Colwell v The State of Western Australia
[2012] WASCA 149
•1 AUGUST 2012
COLWELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 149
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 149 | |
| THE COURT OF APPEAL (WA) | 01/08/2012 | ||
| Case No: | CACR:114/2012 | 29 MAY 2012 | |
| Coram: | MAZZA JA | 29/05/12 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NEIL PATRICK COLWELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail pending appeal Turns on own facts |
Legislation: | Bail Act 1982 (WA), cl 4A sch 1 pt C |
Case References: | Shrivastava v The State of Western Australia [2010] WASCA 96 Tieleman v The Queen (2004) 149 A Crim R 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : COLWELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 149 CORAM : MAZZA JA HEARD : 29 MAY 2012 DELIVERED : 29 MAY 2012 PUBLISHED : 1 AUGUST 2012 FILE NO/S : CACR 114 of 2012 BETWEEN : NEIL PATRICK COLWELL
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCHOOMBEE DCJ
File No : IND 1637 of 2010
Catchwords:
Criminal law - Application for bail pending appeal - Turns on own facts
(Page 2)
Legislation:
Bail Act 1982 (WA), cl 4A sch 1 pt C
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr G W Massey
Respondent : Ms S H Linton
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Shrivastava v The State of Western Australia [2010] WASCA 96
Tieleman v The Queen (2004) 149 A Crim R 303
(Page 3)
- MAZZA JA:
(This judgment was delivered extemporaneously on 29 May 2012 and has been edited from the transcript.)
1 The appellant has appealed against the sentence of 2 years 6 months' immediate imprisonment imposed upon him in the District Court by Judge Schoombee on 6 December 2011.
2 The appeal was filed out of time on 7 May 2012. The appeal is at an early stage. The appellant has not filed an appellant's case, but a draft case has been prepared which I have read. The question of leave to appeal has not been determined.
3 By application also filed 7 May 2012 the appellant seeks orders:
(a) that he have leave to appeal out of time;
(b) for bail pending appeal pursuant to cl 4A sch 1 pt C of the Bail Act 1982 (WA);
(c) to admit evidence at the hearing of his appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA); and
(d) for an urgent appeal order pursuant to reg 69 of the Criminal Procedure Rules 2005 (WA).
4 These reasons concern the appellant's application for bail pending appeal or, alternatively, an urgent appeal order. The balance of the application, subject to anything counsel might say later, will be referred to the hearing of the appeal, subject to a grant of leave to appeal.
5 The background to the proceedings is as follows. On 21 October 2011, the appellant pleaded guilty on the fast-track system to two counts of stealing by direction, an offence which carries a maximum penalty of 10 years' imprisonment. The facts of these offences may be shortly stated. At all material times, the appellant was an accountant and tax agent who conducted an accounting business called Sotheby's Pty Ltd.
6 In respect of count 1, between 18 July 2007 and 31 December 2009, one of the appellant's clients transferred to Sotheby's trust account sums totalling $50,550.33, with a direction that those moneys be paid to the Australian Taxation Office. Contrary to that direction and during that period the appellant used the money to cover various debts for which he was liable.
(Page 4)
7 With respect to count 2, the appellant agreed to complete the monthly payroll wages, tax summaries and quarterly business activity statements for another client. Upon completion of this work, the appellant advised the client of the moneys that were owed by it to the Australian Taxation Office, the State Revenue Office and employees' superannuation funds. Between 25 September 2011 and 3 February 2010, moneys totalling $2,449,384.23 were transferred to the Sotheby's trust account, with a direction that the moneys be paid to the Australian Taxation Office, the State Revenue Office and the superannuation funds.
8 Of the total moneys transferred into the trust account, $909,192.81 was not paid as directed. Instead those moneys were used by the appellant for his own purposes. The total amount stolen by the appellant was $959,743.14.
9 On 16 April 2010, the appellant voluntarily attended at the major fraud squad where he participated in a video-recorded interview in which he made full admissions. In due course he was charged.
10 The offences are unquestionably serious. They involved a serious abuse of trust over a substantial length of time. The total amount stolen was significant. The effect upon the victims was also significant. General deterrence was required.
