Tozer v The State of Western Australia
[2016] WASC 389
•30 NOVEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TOZER -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 389
CORAM: HALL J
HEARD: 23 NOVEMBER 2016
DELIVERED : 30 NOVEMBER 2016
FILE NO/S: MBA 36 of 2016
BETWEEN: JONATHON GREGORY TOZER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Summary charges - Risk of offending on bail - Whether risk can be removed by imposing conditions
Legislation:
Bail Act 1982 (WA), pt 3, sch 1
Result:
Bail granted
Category: B
Representation:
Counsel:
Applicant: Mr L Zinenko
Respondent: Ms L J Keane
Solicitors:
Applicant: WA Criminal Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; 2011 42 WAR 99
HALL J: This is an application for bail pursuant to s 14 of the Bail Act 1982 (WA). Such an application may be made to this court in any case including, as here, where bail has been refused in the Magistrates Court.
An application under s 14 is not an appeal and does not require demonstration of error. Rather, it is an application in the original jurisdiction of this court to exercise a power to grant or refuse bail in any case. Such an application requires the court to consider afresh whether or not bail should be granted. That jurisdiction is to be exercised in accordance with s 13 and sch 1 of the Bail Act.
Background
There are 16 charges pending against the applicant. Those charges relate to three incidents: an alleged police chase on 3 January 2016, a second alleged police case on 5 August 2016 and a search of the applicant's premises on 9 August 2016 which resulted in the finding of prohibited drugs and paraphernalia associated with drug taking.
Charges in relation to the first police chase were preferred on 9 and 13 January 2016. A summons in respect of those charges was issued requiring the applicant to appear in the Midland Magistrates Court on 10 February 2016. It would appear that the summons was not served and an order was made for a further summons to issue. The applicant was subsequently served with a summons but failed to appear as required on 15 April 2016 and a warrant for his arrest was then issued. For reasons that are not clear, the applicant was not arrested until 9 August 2016. At that time, he was found in possession of drugs and drug taking paraphernalia. Later the same day, he was charged in relation to the second police chase and the drugs.
The applicant appeared in the Midland Magistrates Court for the first time in respect of any of the charges on 10 August 2016. At that time he was unrepresented but made an application for bail on his own behalf. The application was refused on the grounds that the magistrate considered that there was a high risk of offending and there were no conditions that could remove that risk and ensure the protection of the community. The applicant subsequently appeared in the Magistrates Court on 19 August and 30 September 2016 and further applications for bail were made and refused.
It is unclear whether the applicant has entered pleas to all of the charges. There is evidence that there have been negotiations which have resulted in an agreement that the prosecution will discontinue one of the more serious charges and that the applicant will enter pleas of guilty to other charges in respect of the first police chase. At the hearing of this application, counsel for the applicant said that pleas of not guilty in respect of the remaining charges would be entered or maintained.
All of the charges are to be dealt with summarily. The charges are next due to be mentioned in the Magistrates Court on 21 December 2016. Enquiries by the applicant's counsel have established that a trial date in the Midland Magistrates Court is unlikely to be available before July 2017. If the applicant is not granted bail he may be in custody for 11 months before any trial.
Prosecution case
In respect of the first police chase, the prosecution alleges that at about 11.00 am on 3 January 2016, the applicant drove a Mitsubishi utility motor vehicle in an easterly direction on Great Eastern Highway near Brooking Road in Hovea. Police in the area noticed the vehicle and that it was bearing registration plates that did not match the recorded details for that vehicle. The lights and sirens of the police vehicle were activated, however the applicant made no attempt to stop. He continued to drive in the right hand land of a dual carriageway at estimated speeds of 100 kmph in an 80 kmph zone. Other road users moved to the left lane to allow the applicant to pass.
After driving approximately 3 km the applicant suddenly braked and turned into Brooking Road. He continued to drive until smoke started coming from the engine of his car, at which point he slowed down and stopped. He was then apprehended by police. The total distance of the police chase was approximately 6 km. Police later established that the applicant was not authorised to drive, being under a court ordered suspension. The vehicle he was driving was also not currently licensed or subject to any permit.
In respect of this incident, the applicant was charged with aggravated reckless driving, failing to comply with a direction to stop, driving a vehicle with false plates, driving an unlicensed vehicle and driving whilst suspended. The police have indicated a willingness to drop the most serious of these charges, namely the aggravated reckless driving, if the applicant pleads guilty to the other four charges. Of those charges only a charge of driving under suspension and a charge of failing to comply with a direction to stop have maximum penalties that include imprisonment. The other two charges are punishable only by a fine.
