Beins v The State of Western Australia
[2013] WASCA 194
•21 AUGUST 2013
BEINS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 194
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 194 | |
| THE COURT OF APPEAL (WA) | 21/08/2013 | ||
| Case No: | CACR:141/2013 | 29 JULY 2013 | |
| Coram: | MAZZA JA | 29/07/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Leave to appeal on ground 1 granted The question of leave to appeal on ground 2 is referred to the hearing of the appeal | ||
| B | |||
| PDF Version |
| Parties: | ANGELA ROSE BEINS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeal Exceptional circumstances Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A |
Case References: | Barry v The State of Western Australia [2012] WASCA 175 KWLD v The State of Western Australia [No 2] [2013] WASCA 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BEINS -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 194 CORAM : MAZZA JA HEARD : 29 JULY 2013 DELIVERED : 29 JULY 2013 PUBLISHED : 21 AUGUST 2013 FILE NO/S : CACR 141 of 2013 BETWEEN : ANGELA ROSE BEINS
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 294 of 2013
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application dismissed
Leave to appeal on ground 1 granted
The question of leave to appeal on ground 2 is referred to the hearing of the appeal
Category: B
Representation:
Counsel:
Appellant : Ms A Rogers
Respondent : Ms G Cleary
Solicitors:
Appellant : Abigail Rogers Barristers and Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barry v The State of Western Australia [2012] WASCA 175
KWLD v The State of Western Australia [No 2] [2013] WASCA 129
- MAZZA JA:
(These reasons were delivered ex temporaneously and have been edited from the transcript.)
1 Before me is an application filed on 15 July 2013 for bail pending appeal pursuant to cl 4A pt c sch 1 of the Bail Act 1982 (WA), or, alternatively, an urgent appeal order.
2 The appellant and her co-offender, Mr Kelly, were convicted on their fast-track pleas of guilty of the offence of aggravated burglary, contrary to s 401(2)(a) of the Criminal Code (WA). This offence carries a maximum penalty of 20 years' imprisonment. In precise terms, it was alleged that the appellant and Mr Kelly entered the premises of the appellant's boyfriend, without his consent, while armed with a weapon, namely a metal pole, and committed the offence of unlawful wounding.
3 On 20 June 2013, the appellant was sentenced to 2 years and 8 months' imprisonment with eligibility for parole. Mr Kelly was sentenced to the same term of imprisonment, but that term was conditionally suspended.
4 Since the filing of her application for bail, the appellant has filed her appellant’s case. There are two grounds of appeal. Of the two grounds, counsel for the appellant relied, for today's purposes, on ground 1 which alleges an infringement of the parity principle. In essence, the appellant's argument is that she has an objectively justified sense of grievance born from the fact that she received an immediate term of imprisonment, while Mr Kelly's term of imprisonment was conditionally suspended.
5 There is no dispute as to the learned sentencing judge's findings of fact. They may be summarised as follows.
6 The appellant and the victim had been in a relationship for approximately four years. They spent the evening of 19 and 20 November 2012 at the victim's home in Kardinya. An argument broke out in the early hours of 20 November 2012. This argument became violent. The appellant suffered some minor injuries at the hands of the victim. Although the relationship had, at times, been volatile, this was the first occasion in which there had been physical violence. The appellant left the victim's house and went home. There she contacted Mr Kelly. The appellant and Mr Kelly had been friends since their teenage years. His Honour described Mr Kelly as 'a vulnerable, unsophisticated, ill-educated and grossly immature young man who at all material times harboured a love for [the appellant], which to his knowledge she did not reciprocate'. His Honour further found that the appellant knew she could turn to Mr Kelly for help to exact revenge on the victim. The appellant sent a number of violently worded text messages to Mr Kelly, which informed Mr Kelly's anger towards the victim. It was the appellant who decided to exact revenge, and his Honour found that she took advantage of Mr Kelly in order to assist her in this quest.
