Va v The State of Western Australia - [2014] WASC 74

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: VA -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 74

CORAM: EM HEENAN J

HEARD: 19 FEBRUARY 2014

DELIVERED : 19 FEBRUARY 2014

PUBLISHED : 11 MARCH 2014

FILE NO/S: MBA 4 of 2014

BETWEEN: VANNAK VA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail - Charges of possession of prohibited drugs with intention to supply - Large quantities - Large amounts of unexplained cash found - No apparent sources of employment or regular income - Risk of flight - Risk of possible future offending - Bail refused

Legislation:

Bail Act 1992 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Mr M T Trowell QC
Respondent: Ms C A Fletcher

Solicitors:

Applicant: Mark Andrews Legal
Respondent: Director of Public Prosecutions (WA)

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

Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228

EM HEENAN J: On 19 November 2013, Vannak Va was arrested and charged with a series of offences, and has remained in custody since his arrest. The offences with which he was then charged are:
(a)possession of a prohibited drug with intent to sell or supply, 384.59 grams of methylamphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA);
(b)possession of a prohibited drug with intent to sell or supply, 48.2 grams of cocaine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA);
(c)possession of a prohibited drug with intent to sell or supply, 58.6 grams of MDMA, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA);
(d)possession of drug paraphernalia in or on which there was a prohibited drug or plant, a glass smoking implement with traces of methylamphetamine, contrary to s 7B(6) of the Misuse of Drugs Act 1981 (WA); and finally
(e) possession of ammunition contrary to s 19(1)(c) of the Firearms Act 1973 (WA), being four rounds of .22 calibre ammunition and one round of .357 calibre ammunition.
Va was brought before the Magistrates Court of Western Australia on 17 January 2014, at Midland, on these charges, and applied for bail. The application for bail was opposed by the prosecution, and after hearing submissions, the learned magistrate gave brief oral reasons for refusing bail. They are in the transcript of the hearing, which is now before me. I will incorporate them into these reasons and read them briefly.
Yes, Mr Va. In respect to these matters and your bail application, I note the following. In terms of your personal circumstances, your partner is 33 weeks pregnant with a difficult pregnancy, little family support and clearly wishing for you to be released so that you can provide her with that support. I also note, as your counsel has pointed out, the presumption of innocence which applies in respect of these allegations, and there also appears to be some long-term stability in terms of your living here in Western Australia.
Having said that, these are extremely serious matters. On the face of it, there is, in my view, at least to the best I can determine for the purpose of this bail application, a strong prosecution case. All the items were found in and around the interior of your bedroom, and they involve allegations as to large amounts of illicit drugs that are regarded as of a particularly serious nature, together with a large sum of cash.
I also note that, although of a much lesser degree, clearly, in terms of amount, you come before the court with a prior conviction of possession of methylamphetamine with intent to sell and supply, and prior to that a conviction for possession of cannabis with intent to sell of supply, and a prior conviction for possession of amphetamine.
Having regard to the strong prosecution case, in my view, the very serious nature of these charges, the inevitable and lengthy term of imprisonment you would receive if convicted, the existence of the prior record that I've already referred to, in my view, there are effectively no conditions I could set in addition to all the other matters I've observed which would give me any confidence that you wouldn't offend if granted bail.
And, there remains, in my view, in all the circumstances, a grave risk of ongoing offending if you were granted bail. Having regard to all those matters, bail is refused. The remand will be in custody for you to appear next video link, on 14 February back here in Midland.
Some matters emerge from his Honour's reasons which need some further explanation and clarification. The arrest of the applicant occurred by police attending at his home address, which I will not state but which is in the affidavits, in Beechboro when the Gang Crime Squad arrived at approximately 8:20 am to execute a search warrant. The execution of the search warrant was recorded on video by the police and there are some passages in that video which, although not tendered in evidence, have been referred to without objection on both sides in the course of this application.
The quantity of drugs discovered by the police while searching the home was large on any account. The bedroom was shared with the de facto partner of the accused. Some of the drugs were found in a safe, to which the accused admitted exclusive ownership. He provided the code to the police to open the safe. Before the safe was opened, he indicated to the police that drugs would be found in it. Other drugs located by the police were found in the bedroom secured or secreted in other ways, including within his clothing.
