Carter v The State of Western Australia

[2014] WASCA 139

CARTER -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 139

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 139
Court:	THE COURT OF APPEAL (WA)	Published:	30/07/2014
Case No:	CACR:57/2014	Heard:	1 MAY 2014
Coram:	MAZZA JA	Delivered:	1/05/14
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for bail pending appeal granted
Category:	B
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Parties:	DEBRA LOUISE CARTER THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Bail Application for bail pending appeal
Legislation:	Bail Act 1982 (WA), cl 4A pt C sch 1 Sentencing Act 1995 (WA), s 9AA
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CARTER -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 139 CORAM : MAZZA JA HEARD : 1 MAY 2014 DELIVERED : 1 MAY 2014 PUBLISHED : 30 JULY 2014 FILE NO/S : CACR 57 of 2014 BETWEEN : DEBRA LOUISE CARTER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'NEAL DCJ

File No : IND 1246 of 2013

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1

Sentencing Act 1995 (WA), s 9AA

Result:

Application for bail pending appeal granted

Category: B

Representation:

Counsel:

Appellant : Mr N J Terry
Respondent : Ms T J Mcarthur

Solicitors:

Appellant : Barone Criminal Lawyers
Respondent : Director of Public Prosecutions (WA)

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

Nil

MAZZA JA:

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

1 This is an application by the appellant 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 counsel, Mr Nicholas Jeremy Terry, dated 24 April 2014. Other materials were sought to be handed to me at the hearing of the application and, although I have seen them, I do not regard them as being relevant. They are not on oath and, although they might later be put to the court, I have not taken them into account.

2 On 6 February 2014, the appellant pleaded guilty on the fast-track system to an offence of stealing as a servant, which carries a maximum penalty of 10 years' imprisonment. She was sentenced by the learned sentencing judge to 12 months' immediate imprisonment with eligibility for parole.

3 The facts of the offending are as follows. The appellant was a trusted employee working in a small suburban newsagency. Over a period of three months she stole $17,647 worth of Lotterywest products, which are colloquially called 'scratchies'. The appellant's offending has had a serious financial effect upon the owner of the business.

4 The appellant was 22 years of age and was the carer of her three-year-old son at the time she was sentenced. She had no prior convictions. The learned sentencing judge found that the appellant's offending was persistent, repeated and only stopped when her employment was terminated. It appears, and it has been in fact conceded by the respondent, that the learned sentencing judge erroneously thought that the offending had occurred over a period of 15 months.

5 The learned sentencing judge regarded the offending as being aggravated by the appellant's abuse of her employer's high level of trust and that the offending had significant consequences for the owner of the business and, indeed, others.

6 The learned sentencing judge recognised a number of mitigating factors. Those mitigating factors were the appellant's fast-track plea of guilty for which she was given the maximum discount pursuant to s 9AA of the Sentencing Act 1995 (WA), her relative youth and her good antecedents demonstrated by some steps taken towards rehabilitation. The learned sentencing judge acknowledged, in accordance with sentencing principle, the importance of general deterrence in cases of stealing as a servant.

7 Clause 4A of pt C of sch 1 of the Bail Act provides a rebuttable presumption against a grant of bail pending appeal. Bail can only be granted if the appellant demonstrates exceptional circumstances and it is otherwise appropriate to grant bail. The focus of whether there are exceptional circumstances must be on the grounds of appeal. What must be demonstrated is that the grounds of appeal have strong prospects of success. Of course, other factors may be relevant.

8 In this case, it is relevant that the appellant was sentenced to a relatively short period of imprisonment with eligibility for parole. Her earliest date of release, I am told, is 6 July 2014. On present indications, and in the absence of an urgent appeal order, the appeal may not be able to be heard in the ordinary course until about September 2014.

9 There are two draft grounds of appeal. They allege express and implied error.

10 Ground 1 alleges that the learned sentencing judge erred in fact by sentencing the appellant on the basis that the charge in the indictment represented a general deficiency over a period of about 15 months, when in fact the offending occurred over a period of three months.

11 Ground 2 alleges that the learned sentencing judge erred in law by failing to suspend the term of imprisonment. I am told by counsel for the appellant, Mr Terry, that in due course that will be amended to provide that the learned sentencing judge ought to have sentenced the appellant to a shorter term of imprisonment if a term of immediate imprisonment was appropriate.

12 With respect to the first draft ground, as I have already said, the respondent concedes that the learned sentencing judge made the alleged error of fact. The respondent submits, however, that the error was not material in that no different sentence would have been imposed had the error not been made. The respondent does not concede that the learned sentencing judge imposed a sentence that was manifestly excessive, either in its type or its length.

13 Any assessment that I make of the merits of the appeal is, at this stage, tentative, in the sense that I do not have the benefit of all of the materials that were before the learned sentencing judge, nor do I have the benefit of the considered submissions of the parties.

14 Having considered what has been put before me and the oral submissions of the parties, I am satisfied that at least the first ground of the draft grounds of appeal is strongly arguable. It seems that the learned sentencing judge has made an error of fact and it is strongly arguable that this error is material. I am satisfied that exceptional circumstances, as required by cl 4A of pt C of sch 1 of the Bail Act have been established. I am prepared to grant bail. Nothing has been put before me which would suggest that it would be otherwise inappropriate to grant bail.

15 I will grant bail to the appellant on the basis that she enter into a personal undertaking in the sum of $5,000, with a surety in the sum of $5,000. An associate of any judge of this court or a Justice of the Peace may approve any proposed surety. There will be a residential condition to bail that the appellant reside at [address provided]. There will be a protective condition of bail which provides that the appellant shall not contact or attempt to contact [the complainant]. There will be a further protective bail condition that the appellant is not to attend upon the newsagency.