R -v- HEWAT [2014] WASC 323 (4 September 2014)

Introduction and background to the present application

1 I have now had an opportunity to reflect, with the benefit of the submissions of counsel, on this application and I have decided, on balance, that I would grant bail but on very strict conditions. These are my reasons for proceeding in that way.

2 The applicant is charged by indictment with a serious drug offence under the Criminal Code (Cth) (Code). The relevant offence is contained in s 307.5(1) and s 11.1(1) and is attempting to possess a substance, that substance having been unlawfully imported, being 4MEC, an analogue of a border controlled drug methcathinone, and that quantity being a commercial quantity.

3 That commercial quantity was described to me as being - once the purity was adjusted for - 837.7 g, where the Code sets as the threshold for a commercial quantity at 750 g. I will return to the significance of that matter shortly.

4 The statement of material facts is set out in the prosecution brief, page 4 - I particularly note par 12 to par 18. I will not repeat them, save to note this, that there is a statement from the person, Ms AKE, with whom the applicant for bail was at the time when the Australian Federal Police (AFP) came to the premises where a parcel previously identified by them as one of interest in which the substance of concern was found, a parcel indeed that was accompanied by a listening device and delivered by or on behalf of the AFP to those premises earlier.

5 Ms AKE, who was there at a number of points, including prior to the receipt of the parcel, after the applicant had been taken into custody on the relevant events made a statement in which she says a number of things which, I agree with counsel for the Commonwealth DPP, would add substantial circumstantial support to the Commonwealth's case. The matter has been committed to this court for trial, the maximum penalty for this offence being life imprisonment.

6 At a status conference on 7 August 2014, Hall J received a not guilty plea, confirmed trial dates of 16 20 March 2015, listed a voluntary criminal case conference for 22 September 2014 and remanded the applicant in custody to 30 October 2014 for a further status conference.

7 I have, in relation to the present application, an affidavit of the solicitor for the applicant. I also have written submissions for the applicant. I note from the supporting affidavit for the applicant that there is a criminal record appended which, from the terms of the affidavit itself, lacks two matters, at least one of which appears to have been decided before the compilation date of the record. Be that as it may, I treated the criminal record as if it included those two matters.

8 As to the principles applicable to the decision whether or not to grant bail, my jurisdiction of course arises out of s 14 of the Bail Act 1982 (WA). The general approach to the relevant provisions of the Bail Act, sch 1, pt C, cl 1 read with cl 3, is that set out in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, a well understood decision. I myself endeavoured to summarise the law of principal relevance in an application like this in Hedgeland v The State of Western Australia [2011] WASC 181 [16].

9 I also note in Hedgeland [15], by reference to Milenkovski, that the Bail Act is of course to be approached as a comprehensive code on the subject of bail.

10 Of course, in approaching the present application I may receive and take into account such information as I see fit, whether or not the same would normally be admissible in a court of law: Bail Act s 22. The weight of such information is a distinct consideration. That allows me to receive, and take into account material in but also beyond the material in the supporting affidavit. If authority for that is needed, it is Lai v The State of Western Australia [2010] WASC 334 [20] [25] (EM Heenan J).

The questions to be determined and the parties' positions

11 As I understood the submissions for the applicant, the answers to the applicable questions in the Bail Act are that there is either no significant risk, or no significant possibility, of the kinds referred to in cl 1, par (a) or alternatively that concerns with respect to any such risks could be addressed by suitably crafted bail conditions.

12 Counsel for the Commonwealth indicated the objections to the grant of bail for the purpose of cl 1(c) were twofold, if I have understood the submissions correctly. They were that, in terms of cl 1(a)(i) there was a significant flight risk, and in terms of cl 1(a)(iv) there was a risk of interference with witnesses, most particularly Ms AKE.

