The State of Western Australia v Whitby [No 2] - [2015] WASC 404

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- WHITBY [No 2] [2015] WASC 404

CORAM: FIANNACA J

HEARD: 21 & 22 OCTOBER 2015

DELIVERED : 22 OCTOBER 2015

PUBLISHED : 30 OCTOBER 2015

FILE NO/S: INS 39 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JARRID LANNAD WHITBY
Accused

Catchwords:

Bail - Aggravated armed robbery - Home detention - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 1, sch 1 pt C cl 3, pt VIA, s 14(1)(a), s 24A(2), s 28(2)(d)

Result:

Application refused

Category: B

Representation:

Counsel:

Prosecution : Ms Z M M Jenkins
Accused: Mr K P Bates

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Mr K P Bates

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
The State of Western Australia v Hinton [2015] WASC 288
FIANNACA J:
(This judgment was delivered extemporaneously on 22 October 2015 and has been edited from the transcript.)

Introduction

This is an application for the grant of bail for the applicant's appearance for his trial in the Supreme Court, to commence on 8 March 2016, on a charge of aggravated armed robbery. The applicant was first charged with the offence, by summons, on 7 May 2015, while he was in custody on remand for other matters. He was subsequently charged in this court on an indictment, dated 4 August 2015, which charges him jointly with a co‑accused, Glen David Brown, who I will refer to as Brown.
The indictment contains one count which alleges that on 5 September 2014, at Beckenham, the applicant and Brown stole from Kamal Methwani, with violence, money, the property of JKY Pty Ltd trading as Beckenham Newsagency and Post Office. It also alleges that the two accused were armed with offensive weapons, namely, a knife and a screwdriver, and further, that they were in company with each other.

Background

The application is brought under s 14(1)(a) of the Bail Act 1982 (WA). There has been no previous application for bail. However, the present application was foreshadowed at a directions hearing on 15 September 2015, when counsel for the applicant asked the court to request a home detention bail assessment report. That request was made by Martino J and a report, dated 8 October 2015, was prepared by a senior Community Corrections officer with the Department of Corrective Services, located at the Mandurah Community Corrections Centre.
The charge arises out of an incident that occurred on Friday, 5 September 2014. The following facts emerge from the police statement of material facts and the statements of witnesses on the prosecution brief. Around 9.10 am that day, two male offenders, wearing disguises and carrying weapons, entered Beckenham Newsagency and Post Office, on William Street in Beckenham, and committed an armed robbery.
Vision of the incident was captured on a closed‑circuit television security system. At the time, the owner and two staff members were in the store. Each of the offenders was wearing what appeared to be a dark balaclava, serving as a full face mask except for openings for the eyes, and a hooded jumper. One of the witnesses describes the balaclavas as appearing to be home‑made woollen masks with the eyes cut out.
One of the offenders was wearing a glove on his left hand. He entered the store first. As he did so, he removed what has been described as a 40‑cm Ghurkha‑style knife from the front of his trousers, where it had been concealed. He confronted a male employee of the newsagency in the entry area and forced him back to the service counter, pointing the knife at that employee's chest. Counsel for the State, at the hearing of this application, said that it would be alleged the applicant was the offender with the knife.
The second offender entered the store after the first offender. He was wearing a glove on his right hand and was armed with a 30‑cm screwdriver. He threatened the staff members with the screwdriver and up‑ended and threw about display stands and other items, while demanding money from the registers.
The first offender jumped over the service counter, still holding the large knife, and demanded that the safe be opened and the cash registers be emptied. He was holding a red material shopping bag and demanded that the money be put in that bag. He raised the knife above his head in a threatening manner. The second offender leaned over the service counter and removed cash from the cash register tray, while holding the screwdriver towards the staff members in a threatening way.
Fearing for their safety, the owner and the employees complied with the demands of both offenders and handed over $920 from the cash registers. Both offenders then left the scene in a blue Holden Commodore sedan registered to Brown. The registration was traced to Brown by the vehicle identification number. At the time of the offence, the vehicle was bearing false numberplates, that is, numberplates that did not belong to the vehicle. The front numberplate was different from the rear. The numberplate on the front bore the number 1AIB 366. It was seen by one of the employees from the newsagency, who had another person write it down for him.
The vehicle was found abandoned on a grassed area behind business premises in Treasure Road, Queens Park, between 9.20 am and 9.30 am that day. According to maps on the prosecution brief, the location is 4.4 km from the newsagency in Beckenham, being about an eight minute drive. The location was also about 0.6 km from the place where Brown was living at the time.
The vehicle was seen travelling towards that area, that is, the back of the business premises, by an employee at the business premises. There were two males in the front of the vehicle, one obviously being the driver. When people working at the business premises saw the vehicle abandoned at the back of the premises soon after, the occupants of the vehicle had left the area.
One of the people at the business premises was Cheryl Colleen Biggs. She knew Brown. She has given statements, in which she says she saw a blue Holden Commodore drive past, around 9.15 am, and that she recognised the driver of the vehicle to be Brown. She said she saw two men in the vehicle at that time.
After the vehicle was found abandoned at the back of the business premises, police were called. The vehicle was identified as the one used by the two offenders by the front numberplate. As I have already stated, its registration was traced by the vehicle identification number.
When police searched an area of bush nearby, they found a red Liquorland shopping bag consistent with what had been used during the robbery. The handles of the bag were tied together. Inside the bag were items of clothing, including a hooded top, a beanie with two holes in it, two gloves (right and left) and two socks, as well as a black cloth with a portion tied in a knot. When the vehicle was searched, a screwdriver was found on the back seat.
The items to which I have referred were subsequently subjected to forensic examination. DNA was found on most of them. On analysis, most of the DNA samples revealed profiles consistent with more than one contributor and the DNA profiles that were identified included a profile that was matched to the applicant. I will come back to the significance of the DNA evidence later, when I talk about the strength of the State's case.
I now want to say something about other charges that the applicant is facing, and his current circumstances. I will then deal with the legal principles and then come to the application of those principles to the facts of this case.