In regard to the second police chase, the prosecution case is that at about 4.13 pm on 5 August 2016 the applicant drove a Ford Falcon utility bearing stolen registration plates in Greenmount. A police car travelling in the opposite direction undertook a u turn and pursued the Ford Falcon. The applicant is alleged to have accelerated heavily and turned right. Police activated their emergency lights and siren but the vehicle did not stop, eventually colliding with another vehicle. It is alleged that the applicant was stationery for a short time before driving away. The driver of the other vehicle was taken to hospital and suffered bruising and lower back pain. Police continued to pursue the Ford Falcon, which cut corners and overtook slow moving vehicles forcing three vehicles to take evasive action. Police eventually lost sight of the Ford Falcon and the applicant was not apprehended until some days later. The applicant denies that he was the driver of this vehicle and intends to adduce alibi evidence at his trial.
On 9 August 2016, police attended at a house in Swan View and arrested the applicant. He was questioned in relation to the car chase on 5 August 2016 but declined to make any comment. It is alleged, however, that the applicant made an implied admission by stating that he did not realise that any person had been injured. The applicant claims that this was a reference to the earlier incident and was not, therefore, an admission that he was the driver of the Ford Falcon on 5 August 2016. In relation to that incident, the applicant was charged with driving whilst disqualified, failing to stop, failing to give personal details when directed to do so, dangerous driving causing bodily harm, aggravated reckless driving and driving a vehicle with false licence plates.
At the time of his arrest on 9 August 2016, police officers located a grey bag next to the applicant on a couch. Inside the bag were two quantities of methamphetamine totalling 7.3 g. Also in the same bag was a glass smoking implement, which had allegedly been used to smoke methamphetamine. On a table next to the applicant 2 g of cannabis along with another plastic smoking implement were found. The applicant is alleged to have admitted ownership of the drugs and the smoking implements, stating that the drugs were for his own personal use. In respect of these matters he was charged with possessing drug paraphernalia, possessing methamphetamine and possessing cannabis. The charge in relation to the possession of methamphetamine is a simple possession charge notwithstanding the quantity involved.
It is difficult to assess the strength of some parts of the prosecution case. The only material filed on this application relating to the prosecution case are statements of material facts that are annexed to the affidavit of the applicant's solicitor. It seems likely that the aggravated reckless driving in respect of the 3 January 2016 incident will be discontinued and that the applicant will plead guilty to the other charges in respect of that incident. He intends to plead not guilty in respect of the 5 August incident and the issue in respect of that incident will be identification. The driver of the vehicle was not apprehended and there is no reference to any evidence that connects the vehicle that was seen to the applicant. There is also no reference to identification of the driver by any of the pursuing police. The prosecution case in respect of this incident appears to depend critically upon the alleged implied admission made at the time of arrest on 9 August 2016. The applicant claims that that admission relates to the first incident and not that of 5 August 2016. On this basis the prosecution case in respect of the second incident could not be described as strong. On the other hand, the case in respect of the drug offences does appear to be strong.
The applicant has previous convictions for reckless driving, failing to stop and driving without authority. If convicted of all of the offences (other than the first aggravated reckless driving which will be discontinued) it is likely that he will be sentenced to terms of imprisonment in respect of the two offences of driving without authority, the aggravated dangerous driving causing bodily harm and the possession of methamphetamines. He would also be liable to a mandatory term of imprisonment for the second aggravated reckless driving of at least 6 months' imprisonment. However, as I have noted, convictions in relation to the 5 August incident are not assured.
Applicant's personal circumstances
The applicant is 29 years old and has a de facto partner. He is the father of a 6‑year‑old daughter from a previous relationship. Although he does not have custody of the child he sees her frequently.
Medical evidence adduced establishes that the applicant has depression and Attention Deficit Hyperactivity Disorder. He was prescribed medications for both of these conditions prior to being remanded in custody. He has continued to receive antidepressants in the prison.
The applicant has an older brother with whom he is very close. Earlier this year the brother was diagnosed with pancreatic cancer and the prognosis at that time was that he would not survive more than 12 months. The brother has undergone treatment but his condition has deteriorated. The mother of the applicant, Mrs Jennifer Wood, and his other brother are presently caring for the applicant's brother. He requires 24 hour care and needs to be lifted and turned periodically. Mrs Wood has back and neck problems and cannot do the lifting required. Her other children work during the day and are not able to help her at that time. The family doctor has written a letter in support of the applicant on the basis that if released on bail he would be available to assist his mother in caring for his brother.
