Bradley v The State of Western Australia
[2006] WASCA 277
•19 DECEMBER 2006
BRADLEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 277
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 277 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:141/2006 | 12 DECEMBER 2006 | |
| Coram: | ROBERTS-SMITH JA | 18/12/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Bail refused | ||
| B | |||
| PDF Version |
| Parties: | DENNIS EDWARD BRADLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Bail pending appeal Appeal against sentence One count of stealing as a servant Goods valued at $11,333 Prior convictions for dishonesty 16 months' immediate imprisonment Eligibility for parole Likely delay until hearing of appeal Prospects of success on appeal Whether exceptional reasons appellant should not be kept in custody pending appeal |
Legislation: | Bail Act 1982 (WA), Sch 1, Pt C, cl 4 |
Case References: | Barrick (1985) 81 Cr Appeal Rep 78 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Bolton v The State of Western Australia [2005] WASCA 232 Dinsdale v The Queen (2000) 202 CLR 321 Fermanis v The State of Western Australia [2005] WASCA 212 Forkin v The State of Western Australia [2006] WASCA 10 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Samuels v Western Australia (2005) 30 WAR 473 Shepherd v The Queen, unreported; CCA SCt of WA; Library No 920397; 21 July 1992 Stalker v The Queen [2002] WASCA 364 Tieleman v The Queen (2004) 149 A Crim R 303 Caratti v The Queen, unreported; CCA SCt of WA; Library No 980306; 9 June 1998 Chan (1989) 38 A Crim R 337 Duke v The Queen [2002] WASCA 47 Etrelezis v The Queen [2001] WASCA 327 James (1985) 14 A Crim R 364 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BRADLEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 277 CORAM : ROBERTS-SMITH JA HEARD : 12 DECEMBER 2006 DELIVERED : 19 DECEMBER 2006 FILE NO/S : CACR 141 of 2006 BETWEEN : DENNIS EDWARD BRADLEY
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HEALY DCJ
File No : IND 396 of 2005
Catchwords:
Appeal - Criminal law and procedure - Bail pending appeal - Appeal against sentence - One count of stealing as a servant - Goods valued at $11,333 - Prior convictions for dishonesty - 16 months' immediate imprisonment - Eligibility for parole - Likely delay until hearing of appeal - Prospects of success on appeal - Whether exceptional reasons appellant should not be kept in custody pending appeal
(Page 2)
Legislation:
Bail Act 1982 (WA), Sch 1, Pt C, cl 4
Result:
Application dismissed
Bail refused
Category: B
Representation:
Counsel:
Appellant : Mr A E Monisse
Respondent : Mr G J Huggins
Solicitors:
Appellant : Andrew Monisse
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barrick (1985) 81 Cr Appeal Rep 78
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Bolton v The State of Western Australia [2005] WASCA 232
Dinsdale v The Queen (2000) 202 CLR 321
Fermanis v The State of Western Australia [2005] WASCA 212
Forkin v The State of Western Australia [2006] WASCA 10
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Samuels v Western Australia (2005) 30 WAR 473
Shepherd v The Queen, unreported; CCA SCt of WA; Library No 920397; 21 July 1992
Stalker v The Queen [2002] WASCA 364
Tieleman v The Queen (2004) 149 A Crim R 303
(Page 3)
Case(s) also cited:
Caratti v The Queen, unreported; CCA SCt of WA; Library No 980306; 9 June 1998
Chan (1989) 38 A Crim R 337
Duke v The Queen [2002] WASCA 47
Etrelezis v The Queen [2001] WASCA 327
James (1985) 14 A Crim R 364
(Page 4)
1 ROBERTS-SMITH JA: This is an application for bail pending appeal.
2 On 16 October 2006 the appellant pleaded guilty in the Perth District Court before Healy DCJ to one count of stealing as a servant. He was sentenced to 16 months' immediate imprisonment and an order was made that he be eligible for parole. He will accordingly become eligible for parole after serving 8 months of the sentence.
3 The appellant's appeal notice was filed on 31 October 2006.
4 The application for bail pending appeal was filed 28 November 2006.
5 The application is supported by the affidavit of the appellant, also filed 28 November. It is a very brief affidavit. The substantive parts are as follows:
"NON-PAROLE PERIOD
- 3. I am informed and truly believe that I will serve a substantial part of my non-parole period before my appeal is heard and determined if not granted bail.
PERSONAL CIRCUMSTANCES
4. I am 46 years of age with a de-facto partner who is my fiancée.
BAIL REQUEST
5. I can provide a substantial surety if the Court requires it.
6. If I am granted bail I would reside with my fiancée at [address given].
7. I am prepared to comply with any conditions of bail which this Honourable Court may deem appropriate."
6 That is the extent of the evidentiary material advanced in support of the application. I have, of course, also obtained the transcript of the sentencing proceedings before Healy DCJ on 16 October 2006.