7 The appellant picked up Mr Kelly in her car and they both drove to the victim's house sometime in the afternoon of 20 November 2012. The appellant carried a weapon described as a short pole from a shopping trolley for her self-defence, which she offered to Mr Kelly for his use. He declined, as he had brought a similar weapon of his own to use.
8 One of the appellant or Mr Kelly knocked on the door of the victim's house, the intention being to assault him when he opened the door. As it happened, the victim was asleep and did not answer the door. The appellant instructed Mr Kelly to kick the door in, which he did. Once inside, Mr Kelly found the victim, who was attempting to rouse himself from a mattress on which he had been sleeping in the lounge room. Mr Kelly immediately attacked him by striking him across the head with the pole and approximately 15 times to the body and arms. While this was occurring, the appellant was searching the house for some property that she had left there. However, she was at all times aware of what Mr Kelly was doing and agreed with it. The attack only ended when the appellant came into the lounge room and called for the attack to cease.
9 The appellant and Mr Kelly ran from the victim's residence, pursued by the victim, who collapsed outside. He was taken to hospital by ambulance. He suffered concussion, loss of consciousness, a laceration to his head which required six stitches, and severe bruising to his back, arms and hands. The appellant drove Mr Kelly to a shop and then took him home. She thanked him for what he had done.
10 His Honour described the offence as 'a particularly serious aggravated burglary within the category of violent home invasions. It was unjustifiable by any measure, premeditated and brutal' (ts 53).
11 His Honour said that the offence was not justified by what had occurred between the appellant and the victim in the early hours of 20 November 2012. He elaborated on this finding in these terms:
I do not in any way seek to condone the victim's overnight behaviour nor make light of [the appellant] distress arising from it but the reality is that [the appellant] made the informed decision much later to do what she did when she told the police [in her videotaped record of interview] she knew the proper courses of action available to her.
I'm not satisfied that [the appellant] can in any way claim any degree of diminished responsibility either morally or criminally arising from the fact that she was to some extent a victim of domestic violence overnight.
… Further, and in any event, the retaliation which [the appellant] decided upon and coolly implemented far exceeded anything that happened to her overnight. [The appellant] turned to Mr Kelly for help because she knew he was devoted to her and could be provoked to help her bash the victim (ts 53 - 54).
12 His Honour found that the appellant was the ringleader and played a directorial role in what was happening. He acknowledged that Mr Kelly's role was also important, noting that he went to the victim's house to attack him rather than as protection for the appellant.
13 It is necessary for me to say something about the personal circumstances of each of the appellant and Mr Kelly. At the time of the offence, the appellant was 24 years of age. She had what his Honour described as a 'sad, unhappy and emotionally under-nurtured childhood and a fragmented education'. She was a user of amphetamines from the age of 16 until late 2012. A court ordered psychological report suggested that she has a depressive personality, and his Honour observed that she had been prescribed anti-depressants shortly after the commission of the offence. The psychologist thought that it was likely that the appellant acted on impulse when committing the offence because she was in a heightened state of emotional arousal, exacerbated by amphetamine use. As to the latter factor, his Honour said that was not mitigating. His Honour treated the appellant as a first offender.
14 Mr Kelly was 21 years of age at the time of the offence. Although he had a juvenile record, he had no relevant criminal history as an adult. Unlike the appellant, Mr Kelly suffered from what his Honour described as 'relevant psychological, educational and emotional deficits'. His Honour observed that Mr Kelly's upbringing was 'very chaotic, disrupted and emotionally unhealthy'. Further, Mr Kelly is illiterate, unemployed and has no real work history. His Honour described Mr Kelly as 'basically an unusual, wholly immature young loner'. His Honour quoted from Mr Kelly's psychological report, which stated:
Unlike [the appellant], Mr Kelly has deficits which impacted on his consequential thinking, judgment and emotional regulation at the relevant time. In particular, he clung to a relationship with [the appellant] which has proved to be destructive for him. Even now he is still trying to be protective of her (ts 58).
15 His Honour found that the appellant 'had considerable sway over [Mr Kelly] by reason of his attraction to her and the difference in their ages, life experiences and maturity'. He found that the appellant encouraged Mr Kelly to use the weapon, instructed him to kick in the door, and allowed him to overreact, leaving him to his own devices after 'he had started thrashing the victim'.