During the search of the bedroom, the police also located a large quantity of MSN, which the accused admitted was a cutting agent; a set of electronic scales; and other items that might be considered drug dealing paraphernalia, such as numerous clip lock bags and rubber bands. Also during the search of the accused's bedroom police located approximately $147,495 in cash, predominantly in $100 or $50 note bundles held together by rubber bands. Of that total, a sum of approximately $36,800 was found in the first safe referred to.
On the video of the search interview the accused stated that some of the cash from the safe had been earned by him performing casual work driving for a friend. However, he also admitted that some of the cash found in the safe was from the sale of drugs. It has since been put, without objection, that of that $36,800 approximately $5,000 was said to come from legitimate sources and the balance from the sale of drugs.
In respect of the cash located in other parts of the bedroom, the accused claimed that he did not know anything about it. It is now the subject of a freezing order to which an objection has been filed. The search also revealed four rounds of .22 calibre ammunition and one round of .357 calibre ammunition in the bedside drawer. The accused stated that he had received this ammunition from a friend and was holding onto it. The police also located a black toy gun bearing a resemblance to a hand gun in the accused's bedroom.
Following the refusal of his application for bail in the Magistrates Court on 17 January 2014, Mr Va has made application to this court for bail under the provisions of the Bail Act 1992 (WA). That application was filed on 23 January 2014 and listed for hearing before me on the afternoon of 6 February 2014. I sat to hear the application on that occasion and received a number of affidavits in support of the application and some affidavits in opposition to it, together with detailed written submissions from counsel for Mr Va and by counsel for the State of Western Australia appearing to oppose the application.
At that hearing, there was little in the way of evidence about Mr Va's means of support, financial circumstances or employment prospects, and the possibility of release on home detention bail was raised, giving rise to a need for a home detention bail assessment. Accordingly, I adjourned the hearing on 6 February and, by consent, relisted it for hearing today for further submissions to be advanced.
I have received further affidavits today from the police officer, from Mr Va and from his partner, Jady El who, I should add, has in the meantime only very recently safely delivered a child. The birth of a young child is always a cause for celebration and accomplishment and, not unreasonably, Mr Va submits through his counsel that he feels an obligation and a desire to return to the family residence, now a different residence, to help support his partner following the birth of the child.
Among the papers which have been received, both on the original application and in more detail today, there is evidence to indicate that over recent times, 12 months or longer, Mr Va has supported himself financially by the purchase of dilapidated or old motor vehicles, which he has then set about restoring and reselling after restoration, making a profit in the process. He explains that, by this means, he has been able to support himself and, presumably, his partner over recent times.
There is no evidence of the actual amounts of money earned from this enterprise, nor any evidence of bank accounts, taxation returns, or any financial records at all to support the existence of that business or from which it could be estimated or inferred whether there was any, and if so what, reliable source of income. Nevertheless, Mr Va also has produced evidence from a prospective employer, a panel beater, with an offer of immediate general employment in his business without any specified duration of the employment, nor any indication of the amount of wages or other remuneration which would be paid.
This is offered in support of the contention that he would, if released to bail, be able to earn income from legitimate sources which would allow him to support himself and his partner and their new baby, and would not, as the magistrate feared, be driven to resort to the commission of offences or the distribution of drugs to fund his lifestyle. As to that particular matter, there is evidence from one of the investigating police officers, Detective Senior Constable Ralph, that could, on one view, give rise to a fear of flight should he be released to bail, or resort to the commission of future offences.
