Colbung v The State of Western Australia
[2005] WASCA 184
•14 SEPTEMBER 2005
COLBUNG -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 184
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 184 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:142/2005 | 14 SEPTEMBER 2005 | |
| Coram: | ROBERTS-SMITH JA | 14/09/05 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANIEL MARK COLBUNG THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeals against conviction and sentence Term of 2 years 6 months' imprisonment for three offences of violence Mob violence following game of football Whether exceptional reasons why offender should not be kept in custody pending appeal |
Legislation: | Bail Act 1982 (WA), s 13(1) Pt A, Sch 1, cl 4(1) Pt C, Sch 1, cl 4(c) Criminal Appeals Act 2004 (WA), s 27 |
Case References: | Etrelezis v The Queen [2001] WASCA 327 Hull v State of Western Australia [2005] WASCA 107 R v Latham (2000) 117 A Crim R 74 R v Tieleman & Anor (2004) 149 A Crim R 303 Stalker v The Queen [2002] WASCA 364 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COLBUNG -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 184 CORAM : ROBERTS-SMITH JA HEARD : 14 SEPTEMBER 2005 DELIVERED : 14 SEPTEMBER 2005 FILE NO/S : CACR 142 of 2005
- CACR 143 of 2005
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HEALY DCJ
File No : ALB 4 of 2003
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeals against conviction and sentence - Term of 2 years 6 months' imprisonment for three offences of violence - Mob violence following game of football - Whether exceptional reasons why offender should not be kept in custody pending appeal
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Legislation:
Bail Act 1982 (WA), s 13(1); Pt A, Sch 1, cl 4(1); Pt C, Sch 1, cl 4(c)
Criminal Appeals Act 2004 (WA), s 27
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr B S Hanbury
Respondent : Ms C Barbagallo
Solicitors:
Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Etrelezis v The Queen [2001] WASCA 327
Hull v State of Western Australia [2005] WASCA 107
R v Latham (2000) 117 A Crim R 74
R v Tieleman & Anor (2004) 149 A Crim R 303
Stalker v The Queen [2002] WASCA 364
Case(s) also cited:
Nil
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1 ROBERTS-SMITH JA: This is an application for bail pending appeal following a trial before his Honour Judge Healy of the District Court and a jury in Albany in 2005. The applicant was convicted of three offences. They were fighting in public, contrary to s 71 of the Criminal Code (WA) ("the Code"), which carries a maximum penalty of 2 years' imprisonment; doing grievous bodily harm to Neil Krakouer, an offence contrary to s 297 of the Code and punishable by a maximum of 10 years' imprisonment; and assault occasioning bodily harm to Jason Krakouer, contrary to s 317 of the Code, which carries a maximum penalty of 5 years' imprisonment.
2 On 28 July 2005 he was sentenced to six months' imprisonment on the first count, 2 years' imprisonment on the second, and 6 months' imprisonment on the third. The sentence on the second count was ordered to be served concurrently with that on the first, but that on the third count was ordered to be served cumulatively, making an aggregate sentence of 2 years 6 months' imprisonment. His Honour ordered the sentence be backdated to 26 May 2005 and that the applicant be eligible for parole.
3 On 18 August 2005 the applicant filed an appeal notice seeking leave to appeal against conviction in respect of each offence. On the same date he filed an application for bail in relation to his conviction appeal. That was supported by an affidavit of his lawyer, Beau Stanley Hanbury, sworn that day. Also on 18 August 2005 the applicant filed an appeal notice seeking leave to appeal against the sentences.
4 That bail application was listed for hearing before me on 6 September. On that day Mr Hanbury said he wished to base the applicant's application on both the conviction and sentence appeal. He said he had also filed a bail application in respect of the latter. That file was not before me at the time. When I called for it there was no bail application on it. Mr Hanbury was unable to provide me with a copy as he did not have his file with him. He accordingly asked that the application be adjourned. As that application was not opposed by the respondent, I adjourned the hearing until today. In the meantime, Mr Hanbury wrote to my Associate by a letter dated 6 September 2005 in the following terms:
"Having conducted some search and made enquiry, it appears that I did not file an application for bail on CACR 143/05. I reiterate my apology for the inconvenience of today's date. I have now filed an application and affidavit in CACR 143/05 and have served a copy upon the prosecution. I have also filed
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- a copy of the sentencing transcript that I intend to refer to at the bail application.
