Collins v The State of Western Australia
[2006] WASCA 280
•20 DECEMBER 2006
COLLINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 280
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 280 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:145/2006 | 15 DECEMBER 2006 | |
| Coram: | ROBERTS-SMITH JA | 19/12/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Bail refused | ||
| B | |||
| PDF Version |
| Parties: | GARRY DANIEL COLLINS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Bail pending appeal Appeal against sentence 75 counts of stealing as a servant Total of $56,507 stolen over 101/2 months Client funds Whether imprisonment inevitable unless circumstances exceptional or amount small Barrick (1985) 81 Cr App Rep 78 applied Whether an error Whether combination of circumstances including longterm partner's psychiatric illness and emotional and psychological dependence on appellant constitute "exceptional reasons" |
Legislation: | Bail Act 1982 (WA), Sch 1, Pt C, cl 4 |
Case References: | Barrick (1985) 81 Cr App Rep 78 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Birch (1993) 69 A Crim R 181 Burns (1994) 71 A Crim R 450 Carreras (1992) 60 A Crim R 402 Dinsdale v The Queen (2000) 202 CLR 321 Madoc v The Queen, unreported; CCA SCt of WA; Library No 930351; 2 June 1993 R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998 R v Sirandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996 R v Szathmary, unreported; CCA SCt of WA; Library No 7672; 24 May 1989 Ranford v The State of Western Australia [2006] WASCA 134 Shepherd v The Queen, unreported; CCA SCt of WA; Library No 920397; 21 July 1992 Stewart (1994) 72 A Crim R 17 Thill v Ryan, unreported; CCA SCt of WA; Library No 920689; 18 December 1992 Tieleman v The Queen (2004) 149 A Crim R 303 Van de Heuval (1992) 63 A Crim R 75 Warrell v Kay (1995) 83 A Crim R 493 Webb v Baldwin, unreported; CCA SCt of WA; Library No 970019; 17 January 1997 Hull v The State of Western Australia [2005] WASCA 107 Hull v Western Australia (2005) A Crim R 414 Long v Mayger (2004) 142 A Crim R 289 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COLLINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 280 CORAM : ROBERTS-SMITH JA HEARD : 15 DECEMBER 2006 DELIVERED : 20 DECEMBER 2006 FILE NO/S : CACR 145 of 2006 BETWEEN : GARRY DANIEL COLLINS
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File No : IND 247 of 2005
(Page 2)
Catchwords:
Appeal - Criminal law and procedure - Bail pending appeal - Appeal against sentence - 75 counts of stealing as a servant - Total of $56,507 stolen over 101/2 months - Client funds - Whether imprisonment inevitable unless circumstances exceptional or amount small - Barrick (1985) 81 Cr App Rep 78 applied - Whether an error - Whether combination of circumstances including longterm partner's psychiatric illness and emotional and psychological dependence on appellant constitute "exceptional reasons"
Legislation:
Bail Act 1982 (WA), Sch 1, Pt C, cl 4
Result:
Application dismissed
Bail refused
Category: B
Representation:
Counsel:
Appellant : Mr R D Young
Respondent : Mr S A Vandongen
Solicitors:
Appellant : Robert Young
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Barrick (1985) 81 Cr App Rep 78
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Birch (1993) 69 A Crim R 181
Burns (1994) 71 A Crim R 450
Carreras (1992) 60 A Crim R 402
Dinsdale v The Queen (2000) 202 CLR 321
Madoc v The Queen, unreported; CCA SCt of WA; Library No 930351; 2 June 1993
R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998
R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996
R v Szathmary, unreported; CCA SCt of WA; Library No 7672; 24 May 1989
Ranford v The State of Western Australia [2006] WASCA 134
Shepherd v The Queen, unreported; CCA SCt of WA; Library No 920397; 21 July 1992
Stewart (1994) 72 A Crim R 17
Thill v Ryan, unreported; CCA SCt of WA; Library No 920689; 18 December 1992
Tieleman v The Queen (2004) 149 A Crim R 303
Van de Heuval (1992) 63 A Crim R 75
Warrell v Kay (1995) 83 A Crim R 493
Webb v Baldwin, unreported; CCA SCt of WA; Library No 970019; 17 January 1997
Case(s) also cited:
Hull v The State of Western Australia [2005] WASCA 107
Hull v Western Australia (2005) A Crim R 414
Long v Mayger (2004) 142 A Crim R 289
(Page 4)
