanding, of course, that adjournment decisions are not normally the subject of published remarks and were not in this case.
His Honour said this (ts 375 ‑ 376):
But I again stress that I accept entirely what [and I substitute here counsel for the state] has put to me in terms of the community interest in ensuring that conditions imposed on suspended terms of imprisonment are complied with and will be enforced and must be enforced. And also, as [counsel for the state] rightly says, and as I put to you [and the 'you' in this case is counsel for the applicant, who is the same counsel as is appearing before me today for the applicant] immediately in the course of your submissions to me, the fact that substance use has escalated from cannabis to methamphetamine and amphetamines is of considerable concern.
I insert that that escalation appears to refer to the use of methamphetamine and amphetamines that became of some significance in early 2013, on what I was told today.
On the other hand, he's young. You tell me that there are personal factors which may explain his somewhat sporadic compliance with the requirements imposed by Hall J; and may also be factors that you've put to me this morning which give him an additional incentive in terms of rehabilitation and elements of further stability in his life which may promote rehabilitation. [and that I understood to be his concern for his mother, with whom he expected to live, as well as for his partner and their two young children] and that's a reason why I will take an oral PSR in two months time to see whether or not those matters that you put to me this morning are borne out.
I also take into account the factor that has exercised my mind in determining, if the sentence is to be activated, for how long is, as you rightly put it, the offence for which he was originally convicted. He was convicted in September of 2011 in respect of an offence committed in September in 2010.
I insert that offence was the one in respect of which Hall J resentenced him. That offence was aggravated burglary. I note that I was, indeed, the judge who convicted the applicant of that offence in 2011, and I was the judge who sentenced him subsequently. Corboy J goes on to say:
I have read Simmonds Js sentencing remarks, so I understand the role that [the applicant] played in that, although it is, of course, important that the fourth offender, whose name now escapes me, was sentenced most severely.
[The applicant], out of the remaining three, received the lengthiest period of an intensive supervision order. His other two co-offenders were sentenced for lesser periods, 15 and 18 months, [the applicant], 21 months. So that says something about his participation in the offence, albeit that I think it was accepted by his Honour that a fourth person was the instigator of the offences. But it is some time ago. And notwithstanding his [what I gather from the transcript should have read 'protracted'] substance abuse issues he has not committed a further serious offence of a kind for which he was originally convicted.
I insert that that continues to be the case; but there is a matter that I need to address.
He has, [as counsel for the state] rightly points out, it would seem, consistently offended by taking illicit substances; but that has not led him into offences which are typically associated with substance abuse, and that also says something about the prospects of rehabilitation. So it is not an easy matter to sentence on.
On 4 November, the applicant appeared before Corboy J, again from his bail and by video link from Kalgoorlie, as in the case of the hearing on 12 September 2013. An oral pre‑sentence report was presented to the court. The oral pre‑sentence report describes what could, at its best, so far as the applicant is concerned, be characterised as a history of partial compliance with the conditions, supervision and programme, forming part of Hall J's conditional suspended imprisonment order.
This was true in respect of supervision, although, as the person making the oral pre‑sentence report indicates, he continued to report as directed, with the exception of failing to report on one occasion. Mr Thomas had explained this related to confusion as to dates. However, the person making the report had gone on to state that Mr Thomas had remained somewhat difficult to engage during supervision. I was told that this might be explained by the difficulties Mr Thomas had talking about matters of the kind that might have been raised during supervision.
The person making the report indicated that that person assessed the applicant's motivation towards making positive lifestyle changes as poor, given his limited engagement in order requirements. This appears to be a reference to the programme requirements in relation to which, despite previous non‑compliance with counselling and missing several appointments, he had been afforded another opportunity to engage in counselling.
Three appointments were then made to ensure he was given ample opportunity to obtain interventions. He attended the initial scheduled appointment, although an hour late. He was not able to be seen then. But he failed to attend the further two scheduled appointments. He explained this subsequently as him having 'messed up' the dates.
