Bail Act 1982 (WA), s 14, sch 1 pt C cl 1, cl 3, cl 3A

Application for bail pending determination of appeal dismissed

YSN v The State of Western Australia [2017] WASCA 155

1. The appellant appeals against the refusal of the Chief Judge of the District Court of Western Australia to grant him bail pending a trial listed to commence on 1 April 2019. At the conclusion of the hearing of this appeal, we ordered that the appellant's application in an appeal for bail pending the determination of the appeal be dismissed, leave to appeal be refused and the appeal be dismissed. We said that we would publish reasons for that decision at a later date. These are our reasons for that decision.
2. The appellant is indicted on 7 counts, to which he has pleaded not guilty. In summary, the indictment alleges the following offences:

(1) Criminal damage and aggravated burglary of a KFC store in Mirrabooka on 28 April 2017;

(2) Burglary in company and an associated stealing of watches from a Prouds Jewellers store at the same place and date;

(3) Burglary in company and an associated stealing of watches from a Shiels Jewellers store on 1 May 2017; and

(4) Attempting to pervert the course of justice between 7 and 24 May 2017 at Canning Vale.

1. The appellant applied for bail before the Chief Judge on 15 October 2018. After hearing submissions the Chief Judge refused to grant the appellant bail.
2. The appellant's bail application before the Chief Judge faced three very significant hurdles.
3. First, bail for trial had previously been refused by Judge Davis on 23 August 2018 and by Judge Goetze on 20 September 2018. The District Court's jurisdiction could only be further invoked if the appellant satisfied the Chief Judge of one or more of the matters referred to in s 14(2a) of the Bail Act 1982 (WA). The appellant contended that new circumstances had arisen or that the circumstances had changed since the earlier occasions on which the jurisdiction to grant bail was invoked. However, the Chief Judge was of the view that nothing had changed since the earlier decisions.[1]
4. Secondly, the indicted offences included serious offences[2] which were alleged to have been committed while the appellant was on bail for other serious offences.[3] Relevantly the Chief Judge was required to refuse to grant bail for the serious offences unless his Honour was satisfied that there were exceptional reasons why the appellant should not be kept in custody.[4] Having regard to the matters referred to below, there was no proper basis for concluding that there were exceptional reasons why the appellant should not be kept in custody.
5. Thirdly, quite apart from the above matters, there was no proper basis for the Chief Judge to have been satisfied that it was appropriate to grant the appellant bail, having regard to the matters referred to in sch 1 pt C cl 1 and 3 of the Bail Act.
6. The appellant was charged with a series of serious offences. If convicted of those offences it was highly likely that the appellant would receive a significant sentence of immediate imprisonment, which would well exceed the time which might be spent in custody on remand if bail were not granted.
7. The State's case against the appellant is, on our assessment, strong. There is CCTV footage showing a person who appears to be the appellant and a male co-offender smashing a window of the KFC Store on 28 April 2017. There is CCTV footage of what appears to be the same two males breaking into the Mirrabooka Square Shopping Centre on the same date. On 1 May 2017, a search warrant was executed at the appellant's house and the appellant (who attempted to flee the scene) was found in possession of watches stolen from the two jewellers on 28 April and 1 May 2017. Transcripts of recorded telephone conversations between the appellant and other persons appear to record the appellant admitting to the offending. There is also a recording of the appellant offering to pay his co-accused $5,000 - $10,000 to say that the appellant was not involved in the offending and that the co-accused had left the watches at the appellant's house.
8. As noted above, the appellant is alleged to have committed these offences while on bail for other offences.
9. The appellant has an extensive criminal record which includes burglaries, property offences, drug offences, offences involving violence and breaches of suspended imprisonment orders.
10. The appellant also has a poor record on bail for the offences with which he is currently indicted.
11. Bail was refused by magistrates on 8 May 2017 and 21 September 2017, and by Hall J on 1 December 2017, on the basis that exceptional circumstances had not been shown.
12. On 22 and 27 March 2018, the appellant received sentences for previous offending resulting in a total effective sentence of 18 months' immediate imprisonment, backdated to 14 January 2017.
13. The appellant again applied to the Supreme Court for bail on 19 March 2018. On 29 June 2018, McGrath J granted the appellant bail on home detention conditions, which included a condition that the appellant not use any illicit substance.
14. The appellant was released on bail on 6 July 2018. On 10 July 2018 the appellant supplied a urinalysis sample which tested positive for methylamphetamine and cannabis. His bail was revoked on 13 July 2018.
15. The appellant applied for his bail to be reinstated. On 20 July 2018, Judge Quail re-granted bail on the previous conditions. In doing so, his Honour told the appellant that 'this is the only slip you are going to be allowed' and '[i]f you test positive you'll go back inside and that will be the end of your bail. It is that simple.'[5]
16. The appellant submitted a urinalysis sample on 8 August 2018 which was invalid due to no temperature reading. A second sample on 9 August 2018 was a diluted sample that tested positive for methylamphetamine and cannabis. The appellant's home detention bail was again revoked on 11 August 2018. Bail was refused by Judge Davis on 23 August 2018 and Judge Goetze on 20 September 2018.
17. Having regard to the matters referred to at [8] - [18] above, the inevitable conclusion at the time of the application before the Chief Judge was that there was a risk that, if the appellant was not kept in custody, he may commit offences, interfere with witnesses and otherwise obstruct the course of justice. It was also an inevitable conclusion that these possibilities could not be sufficiently removed by any condition which could reasonably be imposed under pt D of sch 1 to the Bail Act. That is a proper [6]asis for refusing bail.6
18. Before the Chief Judge, the appellant relied on the following matters as supporting a grant of bail:

