Anderson v The State of Western Australia

[2014] WASCA 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 107

CORAM:   MAZZA JA

HEARD:   1 MAY 2014

DELIVERED          :   1 MAY 2014

PUBLISHED           :  16 MAY 2014

FILE NO/S:   CACR 72 of 2014

BETWEEN:   MICHAEL ANDERSON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :DAVIS DCJ

File No  :IND 1258 of 2013

Catchwords:

Criminal law and procedure - Application for bail - Exceptional reasons - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1
Criminal Code (WA), s 409(1)(c)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr H Sklarz

Respondent:     Ms A C Longden

Solicitors:

Appellant:     Henry Sklarz

Respondent:     Director of Public Prosecutions (WA)

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

The State of Western Australia v Chapman [2012] WASCA 203

MAZZA JA: 

(These reasons were delivered extemporaneously and have been edited from the transcript.)

1. Before me is an application dated 24 April 2014 for bail pending an appeal against sentence, pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA). It is supported by the affidavit of the appellant's solicitor, Mr Henry Sklarz, dated 24 April 2014. The application is opposed by the respondent, who has filed an affidavit by Ms Fiona Evans, dated 30 April 2014.

2. Briefly, the background is as follows. On 28 January 2014, the appellant pleaded guilty in the District Court to one count of fraud, contrary to s 409(1)(c) of the Criminal Code (WA). The maximum penalty for this offence is 7 years' imprisonment. On 17 April 2014, the appellant was sentenced to 3 years 6 months' immediate imprisonment, with eligibility for parole.

3. On 24 April 2014, the appellant filed an appeal notice.  The draft ground of appeal does not allege any express error on the part of the learned sentencing judge.  Rather, it is said that the sentence that was imposed upon the appellant was manifestly excessive in that the wrong type of sentence was imposed.  The appellant contends that a suspended term of imprisonment should have been ordered.

4. In broad terms, the appellant's offending may be summarised in this way.  In 2009, the appellant applied, through a broker, to the Police & Nurses Credit Society for a housing loan in the sum of $753,139.86 in order to purchase a property in Inglewood.  In support of this application, the appellant provided forged documents, including a birth certificate, a West Australian driver's licence, payslips and bank statements, which inflated the amount of his savings.  The application was approved by the credit society based on the material that had been provided to it, on the condition that it was secured by a mortgage against the Inglewood property.

5. On 15 December 2009, the loan was fully disbursed, and settlement of the house was effected.  The appellant made some repayments on the mortgage, but he quickly fell into arrears.  Ultimately, the mortgagee repossessed the property and sold it.  There was a shortfall on the sale.  According to the respondent's submissions with respect to this application, that shortfall was $135,289.20, but the learned sentencing judge said it was $154,340.73.  The credit society was able to recoup that shortfall under an insurance policy, save for the excess which was either $18,289.20 or $18,941.52. 

6. The appellant was arrested in May 2012, and spoken to by police.  In the course of a video interview he made various admissions, including that the details on the birth certificate provided to the credit society were changed, so that his true identity would not be known.  This was particularly significant because, as I will mention in a moment, the appellant has a history of fraudulently obtaining funds from finance institutions. 

7. In her sentencing remarks, her Honour described the offending as:

   [A] calculated and planned fraud for your financial gain in order to obtain finance for the purchase of a house.  It involved not only changing your date of birth on the application, … but also forging documents in order to represent that you were in a better financial position than, in fact, you were.  Not only was this calculated and planned and involved fraudulent documents, this repeated a course of conduct which you have undertaken in the past.  You have twice been convicted of frauds committed in similar circumstances.

8. The material before me reveals that the appellant has been persistently committing offences of dishonesty since 1992.  He was convicted in the District Court on 8 October 1996 of 27 counts of fraud, for which he was sentenced to 3 years 6 months' imprisonment.  That sentence was later varied on appeal to a suspended sentence.  The appellant later breached that suspended sentence. 

9. On 13 November 2001, in the District Court, the appellant was convicted of two counts of fraud and sentenced to 21 months' imprisonment.  On 29 March 2006, the appellant was convicted of a large number of fraud and other dishonesty offences.  For these offences he received a total effective sentence of 5 years and 4 months' imprisonment. 