7 The Appellant's Case has not yet been filed. That means the question of leave to appeal has not yet been dealt with. Leave to appeal is required for each ground of appeal (s 27(1) Criminal Appeals Act 2004 (WA). The Court must not grant leave to appeal unless the ground has a reasonable
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- prospect of succeeding on appeal (s 27(2)). The proper application of that statutory test was explained in Samuels v Western Australia (2005) 30 WAR 473. I mention it here because even were the situation that leave to appeal had been granted, that would not lead to a conclusion that the appellant should be released on bail pending appeal. That is because the test is different.
8 As both counsel acknowledge, the threshold test for bail pending appeal is that the appellant must demonstrate there are exceptional reasons why he should not be kept in custody pending the hearing of his appeal. That is what is required by cl 4 of Pt C of Sch 1 of the Bail Act 1982 (WA). It is only if exceptional reasons are demonstrated that the discretion of the Court to grant bail is enlivened. Once that is done - and only if that is done - the Court may grant bail only if the Court considers that may properly be done having regard to the ordinary considerations which apply to any bail application, they being the considerations set out in cl 1 and 3 of Pt C.
9 The exceptional reasons on this application are said to be the strong prospect of the appeal succeeding and the time which is likely to elapse before the appellant's appeal is heard. The consequence of that is said to be that the appeal would be rendered nugatory should he succeed.
10 The meaning of the term "exceptional reasons" has been discussed in a number of authorities. The appellant is required to demonstrate reasons which are unusual or out of the ordinary or in some way special or an exception to the general run of cases (Tieleman v The Queen (2004) 149 A Crim R 303 [14] - [15], [24], [42], [46], [48] and [51]).
11 Where an application for bail pending appeal is based partly or wholly upon the prospect of success, that requires demonstration of a prospect of success higher than the threshold for leave to appeal (Forkin v The State of Western Australia [2006] WASCA 10, [6] - [11]; Bolton v The State of Western Australia [2005] WASCA 232). On a bail application, what must be shown is that the appeal is most likely to succeed (Stalker v The Queen [2002] WASCA 364, [19] - [40]) or that there are "strong grounds for concluding that the appeal would succeed" (Fermanis v The State of Western Australia [2005] WASCA 212).
12 In Tieleman (supra), Murray J (with whom Templeman J agreed) said that in the context of the prospects of the appeal succeeding being exceptional reasons, bail would be granted ordinarily only if the appellant could demonstrate there were strong grounds for concluding the appeal
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- would be allowed and that the sentence, or at least the custodial part of it, was likely to have been substantially served before determination of the appeal - but even if those things were shown, so that the Court was satisfied that the exceptional reasons justifying that course existed, it may be necessary to demonstrate additional circumstances in a particular case before the court would exercise its discretion to actually grant bail.
13 It must be emphasised that it is not the fact alone that an appellant will or would most likely serve the custodial part of his sentence that would constitute an exceptional reason; that fact would potentially make the appeal nugatory only if the appeal was most likely to succeed. If an appeal is found to have no merit and does not succeed, it would be proper and just that the appellant would have continued to serve his sentence in the meantime.
14 I consider the issue of time first.
15 The appellant was sentenced on 16 October 2006, to a term of imprisonment for 16 months. He will be eligible for parole after serving 8 months. That will be on 15 June 2007. If leave to appeal is granted, his appeal could be listed probably in March or April 2007. By then he would have served 5 or 6 months of his 8 months non-parole period. I accept that would be a substantial portion, which, were the outcome of his appeal to be either a substantial reduction in his head sentence (and therefore also of the non-parole period) or substitution of his immediate term of imprisonment with a suspended sentence of imprisonment, that would effectively render his appeal largely nugatory.
16 The critical question then is the assessment of the likely prospect of success of the appeal.
17 As the Appellant's Case has not yet been filed, the only ground on file, and so before me, is the ground on the notice dated and filed 7 December 2006. That ground is:
"1. The sentence was manifestlyexcessive - the learned sentencing judge should have imposed a suspended sentence of imprisonment, or at least a lesser sentence of imprisonment (error of mixed fact and law).
Particulars
- i) Insufficient weight was given to various mitigating aspects of the Applicant's offending behaviour, particularly the:
a) relatively small value of the stolen property;
b) offending behaviour occurred over a relatively short period; and
c) complainant suffered no harm in that the property was fully recovered.
ii) Insufficient weight was given to mitigating factors personal to the Applicant, particularly his:
a) concerted efforts at rehabilitation since his 1991 ACT offending; and
b) positive demonstrations of remorse, namely his:
- participation in the video record of interview with the WA Police and the admissions against interest that he made therein;
- plea of Guilty; and
- earlier attempt at pleading Guilty to a charge of stealing per se of the property in question."