The evidence from Detective Senior Constable Ralph, who is an experienced officer involved in drug investigation since 2007, is to the effect that the items located in the applicant's bedroom, in the rear room of the house, are consistent with items involved in the distribution and sale of large quantities of prohibited drugs. The officer submits that Mr Va should be refused bail on the following grounds. First, the items located during the search warrant are consistent with the sale and distribution of commercial quantities of prohibited drugs. I accept that they are. Secondly, that the applicant disclosed to the police during the search warrant that he had an outstanding debt of approximately $100,000 for the drugs seized by the police. Mr Va has denied any such conversation with the police, or the existence of any such drug debt, and in the supplementary evidence filed before today's hearing, his partner has also denied the existence of any drug debt. The question, therefore, is what significance, if any, should I attach to this disclosure? I will return to that subject in due course.
The officer also deposes that the applicant does not appear to have the capacity to service this debt and, should he be released to bail, is likely to continue drug dealing. That is a matter of submission, or inference, and again I will return to that. The officer also submits that the applicant informed the police that he has a significant methylamphetamine addiction and, should he be released, he may have to commit offences to service his habit. Mr Va denies that and, again, that is a contested allegation, the significance of which I will re‑examine.
Then the officer refers to the fact that Mr Va comes from South-East Asia - he says Cambodia, although the evidence is that he comes from Thailand, or is of Cambodian origin - and for that reason should be considered a flight risk, particularly having regard to the possibility of a lengthy prison sentence if convicted on these charges. It is also submitted, again as a matter of inference, that a network that supplied the applicant with the drugs found in his possession is likely to have the means to facilitate him fleeing Australia.
Counsel for the applicant submits that this is entirely a matter of conjecture. I admit that it is a matter, at the most, of inference; but the question is whether or not such an inference can or should be drawn in the circumstances. It is admitted that there is no direct evidence that the drugs were supplied by others, or that there was a drug network, organised or otherwise.
However, it is extremely unlikely that Mr Va obtained or manufactured these drugs acting alone, and there are strong grounds to conclude that he must have been in contact with a source or sources of supply which, for the quantities involved, were dealing on a large scale in some form of importation or manufacture of illicit and harmful drugs. Finally, it was submitted by the officer that the applicant has an extensive family network in Perth which would be able to assist his ability to avoid detection should he decide to flee.
It is admitted that he does have a wide family, but it is urged that this is a sign of stability and connection with this jurisdiction and is, therefore, a positive consideration and not a negative one. It is also established from the evidence before me that Mr Va is an Australian citizen, holds an Australian passport, has surrendered that passport voluntarily to police, and is willing to accept as a condition of any bail which might be granted that the passport should remain in the possession of the police, and that he should not go within any close distance of a point of international departure in any airport, port or other outlet from Australia.
It is also established that he has in the last year or two made one or more trips to Cambodia with friends or relatives, but there is nothing to establish that that he was then involved in any illegal activity. The facts that he has returned, that his family are here, that his partner and the new child are living here and are in a situation of dependence, are all urged as factors which should encourage the grant of bail.
I turn to a consideration of whether or not bail should be granted in these circumstances and, in doing so, I have regard to the terms of the Bail Act. I acknowledge that this is not a case in which it is necessary for the applicant to show any exceptional circumstances in order to obtain bail. The considerations which a court should address when determining an application such as this for bail were canvassed recently by me in the case of Lai v The State of Western Australia [2010] WASC 334, and with one exception, which I will mention in a moment, it is unnecessary for me to repeat them here.
I adopt and apply, subject to the authority of the Court of Appeal in the more recent case of Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, those principles. In the course of Lai I was required to give attention to what evidence could be considered and relied upon by a judicial officer when hearing an application for bail, either originally or on review. At [20] of those reasons for decision I addressed s 22 of the Bail Act, and the authorities which have emerged dealing with its use.
It follows from those authorities, which I will not discuss now in detail, that I am entitled to take into account evidence from all the sources which have been put before me today, including evidence from the video of the search exercise including the alleged off-camera alleged admissions to the police about the drug debt and methylamphetamine habit, and the need to pay off the debt. The reasons for that are set out at [22] to [25] in Lai.