The author went on to note that the applicant failed to attend for urinalysis tests as directed. He had returned three positive urinalysis tests to amphetamines since 12 September 2013, with the most recent positive test being 28 October 2013. When he was asked about his continued illicit substance use and non‑compliance with program requirements, the applicant indicated he did not know why he chose to continue to use illicit substances. He related his continued issues to 'personal things', as indicated in the oral report.
The applicant had been questioned about those issues, but he would not elaborate, I presume for similar reasons as related to the supervision matter. That would not have made it easy for the author of the report to go further into the matter.
The author of the report added that Mr Thomas had alleged pending matters, being aggravated armed robbery, which I was told today is actually attempted aggravated armed robbery, and possess a controlled weapon, due before the Kalgoorlie Magistrates Court for mention only on 6 January 2014. The statement of material facts indicated that the offence allegedly occurred four days after his most recent Supreme Court appearance. I note that may be slightly inaccurate, as I was told today by counsel for the applicant; but it does not, it seems to me, make a major difference. It was fairly shortly after the appearance on 12 September. I will call those matter the Kalgoorlie Magistrates Court charges.
I should add to the statement of material facts as described by the author of the oral pre‑sentence report what I was told by counsel for the state as to the nature of that offending and its circumstances, namely, that the offending was related to an attempt to gain drugs from a person sitting in a car with whom no previous dealings - at least dealings that might have justified that exchange - had on the statement of material facts occurred.
I immediately note that, as I will indicate later, those Kalgoorlie Magistrate Court charges are just that - charges. And, of course, the offender in respect of the breach of conditionally suspended imprisonment orders is entitled to the presumption of innocence in respect of those charges. However, the Bail Act, in my view and on the submission of counsel for the state, makes them relevant for my purposes as I will explain.
The person providing the oral pre‑sentence report went on to state that although the applicant continued to reside with his long term de facto partner, their 5‑year‑old daughter and 6‑month‑old son (as they were then), the applicant was unemployed. He related his continued motivation to obtain an employment, noting it would assist him to abstain from illicit substances. However, he also admitted that he recently had his Centrelink benefits terminated due to non‑compliance with job seeker requirements, suggesting, it seems to me, as a not unreasonable inference, a limited motivation to obtain employment.
The person providing the oral pre‑sentence report indicated that the applicant's continued non‑compliance with order requirements after his expressed intentions to engage at his last review, as well as his continued illicit substance use, was of concern. That, coupled with his lack of motivation to engage with his order requirements and follow through with identified strategies to assist him to lead a law‑abiding lifestyle, led to an assessment by that person that the applicant was unsuitable for a further supervised community based supervision at the time.
At the conclusion of that report, counsel for the applicant acknowledged that the report, as he understood it, was unfavourable to the applicant. She did receive a copy of the report, in the form of the transcript of the hearing, subsequently. I did not understand her now to qualify that acknowledgement, but to explain it in terms of the history of partial compliance that it represented.
That report was not entirely adverse to the applicant. However, on balance - particularly in view of the recommendation for the assessment I have just described - it had to be viewed as counsel had described it. Counsel had also noted that there was a high possibility of a custodial disposition.
Corboy J also heard from counsel for the state raising at least as a possibility - but not, as I understand it, pressing hard at the time - the matter of not renewing bail, in view of the Kalgoorlie Magistrate Court charges.
Corboy J referred to the presumption of innocence, and then went on to renew bail, but on varied terms. The terms were to increase the personal undertaking from $1,000 to $5,000 and to add a reporting requirement to bail that had previously been limited to a $1,000 personal undertaking. This was a reporting requirement that the applicant report daily to the officer in charge of the Kalgoorlie Police Station.
Corboy J specifically confirmed that latter requirement with the applicant at the hearing on 4 November 2013, and the applicant confirmed he understood it.
The bail was through to a hearing on 11 November 2013, which I would understand from this history was the date at which it might reasonably be expected the sentencing hearing would conclude with Corboy J making his final sentencing determination on the breach of the conditionally suspended imprisonment order.
However, at the hearing in Perth on 11 November 2013 the applicant did not appear. It seems that he was to appear by video link from Kalgoorlie. He did not appear that way or in any way. Corboy J confirmed with counsel for the applicant that it seemed that the applicant had not answered his bail. Corboy J issued a warrant for the applicant's arrest.
