David John Welch v The Queen
[2011] ACTCA 19
DAVID JOHN WELCH v THE QUEEN
[2011] ACTCA 19 (22 September 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – bail pending appeal – need for special or exceptional circumstances – no special or exceptional circumstances shown – application for bail refused.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – stay or suspension of sentence – principles for stay or suspension – preference to proceed by way of bail.
Court Procedures Rules 2006 (ACT), r 4733
Bail Act 1992 (ACT), s 9E
Bail Act 1978 (NSW), s 30AA
Bail Act (NT), s 23A
Bail Act 1982 (WA), Sch 1 Pt C cl 4A
Crimes (Sentencing) Act 2005 (ACT), s 78
Sherd v The Queen [2011] ACTCA 17
Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1988) 52 NTR 13
Dwyer v National Companies & Securities Commission (No 2) (1988) 15 NSWLR 285
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
The Annot Lyle (1886) 11 PD 114
Griffiths v Australian Postal Commission (1987) 87 FLR 139
Henderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66
Ex parte Maher [1986] 1 Qd R 303
R v Collins (1986) 41 SASR 208
Brown v The Queen [1979] Tas R 304
Re Zoudi (2006) 14 VR 580
United Mexican States v Cabal and Ors (2001) 209 CLR 165
Eastman v The Queen (1997) 72 FCR 190
Abbott (1997) 97 A Crim R 19
The Queen v Giordano (1982) 31 SASR 241
Markovina v The Queen (1998) 72 ALJR 1522
Stevenson v The Queen (1984) 58 ALJR 422
Willers v The Queen (WACCA, Parker J, 64 of 1995, 7 June 1995, unreported)
Griffiths v The Queen (1977) 137 CLR 293
Tindall & Gunton (1994) 74 A Crim R 275
R v Todd [1982] 2 NSWLR 517
R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 20 of 2011
No. SCC 250 of 2010
No. SCC 35 of 2010
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 22 September 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 20 of 2011
) No. SCC 250 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 35 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID JOHN WELCH
Appellant
AND:THE QUEEN
Respondent
ORDER
Judge: Refshauge J
Date: 22 September 2011
Place: Canberra
THE COURT ORDERS THAT:
The Application in relation to bail dated 1 August 2011 be dismissed.
The Application in Proceedings dated 5 August 2011 be dismissed.
It be strongly recommended to the appropriate correctional authorities that they take all reasonable steps to ensure that the antiepileptic drugs prescribed for David John Welch are provided to him in accordance with the appropriate prescription.
The appeal be expedited and, so far as is practicable, heard in the Court of Appeal sittings in February 2012.
IN THE SUPREME COURT OF THE ) No. ACTCA 20 of 2011
) No. SCC 250 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 35 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID JOHN WELCH
Appellant
AND:THE QUEEN
Respondent
Judge: Refshauge J
Date: 22 September 2011
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
When appearing for sentence before Nield AJ on 12 May 2011, David John Welch, the appellant, faced five charges of violence arising out of two incidents which occurred about two and a half years apart.
The first incident occurred at the Kaleen Indoor Sports Club on 9 June 2007 where Mr Welch was drinking with a companion. During the evening there was an altercation with the club’s security officer and another patron, resulting in Mr Welch being charged with four offences. He was committed for trial on 28 January 2010 to the Supreme Court and the usual pre-trial preparation was conducted.
On 26 October 2010, a fresh indictment was presented, containing only two counts of assault occasioning actual bodily harm and Mr Welch pleaded guilty to them. The proceedings were adjourned for sentence to 9 February 2011 and then a number of times and, on 12 May 2011, he was sentenced by Nield AJ for the first of these offences to imprisonment for a period of six months from 28 March 2011, to take into account periods of pre-sentencing custody, and for the second offence to imprisonment for one year and two months to commence on 28 June 2011, that is to be cumulative as to three months on the first sentence.
The second incident occurred on 13 March 2010, when there was an altercation in Giralang and Mr Welch was involved with three other persons in an attack on the victims with weapons, hands and feet, leaving the victims bleeding from injuries to their faces and other parts of their bodies. He was charged with an assault. He was at the time on bail for the earlier offences.
On 8 July 2010, the Magistrates Court committed Mr Welch for trial on these offences. The usual directions and orders were given post-committal (see r 4733 of the Court Procedures Rules 2006 (ACT)). On 18 November 2010, he was arraigned on an indictment containing three counts of aiding and abetting the assault of each of three victims and pleaded guilty to each count. The proceedings were then adjourned to 9 February 2011 for sentence. That was the same date for sentence of the earlier matters and they then proceeded together. That is to say, there were a number of adjournments and the sentence on all counts was ultimately imposed on 12 May 2011.
Mr Welch was sentenced for the first of the offences relating to the incident on 13 March 2010 to imprisonment for one year and seven months to commence from 28 March 2012, that is to be cumulative as to one year and two months on the earlier sentences, on the second offence to imprisonment for two years to commence on 28 May 2012, that is to be cumulative as to seven months on the sentence for the first offence and on the third offence to imprisonment for one year and seven months from 28 August 2013, that is to be cumulative as to ten months for the second offence.
The total period of imprisonment was four years and his Honour set a non-parole period of two years and three months to commence on 28 March 2011 and to expire on 27 June 2013.