I would be grateful if my apology might be noted."
5 In fact the bail application in respect of the sentence appeal was filed on 9 September.
6 Since 2 May this year all criminal appeals require leave of the Court of Appeal. Leave to appeal is required for each ground of appeal under s 27(1) of the Criminal Appeals Act 2004 (WA). Section 27(2) stipulates that the Court of Appeal must not give leave to appeal on a ground of appeal unless satisfied the ground has a reasonable prospect of succeeding. Under r 43(2)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) a single Judge of the Court of Appeal may grant or refuse leave to appeal; see also r 7.
7 The applicant's application for leave to appeal has not yet been dealt with. The appellant's case has not yet been filed as the time for so doing has not yet run.
8 The power of a single Judge of the Court of Appeal to grant or refuse an application for bail pending an application to the Court of Appeal for leave to appeal is to be found in s 13(1) and item 4(1) of Pt A of Sch 1, previously item 4(d) to the Bail Act 1982 (WA); see s 28(4) of the Acts Amendment (Court of Appeal) Act 2004 (WA).
9 Clause 4 of Pt C of Sch 1 to the Bail Act stipulates that in deciding whether or not to grant bail to an offender who is awaiting the disposal of appeal proceedings a Judge shall consider whether there are, exceptional reasons why the offender should not be kept in custody, and if there are, even then shall grant bail only if satisfied bail may properly be granted, having regard to the provisions of cl 1 and cl 3 of that Part. Those are the provisions which set out the general considerations relevant to any application for bail.
10 Where the prospect of success of the appeal is one of the matters relied upon as establishing exceptional circumstances for the purposes of cl 4 of Pt C of Sch 1, the law is that something more than an arguable case must be shown. As I observed in Stalker v The Queen [2002] WASCA 364 at [19] - [40], it must be shown without detailed argument that the appeal is most likely to succeed. The same question was considered by the Full Court in R v Tieleman & Anor (2004) 149 A Crim R 303 where Murray J, with whom Steytler and Templeman JJ agreed, considered the
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- proper principles to be applied on an application for bail pending appeal. I need not here repeat the principles as articulated by his Honour. I addressed those in some detail in Hull v State of Western Australia [2005] WASCA 107 at [7] - [9] inclusive.
11 The grounds of appeal against conviction here are:
1. that the learned trial Judge denied the applicant his right of peremptory challenge as provided for by s 38 of the Juries Act 1957;
2. his Honour denied the applicant his right of challenge as provided for by s 628 of the Criminal Code.
12 Particulars to those grounds are that before the jurors were sworn, his Honour refused the application on behalf of the applicant for further details of prospective jurors' occupations and fields of study. The grounds continue:
"3. The learned trial Judge erred in law in directing the jury as to the application of s 8 of the Criminal Code.
Particulars of Ground 3
3.1 The learned trial Judge directed the jury that they had to determine whether the accused had joined in forming a common intention with others to fight members of 'the Krakouer family' and this was an error because the learned Judge did not direct the jury that pursuant to s 8, it was for the jury to determine whether the accused had an unlawful purpose and also, what that unlawful purpose was;
3.2 the learned Judge erred in directing the jury (as to Count 2) on s 8 of the Code, that the common intention was to fight members of 'the Krakouer family', as it was necessary (for the prosecution to prove that the applicant was guilty of Count 2) that he had formed a common intention to assault the complainant that had, as a probable consequence of that prosecution, grievous bodily harm;
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- 3.3 the learned trial Judge erred in his direction that the time at which the accused formed a common intention to prosecute an unlawful purpose was before the unlawful purpose was put into effect - as the intention to prosecute an unlawful purpose could be formed at any time prior to the commission of a grievous bodily harm;
3.4 the learned trial Judge's direction on s 8 that if the jury found that there was an unlawful purpose to 'fight the Krakouer family' led to a miscarriage of justice on Count 2, as the jury may have found that if Count 1 was proved that that meant that on Count 2, the unlawful purpose was the same and that they only then had to consider whether the offence charged was a probable consequence;
3.5 the learned Judge erred in law in failing to direct the jury that s 8 had no application to Count 1 as the criminal responsibility of the applicant was referable to s 7 of the Code and not otherwise.