In the Law Reform report which led to the amendment of the Bail Act - that is the Law Reform Commission of Western Australia Project No 64, published March 1979 - there was in relation to this question the following passage:
A presumption in law creates an evidentiary burden on a party to introduce evidence to rebut it. This might be appropriate where there is a dispute between parties, for example, as in a criminal trial. But, in the Commission's view, it would be inappropriate in a matter such as a bail decision. This does not involve an issue which has to be proved one way or another by parties to a dispute. The question for a bail decision-maker to answer should be whether to grant bail to a defendant having regard to the information made available to him at his request or otherwise. It should not be whether a particular party to the bail proceedings has discharged a statutory onus cast upon him.
I understand that these principles explain at least in part why it is considered inopportune or unproductive to attempt to resolve before me the controversy over whether or not Mr Va made the admissions to the police officers off-camera during the search, which they claim he did, and which he denies. I also acknowledge that this explains, in a practical way, why it has been considered inopportune to have the police officers who gave this evidence in their affidavits, although not to the same extent, cross-examined on the present application.
What it does mean, however, is that I can have regard to that evidence, taking it into account in relation to all the other evidence and knowing that it is a disputed allegation, and that it may or may not be necessary to resolve it. I do not consider that I can resolve it, but the inference as to what the applicant's position may be in relation to the possession of such a large quantity of drugs and cash remains as eloquent as before. Now, I mentioned that I would apply the principles in Lai, subject to the authority of the Court of Appeal in Milenkovski.
In Milenkovski, at [31] - [45], McLure P set out extensively the now authoritative exposition of the significance of the Bail Act for present applications. I, of course, accept that and apply it accordingly. A summary of the effect of that decision was helpfully made by Edelman J in the recent case of Quaid v The State of Western Australia [2013] WASC 228, where his Honour said, at [13] and following, that the principles concerning the application of Sch 1, Pt C, cl 1 of the Bail Act, which applies by virtue of s 14 of that Act, can be summarised by the following points:
1.The Bail Act is a Code in a sense that it is intended to displace the common law.
2.In circumstances such as those in this application, the text and purpose of the Bail Act is inconsistent with the common law approach in general and the requirement that the accused establish exceptional circumstances in order to obtain bail.
3.As to the general provision in cl 1 of pt C, that clause contains no express statutory presumption for or against the grant of bail. The only clauses of pt C, sch 1 of the Bail Act which provide for a (rebuttable) statutory presumption against the grant of bail are cl 3A, cl 3C and cl 4A.
None of those clauses was relevant to the application before Edelman J, and as I have said, none is relevant to the present case. The only situation where there is a rebuttable statutory presumption in favour of bail is clause 2 of part C of schedule 1, which again does not apply:
4.The Bail Act does not place any legal onus on any party to a bail application. However, in circumstances where a bail application is to be determined and under cl 1, the consequence of the structure of that clause is that bail would 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 for provide proper foundation for refusing bail.
5.The grant or refusal of bail is at the discretion of the person vested with jurisdiction who is required to have regard to the questions in paragraphs (a) - (g) and to any other questions which the decision‑maker considers relevant. The correct approach to the exercise of the discretion is sourced in and guided by the matters in paragraphs (a) - (g). The mandatory answers to the 'questions' in those paragraphs and other relevant questions of findings provided the factual basis for the exercise of the discretion. The Court is required to consider an answer to mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
6.The Court is not required to consider questions directed to whether there are positive grounds for granting bail.
7.Paragraphs (a) and (d) of cl 1(a) are concerned with the possibility of the relevant event occurring. In answering that, and other questions in cl 1(a), the Court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C.
8.The seriousness of the offence does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The Court is required to have regard to all the questions in cl 1 and the matters in (c)(iii) in the exercise of the discretion to grant or refuse bail.