Applicant's circumstances

So far as the applicant's current circumstances are concerned, there are a number of pending charges in the Magistrates Court. They have been referred to in the bail assessment report and were summarised by counsel for the applicant during the course of the hearing before me. I was told that some of the outstanding matters are to be mentioned in the Fremantle Magistrates Court this Friday, 23 October 2015.
There are two charges of giving false personal details to police; a charge of possessing a prohibited drug, namely, methylamphetamine; and a breach of a violence restraining order. There are also 10 breaches of intensive supervision orders that had previously been imposed in respect of other offences. They were imposed, along with certain suspended imprisonment orders, on 9 October 2014.
The applicant has been in custody in respect of those matters since 13 March 2015. By that, I mean all of the matters that I have referred to as outstanding matters in the Magistrates Court. It was while he was in custody in respect of those matters that he was summonsed in relation to the charge that is now the subject of the indictment; that summons issued on 7 May 2015.
I was told that a bail application has previously been made in respect of the matters in the Magistrates Court, but refused. So the situation in which the applicant finds himself is that he is in custody in relation to other matters, as well as the matter that is the subject of the indictment.

Legal principles

I now come to deal with the legal principles that are applicable. Subject to certain exceptions that are not material for the purposes of this application, cl 1 of pt C of sch 1 of the Bail Act provides that the grant or refusal of bail to the applicant is in my discretion. Clause 1 requires that the discretion be exercised having regard to questions posed by pars (a) to (g) of that clause.
The matters specified in those paragraphs are non‑exclusive mandatory relevant considerations: see Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25], [37]. Clause 1 also stipulates that the discretion is to be exercised having regard to other questions which are considered to be relevant.
In Milenkovski, McLure P noted a number of significant points relating to the exercise of the discretion under cl 1 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 [39] ‑ [41].
When considering the matters set out in cl 1(a), the judicial officer shall have regard to the matters listed in cl 3 of pt C of sch 1, as well as any other matters that the judicial officer considers relevant.
I noted earlier that a home detention bail assessment report was obtained. The request was pursuant to s 24A(2) of the Bail Act, which provides:
A judicial officer who is called upon to consider a case for bail and who desires to impose a home detention condition as a condition on a grant of bail, shall request that a report be made by a Community Corrections officer about the suitability of the accused to be subject to a home detention condition.
The report is intended to inform the decision whether a home detention condition should be included as part of a bail undertaking as contemplated by s 28(2)(d) and cl 3 of pt C of sch 1 of the Act in the event that bail is granted. I note, however, that Martino J had not actually been called upon to consider a case for bail at the stage that he was asked to request the report. Nor could it be said realistically that his Honour expressed any view about the desirability of imposing a home detention condition.
However, I will proceed on the basis that the applicant obviously considered, for reasons that will become apparent, that a home detention condition would almost inevitably be required if he were to be granted bail, and I will also proceed on the basis that Martino J requested the report because it is the usual way in which home detention assessments come to be made for an application that may be made in respect of bail. In other words, sometimes it may be that the question of whether an application for bail will be made will depend upon the outcome of a home detention bail assessment.
Although pt VIA of the Act contains specific provisions for the administration of home detention conditions, which give the chief executive officer of the Department of Corrections (the CEO Corrections) and Community Corrections officers various powers, including, in the case of the CEO Corrections, a power to revoke the bail, there are not two separate systems of bail, one operating under the general provisions, and the other operating separately under pt VIA. It is one system of bail that applies and, in particular, at the stage of a judicial officer considering an application for bail, a home detention condition is simply another condition that will be considered under cl 1(e) of pt C.
I come then to deal with the factors that I need to consider under cl 1.
The first matter that I need to consider as a matter that would provide a foundation for refusing to grant bail, if there was material in support of it, is whether, if the accused is not kept in custody, he may fail to appear in court in accordance with his bail undertaking; secondly, as part of cl 1(a), whether, if he was not kept in custody, he may commit an offence; thirdly, whether he might endanger the safety, welfare or property of any person; and fourthly, whether he would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