(1) Judge Davis 'left the door open'[7] when she said (after refusing bail):[8]

'Now that's not to say that if things improve with what [the appellant] does on remand, he cannot make a further bail application. I would personally encourage him to do whatever he can ... do in prison to address the issues that he has and if he wishes, he can reapply for bail.

(2) The appellant had asked McGrath J if he could go into 'rehab' and was told that all he had to do was inform his Community Corrections officer, but she refused to allow that to occur.[9]

(3) The appellant had paid $7,000 for naltrexone implants and $1,500 for a psychologist's report in an attempt to rehabilitate himself and participate in a 'Fresh Start Recovery Programme', which had been frustrated by the Community Corrections Officer and his return to custody.[10]

(4) The appellant was motivated to address his addiction and offending by the desire to have contact with his two young children. He had a limited opportunity to complete an anger management programme through the Family Court in order to obtain access to his daughter who he had met on only one occasion.[11]

(5) The appellant had made arrangements to be accepted at the Tate Street Lodge and participate in a programme run by the Wungening Aboriginal Corporation.[12]

(6) If the appellant did not receive bail then his elderly mother, who was staying at his Homeswest house, would be evicted as his tenancy would be terminated.[13]

1. However, these matters (which were repeated before us) had previously been relied on by the appellant in his application for bail before Judge Goetze.[14]
2. Nothing which the appellant has produced to this court provides any reason to doubt the correctness of the Chief Judge's conclusion that there was no material change in circumstances. That conclusion meant that the District Court's jurisdiction to grant bail had not been enlivened. Even if the appellant were able to demonstrate that the Chief Judge erred in reaching that conclusion, in the circumstances described above there is no proper basis for concluding that there are exceptional circumstances why the appellant should not be kept in custody or that, having regard to the matters referred to in pt C sch 1 cl 1 and cl 3, it was appropriate to grant the appellant bail. If express or inferred error of principle had been established and we had been required to re-exercise the bail discretion, we would have refused bail.
3. For these reasons, we refused leave to appeal and dismissed the appeal. Having reached that conclusion, there was no basis for the court to grant the appellant bail pending the determination of his appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] Namely the burglary offences contrary to s 401 of the Criminal Code.

[3] Namely aggravated assault occasioning bodily harm contrary to s 317 of the Criminal Code, allegedly committed on 8 October 2016 when the appellant assaulted his heavily pregnant partner and threatened her with a knife (with which the appellant was charged on 20 April 2017 and convicted on his plea of guilty in November 2017), and an aggravated burglary allegedly committed on 1 January 2017 (with which the appellant was charged on that date, but which was subsequently discontinued in August 2017).

[4] Bail Act, sch 1 pt C cl 3A.

[6] See YSN v The State of Western Australia [2017] WASCA 155 [8] - [21].