1 ROBERTS-SMITH JA: This is an application for bail pending an appeal against sentence.
2 On 19 October 2006 the appellant was convicted of 75 counts of stealing as a servant. He pleaded guilty before Groves DCJ in the District Court at Perth.
3 The appeal notice was filed on 10 November 2006.
4 The appeal is two days out of time. An extension of time is sought. That is supported by the affidavit of Robert David Young, filed 10 November 2006. The delay is insignificant and there is no apparent prejudice to the respondent. The extension of time will be granted.
5 There were two draft grounds of appeal on the appeal notice.
6 The Appellant's Case was filed on 5 December 2006. Also filed on that date was an application seeking leave to rely upon substituted grounds of appeal and for bail.
7 What are described as the "substituted grounds" are in fact those already contained in the Appellant's Case. The Criminal Appeals Act 2004 (WA) and the Supreme Court (Court of Appeal) Rules 2005 (WA) only require draft grounds of appeal in an appeal notice (r 28(5)).
8 An appellant is entitled to substitute different or to add additional grounds of appeal in their Appellant's Case (r 32(4)(a)).
9 The appellant accordingly does not require leave to substitute the grounds of appeal set out in the Appellant's Case; that application is otiose.
10 On 7 December 2006, on the papers, I granted leave to appeal on grounds 1, 3 and 4 and refused leave on ground 2, as set out in the Appellant's Case.
11 In support of his application for bail, the appellant relies upon the affidavit of Mr Young filed 5 December 2006.
12 The legal principles which apply to an application for bail pending appeal are clear enough. The Court is required first to consider whether there are exceptional reasons why the appellant should not be kept in custody pending appeal (I shall use the abbreviated term "exceptional reasons" hereafter) and shall only grant bail if satisfied there are such exceptional reasons and that bail may properly be granted having regard
(Page 5)
- to the provisions of cl 1 and cl 3 of Sch 1, Pt C to the Bail Act 1982 (WA) (Sch 1, Pt C, cl 4). "Exceptional reasons" are those which are unusual or out of the ordinary or in some way special or an exception to the general run of cases (see Tieleman v The Queen (2004) 149 A Crim R 303 per Murray J (Templeman J agreeing) at [15]).
13 What may constitute exceptional reasons will depend upon the facts of the particular case. However, as Murray J pointed out in Tieleman, it would generally be difficult to find exceptional reasons where there are not strong grounds for concluding that the appeal would be allowed, nor where the custodial portion of the sentence would be substantially served before the appeal is heard and even then it may be necessary to demonstrate additional circumstances in the particular case.
14 So far as the prospects of success on appeal are concerned, what must be shown is that the appeal is most likely to succeed (see Murray J in Tieleman at [31] and Steytler J (as he then was) at [51]).
15 The fact that leave to appeal has been granted on one or more grounds does not advance an application for bail pending appeal. That is because the test for the grant of leave is a different test and sets a lower threshold than that in cl 4 of Sch 1 to the Bail Act. What is necessary to be shown for leave to appeal to be granted is that the particular ground has a reasonable prospect of succeeding on the appeal (s 27(2) Criminal Appeals Act). As I pointed out in Ranford v The State of Western Australia [2006] WASCA 134 at [22], the fact that leave to appeal has been granted does not indicate any more than that the appeal has a reasonable prospect of succeeding. A significantly higher prospect of success must be shown before that could constitute an exceptional reason, either alone or in combination with any other factor, why the appellant should not be kept in custody pending appeal. That must be so, because otherwise every appellant who is granted leave to appeal would have an entitlement to bail, which is clearly not the statutory intention.