Before I come to deal with the factors in cl 3, which inform the decision to be made under cl 1(a), I want to deal briefly with cl 1(a)(iv), that is, whether, if the accused were not kept in custody, he may interfere with witnesses or otherwise obstruct the course of justice. A submission was made, on behalf of the State, that there may be a risk of at least one witness in this case, namely, Ms Biggs, being interfered with if the accused were not kept in custody.
However, counsel for the State quite frankly admitted that this was a speculative submission. The submission was made because there is some evidence to suggest that the co‑accused Brown had a relative approach Ms Biggs in order to influence her in the giving of her evidence, in particular, perhaps, to change her evidence. There is no evidence to suggest that the applicant had anything to do with that, or that he has in the past at any time sought to interfere with witnesses.
In fact, Ms Biggs' evidence, to the extent that it implicates either of the accused, implicates Brown, because she positively identifies him. She does not, positively or otherwise, identify the applicant in these proceedings. Nor does the evidence of any of the other witnesses identify the applicant. It seems to me, in circumstances where there is, in any event, independent closed‑circuit television (CCTV) footage of the relevant event, there is no proper foundation for suggesting that the applicant would be likely to interfere with witnesses if he were at large or, indeed, if he were on bail under strict home detention conditions. So I do not have regard to the submission under that particular part of cl 1(a) in coming to my decision.
I turn then to matters under cl 3 that inform the question of whether, if the accused were not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence.
The first of the matters to be considered is the nature and seriousness of the offence. The offence with which the applicant is charged is, undoubtedly, a very serious offence. I should say immediately, however, that I do not consider that the seriousness, of itself, would be sufficient under cl 1(g) to make a grant of bail inappropriate. There has previously been some conjecture as to whether cl 1(g) adds anything to cl 1(a). In other words, why would the seriousness of the offence make a grant of bail inappropriate, if not because it affects the question of whether the person is likely to appear in court or likely to commit further offences, and so on? In any event, it seems to me that the seriousness of the offence in this case does inform the question of whether the applicant would be a flight risk.
As I say, the offence is undoubtedly very serious. It carries a maximum penalty of life imprisonment, and the facts that are alleged suggest that it is a particularly serious case of its kind, involving the use of weapons, which included a large knife and threats being made to the persons who were in the newsagency at the time. To put it quite bluntly, it was an offence that involved terrorising those people. I consider that if the applicant were convicted of the offence, he would certainly expect to receive a very substantial term of imprisonment.
I turn then to the question of character, previous convictions, antecedents, and so on, that are required to be considered under cl 3(b) of pt C of sch 1. In that regard, I was provided with information by the applicant's counsel along the following lines. He was born on 15 March 1986, so that he is now 29 years of age. He is of Aboriginal descent, and is a carpenter by trade.
He was born in Geraldton, and came to Perth in about 2007 or 2008. He had been living with his partner in Fremantle. He has five children between the ages of 5 and 14. He split up with his partner in the early part of 2014 and, after that, he was fairly itinerant. The applicant's counsel said that the applicant is seeking to rekindle a friendship with his partner for the benefit of their children.
He said that, prior to the break‑up, the applicant had stopped working. He had started to abuse alcohol and drugs. He went through a bad break‑up, and he was in a 'pretty bad place', as it was described by counsel, at that stage. Counsel said that the relevant welfare department was trying to take the children off the applicant's partner, so that he had, 'lots of issues' in his life.
He was placed on the intensive supervision order on 9 October 2014, and it was not long before he stopped reporting. His counsel explained that the applicant 'went bush' and went to a family property which was located at Barrel Well, between Northampton and Kalbarri. He said there was a community there and the applicant sought to rehabilitate himself, to get away from alcohol and drugs. Counsel said that the applicant knew it was wrong for him to do that, but at the time he considered that was the best place for him to try to rehabilitate himself from alcohol and drugs. So, those were his circumstances at that stage.