18 I take it that ground will be the one contained in the Appellant's Case, when filed.
19 It is necessary at this point to refer to the facts and to the sentencing Judge's remarks.
20 Between 16 June and 22 September 2004, the appellant was employed by a commercial cleaning company, "Arrix Integrated", ("Arrix") as a supervisor. His roles and responsibilities included the ordering of cleaning and floor-sealing chemicals and working as supervisor to a floor stripping and cleaning team. He was given the use of a work vehicle (a small truck) to travel from his home to work and back.
21 Over the period of his employment he frequently ordered more cleaning chemicals than were required. He took quantities of the
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- chemicals from the sites to his home, using the work vehicle and with the intention of selling the chemicals to other cleaning companies.
22 The appellant stored the chemicals at his home in a spare room.
23 His employment was terminated on 22 September 2004 after ongoing differences with the company's management.
24 Shortly after termination of his employment, the company became aware that the appellant had been over-ordering chemicals. They were unable to locate the excess chemicals. On 28 October 2004 the appellant contacted the manager of a different cleaning company and offered to sell him the cleaning chemicals he had accumulated. The manager requested that he supply a list of chemicals. The appellant said he wanted $3000 for them. The manager of that firm became suspicious and after making some checks, spoke to Arrix, believing that the chemicals belonged to them. Police were alerted and a search warrant was executed on the appellant's home on 1 November 2004.
25 In the course of their search, police found 290 five litre bottles of various cleaning products, a small box of dust masks and two boxes of large rubbish bags. The products were valued at $11,333.22.
26 The appellant was interviewed both at his home and later at the Rockingham Police Station. He made certain admissions in relation to the cleaning products.
27 Counsel for the appellant submitted that the appropriate disposition was a suspended sentence. The State prosecutor referred to the English case of Barrick (1985) 81 Cr Appeal Rep 78 and Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 for the proposition that where an employee in a position of trust steals money, a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. He also referred to Shepherd v The Queen, unreported; CCA SCt of WA; Library No 920397; 21 July 1992.
28 Having briefly outlined the facts, his Honour noted the appellant had pleaded guilty on the day which had been fixed for the trial.
29 His Honour referred to the appellant's personal circumstances. He had been born in Queensland in 1960 and was therefore at the time of sentencing, 46 years old. He came to Western Australia in 2001 after having spent time in Canberra and then later in Queensland.
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30 From the information put to him, his Honour observed that the appellant had been required by Arrix to fill out a form in relation to whether or not he had previous convictions. On that form he answered that question in the negative. However, when a security check was done, it was found he had criminal convictions in the Australian Capital Territory for dishonesty and stealing from the Commonwealth. His Honour noted there were numerous convictions over a period of time from 1981 to 1991 in respect of which various punishments had been imposed, including sentences of imprisonment. His Honour said he was referring to the previous convictions, not for the purpose of increasing any punishment for the present offence, but simply to show that the appellant did not come before the court with good antecedents.
31 His Honour said that the appellant was in a relationship at the time of the offence, but the relationship broke down when the offence was discovered. It had since been resumed.
32 The appellant had set up his own business as an electrical contractor because he was qualified in that area and had been working with a trades assistant in that field.
33 The Judge referred to submissions put to him about difficulties which the appellant had said he was experiencing in relation to his employment with Arrix, the responsibilities that he had been given, and some dispute about his terms of employment. (This was a reference to submission by counsel for the appellant that the chemicals had been ordered in relation to one very big job, which he found difficult. There was overtime involved and an issue about the payment of that. That also concerned a dispute about an enterprise bargaining agreement the company was at that stage trying to get staff to sign).
34 His Honour went on to note that there was a degree of trust involved by the employer, allowing the appellant to order chemicals which he needed for the job. The offence had occurred over a period of the contract at a suburban shopping centre. The depositions indicated the job was not done very well, apparently because insufficient product was used to carry out the work. As his Honour pointed out, that must have reflected on the employer and the employer's ability to obtain contracts with that shopping centre.
35 His Honour noted the submission that he should suspend any sentence of imprisonment because the appellant had no convictions between 1991 and 2004 and that his previous convictions in Canberra
(Page 10)
- were because he was addicted to gambling on poker machines. The other reasons advanced in support of the submission for a suspended sentence was the appellant's relationship with his partner and that he had been running his own business as an electrical contractor. His Honour was of the view however, that in all the circumstances there were insufficient reasons to suspend the sentence.
