Baynah v The State of Western Australia
[2018] WASCA 233
•13 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BAYNAH -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 233
CORAM: MAZZA JA
HEARD: 20 DECEMBER 2018
DELIVERED : 20 DECEMBER 2018
PUBLISHED : 13 FEBRUARY 2019
FILE NO/S: CACR 191 of 2018
BETWEEN: MUKHALAD BAYNAH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PRIOR DCJ
File Number : IND 534 of 2018
Catchwords:
Criminal law - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 4A
Criminal Code (WA), s 392, s 409(1)(c), s 552
Result:
Bail application dismissed
Application for expedited hearing granted
Category: B
Representation:
Counsel:
| Appellant | : | Mr A G Elliott |
| Respondent | : | Ms K I Goddard-Borger |
Solicitors:
| Appellant | : | Forbes Kirby Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Nil
MAZZA JA:
On 20 December 2018, I made the following orders:
1.The appellant's application for bail pending appeal filed 13 December 2018 is dismissed.
2.The application for an expedited hearing is granted.
I said that I would deliver my reasons for these orders in due course. Here are those reasons.
On 13 September 2018, the appellant was convicted on his pleas of guilty of one count of aggravated robbery contrary to s 392 of the Criminal Code (WA) (the Code) (count 1) and of one count of attempted fraud contrary to s 409(1)(c) and s 552 of the Code (count 2).[1]
[1] ts 32.
On 13 September 2018, the appellant was sentenced by Prior DCJ to 2 years' immediate imprisonment for count 1 and 3 months' immediate imprisonment for count 2, to be served concurrently.[2] Thus, the total effective sentence imposed was 2 years' immediate imprisonment. The appellant was made eligible for parole.[3] The appellant's earliest eligibility date for release on parole is on or about 12 September 2019.
[2] ts 86.
[3] ts 87.
The appellant has appealed against the sentence imposed by his Honour on three grounds. Ground 1 alleges that 'the learned sentencing judge was led into error by, or a miscarriage of justice was occasioned by, inadequate information … that was provided … about the nature of the [appellant's] Post Traumatic Stress Disorder' (PTSD). Grounds 2 and 3 allege, in effect, that the sentence imposed on count 1 was manifestly excessive and that his Honour should have imposed a term of suspended imprisonment.
On 30 November 2018, the appellant filed an application to adduce additional evidence in the appeal, namely a psychological report dated 28 November 2018 by Ms Jene Moody and an application for an order for an expedited appeal hearing.
On 13 December 2018, the appellant filed an application for bail pending appeal. The application was supported by an affidavit affirmed by the appellant's solicitor, Mr Mitchell Terry Tolcon, on 13 December 2018. I will refer to Mr Tolcon's affidavit in due course.
The application for bail pending appeal is brought pursuant to cl 4A pt C sch 1 of the Bail Act 1982 (WA). The law with respect to bail pending appeal is well‑settled and does not need to be repeated here. This clause creates a rebuttable statutory presumption against a grant of bail pending an appeal. A judicial officer shall only grant bail if he or she is satisfied that there are 'exceptional reasons why the appellant should not be kept in custody', and it is otherwise an appropriate case for the grant of bail. What constitutes 'exceptional reasons' in a particular case may vary according to the facts of that case, but, ordinarily, the focus of the inquiry must be on the merits of the appeal. This is not to say that other matters are not relevant and could not constitute 'exceptional reasons'.
The facts of the offending
The facts of the appellant's offending are, it must be said, plainly serious. In the early hours of 27 October 2017, the appellant, his co‑accused, Mr Ihaia Te Huarahi Nikora, and a third accused were in Northbridge. The incident the subject of count 1 was largely captured on closed‑circuit television. I have viewed the relevant footage. The facts are described in some detail by Prior DCJ in his sentencing remarks.
The victim, Lucas Armstrong, and his friend, Peavan Ean, were walking together to buy cigarettes at a convenience store on James Street. As they walked to the convenience store they were approached and stopped by the appellant, Mr Nikora and the third accused. The appellant asked Mr Armstrong if he had any cash on him. When Mr Armstrong informed him that he did not, the appellant demanded his wallet. While this was happening, the third accused reached into Mr Ean's pockets. After Mr Ean pushed the third accused's hand away, that person punched Mr Ean. The appellant and the third accused then punched both Mr Armstrong and Mr Ean multiple times, causing Mr Armstrong to fall to the ground. While on the ground, the appellant and the third accused continued to punch the victims. The appellant kicked Mr Ean three times, including once to the head. Ultimately, Mr Armstrong handed his wallet to the appellant.