Counsel for the applicant said that, since he has been in custody from 13 March this year, the applicant has had a lot to think about and his focus now is on dealing with the outstanding charges, but he also does want to reconnect to some extent with his ex‑partner for the sake of the children. In essence, what counsel put on behalf of the applicant was that he has had a change of attitude, and that he is well aware of the requirements that he must meet, especially in respect of any bail conditions that might be imposed, including a home detention condition, if he is to avoid being kept in custody. The applicant has instructed his counsel that he is prepared to comply with any reasonable conditions that are imposed on him.
In response, the State refers to the record of convictions which the applicant has, and his failure to comply with community based orders in the past. This is relevant also, of course, to the question of his history on previous grants of bail under cl 3(c). But, in essence, the State says that, in assessing his professed intentions now to comply with any conditions that might be placed upon him, the court should have regard to the very extensive record of breaches of community based orders, including breaches of bail, and to his prior convictions for dishonesty offences, of which there are a number, including burglary and fraud. There are also convictions for giving false personal details to police, which I have referred to as part of the matters for which he was placed on an intensive supervision order, and there are also convictions for stealing. So it seems to me that the submission made by the State has merit, that one would need to approach with caution any professed change of attitude on the part of the applicant at this stage, particularly given that his breaches of community‑based orders occurred as recently as earlier this year.
I turn then specifically to his performance on such orders in the past, and the prior grants of bail. I am not entirely sure that the numbers are accurate, but it was put on behalf of the State that there are some 12 breaches of bail shown in the history of criminal offences. I count at least 10, and it may be that there are as many as 12 breaches. The fact is it is a very substantial number of breaches of bail that have occurred since 2002, so over a very considerable period of time.
The first one, in 2002, was in the Geraldton Children's Court. One might perhaps have been forgiving in relation to that, but since he has been in the adult court, from October 2004, there have been numerous occasions when he has breached his bail, and importantly, by failing to appear. It would seem that, in respect of each of the most recent breaches of bail shown on his record, on 9 October 2014, when he was convicted for each of them and given a suspended imprisonment order, they were for failures to appear. There are five breaches recorded starting on 4 April 2012 and the last of them being on 22 May 2014.
So it is fair to say that there has been less than satisfactory compliance with bail conditions. There has also been less than satisfactory compliance with community‑based orders, the most recent breaches involving an intensive supervision order and a suspended imprisonment order that were imposed on 9 October 2014, for a number of fraud offences, giving false personal details to police, and other offences, including possession of a controlled weapon.
It would be accurate, I think, to describe the record of performance on bail as being quite appalling. That of itself gives rise to a very significant concern in this case that the applicant would be a flight risk, and that one could not have confidence that he would appear in court to answer his bail when he is required to appear for his trial.
There may also be a concern that he would commit offences. That is a separate matter, I think, as consideration can be given to whether an appropriate condition, and specifically a home detention condition, might alleviate the risk. Nevertheless, I think it is fair to say that the applicant's offending has occurred over a substantial period of time and during periods, it would seem, when he was on community based orders, at least, if not on bail undertakings.