11 There is no dispute that the appellant suffers from a condition called hereditary spastic paraparesis (HSP). HSP is a genetic neuralgic disorder which progresses over time. The disease affects the mobility of the lower limbs and muscle and causes muscle spasticity and pain. At the time he was sentenced, the appellant's mobility was very restricted. He could walk only a very short distance and was otherwise confined to a wheelchair.
12 The learned sentencing judge was provided with a report by the appellant's consultant neurologist, Professor Allan Kermode, dated 13 December 2010. Her Honour accepted that the appellant was, at the time of sentencing, in need of regular medical review via a consultant neurologist and a consultant rehabilitation specialist and that he should undergo regular stretching and physiotherapy. It was Professor Kermode's opinion that hydrotherapy was the best way for the appellant to stretch.
13 Professor Kermode reported that the appellant's disease may progress to affect his upper limbs and bladder and bowel control. His view was that without appropriate intervention and neurological assistance, the
(Page 5)
- appellant was likely to become significantly more disabled. The appellant's health was an issue of considerable relevance to his sentencing.
14 Another associated relevant question was: how would the appellant's condition be treated in the event that he was imprisoned? With respect to this issue, the learned sentencing judge heard oral evidence from Dr Roslyn Carbon, the director of health services of the Department of Corrective Services. She is responsible for the provision of health services to prisoners in Western Australia.
15 It is unnecessary to refer to her evidence in detail. The learned sentencing judge accepted Dr Carbon's evidence which, in general, was to the effect that the appellant would be provided with all necessary services required to properly treat his condition: ts 85.
16 There is no question that her Honour regarded the appellant's ill health as mitigatory. Her Honour accepted that it was likely to make imprisonment more difficult for the appellant and would be a greater hardship for him. However, her Honour noted that his debilitating physical condition did not mean imprisonment was an inappropriate sentence. She correctly pointed out that it was the responsibility of the prison authorities to provide proper care and she referred to Dr Carbon's evidence to the effect that the prison system was able to do so.
17 Her Honour acknowledged that the appellant may not receive what she described as 'the top end of treatment', but only such treatment that is considered to be 'absolutely necessary': ts 88.
18 Her Honour imposed immediate terms of imprisonment of 20 months on count 1, and 2 years and 6 months on count 2. Her Honour ordered that the sentences be served concurrently with each other to reflect totality. Thus the total effective sentence imposed upon the appellant was 2 years and 6 months' imprisonment. The appellant was made eligible for parole.
19 The appellant's counsel, Mr Massey, frankly conceded before me that on the basis of the evidence presented to the learned sentencing judge, the total effective sentence reflected a sound exercise of her Honour's sentencing discretion.
20 However, the appellant's sole ground of appeal contends in effect that the additional evidence which the appellant wishes to adduce shows that the prison health services have not provided the level of care which
(Page 6)
- was predicted in Dr Carbon's evidence to the sentencing judge and consequently his HSP has deteriorated at a rate greater than was expected.
21 The appellant submits that a different sentence should now be imposed. See s 31(4) of the Criminal Appeals Act. That sentence, it is said, should be a suspended term of imprisonment with or without conditions or, at the least, a reduction of the total effective term of imprisonment imposed by her Honour.
22 The additional evidence which the appellant seeks to adduce is an affidavit by the appellant sworn 2 May 2012. That affidavit, in very broad terms, makes a number of allegations of inadequate treatment by those responsible for his care in the prison health service.
23 Perhaps the most important document contained in the many annexures to the affidavit is a report from Professor Kermode dated 10 April 2012. Professor Kermode examined the appellant on 19 March 2012 and found that his spasticity and mobility had deteriorated from the time that he had last seen the appellant in November 2011. Professor Kermode wrote:
Hereditary spastic paraparesis is a genetically determined disorder of paraparesis with a tendency to deterioration with increasing age. This deterioration, however, is gradual over many decades. His deterioration between November and March was significant and greater than would be expected as determined by the usual course of the disease. Therefore it may be concluded that this objective deterioration based both on his history but also the physical examination I performed on 19 March 2012 has occurred as a result of the incarceration.
This deterioration is likely to be secondary to a reduction in the total number of hours per week spent with physiotherapy and stretching, as well as a reduction in the total time of hydrotherapy.
An additional aspect is that it was planned to undertake a therapeutic trial of intrathecal baclofen as this would be the conventional approach with a patient at this stage of hereditary spastic paraparesis. This therapeutical trial and intervention that would otherwise be performed has been deferred until such time as his release from prison.