- 4. The learned Judge erred in law in his directions to the jury as to self-defence (s 248 of the Code).
Particulars of Ground 4
4.1 The learned Judge directed the jury that they had to consider self-defence but he did not give sufficient directions about when the defence may have arisen and his directions generally were insufficient;
4.2 The learned Judge erred in failing to direct the jury that even if they found that there had been a common intention formed, they were required to find that any act of striking was not done in self-defence."
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14 The matters relied upon in support of the application for bail are set out in Mr Hanbury's affidavit. He deposes relevantly that he is advised by the applicant and believes that the applicant is presently aged about 24 years and has a partner with whom he has lived for the last seven years or so. He has two children aged about 6 and 2 years. Until the date of his conviction at Albany, the applicant was employed with Fletcher International WA Meat Processing at Narrikup.
15 The applicant supported his wife and children from his wages as a meat process worker. He is purchasing a home and was living at 24 Trimmer Road, Albany. Before his convictions for these offences, the applicant had no previous record of convictions anywhere. When he stood for sentence in the District Court on 28 July 2005, he was a first offender aged 24 years. Mr Hanbury annexes the applicant's record of convictions which, as would be apparent, discloses there are none.
16 At his sentencing the applicant presented various references to the Court. Those too are annexed to Mr Hanbury's affidavit. Mr Hanbury further deposes that at trial the applicant was acquitted of causing grievous bodily harm with intent to do grievous bodily harm and his conviction of causing grievous bodily harm was a conviction in the alternative to that count. He deposes that the applicant did not give evidence at his trial.
17 Prior to his being remanded into custody on 26 May 2005 the applicant had been granted bail with a surety. If he is granted bail pending appeal, he will reside at his home and would be proposing to work at Fletchers on a full-time basis. He is prepared to abide orders made by the Court that he not contact the complainant and abide a curfew and could report if ordered so to do.
18 It will be immediately apparent that there is nothing in the affidavit which purports to constitute exceptional reasons why the applicant should not be kept in custody pending his appeal. At no stage in his oral submissions did Mr Hanbury attempt to state what constitutes exceptional reasons in this case. I am therefore left to attempt to discern for myself whether any are shown on the material before me.
19 The only material put before me by the applicant on this application apart from Mr Hanbury's affidavit is a copy of the transcript of his Honour's sentencing remarks. That presents obvious difficulties when counsel is relying upon grounds which go to events relating to the empanelment of the jury at the commencement of the trial and the trial
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- Judge's directions to the jury at the end of it. Mere assertions from the bar table of what occurred or what his Honour said are not evidence and are not, certainly in this case, any proper basis upon which findings or determinations can be made even for the limited purpose of an application for bail.
20 It is necessary at this point to refer to the facts. The following summary is taken from his Honour's sentencing remarks. His Honour began by noting that in relation to the trial itself, that had commenced on 2 May with the jury returning verdicts on 26 May, having heard from some 30 witnesses in person and statements of other witnesses having been read to them by agreement between counsel. The addresses of the prosecution and defence counsel lasted a considerable time and his Honour's charge to the jury took another sitting day. After deliberating for some two and a half days during which the jury asked three questions, they returned their verdicts.
21 There were 10 accused presented on that indictment. The applicant was one of them. Each of the accused had been charged with fighting; a second offence of doing grievous bodily harm to Nicholas Krakouer with intent to maim, disfigure, disable or do grievous bodily harm; with an alternative offence of simple grievous bodily harm; and of a third count of assault occasioning bodily harm to Jason Krakouer.
22 Following the return of the verdicts of the jury, the offenders were remanded in custody whilst reports were obtained for sentencing purposes. On 16 June his Honour heard submissions on behalf of all of the offenders from their counsel and by that time had received, as he described it, a great deal of material by way of references, pre-sentence reports and other material which he had by then read.
23 His Honour then turned to a general description of the circumstances of the offending. On 28 April 2002 the South Mount Barker football team was playing the Albany Royals at a park in Mount Barker. Three games were played, starting with the colts in the morning, the reserves in the afternoon, and finally the league team. Supporters of both teams were able to drive their cars onto the ground and park in various areas. Those supporting the Royals seemed to be parked mainly at the goals at the top end of the oval and those of the local team behind the lower goals or near the scoreboard on the opposite side of the oval to the clubrooms and the change rooms.