Strength of the evidence

I come to deal then with the strength of the evidence against him, which is par (d) of cl 3 of the Bail Act. The evidence that implicates the applicant essentially is the evidence of the DNA found on the items that were found close to where the car was abandoned, and which appear to resemble items that were used during the armed robbery.
As was pointed out by the State, the bag that was found in close proximity to where the vehicle was found abandoned appeared to match significantly in description the bag that the eyewitnesses say was used during the course of the robbery. It was a red bag made of material. It was a Liquorland bag. The witnesses described it as a shopping type bag.
Of the items inside, the hooded top appears to be consistent with what was described by the witnesses as a hooded jumper, and I am told that the CCTV footage also shows the offenders wearing items of clothing consistent with that. The beanie and, it would seem, the dark cloth found in the bag, appear to be consistent with what were described as balaclavas. Certainly, the beanie had holes cut into it that would appear to be the eyeholes that were described by one of the witnesses.
There were two gloves found in the bag. Again, the witnesses describe both offenders wearing one glove each and, as one of the witnesses states, it seemed that they were wearing matching gloves, one wearing the left glove, the other wearing the right glove. The significance of these items is that the applicant's DNA, the State will be submitting to the jury, was found on them.
I think it is important, in the context of this case and this particular application, to say something more about the DNA evidence. It is contained in the report of a forensic scientist from the Forensic Biology Section of PathWest, Penny Lorraine Cooper. In the table to her report, she refers to the items and she refers to what is described as the likelihood ratio.
The likelihood ratio is the probability of the evidence matching one of two hypotheses. The first hypothesis is that the accused, so the applicant in this case, is the donor of, or is a contributor to, the DNA evidence, and the second hypothesis is that he is not the donor of, or a contributor to, the DNA evidence, but that, instead, the DNA has originated from an unknown, unrelated individual randomly chosen from the Australian population. So, the likelihood ratio postulates the probability of one hypothesis over the other.
In relation to the red Liquorland bag, with the handles tied together, the outer surfaces of the handles and the bag opening were found to have DNA on them and, when analysed, the profile that resulted indicated that there was a mixture of three persons contributing to that DNA. One of those persons is a person by the name of Lawanna Rose Hart, and from the name, I have assumed, and no one has suggested otherwise, that that person is a female. She is designated as a contributor, with a likelihood ratio well in favour of that hypothesis, for a number of items that were found, including the bag and items within the bag.
I do not have before me any information as to who Ms Hart is, or what her relationship might be to either the applicant or Brown, but I do not consider that it matters in the context of this application. Ultimately, the witnesses to the event describe the offenders as both being male. There is no suggestion that either of the offenders was female. Secondly, those witnesses who saw the vehicle being driven in the vicinity of the business premises in Queens Park, where it was abandoned soon after the offence was committed, again describe the occupants of the vehicle as being male, in fact, two males.
In those circumstances, I think it is fair to focus at this stage on what evidence there is in the DNA analysis that implicates the applicant, and the significance of there being a contribution from Ms Hart is something that will no doubt be explored at trial.
So far as the applicant is concerned, on the outer surfaces of the handles and the bag opening, the likelihood ratio in favour of him being a contributor is 48,000. The hooded top also had DNA on it, and the surfaces of the inside collar and cuffs revealed a mixture consistent with there being three contributors, and the likelihood ratio of the applicant being a contributor was greater than 100 billion in favour of that hypothesis.
Although, ultimately, it is a matter of fact for the jury, I consider the jury would be entitled to conclude that the beanie is consistent with what was described as a balaclava. It was found to have on the outside surfaces DNA that again was consistent with coming from three contributors, and the likelihood ratio in favour of the applicant being a contributor was greater than 100 billion in favour of that hypothesis. Importantly, in relation to the inside surfaces, where there was a mixture consistent with four contributors, the likelihood ratio was greater than 100 billion in favour of the applicant being a contributor.
In respect of the black fabric that had a portion tied in a knot, which I assume the State would be suggesting is the other balaclava, there were two surfaces swabbed. They again gave mixed profiles, but the likelihood ratio in favour of the applicant being a contributor was greater than 100 billion in respect of both surfaces. There are then two other items, the socks and one of the gloves.
The inside surface of one of the socks had a mixture consistent with coming from four contributors. The likelihood ratio of the applicant being a contributor was 100 billion in favour of that hypothesis.