36 In imposing sentence, his Honour had regard to the requirement to reduce the term by one-third as a result of the transitional provisions in the Sentencing Act and that allowance had to be made for the appellant's plea of guilty, albeit made at the very latest opportunity on the first day of the trial. He then imposed the sentence to which I have referred.
Ground 1
37 A claim that "insufficient weight" was given by a sentencing Judge to mitigating factors is extremely hard, if not impossible, to make out. Sentencing is a discretionary exercise. It is not for an appellate court to simply substitute its own views for those of a sentencing Judge (Lowndes v The Queen (1999) 195 CLR 665). What must be shown is that there was some identifiable error made by the sentencing Judge or that, where that cannot be done, the sentence imposed is so far outside the range of a proper exercise of the sentencing discretion as to necessarily lead to the conclusion that it had miscarried in some otherwise unidentifiable way (House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321).
38 Before the sentencing Judge the State prosecutor had submitted there is no tariff for offences of stealing as a servant, but he referred to Shepherd v The Queen (supra) as being "similar" to the present case.
39 There the appellant was a 30-year-old woman, who at the time of sentence had a 2-year-old child. She had no previous convictions. She was the coordinator of the Whitfords Family Centre. In that capacity, over a period of some eight months, she stole $11,250 from the Centre. She was sentenced to 18 months' immediate imprisonment. On appeal, it was held that sentence lay clearly within the Judge's discretion.
40 Mr Monisse, counsel for the appellant, makes two points about that. The first is derived from calculations he has made and included on a Schedule handed up on the hearing of the application for leave. That, he says, shows that the $11,333 stolen by the appellant here would equate after adjustment for inflation to $5723.73 in real terms in 1992. The submission is therefore that in real terms, the appellant stole twice the
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- money amount as had been stolen in Shepherd; there the offender had been convicted after trial and her period of offending spanned a period almost double that of the appellant; and Shepherd was decided prior to the introduction of suspended sentences in this State (in 1995) - but that the 18 month sentence imposed there (after reduction by one-third to allow for the transitional amendments to the Sentencing Act) equates to a present sentence of 12 months' imprisonment, which is 4 months less than the 16 month term imposed on the appellant.
41 For the purposes of this bail application, I do not think Shepherd particularly assists the appellant. I note that when the sentence was imposed in that case the statutory maximum sentence for stealing as a servant was 7 years' imprisonment. Not very long afterwards, the statutory maximum was increased to 10 years' imprisonment. One would therefore expect courts to have followed that legislative indicator of the seriousness of offences of this kind and ordinarily imposed more severe sentences for them than hitherto. Furthermore, the antecedents and personal circumstances of the appellant and the offender in Shepherd were different, and the conclusion of the Court of Criminal Appeal in Shepherd on the offender's appeal was that the sentence was "clearly … within" a proper exercise of the discretion.
42 What the appellant needs to do on this appeal (in the absence of any claim of specific error) is to demonstrate that the sentence imposed was outside the range of a reasonable exercise of the sentencing discretion. That cannot be done by comparison with one case.
43 Mr Monisse submits one mitigating factor is that the value of the property stolen was "relatively small". It is true that everything is relative and there have been many cases of stealing as a servant in which the value of the property stolen has been substantially greater than here, but that said, $11,333 is by no means an insignificant, nor in any way trivial, amount.
44 Likewise, the Court of Appeal is not likely to be readily persuaded that the fact the offending behaviour occurred over a period of less than three months, is mitigatory. Indeed, the Court may be more likely to accept the submission advanced by Mr Huggins on behalf of the respondent, that the fact the appellant stole such a large quantity of product from his employer during such a relatively short period of employment, tends more to add to the seriousness of the offence.
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45 It is true that the complainant did not suffer the loss of the property, as that was recovered. But the offences came to light in part because the appellant had used less of the product than was necessary to do the job - and as a consequence it had to be redone. As his Honour observed, there was a loss to the employer in having to do that and no doubt harm to its commercial reputation as a result.
46 There was virtually nothing before the sentencing Judge to demonstrate "concerted efforts" at rehabilitation by the appellant since his 1991 offending, other than the fact there had been no conviction in the intervening years. Likewise, notwithstanding the explanation for the late plea of guilty, there was little evidence before his Honour of "positive demonstration of remorse". The admissions made to police were limited and did not extend to admissions of all the elements of the offence to which he ultimately pleaded guilty.
47 I do not consider it could properly be said that there is a strong likelihood this appeal would succeed to the extent of the Court of Appeal being persuaded a suspended sentence should have been imposed, or even that the term of the sentence of imprisonment should be significantly reduced.
48 I am accordingly not satisfied the appellant has demonstrated exceptional reasons why he should not be kept in custody pending the hearing of his appeal.
49 That being so, the application for bail must be refused.
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