16 His Honour said that before taking into account matters personal, he regarded the appellant's and Mr Kelly's criminal culpability as approximately equal. Later in his sentencing remarks, he spoke again about Mr Kelly's personal circumstances in these terms:
I am satisfied that Mr Kelly's criminal and moral culpability is subjectively mitigated to a very significant extent by the emotional, psychological and personality deficits which drew him into the offending in the first place, and which he could barely control once started. He was, to some extent, [the appellant's] second victim.
Also, Mr Kelly has very significant therapeutic and rehabilitative needs which must be set in motion immediately. Interventions must deal with his literacy, self-esteem, interpersonal relations, employability, employment of self and overall psychological health. The last of those must be addressed on an urgent basis starting today having regard to [the appellant's] sentence today (ts 60 - 61).
17 His Honour expressly addressed the disparity between the sentences he imposed upon the offenders. He said:
I am mindful of the apparent disparity between Mr Kelly's and [the appellant's] sentences. One has been sentenced to a lengthy term of immediate imprisonment, and the other will serve the same term of imprisonment in the community. However, their situations are distinguishable and the appellant can feel no grievance. She acted wilfully and out of malice.
Mr Kelly was taken advantage of, lacked the maturity and psychological tools to deal with the situation, and has enormous therapeutic and rehabilitative needs which are best dealt with in the community as successfully occurred when he was a juvenile (ts 61).
18 The relevant principles applicable to applications for bail pending appeal are not in dispute. They were recently described by me in KWLD v The State of Western Australia [No 2] [2013] WASCA 129 [23] - [25] and do not need to be repeated here. The alleged exceptional circumstances in this case are the strength of the draft ground of appeal and, it is alleged, that the appellant will have served a substantial portion of the non-parole period of her sentence before her appeal is heard and determined.
19 The terms and scope of the parity principle are well known and were described by me in Barry v The State of Western Australia [2012] WASCA 175:
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences.
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance.
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents [55] - [57]. (citations omitted)
20 The appellant's counsel submitted that in light of his Honour's finding that the appellant's and Mr Kelly's criminal culpability was approximately equal, the appellant should have, like Mr Kelly, received a suspended term of imprisonment. However, this submission ignores the following factors:
1) Mr Kelly's psychological state was, to some extent, causative of his offending.
2) The appellant took advantage of Mr Kelly.
3) The appellant wilfully acted out of malice towards the victim.
21 In light of these factors, I am not persuaded that there is a strong argument likely to succeed that, objectively speaking, the disparity between the appellant and Mr Kelly gives rise to a justifiable sense of grievance on the appellant's part. Of course, I am mindful that the appeal is at a very early stage and that I do not have before me all of the materials that were before the learned sentencing judge, nor do I have the benefit of detailed written and oral submissions on the proposed ground of appeal. It is sufficient for me to say at this stage that I have not been persuaded that the ground had sufficiently strong prospects of success to justify the exceptional step of granting bail pending the resolution of the appellant's appeal.
22 I have considered the appellant's submissions with respect to the length of time she will be in custody until her appeal is heard and determined. The appellant's non-parole period expires on 20 October 2014. The appellant's appeal will be heard, provided the relevant documentation required by the rules is filed in a timely way, probably by the end of this year.
23 While time spent in custody pending appeal is a relevant factor, it does not here, by itself or in conjunction with the strength of the appellant's ground of appeal, justify a grant of bail, nor, in my view, does it justify an urgent appeal order.
24 For these reasons, the appellant's application must be dismissed.
25 As far as the question of leave is concerned, I have considered the appellant's case, and I grant leave on ground 1 and refer the question of leave on ground 2 to the hearing of the appeal.
26 The orders that I make are as follows:
1. The appellant's application is dismissed.
2. Leave to appeal on ground 1 is granted.
3. Leave to appeal on ground 2 is referred to the hearing of the court.
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