If released on bail the applicant proposes to live with his de facto at a house which is a short drive from that of his mother. There is insufficient space for him to reside with his mother on a permanent basis. The applicant's partner has sworn a statutory declaration in which she states that she is willing to drive the applicant to and from his mother's house at any time so that he can help care for his terminally ill brother.
The applicant was on Centrelink benefits at the time of his arrest. He advises that he now has jobs available to him in the building and construction industry. However, if released on bail his primary concern would be to assist with the care of his brother and to spend time with him in what are likely to be his final days.
Relevant law
In Milenkovski v The State of Western Australia [2011] WASCA 99; 2011 42 WAR 99, the Court of Appeal considered the proper approach to a bail application. The jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Act and the provisions in pt B, C and D of sch 1 to the Act.
Part C of sch 1 of the Act sets out the principles governing the grant or refusal of bail. They require that discretion be exercised having regard to the following questions, as well as any other matters which the court considers relevant:
(1)whether the applicant may fail to appear in court in accordance with a bail undertaking;
(2)whether the applicant may commit an offence if released on bail;
(3)whether the applicant may endanger the safety, welfare or property of any person;
(4)whether the applicant may interfere with witnesses or otherwise obstruct the course of justice;
(5)whether the prosecution has put forward grounds for opposing the grant of bail; and
(6)whether there are any conditions which could reasonably be imposed which would remove the risks referred to.
Application to the present case
This is not a case where exceptional reasons are required for the grant of bail. The primary reason advanced for why the applicant should be refused bail is that there is said to be a significant risk that he will commit offences if released on bail. Those offences are said to be offences involving dangerous driving and that there is a need in these circumstances to protect the community.
It is important to assess the question of bail in the context of the pending charges. The charges are serious and if the applicant is convicted of all of the charges an immediate sentence of imprisonment is likely to be imposed. However, the applicant has now been in custody for three months and if the charges are not resolved until a hearing in July of 2017 he will have been in custody for 11 months by that time. Such a delay may be equivalent to, or represent a significant proportion of, any sentence imposed. Bail cannot be imposed as a pre‑emptive punishment nor can it be used to protect the community if the length of time that the accused would be remanded in custody is likely to exceed any punishment imposed on conviction.
It was suggested by the prosecution that the fact that an arrest warrant had issued for the applicant and that he had stayed at large for several months was a strong indication that he would fail to comply with bail. However, it should be noted that the arrest warrant was issued because the applicant did not respond to a summons. He was not initially placed on bail and did not commit any of the subsequent offences whilst on bail. His failure to appear on 10 February 2016 was not a failure to comply with a bail undertaking. Whilst relevant, it does not follow that because the applicant failed to answer a summons that he would necessarily fail to comply with the more onerous requirements of a bail undertaking. The delay in his arrest is unexplained and there is nothing to suggest that he was evading the police.
The applicant's criminal record does show that he has a history of committing traffic offences. These include driving whilst disqualified, reckless driving and failing to stop when called upon. However, he has never received a sentence of immediate imprisonment for any such offences. There are also no convictions for breaching bail.
I accept that there is a risk that the applicant could commit offences if released on bail. The issue is whether that risk can be obviated by appropriate conditions. In this regard it is important to take into account that the applicant has a very strong and genuine motivation for complying with bail, that is his desire to care for his dying brother. That is a factor that is likely to encourage compliance with even the most onerous conditions. But for the risk of offending, the charges in this case are not such as would otherwise justify a refusal of bail.
I am satisfied that conditions could be imposed which would substantially remove the risk of offending and therefore make release on bail appropriate. Those conditions are as follows:
(1)an undertaking of $5,000 with a surety in the same amount;
(2)a requirement to reside at a nominated address and not to be absent from that address for any longer than any 12 hour period;
(3)to be present at the residence between the hours of 8.00 pm and 6.00 am and to present at the front door of those premises to police at any time between those hours to confirm his presence there;
(4)that during the curfew hours he may attend at his mother's house to care for his brother but only if he first advises the officer in charge of the Midland police station. In that event he is to travel by most direct route from his home to his mother's house and to present at the door of his mother's house to police on demand;
(5)to report to the Midland police station each Monday, Wednesday and Friday;
(6)not to drive any motor vehicle (although the applicant is already disqualified from driving, the purpose of this condition is to ensure that any such driving offence will also constitute a breach of bail).
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