16 In the present case the exceptional reasons are said to be the combination of the fact that the appeal is most likely to succeed; the appellant's previously good character; the time to be served pending appeal; the appellant's own health situation and in particular, the psychiatric illness of his long-term partner.
17 In his oral submissions Mr Young acknowledged the likely time before the hearing of the appeal would not of itself constitute exceptional reasons.
(Page 6)
18 The grounds of appeal are:
"1. The learned sentencing Judge erred in failing to suspend any sentence of imprisonment having regard to:
(a) The length of time that had elapsed since the commission of offences;
(b) The appellant's lack of criminal record prior and subsequent to the commission of the offences;
(c) The appellant's plea of guilty and cooperation;
(d) The appellant's poor physical and mental health and that of his long term partner;
(e) The appellant's explanation for the commission of the offences.
2. [Leave to appeal refused].
3. The case of Barrick (1985) 81 Cr App R 78 should not be regarded as representing the law in this State insofar as it requires an offender charged with stealing as a servant to demonstrate exceptional circumstances before any term of imprisonment can be suspended as such a requirement is contrary to the approach taken by the High Court to the consideration of suspended sentences in Dinsdale (2000) 202 CLR 321. The application of Barrick in the appellant's case deprived him of the opportunity to have the question of suspension of any sentence of imprisonment properly considered.
4. In the alternative, the sentence of 30 months imprisonment was manifestly excessive having regard to the factors mention in ground 1 and when compared to sentences imposed in other more serious cases."
19 In his affidavit filed 5 December 2006, Mr Young deposes that the appellant suffered a heart attack in June 2006 and was hospitalised. He attaches to his affidavit annexures, being a discharge summary and letter from Sir Charles Gairdner Hospital dated 20 June 2006, a report from Western Cardiology dated 4 August 2006 and a report from the Lindisfarne Medical Group dated 17 October 2006. In short, they evidence that the appellant was discharged from the Cardiovascular Unit
(Page 7)
- on 18 June 2008 and remained an inpatient for two days. He had suffered a myocardial infarction. Other conditions diagnosed included depression and hypercholesterolemia.
20 The letter dated 20 June is from a medical social worker at the hospital. It is addressed to the Listings Clerk at the District Court, advising that the appellant was to be discharged that day and should not be placed under undue stress for a recovery period of about four weeks. He wrote that the appellant was not medically able to attend court and requested a four week adjournment.
21 The letter from Lindisfarne Medical Group is really concerned with a suggestion that medication was being (or would be) withheld from him at Hakea Prison. Dr David Hoffman wrote that the appellant's medication should not be withheld in prison and that he may suffer serious and possibly life-threatening complications of ischaemic heart disease if they were.
22 Mr Young also annexed to his affidavit documents relating to the psychiatric illness suffered by the appellant's partner ("G").
23 A report written in July 2006 notes that G was then a 35-year-old man who, after leaving school, had worked as a travel consultant for many years. He then joined a Commonwealth Government agency for six months but left because he found the job stressful. He joined a Commonwealth Department for six months as a customer service advisor. Following the appellant's heart attack on 18 June 2006, G was left feeling very depressed and anxious and was experiencing thoughts of self-harm. He himself had two weeks off work following the appellant's heart attack and although he returned to work, he was not coping and had to be returned home. He has experienced psychiatric problems in the past and is described as a "vulnerable person". He ceased work with the department in June 2006. The report notes that at that stage he had thoughts of self-harm and his ability to cope was very poor. It describes generally, symptoms of serious depression. He is on medication and has been for the last five years. The report opined that he was totally incapacitated for all forms of work, that he required specific psychiatric treatment and that psychiatrically speaking, he was suffering from a major depressive disorder with prominent symptoms of self-harm and anxiety.