And finally:
9.It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the events and the probable consequences if the accused is convicted are sufficient to enable the Court to conclude that the accused may fail to appear in Court in accordance with his bail undertaking. The nature of the potential sentence imposed by the court, having regard to the answers to all the other mandatory questions in cl 1, may require or justify the refusal of bail.
In the present case, the learned magistrate referred to Mr Va's previous convictions for various criminal offences including convictions in relation to drug‑related offences. The details of those convictions are in the evidence before me and a copy of the record is annexure D to Mr Va's initial affidavit of 20 February 2014. That shows that between 17 January 2007, in the Leonora Magistrates Court, and 14 November 2011, in the Perth Magistrates Court, he was convicted of a series of offences resulting in fines, motor vehicle driver's licence disqualifications and an adult community order. The offences include obstructing police officers; no authority to drive; possession of prohibited drugs with intent to sell or supply cannabis - that was in March 2011 - possession of a smoking utensil used for smoking a prohibited drug, again in March 2011; possessing a prohibited drug, amphetamine; a breach of a bail undertaking on 28 March 2011 and other driving offences.
There was a subsequent offence in November of 2011 of possession of a prohibited drug with intent to sell or supply, the drug being methylamphetamine. I accept that having regard to the penalties imposed, none of which involved imprisonment, whether suspended or not, the offences may have been at the lower end of the scale, but it does show a history of involvement in the drug culture and a repetition of dealing in drugs intending to sell and supply them.
That feature of Mr Va's background has also been referred to in the home detention bail assessment which I received, which says that substance misuse and his involvement in the drug culture appear as factors in his history of offending behaviour. I should, while dealing with this report, indicate that the report indicates that he has a history of drug use from 15 years of age and appears to have become increasingly problematic in recent times.
He has no previous history of community supervision, so it is not possible to gauge his response or likely compliance with home detention, and it is noted that there was a conviction of a breach of bail in the past, although I assume it was minor. It is recommended that if there were to be home detention bail, there should be regular random urinalysis, failure to pass which would be regarded as a breach of the terms of bail and that there should be no release until the proposed address at Ellenbrook, where he hopes to reside, has a telephone which is operational for electronic monitoring purposes, because the phone there does not satisfy that requirement at present.
It is in those circumstances that I have to consider the present application. The learned magistrate, as I have already said, considered that bail should be refused because of a higher risk of reoffending or committing offences. I must say that the learned magistrate appears to have good grounds for that anxiety. The indications are that there has been a large amount of drugs and a large quantity of sales involved. There is no obvious means of support or financial resources for Mr Va, either at present or over the last year or two.
His prospects for future employment are very vague and indefinite and nothing has been put before the Court to show any regular or stable business or financial operations. There is, therefore, every ground for the inference apparently drawn by the magistrate that there is a large risk of commission of future offences should Mr Va be allowed liberty pending the disposition of these charges.
There is, of course, the situation of his partner and their young baby, and it is only natural, as I have said, that he would wish to resume life with her and to meet his child as soon as possible and to help her. But quite how he can assist, at least financially, is not obvious. Impressive and natural though those inclinations may be, the question is that if he were to be convicted of these offences and receive a long term of imprisonment, as is likely to happen, separation would occur and there would be an inability to provide financial support.
So the hardship which is likely to follow as a result of Mr Va being in custody could very well, if alleviated by bail, not last for very long. It seems that, having regard to all the circumstances, the learned magistrate was correct in concluding that there was a serious risk of the commission of further offences and it had been put to me that there is also a risk of flight because of the overseas connections and the probability of a severe penalty in the event of conviction.
I do acknowledge that there is such a risk of flight, but the actual magnitude of the risk cannot be readily assessed in the present circumstances and it is perhaps less obvious in the present case than in a number of others. The real risk is the consequences of release to bail with no apparent lawful means of support and every inclination to engage in drug trafficking.
I am not satisfied that bail should be granted and the application is refused.