HUTTON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 83 (15 March 2016)

3 That clause provides that, other than where certain clauses that are not relevant for present purposes apply, the grant or refusal of bail to a person who is in custody, awaiting sentence, shall be at the discretion of the judicial officer who has jurisdiction to deal with the matter, and the discretion is to be exercised having regard to the matters referred to in cl 1, as well as any other matters that the judicial officer considers relevant.

4 The proper construction of the provisions of the Act was considered in Milenkovski v The State of Western Australia [2011] WASCA 99. The Court of Appeal (McLure P, Pullin JA & Hall J agreeing) held that the Act is intended to be a comprehensive code on the subject of bail, in the sense that it is intended to displace the common law: [31], [34]. The common law may still be relevant to the construction of terms in the Act that had previously acquired a technical meaning.

5 In Milenkovski, the court identified three provisions in the Act that provide for a rebuttable statutory presumption against the grant of bail, and one that provides for a statutory presumption in favour of bail: [36], [38]. None of them apply in this case. The court then considered the construction of the general provision in cl 1 of pt C. The court noted that it contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction, who is required to have regard to the questions in pars (a) (g), and to any other questions which the decision-maker considers relevant. The court said that the correct approach to the exercise of the discretion, however, is sourced in, and guided by, the matters in pars (a) (g). McLure P said there are a number of significant points to note:

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 [39].

[W]ith 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 [40].

6 It is obvious from that last statement that the court in Milenkovski was dealing with a situation of an application for bail prior to trial. In any event, the court went on to say that the Act does not, in terms, place any legal onus on any party to a bail application: [41]. 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. The court further said:

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 [41].

7 In my opinion, where bail comes to be considered after a trial and pending sentence, the facts disclosed in the trial, the conclusions that can be drawn about the seriousness of the offences, and the likely sentencing disposition, are all part of the material upon which the court can decide if there is a proper foundation for refusing bail. These are matters which the court in Milenkovski considered might inform the conclusion that an accused may fail to appear in court, in accordance with his bail undertaking, even when bail is being considered before trial, which was the situation in that case: see [43].

8 The proper approach under cl 4 was considered by Hall J in Jasevski v The Queen [2010] WASC 43. His Honour said:

The position now is that the discretion to be exercised regarding bail is not different in kind before or after conviction. It does not, however, follow from this that the recording of a conviction is irrelevant to whether bail should be granted. An accused person who has not been convicted is in a very different position to an offender who has admitted their conduct and is awaiting sentence.

The former faces only the risk of conviction and punishment whereas the latter knows the certainty of it. Depending upon the seriousness of the conduct and the likelihood of custodial sentence, the certainty of impending punishment may act as an incentive to abscond. If the person ever harboured hopes that they may be acquitted or that they may delay their case for a prolonged period, such hopes would have to be abandoned after conviction. Accordingly, whilst there is no presumption against bail following conviction, conviction for serious offences may justify the exercise of discretion to refuse bail pending sentence [9] [10].

9 In my opinion, apart from the risk of flight, there is another matter that is a relevant consideration for the purposes of cl 4. As a matter of public policy, there would be an expectation that persons who are convicted of very serious offences, and will inevitably be sentenced to a lengthy term of imprisonment, should be required, generally, to be met with the consequences of conviction and not be at large. The general entitlement to be at liberty that stems from the presumption of innocence is removed by the guilty verdicts. This does not mean that there is a presumption against bail following conviction, as was noted by Hall J in Jasevski, but it provides another factor, in my opinion, which needs to be weighed in the balance, for the purposes of cl 1, in considering whether there is a proper foundation for refusing bail.

10 In the present case, the offences are very serious. They involved an invasion by the applicant and a cooffender, on 4 December 2015, of the home of a woman who was known to both of them, Ms Powell. The applicant was armed with a baseball bat, while the cooffender was armed with an instrument that was believed by witnesses to be a steering lock. One or both of them also had a large syringe with a flammable liquid, which was most likely petrol, and the co offender also used a propellant, namely, a degreaser.

11 Ms Powell had three male visitors at her house at the time. The applicant went to the lounge room and brutally assaulted one of the visitors, Mr Mitchell, with the baseball bat, causing injuries to his head and leg. He also sprayed the flammable liquid on Mr Mitchell and another male visitor, and threatened to set it alight. The cooffender was carrying an instrument that was capable of producing a flame, and at one stage had the flame lit, after the two males had been sprayed with the flammable liquid.

12 When the applicant was initially assaulting Mr Mitchell, the cooffender was attacking Ms Powell in a bedroom. He struck her several times with the steering lock, causing injuries to her head and face. He also sprayed the degreaser in her face.

13 The applicant and his cooffender then stole a computer and money, along with other items from Ms Powell's house, before fleeing.

14 As can be seen from that summary of the facts, as disclosed by the evidence at trial, each of the offences is a very serious example of its type.

15 It is accepted on the applicant's behalf that the only appropriate sentence is an immediate term of imprisonment, and that the term will be substantial. Nevertheless, it was argued that he should be granted bail. The application was made when it became apparent that sentencing would be adjourned for reports to be obtained.