24 There is a letter from Lindisfarne Medical Group (Dr Colleen Bradford). She notes that the appellant has played a pivotal role in providing emotional and physical support to G over many years. He has
(Page 8)
- been able to assist with the stabilisation of G's mood by dispensing his medication daily, and with the control of G's paranoid thoughts by talking him through them to a more logical conclusion. The appellant has over the years been not only G's partner, but also his carer. She states that since the appellant has been incarcerated, G has been struggling to maintain control of his suicidal thoughts and at one time did act on them, leading to another admission to hospital. She states that with the support of his mother and a friend and weekly consultations with her, he was released, but the situation is far from ideal. He has been referred to a mental health team but at the date of writing, was still awaiting an appointment with the psychiatrist. She says that G requires daily medication administration and ongoing emotional support to assist with the stabilisation of his mood and the reduction and control of any paranoid thoughts. The appellant was previously providing this care with no cost to the government and currently without it G is struggling.
25 Also attached to Mr Young's affidavit is a detailed letter from G and a reference from Ms Denise McGrath. I have read those, but it is not necessary to refer to them in any more detail here.
26 The appellant was sentenced to an aggregate term of 2 years 6 months' imprisonment with effect from 10 October 2006. He will become eligible for parole on 9 January 2008.
27 It is reasonable to anticipate that his appeal could be listed for hearing in March, April or May 2007. By that time he would have served 5 to 7 months, that is about one-third of his non-parole period. Unless his appeal were to succeed to the extent of having a suspended sentence substituted for the term of immediate imprisonment, I would not regard that, either alone or in combination with the other circumstances relied upon, as constituting exceptional reasons. That is because even were he to succeed in having his sentence halved (which I would consider unlikely), he would still not be eligible for parole as at the hearing of the appeal. For that reason the numerous authorities referred to by the appellant and to be relied upon on the appeal, going to ground 4, do not bear particularly on the application for bail, as Mr Young acknowledged.
28 So the prospect of success bears critically on this application as one which looks to the substitution of a suspended sentence. I need to consider whether that is the most likely outcome of the appeal.
(Page 9)
29 The appellant pleaded guilty to 75 counts on an indictment containing 85 counts. The State accepted those pleas in satisfaction of the indictment. Count 1 to 10 inclusive were discontinued.
30 The facts as found by the sentencing Judge may be taken from his sentencing remarks at t/s 46.
31 The complainant was Kemtron Holdings Pty Ltd ("Kemtron"), trading as Peet & Fletcher Real Estate Agents. That was a company owned and operated by Mr David Reynolds for about 20 years. The appellant was employed by Kemtron as a strata manager from about April 1998 until he retired in early September 2000. He resigned of his own account and it was sometime before these offences came to light.
32 For the everyday operation of the business, Kemtron operated two trust accounts. One was a sales and property management account which was used as the general account. The other was a strata management trust account which was used for payments relating to the management and maintenance of strata properties.
33 The only authorised signatories to those two accounts were the company director David Reynolds and his son Joshua Reynolds.
34 The sentencing Judge noted that in the appellant's video record of interview with the police, he claimed to have the belief that he was an authorised signatory and that David Reynolds was aware he had signed cheques. His Honour thought it sufficient to say that did not accord with David Reynolds' deposition and was not consistent with the signature card at the bank. In the end, however, his Honour thought nothing turned on that discrepancy as to the facts.
35 Between 25 October 1999 and 4 September 2000, some 10½ months, the appellant drew and signed 75 cheques from the strata management account. The total amount of those cheques was $56,507. The individual amounts ranged from $350 to $2300. He deposited the cheques into a Commonwealth Bank account held jointly in his name and that of G.
36 A large number of the cheques were made out to G's name and just a few were made out to the name of the appellant.
37 The complainant's records indicate that between 25 October 1999 and 12 May 2000, the cheques were recorded as blank payments; however, between 12 May 2004 and September that year, they were recorded as being payments to legitimate parties.