Finally, the inside surfaces of the left glove gave DNA results that were consistent with coming from three contributors, and the likelihood ratio in favour of the applicant being a contributor was 700 million. The right glove, it appears, had a DNA result consistent with more than five contributors and it would seem, in those circumstances, no attempt has been made to profile that result.
So that evidence, which I have outlined, is evidence on which the State would rely to persuade the jury that the applicant was in fact a contributor to the DNA on each of those items.
In his submissions, counsel for the applicant did not indicate that there was any dispute with the DNA evidence. What he said was that the applicant has an explanation for his DNA being on those items. There is no evidence of any such explanation before me. The applicant did not take part in an interview with the police, as was his right (that is, he was under no obligation to take part in such an interview), and counsel for the applicant has acknowledged that I am bound, in those circumstances, to decide this application on the evidence in the prosecution brief. So, there is no indication of any challenge to the DNA evidence, and it will be a matter, in due course, of what the jury make of it.
In my opinion, it is significant evidence that weighs in favour of a conclusion that the applicant would have reason to fear a conviction in the proceedings and that this would, again, inform the degree of risk of his not appearing at the trial. So, in short, my conclusion in respect of that evidence is that it indicates sufficient strength in the prosecution case to support the factor in cl 1(a)(i) that, if he were not kept in custody, the applicant may fail to appear in court in accordance with his bail undertaking.
As counsel for the State pointed out, what the court is considering, in asking the questions in cl 1(a), are possibilities. It is not a matter of weighing the degree of likelihood, but simply whether, in each case, it is a possibility.
So those are the matters in cl 3 that inform the exercise of the discretion in answering the questions in cl 1(a) and, in particular, in cl 1(a)(i).
As I said earlier, it may well be that the applicant's criminal history suggests that he might also be a risk of committing an offence if he were not kept in custody, but when I come to deal in a moment with the conditions that could be imposed to alleviate that risk, it seems to me that one could, perhaps, distinguish between the alleviation of that risk, that is, the potential to commit an offence, and the risk of failure to appear in court.
Before I come to 1(e), I will deal with the other questions in cl 1. Clause 1(b) has no relevance. There is no question that he needs to be held in custody for his own protection. Clause 1(c) simply refers to whether the prosecutor has put forward grounds for opposing the grant of bail. The grounds that have been put forward are really matters that go to the factors in cl 3 that inform the answers to the questions in cl 1(a), and so there is nothing further to add in that regard. We are not yet at the stage of the trial, so cl 1(d) has no relevance.
Clause 1(e) then requires consideration of whether there is any condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the possibility referred to in pars (a) and (d), and it is only (a) that I am concerned with here, and (e)(iii) refers to whether there is any condition that would remove the grounds for opposition referred to in par (c). As I say, ultimately, this all comes back to the questions in par (a).
I have to consider what conditions have been proposed. First of all, I note that no conditions have been proposed on behalf of the applicant other than the home detention conditions. If bail were to be granted, the availability of home detention would not remove the need for a substantial surety in this case, in my view. On the other hand, given the applicant's history on bail, the availability of a substantial surety would not determine whether bail ought to be granted. The question here does resolve into whether home detention, on the specific conditions outlined in the report, would sufficiently remove the possibility of the applicant failing to appear or committing an offence.
I think it is important to identify precisely what it is that the report does. It essentially addresses the question of the suitability of a proposed address as a place at which the applicant could be required to remain as part of home detention bail, that is, bail with a home detention condition. The accommodation that had been proposed, where the applicant's sister, Ms Marley Whitby, resides in Mandurah, was deemed to be suitable. The recommendation then reads:
The accommodation and family supports available to Mr Whitby at [that particular address] appear to be positive and suitable for the purpose of home detention bail. It is recommended that conditions of Mr Whitby's home detention bail include -
and then there are a number of conditions included which refer, for instance, to the need for monitoring equipment. That would require confirmation of the availability of monitoring equipment and the suitability of the premises to utilise that monitoring equipment. A further condition would require him to attend the Mandurah Community Corrections Centre. There are then a number of conditions that include no contact with the co‑accused, no contact with the witnesses and not to approach the owner of the Beckenham Newsagency or attend those particular business premises. Another condition relates to Ms Whitby, but that is not relevant for present purposes.
The recommendation also proposes conditions to do with the applicant's use of alcohol, prohibiting him from using alcohol, requiring him to present and submit to breath analysis as requested by the police, and prohibiting him from attending licensed premises, excluding cafes and restaurants. There is also a proposed prohibition on him being in possession of or consuming illicit substances, and a requirement that he provide a valid sample for urinalysis testing as directed.
