Anderson v The State of Western Australia [No 2]
[2014] WASCA 126
•19 JUNE 2014
ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 126 | |
| 19/06/2014 | |||
| Case No: | CACR:72/2014 | 10 JUNE 2014 | |
| Coram: | MAZZA JA | 10/06/14 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ANDERSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Application for bail pending appeal Second application after first application refused Exceptional reasons Turns on own facts |
Legislation: | Bail Act 1982 (WA), s 14(2a) Criminal Code (WA), s 409(1)(c) |
Case References: | Anderson v The State of Western Australia [2014] WASCA 107 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 126 CORAM : MAZZA JA HEARD : 10 JUNE 2014 DELIVERED : 10 JUNE 2014 PUBLISHED : 19 JUNE 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 pending appeal - Second application after first application refused - Exceptional reasons - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 14(2a)
Criminal Code (WA), s 409(1)(c)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : Mr L M Fox
Solicitors:
Appellant : Henry Sklarz
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The State of Western Australia [2014] WASCA 107
1 MAZZA JA: On 1 May 2014, I dismissed the appellant's application for bail pending an appeal against sentence: Anderson v The State of Western Australia [2014] WASCA 107 (the first application). On 3 June 2014, the appellant filed another application for bail pending appeal (the second application). On 10 June 2014, I dismissed this application with reasons to be delivered later. What follows are those reasons.
2 The background to this appeal is set out in Anderson and does not require detailed repetition. It is sufficient to note the following. The appellant was convicted on his plea of guilty of one count of fraud contrary to s 409(1)(c) of the Criminal Code (WA). On 17 April 2014, he was sentenced to 3 years 6 months' immediate imprisonment with eligibility for parole. Before the learned sentencing judge, the appellant submitted that he should be sentenced to a suspended term of imprisonment because the hardship that would be suffered by his wife and his stepdaughter as a result of his incarceration would be exceptional. Having regard to the seriousness of the offence and noting the appellant's unfavourable antecedents, the learned sentencing judge rejected this submission and imposed a term of immediate imprisonment.
3 In the first application, the appellant indicated that the ground of appeal to be pursued was to the effect that the learned sentencing judge erred in not suspending the sentence that was imposed upon him because of hardship to his family. In the second application, the appellant foreshadowed that he wishes to add further grounds of appeal. I have seen a minute of those further grounds. They do not, in substance, alter the case put in the first application.
4 With respect to the appellant's second application, he sought to argue that circumstances have materially changed since my decision on 1 May 2014, such that a grant of bail pending appeal is now appropriate.
5 The alleged change in circumstances arises from matters contained in the appellant's affidavit sworn 30 May 2014. In that affidavit, the appellant annexed a number of letters which were designed to show that the position with respect to his wife and stepdaughter has deteriorated to the point that no one, apart from him, is available to provide them with care. The relevant material in the appellant's affidavit is in the form of letters from his wife, her parents and sister, as well as a psychological report in respect of the appellant's wife: annexures MA2, MA3, MA4, MA5, MA6 and MA7.
6 The respondent objected to the admissibility of this material on the basis of hearsay. The respondent also made the point that, having regard to the appellant's criminal history which involves offences of dishonesty, including offences in which forged documents have been used, the annexures to the affidavit should have been the subject of separate affidavits by the author of each document.
7 Once bail pending appeal has been refused, this court's jurisdiction cannot be invoked again unless, relevantly to this case, new circumstances have arisen or circumstances have changed since the dismissal of the first application: Bail Act 1982 (WA), s 14(2a).
8 It is not necessary for me to deal with the matters raised by the respondent. I will approach the present application on the assumption that the material contained in the annexures to the affidavit is admissible and true. I will assume, in the appellant's favour, that he has met the requirements of s 14(2a). However, even if I make these assumptions, it would be inappropriate to grant bail. Accepting for the purposes of this application that the appellant's wife and stepdaughter are suffering and will suffer hardship as a result of the appellant's incarceration, it does not follow that his appeal has strong prospects of success. The appellant's offending was undoubtedly serious; his antecedents and the facts of the offence are such that emphasis must be given to public protection and deterrence, particularly personal deterrence. As unfortunate as the situation of his wife and stepdaughter appears, having regard to the overall circumstances of the case, it is not apparent to me, at this time, that the appellant's appeal has such prospects of success as to justify a grant of bail pending appeal.
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