24 The drug baclofen which is referred to by Professor Kermode relieves spasticity and reduces its spread. Professor Kermode continued:
From my observations and from what I have been told by Mr Colwell, the prison is able to safely care for Mr Colwell and efforts have been made to accommodate his illness. However, this is a complex and difficult to manage condition with a high care and medical burden and the care he is
(Page 7)
- receiving within the prison system is below what the patient would receive in the community.
25 In response to the appellant's affidavit, the respondent filed an affidavit from Dr Cherelle Fitzclarence sworn 21 May 2012. Dr Fitzclarence is the deputy director of health services in the Department of Corrective Services. She has not been directly involved in providing the appellant's care and is not the appellant's treating medical practitioner. Her affidavit was derived from information she received from departmental staff and her perusal of the appellant's records.
26 She did not refer to Professor Kermode's report of 10 April 2012 and may not have seen it. The effect of her report is that the department has endeavoured to provide the appellant with adequate treatment to a level at or better than community standards, but she says that the appellant has not completely cooperated in his own treatment. Neither the appellant, Professor Kermode or Dr Fitzclarence was required for cross-examination.
27 I now turn to the relevant legal principles with respect to bail pending appeal. Clause 4A of the first schedule of pt C of the Bail Act provides:
In deciding whether or not to grant bail to an accused who is in custody waiting for the disposal of appeal proceedings, the judicial officer shall consider whether there are exceptional reasons why the accused should not be kept in custody and shall only grant bail to the accused if satisfied that (a) exceptional reasons exist and (b) it is proper to do so having regard to the provisions of, in the case of an adult, clauses 1 and 3.
28 The focus in these proceedings was whether exceptional reasons exist for the grant of bail. Mr Massey submitted that the evidence the appellant seeks to adduce shows that the appellant's health has significantly deteriorated and that the prison health services are not properly caring for him. In effect, he argued that the appellant's longer term health is at risk of being seriously compromised if he remains in custody. It is said that the appeal has strong prospects of success and that these circumstances are sufficiently exceptional to justify a grant of bail pending appeal.
29 Ms Linton on behalf of the respondent took issue with much of the appellant's affidavit and submits that the appellant has not demonstrated exceptional reasons for a grant of bail pending appeal. In Tieleman v The Queen (2004) 149 A Crim R 303 [15], Murray J said that the word 'exceptional' in cl 4A denoted that the thing to which it is applied is
(Page 8)
- unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case.
30 While this is so, the inquiry as to whether exceptional reasons exist must be centred on the merits of the appeal. Practically speaking, if an appeal has little or no merit, there will generally be no point in releasing an appellant from custody, only for him or her to be returned there in due course.
31 The cases have used a number of formulations as to the merits of an appeal which may constitute 'exceptional reasons'. In Shrivastava v The State of Western Australia [2010] WASCA 96, I discussed some of these cases and concluded that exceptional reasons require at least that the appellant demonstrate that the appeal has strongly arguable grounds. This is so, it seems to me, even in a case involving the ill health of an appellant.
32 Of course, any view concerning the merits of the appellant's appeal is at this stage tentative and must not be seen as in any way fixed or final. I am not yet persuaded that the appellant's grounds of appeal are strongly arguable. I have come to this view for two reasons. First, although the opinion of Professor Kermode concerning the deterioration of the appellant's health between November 2011 and March 2012 is unchallenged, the reasons for the deterioration are disputed. There are some conflicts in the evidence on this point, between the appellant, on the one hand, and Dr Fitzclarence, on the other. Those conflicts cannot be resolved at this stage on the affidavit evidence.
33 Second, the appellant's offending was, as I have said, unquestionably serious. The total effective sentence imposed by the learned sentencing judge was plainly lenient. In light of the seriousness of the offending and notwithstanding the mitigating factors, including the appellant's ill health, it is not, at this stage, strongly arguable that the appellant will receive, even if his appeal were successful, a suspended term of imprisonment.
34 To sum up the position, I have not been persuaded that exceptional reasons exist for a grant of bail pending appeal. This part of the appellant's application must be dismissed. However, I have been persuaded to make an urgent appeal order. I do so because the evidence indicates that there has been a deterioration in the appellant's health which to my mind is sufficient to justify such an order, even though I recognise that there has been a delay in bringing the appeal.
3
2
1