(Page 10)
38 The offending subsequently came to light when one of the strata companies managed by Kemtron complained of a discrepancy relating to its final account. An amount of money had been paid out of the account but the claimed work had not been done. No valid invoice for the work could be located. Mr Reynolds was forced to refund the money. When Kemtron's accounts were subsequently audited, the full extent of the appellant's offending came to light.
39 On 2 July 2004 the appellant took part in a video record of interview with officers of the police Major Fraud Squad. He made a number of admissions, including that he had signed all the cheques and deposited them to the joint account. He also said that G had no knowledge of these offences - the appellant had told him the payments were for work he had completed and for bonuses he had claimed to have been entitled to receive.
40 His Honour noted that in relation to the bonuses, the appellant's counsel had suggested that what the appellant did was an attempt to "even up the ledger" with his employer. He was working long hours and Mr Reynolds was not paying him for what the appellant said was a bonus scheme for running meetings, site visits, effecting insurance renewals and other things. So what the appellant did was to simply take what he claimed was rightfully his. That was obviously done without the knowledge or authority of Mr Reynolds.
41 As his Honour said, that was wrongful and in his view the appellant well knew that to be the case; as his Honour asked rhetorically, otherwise why were so many of the cheques made out to his partner G? He could not possibly have done all the hours of work for the amounts the appellant paid to his name.
42 In his video record of interview, the appellant indicated the money had been used for paying bills and personal expenses and "a few trips to Bali". Kemtron was reimbursed by the Bank an amount of $11,799. His Honour noted that given the appellant's circumstances, there would seem to be little likelihood of the balance being recovered.
43 His Honour then turned to the appellant's personal circumstances, commencing with the observation that he was at that time 48 years of age and had been 42 years old at the time of the offending. He referred to the unfortunate childhood circumstances of the appellant and his upbringing in a Barnardo's home. The appellant subsequently served in the merchant navy, relocating to Australia in 1977; since then he has lived in Perth. He
(Page 11)
- had been in consistent employment for some 11 years, was engaged as a youth worker in the community and for some 10 years prior to his employment by Kemtron, was involved in the real estate industry.
44 His Honour referred to the appellant's state of health and in particular that recently he had succumbed to a heart condition. He referred to the contents of the medical documents which I have already mentioned, from Sir Charles Gairdner Hospital, the cardiologist and the general practitioner.
45 His Honour noted the appellant had no prior relevant history of offending. He acknowledged the pleas of guilty, but observed that the plea was not a "fast-track plea" but had taken a long and agonising course to get to that point. He then referred briefly to that process. He accepted that the pleas of guilty must be taken to indicate remorse and did assist in the administration of justice and accordingly some discount had to be given to reflect those considerations.
46 His Honour referred to G's health problems and the fact that he is a person at risk.
47 Turning to the submissions put to him by counsel, his Honour referred to the submission by the appellant's counsel that if a custodial sentence was to be imposed, it should be suspended. His Honour referred to the various matters which had been advanced in support of that. He also referred to decisions of the Court of Appeal dealing with sentencing for this type of offence. He stated that (t/s 52):
"In general, 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. This is because general deterrence to prevent breaches of trust is a major consideration in such cases."
48 His Honour then referred to Barrick (1985) 81 Cr App Rep 78, which he said had been frequently referred to in this context, and his Honour quoted the following passage from the judgment of Lane LCJ, giving the judgment of the Court of Appeal, at 81 - 82:
"It is, we appreciate, dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. In the hope that they may be helpful to sentencers generally, and may lead to a little more uniformity, we make the following suggestions.
(Page 12)
- In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide.
… In any case where a plea of guilty is entered however the Court should give the appropriate discount. It will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence.
49 His Honour then made reference to the submissions made on behalf of the State. He then adverted to particular considerations and said he had come to the conclusion that only a sentence of imprisonment to be immediately served would be appropriate to reflect the seriousness of the offending and to indicate general deterrence for this type of offending. He then said:
"Your circumstances are not exceptional and are not such that I should suspend any part of the sentence."
- After making some further brief observations he imposed the sentences referred to.