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24 The two teams had a rivalry over a number of years, the Royals being the more successful team over that period. They were supported by and many members of the Colbung family had played in that team, and the local team was supported by, I take it, the Krakouers, and many members of the family had played there.
25 Many of the witnesses who were called were familiar with some of the offenders and others were people who made identifications on the basis of recognition. Other witnesses again had no prior knowledge of the individual offenders but were able to identify them because of appearance or clothing, and so on.
26 The general manager of the club was apprehensive early in the day because she noticed that there were not only local supporters present but also family members from both families who had come down from Perth. She called the police during the colts game and asked for a police presence. The officer she spoke to was unable to attend because of other duties and said he would later attend, but was unable to do so before the trouble broke out. In fact trouble broke out after the league game finished about 4.45 pm and the players went to the respective change rooms. The spectators headed towards the change rooms or to the clubhouse.
27 Nicholas Krakouer decided to begin some trouble, although there had been longstanding ill-feeling between the families, many members of which were related to each other. Armed with some sort of weapon, Nicholas Krakouer went to the oval in front of the Royals change room and started shouting abuse at the Colbung family and challenged Brett Colbung, one of the offenders, to come out and fight. Brett Colbung had played in the league team for the Royals in the game that day. Nicholas Krakouer, Jeremy Krakouer and Raymond and Patrick Winmar were charged with fighting. They stood trial in February in Albany. They were convicted and sentenced by his Honour before the present trial for being involved in fighting with the offenders.
28 Many of the witnesses who gave evidence said they saw a group of people coming from the area at the top of the oval where the Colbung supporters had been, cross the oval towards the club and to the change rooms. Some of the witnesses said that members of that group were armed with baseball or softball bats and there was other evidence that as the group came closer to the clubrooms, two young men came out. They had bats in their arms which they threw onto the oval and they were picked up by people in the group who did not already have a bat.
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29 The Krakouers had come armed with rocks, bottles and broken bricks which were in a car parked behind the change rooms. Evidence was given that some members of the family had gone there to obtain those rocks, bottles or bricks to be used during the fight.
30 The fight broke out in the area between the clubrooms and the change rooms and it spilled out onto the oval. This was not an area which was occupied only by the people who were fighting. It was one in which there were other people, spectators and their children, and the scene was as his Honour described it, "a chaotic one with bricks and bottles flying about and people being hit with bats and shouting and swearing". Several of the witnesses described the situation as "all hell breaking loose". His Honour thought that was a fair description.
31 The fight lasted some time before it stopped when police sirens were heard coming to the oval. The participants then scattered to their various vehicles and left the area. In the time the fight occurred Neil Krakouer received a fractured skull after being beaten with bats. Witnesses described that he was flogged with bats while he was lying on the ground. There was medical evidence that he suffered very serious head injuries including a fracture of the skull.
32 In relation to the second charge, the medical evidence was that the head injury he suffered would have required a massive force. The doctor said it would be consistent with being thrown out of a car at high speed. There was bleeding inside his cranium for which he had to have emergency treatment. He was transferred to Albany Hospital and then, because it was such a serious injury, to Perth. Apart from the very serious head injury which has left permanent disability, he was also found to have suffered welts and bruises to his body. His Honour said it was clear that if the complainant had not received medical treatment he would have died.
33 There was evidence before his Honour that the complainant suffered permanent injury as a result of the attack. He has been left with a permanently damaged brain, and in accordance with the material his Honour had received from the victim impact statement, that has had an effect on his physical and mental functioning. His Honour said that when the complainant gave evidence he presented as a very sorry young man of 25 whose future has been taken from him.
34 His Honour observed that the jury had been satisfied beyond a reasonable doubt, as indeed he was, that the fracture of the skull was caused by blows with bats and not by a brick which had been thrown or
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- by Neil Krakouer falling down and hitting his head as had been suggested in the course of the trial.