There is also a requirement suggested that he engage in counselling as directed, and then to comply with all lawful directions of a Community Corrections officer, which is a standard home detention condition in any event.
So those are the conditions that are being recommended by the author of the bail assessment report.
During the course of submissions, I posed a question of each counsel about how home detention would affect the answer to two questions in cl 1(a)(i). First of all, in terms of the submission that was put on behalf of the applicant: how would home detention ensure that he attended when required, given his history of breaching bail in the past? And, on the other hand, the question I posed of counsel appearing for the State was why some of the home detention conditions, in particular the monitoring conditions, would not be sufficient to ensure the applicant answered his bail.
On behalf of the applicant, it was submitted that the regime that was being proposed under the report was a very strict regime. The report indicated that the proposed address was very close to the Mandurah Community Corrections Centre which was easily accessible. It was submitted on his behalf that a significant contributor to his failure to comply with his intensive supervision order, that resulted in the most recent breach action in respect of the order imposed in October 2014, was his use of alcohol. Indeed, as I related when canvassing counsel's submission about the applicant's personal circumstances, it was submitted on his behalf that he had intended to rehabilitate himself by going to the family premises in the bush location.
It was submitted on his behalf that the conditions in relation to urinalysis and not consuming alcohol and having the monitoring equipment, and all of the other conditions which required him to report and comply with lawful directions, provided a sufficiently strict regime to ensure not only that he would not offend during the time that he was on bail, but that he would appear when required for his trial; in other words, that he would answer his bail.
On behalf of the State, however, it was submitted that while the conditions no doubt would be very strict, there would still be a risk that the applicant may resort to substance abuse, and there was still a significant risk of flight, given the seriousness of the offence in this case, the likelihood of a substantial term of imprisonment if he is convicted, and his previous performance on bail undertakings, which indicated that he simply could not be trusted to answer his bail.
So far as the potential to resort to substance abuse is concerned, I did raise the question of why the urinalysis would not be sufficient to deal with that. Of course, as the State submits, that is something that happens after the event, so while, if it were to happen at a stage during the course of his release on bail, well before the applicant is to appear to answer the indictment, he would no doubt be breached and brought before the court, if it were to happen at a time very proximate to the time when he would be required to appear for his trial, the risk that he would fail to appear might not be alleviated.
It was also submitted that while monitoring no doubt provides some assurance that the authorities would be able to track where he is, again, it does not guarantee that he would attend court, and, having regard to his history and his prior convictions for dishonesty offences, it was submitted the court should not have confidence that he would appear when required.
It can be accepted that monitoring does not guarantee an accused will appear to answer his bail even when under strict home detention conditions. The State of Western Australia v Hinton [2015] WASC 288 is an example of that. The accused in that case removed the monitoring equipment and failed to appear.

Decision

This is ultimately an exercise of discretion that requires weighing the various factors that I have been discussing. Having considered all the matters that I have referred to, I have concluded, on balance, that bail should be refused. In my view, the significant possibility that the applicant will not appear in court in accordance with his bail undertaking, if he is not kept in custody, and the serious nature of the alleged offence, which informs the risk of flight if bail is granted, combine to provide a proper foundation for refusing bail.
Given the applicant's history of failing to appear to answer his bail, and his poor record of compliance on other community based orders, I do not consider that the home detention conditions would sufficiently remove the risk. It would require a significant degree of confidence being placed in the applicant's professed change of attitude, and I am not satisfied such confidence can be extended when one has regard to how recently he was non‑compliant, his history of dishonesty offences and the fact that he has a number of other matters pending in the Magistrates Court, which may result in further periods of custody if he is convicted of them.
I have not had regard to the fact that he is in custody for those matters and may well be refused bail in any event on those matters, which would frustrate any bail order that was made in these proceedings. It seems to me that is a matter for the Magistrates Court to deal with, and I have exercised my discretion on the basis of the information before me concerning the questions I need to deal with in cl 1 and the matters referred to in cl 3.
So, for the reasons I have given, the application is refused.