50 At the hearing of the application for bail, Mr Young called G's mother to give evidence.
51 She deposed that G has been the appellant's partner for 18 years.
52 G has always had mental problems and as a consequence, difficulties mixing with originally other children and subsequently adults and has always been one to be very withdrawn. As a consequence of his difficulties, he was bullied at school and found it very difficult growing up.
53 He was not formally diagnosed with his mental illnesses until the appellant suffered his heart attack. Following that, G went into a manic state, suffered major depression and panic attacks and had a complete breakdown.
54 G's mother said that only the appellant knew how to handle G; even she does not.
(Page 13)
55 She related an incident in which G attempted suicide in his car but the appellant discovered him and took him to hospital which saved his life. It was whilst he was in hospital that G was seen by a psychiatrist. He diagnosed that G was bipolar.
56 G is on a considerable amount of medication. He cannot cope daily; his mother described it as "a nightmare" every day.
57 G had a part-time carer for a while. That resulted from him making another attempt on his life some five weeks earlier as a result of which he was again taken to hospital and a friend of his mother who happens to be a nurse assisted her and agreed to be his part-time carer. However, over the following five weeks she found it very difficult to handle G's mood swings and finally got to the point of simply leaving him to take his medication.
58 Prior to his imprisonment, the appellant was financially supporting both of them. G is not allowed to work because of his psychiatric illness. As a consequence, G's mother is now paying the rent and bills.
59 Asked what the situation would be if the appellant were released to bail, but subsequently his appeal was dismissed and he had to return to prison, she said that having him home with G now would give them all an opportunity to put something in place. It takes time to do that. Neither G nor his mother had any idea that the appellant would go to gaol and did not have an opportunity to sort things out to cover that.
60 Most of the information concerning the appellant and his partner, and in particular the effect of the appellant's incarceration on his partner, was before the sentencing Judge. The evidence of G's mother, as it was adduced on this application, was additional. It bears on whether or not exceptional reasons have been demonstrated and it also potentially bears on the possible merit of the appeal itself. I say potential, because leave would be necessary to adduce additional material before the Court of Appeal, although if it gets to the point of resentencing, the Court would be entitled to take into account matters which had arisen since the original sentence was imposed (s 31(2) Criminal Appeals Act 2004 (WA)). However, there are limits on the extent to which the effect of an offender's incarceration on others can be taken into account as a proper reason for reducing an otherwise appropriate sentence (see, eg Stewart (1994) 72 A Crim R 17, 19; Madoc v The Queen, unreported; CCA SCt of WA; Library No 930351; 2 June 1993; Thill v Ryan, unreported; CCA SCt of WA; Library No 920689; 18 December 1992; R v Szathmary, unreported;
(Page 14)
- CCA SCt of WA; Library No 7672; 24 May 1989; Warrell v Kay (1995) 83 A Crim R 493, 499 - 500; Webb v Baldwin, unreported; CCA SCt of WA; Library No 970019; 17 January 1997). The circumstances of the dependant would ordinarily have to be truly exceptional before that factor could have any worthwhile ameliorating effect on sentence; even then, while it might operate on a decision whether or not to impose a custodial sentence at all, it would not often persuade a court to make a lengthy sentence shorter (Burns (1994) 71 A Crim R 450 per Anderson J at 455; but cf Van de Heuval (1992) 63 A Crim R 75).
61 Save for taking those constraints into account in assessing the likely prospect of success of the appeal, I do not consider those constraints bear upon demonstrating exceptional reasons. That an especially vulnerable family member is dependant primarily on the appellant for emotional and medical support in the way indicated by the evidence here, is a significant factor. The greater the force of that factor, then to a point, the more it would be possible to accept that a lower prospect of success might, in combination with it, constitute exceptional reasons. It must be a question of balance to some extent, when a court is assessing the prospect that a sentencing error may eventually result in a conclusion that an appellant ought not to have been sentenced to imprisonment at all. Any inappropriate or wrongful incarceration is against the interests of justice; but that may be even more so where particularly serious consequences to an appellant or others follow as a result. As I have already mentioned, the need for balance comes from the countervailing consideration that unless the appellant succeeds to the extent that he or she becomes entitled to immediate release on the determination of the appeal, there can have been no injustice in his or her continuing incarceration pending that outcome, no matter how serious the consequences of that incarceration.