35 As to the third charge, it was the prosecution case that in the course of the fight in which each of the offenders took part to one degree or another, Jason Krakouer was run down by several of them and was assaulted while he was on the oval with weapons. That caused him bodily harm because there was evidence that he had bruises and welts to his body and a fracture to his wrist. The jury were satisfied beyond a reasonable doubt that four of the accused were engaged in that assault in which they did bodily harm, but that in relation to the others, had a reasonable doubt, as a consequence of which they were found not guilty of that charge. His Honour said he was satisfied that Jason Krakouer was beaten while he lay on the ground on the oval and suffered that bodily harm to his back and head and to the left hand received an undisplaced fifth metacarpal fracture and a fracture of the ulna styloid.
36 His Honour noted that each of the offenders had pleaded not guilty, as they were entitled to do, and they had chosen not to give or call evidence. He correctly pointed out that they could not be punished for exercising their legal rights to have the prosecution prove the case, but then nor could they claim any mitigation which might be shown had they pleaded guilty to all or any of the offences.
37 His Honour said that the State opened and closed its case on the basis that the jury could find each of them guilty of the second count on three bases: either that the offender was a principal offender or was guilty on the basis of committing an offence of the unlawful purpose of engaging in a fight while armed with weapons, and a probable consequence of that being that Neil Krakouer would suffer grievous bodily harm.
38 His Honour said that various witnesses gave evidence identifying some of the offenders who were part of the group using weapons to strike Jason Krakouer while he was on the ground. There was evidence of other witnesses that some of them prevented people going to Neil Krakouer's aid when he was on the ground.
39 His Honour said that, in his view, the law in relation to punishment does not make any distinction between criminal responsibility of principal offenders or aiders or those involved in the common purpose. There is no distinction by saying any one of those categories is less blameworthy than others. Although having said that, his Honour said they had to be
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- punished for what they did; where he was able to find what individuals did, he would do so when dealing with the particular offender.
40 In relation to the second charge, his Honour said he was satisfied beyond reasonable doubt there was direct evidence in relation to some of the offenders that they struck him with the bats. In relation to those who were not the subject of such direct evidence, their presence provided support for those who were attacking Neil Krakouer and they engaged in that common purpose.
41 His Honour then turned to the pre-sentence reports (which were apparently in a common format) and quoted from them. I will not recite what his Honour there said. He mentioned a letter from Mr Frank Krakouer and a victim impact statement which he had received on behalf of Neil Krakouer. As to that he said the effect of the injury Neil Krakouer had received has had an enormous impact on his life; as a young man he should have been able to look forward to a normal life but what was done to him on that day has taken that away from him so that he is now a changed man with serious handicaps which will be permanent.
42 His Honour referred to the letters of reference received by him and other material which was put before him for sentencing purposes. His Honour then referred to the statutory maxima for the offences of which the offenders had been convicted and noted that Parliament has said that the Court must impose a term which is two-thirds of the term that would have been imposed had the old provisions been in operation at the time of sentencing.
43 He said that the penalty for acts intended to do grievous bodily harm or to maim, disfigure or disable had been considered several times by the Court of Criminal Appeal and again one had to take into account the sentence reduction of one-third now mandated. Specifically in relation to the circumstances of the offence against Neil Krakouer, his Honour said those circumstances were very serious; there was no evidence that he was presenting a threat to anybody nor that he was armed in any way.
44 It was clear on all the evidence that he had heard that Neil Krakouer was attacked by a group armed with bats and some members of that group were those accused who had been found guilty of being involved in that attack. The attack was not just a momentary one but one that went on for some period of time. It took place not in a private area but in the presence of spectators without any regard to the feelings of those who were in the surrounding area or the safety of their children or themselves.
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45 His Honour said he realised that the whole thing was started by Nicholas Krakouer and it may not have come to anything if Nicholas Krakouer had not made the challenge, but that it was the offenders' collective decision to get involved in the fight when it broke out. In relation to the third charge, he said it was his view that those of the accused who had been found guilty of that should serve any sentence cumulatively because although it occurred on the same occasion, it was a separate assault on another unarmed person.
46 In relation to any sentences imposed in relation to that offence, he said he was mindful of the totality of the whole sentence and would therefore have to considerably reduce the sentence which would have been imposed if that had been the only offence of which the particular offender had been convicted. Before turning to deal with each of the offenders in turn, his Honour made some further general remarks.