Eventually, Mr Armstrong got up and was chased away by the appellant. However, Mr Armstrong returned to the scene to assist Mr Ean. The appellant physically stopped and held Mr Armstrong, and continued to harass him. Mr Armstrong was then released and he ran to Mr Ean. As he ran, the appellant kicked him.
The appellant and Mr Nikora then entered the Super Ezy convenience store and the appellant attempted to use Mr Armstrong's ANZ bankcard to buy cigarettes. As this occurred, Mr Armstrong ran to the window of the store and informed a staff member that the appellant was using his card and that the police were on the way.
The appellant and Mr Nikora left the convenience store and surrounded Mr Armstrong. The appellant held onto Mr Armstrong's wrist and punched him numerous times, causing him to fall to the ground in the middle of James Street. During the assault, the appellant told Mr Armstrong to give him his phone. Mr Armstrong refused, until the appellant told him he had a knife. Mr Armstrong then handed over his phone to the appellant.
Mr Ean then ran over and attempted to push the appellant and Mr Nikora off Mr Armstrong, but was met with physical resistance by Mr Nikora.
Eventually, the appellant, Mr Nikora and the third accused left the area.[4]
[4] ts 77 - 79.
The sentencing judge found that the appellant was the main offender and that he was more culpable than Mr Nikora.[5]
[5] ts 86.
At the time he was sentenced, the appellant was 19 years old. After his parents divorced he was raised by his mother until he was about 12 years old. At that age, he was sent to the United States to reside with his father. He then travelled to Kenya where he lived with other members of his family. There, he spent some time in a juvenile prison and in that prison he experienced torture and saw people being killed. In December 2016, he returned to Perth.[6]
[6] ts 79 - 80.
There was evidence before the sentencing judge that the appellant's traumatic childhood and exposure to violence meant that violent behaviour had been normalised for him. His Honour noted, based on the evidence that was then before him, that the appellant experienced 'symptoms suggestive of post‑traumatic stress disorder such as flashbacks and nightmares'.[7] There was no expert evidence before the sentencing judge confirming a diagnosis of PTSD or how that condition may have been causally linked to the offending. At first instance, it was submitted that the appellant should be placed on a suspended sentence.[8] However, his Honour regarded the seriousness of the offending as such that the only appropriate sentence in respect of the aggravated robbery was a sentence of immediate imprisonment.[9]
[7] ts 80.
[8] ts 69 - 70.
[9] ts 86.
The alleged exceptional circumstances
In his affidavit, Mr Tolcon refers to Ms Moody's report. According to Ms Moody, the appellant has been suffering from PTSD for approximately six years. She says that his PTSD has dissociative and fugue features which require more extensive testing and assessment. In her opinion, the appellant's offending arose in 'one of a series of PTSD related "blackouts" triggered by alcohol and cannabis use, in which he has "relived" elements of the traumatic experiences he underwent over four years in the most anarchic and lawless areas of Kenya'.[10]
[10] Ms Moody's report, page 2.
On behalf of the appellant it is submitted that the exceptional circumstances which justify release on bail are constituted by a combination of two factors. First, the grounds are strongly arguable and, second, based on Ms Moody's report, simply being in custody is dangerous for the appellant because he will, in effect, be reliving the circumstances relating to his PTSD.[11]
[11] Appeal ts 15, 18.
The respondent opposed the application for bail pending appeal, but had no objection to the appeal being heard on an urgent basis.[12] Counsel for the respondent opposed the admission of Ms Moody's report into evidence.[13] She called into question Ms Moody's expertise and experience. Counsel pointed out that Ms Moody, on the face of the report, had not even completed her assessment of the appellant and had recommended more extensive testing. Counsel criticised Ms Moody's report as being an incomplete assessment by an underqualified practitioner without relevant experience.[14]
[12] Appeal ts 10, 30.
[13] Appeal ts 11.
[14] Appeal ts 26 - 30.
In the context of the application for bail pending appeal, it is not possible, nor is it appropriate, to make definitive findings about the merits of the grounds of appeal or, in this case, the weight to be attached (if any) to Ms Moody's opinions. It is enough for me to say that, at this point, I am not satisfied that the proposed grounds are sufficiently strong to justify the granting of bail. I also have some reservations about Ms Moody's opinions. At least, at this point, I have not been sufficiently persuaded that I should rely upon them.
Exceptional reasons have not been demonstrated and therefore I cannot order bail pending appeal.
However, bearing in mind the appellant's youth and the relatively short non‑parole period, it is appropriate to make an urgent appeal order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Honourable Justice Mazza13 FEBRUARY 2019
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