I also note that, on 6 January 2014, the Kalgoorlie Magistrates Court issued a warrant for the applicant's arrest in relation to the Kalgoorlie Magistrates Court charges.
On 2 February 2014 the applicant was arrested at a cousin's home in Kalgoorlie. There was no question of the applicant having facilitated that arrest, as by surrendering himself or otherwise making known where he was. It does not matter to me by what means authorities were able to arrest him; I take account of the fact that he did not cooperate in his own arrest.
On 3 February 2014, at a hearing in Perth before Hall J, the applicant was brought before his Honour on the warrant and Hall J remanded him to appear on 7 February 2014.
At the hearing on 7 February 2014 before Jenkins J, the applicant was remanded in custody. No application for bail was made at that time, for reasons described by counsel for the applicant then. The applicant was remanded in custody to appear for sentencing before Corboy J on 22 April 2014.
I conclude this account of the background with two further matters.
The first is that the failure to appear in answer to bail on the 11 November 2013 was referred to by counsel for the applicant on her instructions as having been related to personal matters which the applicant did not further explain to counsel for the applicant. That is the only information I have as to why he did not appear.
The second matter is that the applicant is next to appear on the Kalgoorlie Magistrates Court charges for committal mention on 10 March 2014.
I turn briefly to the approach to the decision as to bail.

Approach to bail

This is, by now, very well understood. I refer to Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [43] (McLure P, Pullin JA & Hall J agreeing) which should also be read, in my view, with [34]. The propositions to be drawn from that decision for my purposes today are as I described them in Hedgeland v The State of Western Australia [2011] WASC 181 [16] (Simmonds J) with which also [15] should be read.
The application before me today for bail is dated 24 February 2014; it is supported by an affidavit of counsel for the applicant - I will call that the supporting affidavit. I can, of course, go beyond the supporting affidavit to receive and take into account such information as I see fit, whether or not the same would normally be admissible in a court of law: See Bail Act s 22. The weight of that information is a distinct consideration.
I have already referred to a variety of forms of information which were put before me. Not all of those appear in the supporting affidavit. No objection, however, was taken to those forms of information and, I would add, to information both from counsel for the applicant and counsel for the state.
I have a criminal record for the applicant shown as compiled on 21 August 2013 at 15:01:59. I trust that there is a more recent criminal record than that in the file which would be available to Corboy J for the sentencing on 22 April next. In any event, I am obliged to counsel for the state for indicating that a more recent criminal record will, in fact, be provided for that sentencing hearing or for that purpose.
The contents of that criminal record - the more recently dated one to which counsel for the applicant had access and an even more recent one to which counsel for the state had access - does not show anything different from the 21 August 2013 criminal record. I will get back to that criminal record in a moment.
Milenkovski tells me that I must consider all of the questions in Bail Act sch 1, pt C, cl 1, read with cl 3 that are applicable in this case. By 'applicable' I would understand the question is either engaged in argument by counsel or the court itself notes as raised and then raises with counsel.

Application to this case

Turning to those questions, the principal focus of the submissions of counsel were cl 1(a)(i), the possibility the applicant may fail to appear in answer to his bail; cl 1(a)(ii), the possibility the applicant may commit an offence, to which may be related cl 1(a)(iii); that the applicant may endanger the safety, welfare or property of any person; and cl 1(e).
Clause 1(c) concerning what grounds the prosecutor has put forward for opposing the grant of bail will emerge, it seems to me, when I consider the matters upon which counsel focused.
There are a number of other questions which, however, it seems to me either on the facts do not present themselves here or on the formulation of the ground has no application here and I do not deal with them.
As to the possibility of failure to appear - and I stress it is a possibility that I am addressing - there is, of course, the concern that arises out of the fact that there has been a prior failure to appear just three months ago, with a very limited explanation of that failure available to me. That explanation makes it hard to assess whether, in light of that explanation, the possibility that might otherwise be drawn from that failure can be seen to have been largely negatived.