47 He said that, in his view, on that day all of them may have acted out of a sense of family solidarity. It was clear from the references that he had received and read, and the pre-sentence reports, that all of them were well thought of by the people who wrote the reports and all who are married provide support to their families and as a role model for their children. He said their partners were seriously missing their absence when they had not been with them since the trial. What was apparent to his Honour, he said, having heard all the evidence, was that on that afternoon all of the offenders were prepared to put that sense of family loyalty above any thought for the feelings of those present at the football game at the local oval.
48 All of them were prepared to engage in the offences in full view of people with whom they had gone to school with or had known for years and in the presence of children and old people who had every right to go to the football game without having to witness the violence which occurred in their full view at the end of it. He said their differences with the Krakouers were not settled in private but in full view of the local community.
49 Some witnesses who gave evidence were still clearly stressed about what had happened, although they were giving evidence years after the events of that afternoon. His Honour said that, in the circumstances, there was a need for the Court to impose sentences which reflected the community's revulsion at mob violence and in those circumstances the offenders' personal circumstances did not carry as much weight as they
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- otherwise might have. His Honour then turned to deal individually with the offenders.
50 In respect of the applicant his Honour said that, as to the first charge, several witnesses had said that they saw him coming over the oval with a baseball bat, and that the jury were satisfied that he was involved in the fight with the Krakouers. As to the second charge, he said it was submitted on the applicant's behalf to the jury that if he had been engaging in self-defence of himself or someone else, then he would not be engaged in an unlawful purpose when fighting and could not be found guilty under s 8 of the Criminal Code because there would have been no unlawful purpose.
51 However, as his Honour pointed out, by their verdict in relation to the fight on count 1, and in relation to the other counts, the jury was satisfied beyond a reasonable doubt that the applicant was not acting in self-defence of himself or another and that even if he were, the force that was used must have been more than was reasonably necessary.
52 In relation to the second charge, the jury found the applicant not guilty of the charges laid but guilty of that of doing grievous bodily harm. His Honour said, "Two witnesses saw you swing the bat at Neil." One described the applicant as hitting Neil Krakouer with the bat as though he was playing golf. In his Honour's view, he was satisfied beyond a reasonable doubt that the applicant was involved in that attack with the bat and it may be the jury distinguished his conduct from the others by thinking that he was involved, early on in the piece rather than when more of the group became involved, although he said it was not necessary to make any particular finding about that because of the nature of the finding made by the jury.
53 The Judge also said there was evidence from other people who said that the applicant was seen to stop people trying to go to Neil Krakouer's aid when he was being beaten. If that was the case, then the jury may have not thought that he had any intention to enable to those people to maim, disfigure, disable or do grievous bodily harm to Neil Krakouer, otherwise they would have found him guilty as charged.
54 As to the third charge, his Honour said a witness had testified that she saw the applicant and another of the offenders hitting Jason Krakouer with bats while he was on the ground. Even if the jury did not accept her evidence, he said, they were entitled to be satisfied beyond reasonable doubt that he was guilty of the offence under s 8. His Honour went on to
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- say that he accepted the evidence of that witness who said she saw the applicant striking blows as evidence beyond reasonable doubt that he was involved in that way.
55 His Honour then turned to the applicant's personal circumstances, to which I have already referred. He mentioned the pre-sentence report had indicated that the applicant admitted being involved in the fight but not in relation to the attacks on Neil or Jason Krakouer. He pointed out those denials were in conflict with the verdict of the jury. He noted too, amongst other things to do with the personal background of the applicant, that there did not seem to be any reference in any report that he had received of any expression of regret for the injury caused to Neil or Jason Krakouer, or sympathy for the condition in which Jason Krakouer now finds himself.
56 His Honour dealt in some detail with the applicant's personal circumstances and the standing he obviously enjoyed to that stage in the community, before imposing the sentences which are now appealed. I turn now to the grounds of appeal against conviction.
Grounds 1 and 2: Denial of right of challenge
57 Section 38 of the Juries Act 1957 (WA) as at the date of trial provided:
"(1) Without affecting the right of challenge to the array or for cause shown which might have been claimed or exercised immediately prior to the coming into operation of this Act, any party at any criminal trial (including the prosecution) may challenge 5 jurors peremptorily."
58 It is unnecessary to refer to subsection (3). Section 628 of the Code which also applied at the time of trial, provided:
"The prosecutor or the accused person may object to a particular juror on either of the following grounds, that is to say -
(1) That the juror is not qualified by law to act as a juror;
(2) That the juror is not indifferent as between the State or the Commonwealth, as the case may be, and the accused person.