13 Based on my exchanges with the counsel for the Commonwealth, who had not provided written submissions prior the hearing, the position of the Commonwealth could be stated in this way:

(1) that although this alleged offence is not by any means the most serious of its kind, it is of not insignificant seriousness, as the maximum penalty itself indicates; and

(2) there is a significant possibility if Mr Hewat were convicted of the offence, that he would be sentenced to a term of immediate imprisonment and this is notwithstanding that he has until very recently - until indeed one of the two offences that does not appear on his criminal record annexed to the affidavit in support - not received a sentence of immediate imprisonment.

14 He has, however, received two sentences of suspended imprisonment and one of those has been breached in a respect counsel for the Commonwealth was unable to identify, but which nonetheless was accepted to be a breach, such that the underlying sentence of imprisonment, or at least a part of it, was activated resulting in a total effective term of imprisonment, as I understand it, of 7 months. The point has been reached in the service of that term of imprisonment, I note, where Mr Hewat is eligible to be considered for parole. No decision has been made in that regard pending the outcome at least of this application.

15 I agree with counsel for the Commonwealth that there is a significant possibility in this matter, without, I should add, a certainty that Mr Hewat faces a term of immediate imprisonment. In particular, the matter cannot be stated, I believe, more strongly than that - while it is certainly strong enough - having regard to the fact that Mr Hewat's sentencing, assuming a conviction, following a trial would depend upon matters not yet developed in any plea in mitigation.

16 I note, however, in respect of his age, although he is referred to as a younger offender, that his date of birth is 15 December 1986, which would mean that at the time of the offending he was about 27 years old, which would, in normal sentencing practice at least, not result in a significant, or at least a substantial, degree of mitigation; but again that depends on the development of the relevant plea in mitigation.

17 Counsel for the Commonwealth also directed my attention, as cl 3 of sch 1, pt C indicates, to the strength of the Commonwealth's case, and I agree, it is indeed a very strong case. It is circumstantial, but it derives its strength, it seems to me, from the matter appearing in the statement of Ms AKE, as well as certain photographic material that links the substance through its containers to having spent some time in the premises where Mr Hewat was found, as well as linking Mr Hewat himself to something that appears to be the particular part of the parcel in which the substance was found, and what appears in the transcript from the listening device that I previously mentioned, included with the parcel delivered to those premises.

18 Whether it is correct to describe it as an overwhelmingly strong case is harder for me to determine. A judge in my position is not normally able to make any determination of that kind, and I do not do so; but I agree, as I have indicated, that it is indeed a very strong case. It is, of course, at a stage in development where a prosecution brief of some size has been produced, Mr Hewat having been taken into custody in October of last year in relation to it. So the state of development of the case is fairly well advanced.

19 The matter of flight risk, of course, must also take account of other factors that are relevant to that, and there do appear to be a number. The first is that Mr Hewat has what could be characterised as strong links to this state. He has two children, both very young, including the youngest - a 1yearold - with Ms AKE, an expartner of his, as well as an older child - aged 3 years - by an expartner of his, a Ms JI, who has indeed indicated that he is able to live with her. I will return to the matter of place of residence in a moment.

20 He has provided, I was told, without any objection or quarrel, both emotional and financial support to those children and, indeed, the evidence in this case is of his having had at least up to the point of the offending, and indeed beyond in the case of Ms JI, relations with his expartners that have not got in the way of some contact with them. The matter of contact with Ms AKE, however, will require special address that I will make in a moment.

21 Counsel for Mr Hewat laid considerable stress on the fact that there is nothing in the criminal record indicating a breach of bail. Counsel for the Commonwealth agreed. However, it is a matter of concern, analogous to concern that would have arisen had there been any indication of a breach of any prior bail, that Mr Hewat has previously had bail and has committed an offence or offences while on bail - this was not a matter in contest before me - and further, that there was that breach of the suspended imprisonment order I have referred to, which led to the sentence of imprisonment being activated.