10. At the time he was sentenced in the present case, the appellant was 53 years of age.  He has three adult children from a previous marriage.  He is currently married to a person that I will identify in these reasons as CD, and has taken on the responsibility for CD's 14‑year‑old daughter.  CD and his stepdaughter are financially dependent upon the appellant.  At the time he was sentenced, the appellant was working as a safety services adviser. 

11. In the proceedings before the learned sentencing judge, the appellant submitted that he should be sentenced to a term of suspended imprisonment, primarily because of the impact that immediate imprisonment would have upon his current wife and stepdaughter.  There were two aspects to this submission:  the first related to their financial dependency; the second concerned CD's health.  It was submitted that, as a result of CD's mental health, she was unable to properly care for herself and her daughter, and that they were dependent upon the appellant for their care.

12. The learned sentencing judge considered a number of medical reports concerning CD's mental health.  Those reports were annexed to Mr Sklarz's affidavit in support of this application.  I have paid careful regard to them.  On the question of hardship, her Honour was not satisfied that CD was incapable of caring for her daughter.  She noted that there was no evidence that no one, apart from the appellant, could care for his wife and stepdaughter.  Her Honour observed that there was evidence that the appellant's wife has the support of her mother and sister.  Her Honour, while recognising that the appellant's wife and stepdaughter would suffer hardship as a result of his incarceration, concluded that the hardship was unexceptional and, while it justified some mitigation, did not justify the imposition of a suspended term of imprisonment.

13. Clause 4A of pt C of sch 1 of the Bail Act creates a rebuttable statutory presumption against a grant of bail pending appeal. Bail can only be granted if the court is satisfied of two matters. First, the court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. Second, bail must be appropriate, having regard to the provisions of cls 2 and 3 of pt C sch 1 of the Bail Act. 

14. The focal point in an application such as the one before me today must be on the merits of the appeal.  If an appeal has little or no merit, there will generally be no point in releasing an appellant from custody only for him or her to be returned there in due course.  Exceptional reasons require that the appellant demonstrate, without detailed argument, that the appeal has strongly arguable grounds, that is, the prospect of success must be sufficiently likely as to give reason to a real concern that the appellant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.

15. The appellant's primary argument in support of the application for bail pending appeal is that his ground of appeal is strongly arguable.  In essence, it is said that the appellant's offending was at a low level of culpability and that the degree of hardship to the appellant's family by him being incarcerated was exceptional. 

16. As I was at pains to mention at the outset of Mr Sklarz's oral submissions, it is early days in respect of this appeal.  I have not been provided with all the relevant sentencing material, nor do I have detailed submissions from the parties as to the merits of the appeal.  The views that I now express about the merits of the appeal may change in due course. 

17. On the material presently before me, I have not been persuaded that the appellant's ground of appeal is strongly arguable.  On the materials before me, it appears the appellant's offending was, as the learned sentencing judge described it, planned, deliberate and persistent.  It resulted in the credit society being put at risk with respect to a large sum of money.  The appellant's antecedents were not favourable to him. 

18. The primary sentencing objectives here, it seems to me, were punishment and deterrence.  Because of the appellant's prior criminal history, personal deterrence and public protection are of particular relevance.  On the basis of what has been presented to me today, I have difficulty seeing how the appellant's offending could be characterised as low level. 

19. I now turn to the question of the impact of an immediate term of imprisonment upon CD and the appellant's stepdaughter.  The law with respect to the impact of a sentence upon an offender's family was recently and helpfully summarised by Beech J in The State of Western Australia v Chapman [2012] WASCA 203 [11] ‑ [124]. Ordinarily, hardship caused to an offender's family will not be taken into account in the sentencing process. However, in exceptional cases, it may be taken into account where the degree of hardship involved is exceptional, or where imprisonment will result in children being deprived of parental care. Whether and to what extent these factors may be taken into account depends upon the gravity of the offence and the circumstances of the particular case. The more serious the offence, the less the court has the capacity to mitigate punishment having regard to hardship to an offender's family. This is particularly so in a case where the predominant sentencing consideration is deterrence.

20. Based on her Honour's findings of fact, which are, at this point, unchallenged, it seems to me that it is not strongly arguable that the degree of hardship being suffered by CD and the appellant's stepdaughter is exceptional. 

21. For these reasons, I have not been persuaded that the draft ground of appeal has strong prospects of success.  I am not persuaded that exceptional reasons have been demonstrated as to why the appellant should not be kept in custody.

22. In these circumstances, I am unable to grant bail to the appellant.  Accordingly, the appellant's application will be dismissed, and I so order.