Such objections are in addition to any peremptory challenges to which the prosecutor or the accused person is by law entitled."
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59 Counsel for the applicant has not put that part of the trial transcript before me. However, the particulars advanced in support of these grounds do not support the grounds. Even if the particulars be established, the grounds would not be made out. There is nothing in either s 38 of the Juries Act or s 628 of the Code which gives an accused any entitlement to information of the kind referred to nor was counsel for the applicant able to refer to any authority to that effect.
Ground 3: Directions in respect of s 8 of the Code, and Ground 4: Directions as to self-defence
60 For present purposes I will assume, without deciding, that these grounds are arguable. Even so, the onus is on the applicant to demonstrate the prospect of success is sufficient for the purposes of this application. No material has been put before me which could lead me to any such satisfaction.
61 That being so, it has not been shown that there is a strong prospect the appeal would succeed on these grounds. There is certainly not a sufficiently strong prospect as to, either alone or in combination with other factors, constitute an exceptional reason why the applicant should not be kept in custody pending his appeal.
62 That brings me to the appeal against sentence.
63 The sentence is said to be excessive because his Honour did not give any or sufficient consideration to suspending the term of imprisonment. I will refrain from commenting upon the form of that ground for present purposes. Counsel for the applicant referred to R v Latham (2000) 117 A Crim R 74, in which Parker J said, in respect of the suspension of a sentence of imprisonment, at [16]:
"… the processes required by the [Sentencing Act] are not well adapted to being approached in a precise order by which suspended imprisonment is first considered in isolation, without having regard to the more severe sentence of a term of imprisonment, the latter being considered only if and after the sentencing court has satisfied itself pursuant to s 39(3) that suspended imprisonment is not appropriate."
64 Pertinently to the present application, his Honour said at [17]:
"If this view should be correct it remains fundamentally important, however, that the sentencing court respect the
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- injunction of s 39(3). The court must not impose a term of imprisonment which is not suspended, that is, which is to be served immediately, unless satisfied that a sentence of suspended imprisonment is not appropriate."
65 Paragraph 18 read:
"For the purposes of this application, in my respectful view, what appears to be critical to the adequate exercise of sentencing discretion is whether due regard was had to the stipulation of s 6(4) which gives effect to the principle that imprisonment (whether or not suspended) is a sentence of last resort, and to the effect of s 39(3) that a term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate. It seems probable that the practical effects of s 76(1), (2) and (3), in particular cases, may lead the court to consider s 6(4) and s39(3) at different stages of the process of reasoning which leads to a sentence. In the end, what appears to be critical to the propriety of the sentencing process is, not so much when s 6(4) and s 39(3) are considered but, that they be properly considered."
66 While his Honour made no specific reference to suspension of a sentence of imprisonment, he is not to be assumed to have failed to take that sentencing option into consideration on that account. That is particularly so where, as here, that option was specifically urged upon his Honour by counsel who cited authority in support of it (that being Etrelezis v The Queen [2001] WASCA 327) and as his Honour said he would consider it.
67 Mr Hanbury relies very much on the applicant's excellent antecedents and references. They were before his Honour and referred to by him.
68 Without reiterating the circumstances of the offences, it is clear that they were particularly serious. Indeed, the seriousness of the offence in count 2 is conceded by counsel for the applicant. Overall it was an occasion of mob violence at a public event. His Honour saw the circumstances as giving rise to a need to impose sentences which reflected community revulsion at mob violence and took the view that in that situation the offenders' personal circumstances could not carry as much
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- weight as they otherwise might. The injuries occasioned to the victims were very serious indeed, particularly in respect of count 2.
69 The offences themselves were serious. There was no mitigation by way of a plea of guilty and there was no apparent remorse. It is an unlikely prospect that the Court of Appeal would conclude it was not open to his Honour in the circumstances to impose an immediate term of imprisonment or that he failed adequately or at all to consider suspended imprisonment.
70 That being so, the prospect of delay until the appeal is determined is of little significance.
71 The applicant has not demonstrated exceptional reasons why he should not be kept in custody pending appeal. The application for bail will accordingly be dismissed.
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