16 Two grounds were advanced for the application. The first ground, referred to as 'housekeeping matters', concerned a number of things that it was said the applicant would now need to do, in light of his conviction and the impending term of imprisonment. The first thing was that he wanted to make provision, by way of a lump sum payment, for maintenance of his child, who is a young child from a relationship with a previous partner.

17 The second was that he wanted to transfer all of the interest in his business, which is a fish and chips shop, to his current partner. It was suggested that this would require visits to a bank and the completion of documents, which, it was said, would more easily be achieved if he was at large than if he was imprisoned. Certainly, he would not be able to attend the bank if he is in prison.

18 Thirdly, under this category, it was said that arrangements need to be made in relation to the mortgage over his matrimonial home.

19 Under a separate category, it was said that the applicant has been seeing a psychiatrist and receiving continuing treatment, and that it was desirable that he be able to continue to see that psychiatrist in the period leading up to sentencing, if for no other reason than to put him in a better frame of mind for when he comes to be sentenced.

20 At the time when the application was made, on 19 February 2016, the State's position was that it did not oppose bail, because of information that had been provided to the State in respect of the applicant's psychiatric condition and the need for him to continue to receive treatment. There was no material before me to indicate what his psychiatric condition was at that point in time and, certainly, nothing to suggest that there were continuing issues in respect of his mental health that could not be dealt with in a custodial setting. It was proposed, therefore, that material would be obtained from the applicant's psychiatrist to assist me to form a view as to whether that matter was such as to weigh in the applicant's favour, in determining whether I should grant bail. The matter was adjourned to today, 1 March 2016, in order for the material to be provided. No material has been forthcoming from the psychiatrist, Dr Lumley.

21 This morning, the applicant's counsel indicated that he had had a discussion with Dr Lumley, and that the information that was provided is that Mr Hutton suffers from depression, but does not suffer from any major psychiatric disorder. In those circumstances, the State says that the basis upon which it made its concession no longer exists, and the concession was withdrawn.

22 The State's position now is that bail should be refused, because of the significant flight risk, in light of the applicant having been convicted of very serious offences and facing a lengthy term of imprisonment. It was argued on behalf of the applicant, however, that the other matters were matters that I should still have regard to as justifying a grant of bail.

23 As there is no presumption against the grant of bail at this stage of the proceedings, it was argued that the question of when the applicant commences to serve the inevitable term of imprisonment that will be imposed becomes, essentially, an administrative one, and there should be an opportunity for mercy to be extended to the applicant, to enable him to attend to the practical matters that were relied upon in support of the application.

24 In my opinion, the matters that are sought to be relied upon are matters for which arrangements could have been made before the trial. While I appreciate that the applicant was entitled to rely on the presumption of innocence and to approach the trial on the basis that there was no certainty that he would be convicted, nevertheless, practical matters of the kind that have been referred to are matters for which contingency arrangements could have been made.

25 The question remains, however, whether, in weighing the considerations under cl 1, I am satisfied that bail should be refused, approaching the matter in the way in which the court referred to in Milenkovski.

26 When the matter was adjourned to 1 March 2016 for additional materials to be obtained in respect of the bail application, I ordered a home detention assessment report, because it was my opinion that, if other factors favoured the grant of bail, I would only be inclined to grant bail if it could be done on the basis of a home detention condition. The report that was obtained indicated that both the premises that were suggested (the applicant's home) and the applicant himself would be suitable for home detention, and conditions were then set out that would be appropriate. I do not need to go into those, because, in my view, home detention would have been an essential condition if bail was otherwise appropriate.

27 The State submits that, in considering flight risk, I should have regard to the applicant's criminal history. There are a number of offences in that criminal history that involve violence or threats of violence. There are also offences involving breaches of a violence restraining order, which, prima facie, might suggest a propensity not to comply with court imposed orders. It should be said, however, that those offences occurred in 2005. It was put on behalf of the applicant that, for a period of about two years, he was on bail before the trial, and that he complied with his bail conditions. Therefore, it was submitted, the court should not come to a conclusion that he would be likely to fail to comply with the bail conditions. It was also put on the applicant's behalf that he has substantial ties to the jurisdiction, in that:

1. he does not have a passport;
2. he is in an established relationship with his current partner;
3. he has the child to whom I have referred, who is within the jurisdiction; and
4. he has the business, although he intends to transfer that to his partner.

28 Having regard to all of those matters, it was argued on behalf of the applicant the court should be satisfied that he does not pose a substantial flight risk.

29 That, of course, needs to be weighed against the inevitability of a substantial term of imprisonment that I have already mentioned.

30 In my view, the flight risk could well be managed by the imposition of a home detention condition. Similarly, in relation to the risk of reoffending, which is a matter referred to by the State, a home detention condition could well mitigate that particular risk, in my opinion.

31 However, as I have already indicated, it seems to me that there is, apart from the substantial flight risk, the public policy consideration to which I have referred. In my opinion, that that weighs heavily in this particular case, because of the seriousness of the offences of which the applicant has been convicted, particularly the very violent nature of those offences, and the expectation that the community would have that he commence to be met with the consequences of being convicted of those offences.

32 Those consequences, as I have indicated, would involve a very substantial term of imprisonment.

33 Having weighed the factors that I have discussed under cl 1 and cl 4 of sch 1, pt C of the Act, I have come to the conclusion that bail should be refused.