Counsel for the applicant did not seek to draw further on the explanation of personal matters other than to refer - but only as a possibility - to the fact of the applicant having had relationship difficulties with his partner which I understand now to be surmounted. Rather, counsel for the applicant put to me that anything that might be drawn from the prior non‑appearance, as well as the other matters I will reach in a moment, could be seen to be sufficiently removed by the conditions that she was indicating the applicant would submit himself to, most particularly, a surety condition. By that condition his mother would go surety in an amount which would be that corresponding to the value of, or a substantial portion of the value of, an important asset for her, namely, her car. This should be coupled with the very close and favourable relations between the applicant and his mother which would make any concerns his mother had arising out of her position as a surety in circumstances where the applicant failed to comply with his bail a matter of great concern to the applicant.
Counsel for the state, for his part, stressed to me the matters of non-compliance with both supervision and programme requirements, which can be seen to go back to programme and supervision elements of the intensive supervision order that I imposed in 2011, and to continue into the conditionally suspended imprisonment order imposed by Hall J, right up to the period after 12 September 2013, when the sentencing hearing, in respect of breach of Hall J's order was adjourned.
That is, indeed, a troubling history, particularly in view of the concerns of the author of the oral pre‑sentence report as to motivation. The applicant has received a number of opportunities to permit him to live in Kalgoorlie, to address serious issues in his life, most notably his escalating drug issues, and to do so in a family setting. As was explained to me and, indeed, was as explained to Corboy J on 12 September 2013 the applicant had been in contact at least with his mother and also, it would appear, with his partner, by whom he has had two children.
I turn from the cl 1(a)(i) to the question in cl 1(a)(ii), but I do so having assessed the possibility of failure to appear as a significant one.
As to cl 1(a)(ii), I have considered the applicant's criminal record, one of the matters cl 3 permits me to address, together with, it seems to me, on my reading of cl 3, the Kalgoorlie Magistrates Court charges.
The applicant's criminal record - including his offending as a young offender, but ignoring his traffic offending and ignoring also a conviction for common assault in 2000, which seems to me now to be too old for me to give it any significant weight - shows convictions for burglary, stealing or receiving offences or a combination of one or more every year between 2001 and 2006, drug or drug-related offences in each of 2010 and 2011 and disorderly behaviour in 2007 and 2010.
There are, of course, the additions to be made to that listing for the offences for which the applicant was convicted by Corboy J, Hall J and myself, to take it in reverse date order.
However, I must also note that, for none of those offences, except for those additions, was the penalty greater than, as a young offender, a youth community-based order, and, as an adult, a fine.
I must note that, however, along with the nature of the Kalgoorlie Magistrates Court charges that I have already referred to; and, although the contrary was put to me by counsel for the applicant, that there is material before me relevant to the possibility of the applicant committing another offence and adverse to him in that regard.
That material is the pattern of drug use to which I have referred, not addressed, notwithstanding the opportunities to do so under prior release orders, together with the nature of the Kalgoorlie Magistrates Court charges, when considered against the backdrop of the criminal history that I have referred to.
I note, as counsel for the applicant reminded me, that, since 11 November 2013, and of relevance to the conditions proposed for the applicant's bail - a residential condition, to live at the place where his mother, her partner, the applicant's partner, their two present children live - is the fact that, since 11 November 2013, on the best calculations I have been able to do without dissent from counsel, the partner of the applicant has become pregnant with their third child.
I accept that this would give the applicant additional incentive to his concern to be there for his partner and their children and to be there for his mother and her partner. His mother has been on dialysis since at least May 2013, as has (and I accept this also) his mother's partner. He is not, as I understand it, the applicant's biological father; but there is no significance for my purposes, I believe, to be drawn from that.
Indeed, as counsel for the applicant reminded me, all the adults in the proposed residence - excepting, I would assume, the applicant himself - have significant medical problems. These problems and the applicant's concern for all of those adults, as well as for the two children, would give him, as I have indicated, the incentive to comply with the terms of his bail. Although this is perhaps a little less clear in respect of appearing at the next sentencing hearing on 22 April 2014, it would be the case, in respect of the other bail conditions, including, most notably, the reporting conditions proposed. It would be the incentive to ensure he is not taken back into custody for breach of those conditions.