62 It is convenient at this point to deal with ground 3. That arises out of his Honour's remarks at t/s 52 - 54 in relation to Barrick. It is his Honour's observations at t/s 54 about the appellant's circumstances not being exceptional which founds ground 3.
63 Barrick has been referred to with apparent approval in a number of decisions of the Court of Criminal Appeal in this State, including Carreras (1992) 60 A Crim R 402; Shepherd v The Queen, unreported; CCA SCt of WA; Library No 920397; 21 July 1992; Birch (1993) 69 A Crim R 181; R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996; Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 and R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998.
(Page 15)
64 However, those authorities do not appear to take Barrick as predicating a rule or principle of sentencing, that in cases of stealing or fraud by a servant a term of immediate imprisonment is inevitable, otherwise than in very exceptional circumstances or where the amount of money obtained is small. In Carreras, after referring to the particular passage from the judgment of the English Court of Appeal in Barrick set out above and the further following passage (which continues on at 82 from that previously quoted):
"… As already indicated the circumstances of cases will vary almost infinitely.
The following are some of the matters to which the court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police."
65 Murray J observed (Carreras, 407) that such factors are naturally considered in such cases by courts in this State. In Shepherd, Nicholson J (with whom Walsh and Murray JJ agreed) said (at 7) that reference to Barrick suggests an inevitability of a sentence of imprisonment in the context of an English environment.
66 I note that in Barrick itself the Lord Chief Justice expressly qualified what the Court was saying. His Lordship first observed that the Court appreciated it is dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case. Secondly, he described what followed as "suggestions". Thirdly, he qualified the comment that a term of imprisonment is inevitable, by the prefatory word "generally".
(Page 16)
67 It may well be that the Court of Appeal would conclude that the sentencing Judge here applied Barrick and the Western Australian authorities which appear to have followed it, on the understanding that the law is that a suspended sentence cannot be given unless exceptional circumstances are shown.
68 If the Court of Appeal were to make that finding, there would then be a very strong prospect the Court would hold that to be a wrong view of the law, given that the only restriction in s 76(1) of the Sentencing Act 1995 (WA) upon the circumstances in which a suspended sentence may be imposed, is that it cannot be done where the term is more than 5 years, and having regard to the approach articulated by the High Court in Dinsdale v The Queen (2000) 202 CLR 321.
69 But even assuming all that would not necessarily lead to a conclusion that the appeal would succeed. That is because the Court of Appeal may allow an appeal against sentence only if persuaded a different sentence should have been passed (s 31(4)(a) of the Criminal Appeals Act). Presumably that is why the appellant relies upon ground 1.
70 As to that ground, I am not persuaded the Court of Appeal would most likely conclude the factors set out in particulars (a) - (e) inclusive, necessary operated such that it was not reasonably open to his Honour to impose a term of immediate imprisonment. Furthermore, even were the Court to conclude that the trial Judge had made an error of principle as asserted by the appellant, and therefore find enlivened that Court's discretion to resentence, there cannot in my view be said to be a strong prospect that the Court would most likely conclude a suspended sentence ought to be imposed. As the appeal has yet to be heard, it is, I think, inappropriate for me to give any detailed reasons for those conclusions, which of course, are provisional and made only for the purposes of this application.
71 In conclusion, I am not persuaded that the factors relied upon by the appellant either individually or in combination, constitute exceptional reasons why he should not be kept in custody pending his appeal.
72 That being so, the application must be dismissed.
73 The orders will be:
(1) Application for extension of time for filing the appeal notice will be granted; the time will be extended to 10 November 2006.
(2) The application for bail is dismissed.
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