22 Therefore, it seems to me that there is indeed a significant possibility of a failure to appear. It is not, by any means, the strongest possibility, but it is not insignificant.

23 As to the matter of interference with witnesses, especially Ms AKE, counsel for the Commonwealth frankly acknowledged that, save for the considerations they have previously rehearsed, which would include the likely significance of Ms AKE's evidence on the prosecution of Mr Hewat, there were no other bases for concern about the possibility of interference. And, of course, any interference whether intentional or unintentional, might nonetheless have a chilling effect, in some respect or another, on her evidence, causing her perhaps not to give evidence of a kind she would give absent such chilling effects.

24 The matter of the possibility of interference of Ms AKE then cannot be excluded. However, it is not one that seems to me of the same kind of significance that a failure to appear might represent.

25 Having assessed, then, the answers to those questions by reference to the Commonwealth's objections and the position of Mr Hewat's counsel, that takes me, then, to cl 1(e) - namely whether there is any condition that could reasonably be imposed under pt D sufficiently removing the possibility referred to in par (a) and - of particular concern to the Commonwealth - removing the grounds for opposition in pt C.

26 There was a most useful exchange with counsel for the Commonwealth about conditions the Commonwealth might see without, of course, resiling from its primary submission that no grant of bail should be made that might be seen to be capable of sufficiently removing the possibility or removing the grounds of objection as I have indicated them. Those conditions discussed with the Commonwealth it seems to me are capable, in combination, of addressing those matters even though the effect of some of the conditions, as I will indicate, would be to remove, or at least render highly unlikely, the establishment of one link to the state to which counsel for Mr Hewat made reference. That link was through possible - and I stress possible - but on what I have - likely - employment as a fly in fly out worker in the north of the state pursuant to an offer from an employer aware of Mr Hewat's present position, and who nonetheless is also prepared to make a significant investment in having Mr Hewat pass the qualifications for the position in question.

27 It is important that I note, however, in respect of that position that it would create some concerns of its own with respect to the possibility of flight in terms of getting Mr Hewat into a position where flight might be easier, and also making probably impossible the kind of personal reporting that it seems to me is an important means of sufficiently removing the possibility referred to.

28 The conditions, then, to return to those, would include a personal undertaking, a surety or sureties in a total amount of $50,000. In that respect I agree with counsel for Mr Hewat that split sureties would be a possibility. I would, however, in my view not accept more than two such sureties. That is to say each surety should have - or at least one of them should have - a significant amount at stake.

29 There is also to be a residential condition that would capitalise on Ms JI's offer. Ms JI lives with the older child and that would assist, it seems to me, in meeting the conditions.

30 Mr Hewat would be required to notify the AFP of any intention of his to change address and have an application made to the court for variation of bail conditions in that respect 72 hours ahead of any intended move. That move, of course, would have to be subject to variation of his bail conditions.

31 He would have to report three times a week, Monday, Wednesday and Friday, to the nearest police facility and the officer in charge of that facility closest to the residence referred to, which I believe is in Waroona.

32 Mr Hewat must not apply for any passport, he having previously surrendered his passport, nor resume possession of his passport so that, if that passport were returned to him, he would in turn hand it back.

33 Mr Hewat must not leave the state nor approach within a 100 m radius of any departure points such as a bus station, train station or similar of this state.

34 He must not contact, or attempt to contact, Ms AKE directly, or indirectly, and discontinue or withdraw from any contact initiated by her with the exception in the following terms.

35 This exception is that he may make contact or have contact made with him by either the mother of Ms AKE or an officer of a child care agency of the state or the Commonwealth solely with a view to enabling Mr Hewat to have contact with the youngest child, that is to say the child of Ms AKE. I emphasise the word solely in that exception.

36 Those conditions combined, it seems to me, would be such as to sufficiently remove the possibilities I have referred to and thereby remove the grounds for opposition that I have referred to.

37 I would grant bail on the conditions I have enumerated above.