All of that having being said, however, the history, under the prior release orders, against the backdrop of the criminal history and the Kalgoorlie Magistrates Court charges, are a cause for significant concern. The answer to the question as to the possibility in cl 1(a)(2) has to be that the possibility is significant.
As to cl 1(a)(iii), that is only relevant, as counsel for the state reminded me, to the extent that it is implicated in the answer to cl 1(a)(ii), and I say no more about it.
As to cl 1(e), this is the question whether there is any condition which could reasonably be imposed under Bail Act, sch 1, pt D, which would sufficiently remove the possibility referred to, in this case, in cl 1(a); or remove the grounds for opposition referred to in cl 1(c). Those grounds are the ones that I have dealt with in relation to cl 1(a).
I have already indicated what I believe I need to say about the surety condition proposed, as well as the residential condition, to live at the place where the mother, her partner, the applicant's partner and their two present children would live.
There is also a proposed reporting condition to the Kalgoorlie police station, as often as the court sees fit. I note, however, that there was a reporting condition on a daily basis which was part of the bail variations, as I have indicated, in the varied bail imposed on 4 November 2013.
Undoubtedly, those conditions would tend to ensure that the applicant did, indeed, remain in Kalgoorlie, the place with which he has his only significant connections. I note, in that regard, that I was told and accept that the applicant is an Aboriginal man who has taken the law and has connections, then, with country in that area, connections of value to him, I must also note, of course, that the reporting conditions to the Kalgoorlie police station did not prevent the failure to appear on 11 November 2013.
As to other conditions that the court might impose, there are none that were put to me, as I understand it, and there are none that occur to the court.
I then turn to the one further matter that needs to be taken into account in this bail hearing, which was at the end of cl 1 in sch 1, pt C, that is, any other question which the court considers relevant.
Counsel for the applicant put to me that there was such a question here. It arises out of the burden of custody on the applicant as an Aboriginal man of the sort I have described, presently being held in a metropolitan area facility, indeed, having been moved from Hakea, where remand prisoners are, as I understand it, normally held, to Casuarina, a maximum security facility, bearing hard on the applicant.
Indeed, as counsel for the applicant acknowledged to me, a motivation for the application to seek bail was to permit the applicant to return to country, not only for its own sake, but also, it was put to me, to enhance the chances that, if, as seemed at least a significant likelihood, the applicant was sentenced on 22 April 2014 to serve all or a portion of the conditional suspended imprisonment imposed by Hall J in February 2013, the applicant would serve his time in the Eastern Goldfields Regional Prison. This would be close to his country, if not on it, and more readily accessible for his family, who, as I have indicated, appear to play a significant part in his life.
I accept that that is a factor inclining towards the grant of bail. However, in weighing it, I have to take account of a number of other matters: the length of time that he would be detained before the sentencing on 22 April, which is a relatively short period of time, without excluding the significance to the applicant of that period of time; and also that there is a pending application for transfer.
I do note what I was told by counsel for the applicant, without objection from counsel for the state, that it was unlikely that there would be a transfer granted at this stage. However, as counsel for the state reminded me, I do not have material before me which would indicate how much more likely it is that the applicant would be sentenced to serve his time in the Eastern Goldfields facility as opposed to a metropolitan Perth facility, other than what I was told by counsel for the applicant, that there was at least some significant difference between those two likelihoods.
It seems to me that I must, in weighing the answer to the question, take account those additional matters.
I have now reached the conclusion of my consideration of the answers to the questions applicable in this case from Bail Act, sch 1, pt C, cl 1 read with cl 3. In determining how I exercise my discretion in respect of the grant of bail, I now must engage in the weighing or balancing process that is referred to Milenkovski.
In my view, having regard to all of the matters, the questions and their answers that I have considered, including the further one that I have just considered, I do not consider that it is appropriate to exercise my discretion to grant bail.
I should immediately remind myself, however, as is indicated quite clearly in Milenkovski, that there is no presumption in favour of or against the grant of bail. Rather, the process must be approached as I have endeavoured to do.
It is the weighing and balancing that has produced the conclusion I have arrived at that I would not grant bail in this case.
I believe, then, the appropriate order is simply one to dismiss the application for bail.