The Appeal
On 7 June 2011, Mr Welch appealed to this Court from the sentences that had been imposed. The grounds of appeal, set out in the Notice of Appeal were as follows:
(i)His Honour Acting Justice Nield erred in imposing a sentence that was manifestly excessive.
(ii)His Honour erred in that he either failed to take into account adequately, or at all:
(a)The appellant’s mental and physical health;
(b)The appellant’s pleas of guilty;
(c)The appellant’s significant contrition and remorse;
(d)The appellant’s prospects for reform and rehabilitation;
(e)The degree of responsibility of the appellant for the commission of the offences compared to the co-offenders.
(iii)His Honour erred in his sentence in each instance in that he failed to adequately take into account matters mandated by Section 33 of the Crimes (Sentencing) Act 2005.
(iv)His Honour erred in each sentence in that he placed weight on irrelevant material.
(v)His Honour erred in accumulating the sentences in such a way that resulted in a total sentence that is manifestly excessive.
(vi)His Honour erred in not ordering any term of imprisonment be served by way of periodic detention.
The Application
On 1 August 2011, Mr Welch’s lawyers filed in this Court an Application in relation to bail.
The Application was supported by a comprehensive affidavit made by his lawyer.
The uncertainty about whether the Court of Appeal had jurisdiction to grant bail and, if so, whether it could be granted by a single judge of the Court, led to Mr Welch’s lawyer’s filing a further Application in Proceedings on 5 August 2011, to seek a stay or suspension of the sentence, both powers expressly exercisable by a single judge.
In the event, I have decided in Sherd v The Queen [2011] ACTCA 17, that the Court of Appeal does have power to grant bail pending appeal and that this power can be exercised by a single judge of the Court.
I do not understand that, in that event, the Application, which seeks, in addition to the stay or suspension, the customary “[a]ny other orders that the Court considers appropriate”, would not be amenable to seeking bail for Mr Welch pending his appeal. In any event, the later Application did not render the former a nullity.
It also seems to me that, in any event, the approach that a court should take to a stay or suspension of sentence would be similar if not identical to the approach that is to be taken to a grant of bail. That is to say, were there sufficient grounds to justify a stay or suspension of the sentence that would justify a grant of bail.
Stays are usually granted in civil proceedings rather than criminal proceedings where bail is usually the mechanism for the stay or suspension. That may be for the reasons I have set out in Sherd v The Queen (at [9]).
Stay or Suspension
In civil proceedings, it is often said that a successful party should not be deprived of the fruits of a judgment that the party has obtained, but an appeal should not be rendered nugatory, so the power to stay enforcement of the judgment permits the courts to balance these interests: Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1988) 52 NTR 13 (at 16). There is, in addition to provision for a stay in the rules, an inherent power to prevent injustice and thus to permit the grant of a stay: Dwyer v National Companies & Securities Commission (No 2) (1988) 15 NSWLR 285 (at 287). This also pertains in the criminal jurisdiction: Chamberlain v The Queen (No 1) (1983) 153 CLR 514 (at 518).
Even in the civil jurisdiction, it has been said that the applicant for a stay must show “exceptional” or “special circumstances”: The Annot Lyle (1886) 11 PD 114 (at 116). It has, however, also been suggested that such a test may be considered too stringent: Griffiths v Australian Postal Commission (1987) 87 FLR 139 (at 141); Henderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66 (at 69).
In the criminal jurisdiction, however, it seems to me that the legislature has expressed a clear view that special or exceptional circumstances are required because that is the test expressed for bail pending appeal: s 9E of the Bail Act 1992 (ACT). This is the same test that is used throughout Australia. See s 30AA of the Bail Act 1978 (NSW); s 23A of the Bail Act (NT); Sch 1, Pt C, cl 4A of the Bail Act 1982 (WA); Ex parte Maher [1986] 1 Qd R 303; R v Collins (1986) 41 SASR 208; Brown v The Queen [1979] Tas R 304; Re Zoudi (2006) 14 VR 580; United Mexican States v Cabal and Ors (2001) 209 CLR 165; Eastman v The Queen (1997) 72 FCR 190.
It is, therefore, the test that should be applied.
Whether bail should be granted
I also set out in Sherd v The Queen, the considerations that the Court must have when determining an application for bail.
In brief, the applicant must show special or exceptional circumstances. These must address at least two issues, namely, whether the applicant for bail will have served all or a substantial portion of the custodial part of his sentence before the appeal can be heard and whether there are strong prospects of success of the appeal.
The grounds for bail are not limited to these matters, though, as set out in United Mexican States v Cabal and Ors (at 181-2; [41]), these are two conditions that must be addressed. However, as Gillard J said (at 27) in Abbott (1997) 97 A Crim R 19, “a court must consider the totality of factors put forward and consider the question [of] whether in all the circumstances they are exceptional”.
As King CJ said (at 243) in The Queen v Giordano (1982) 31 SASR 241:
It is unnecessary, and would be unwise, to attempt to compile a list of circumstances which would be regarded as exceptional. The totality of the circumstances must be looked at.
The period until the appeal
The Court of Appeal sits four times a year. The next sittings are in November 2011. They are presently fully allocated with appeal hearings and, even were I to expedite Mr Welch’s appeal, it could not be heard until the sittings in February 2012.
In my view, it cannot be said that an appeal heard in February 2012 would be an exercise in futility or that so substantial a part of the sentence will have then been served that bail is necessary to preserve the subject matter of the appeal.
In general terms, Mr S Whybrow, counsel for Mr Welch, did not contend otherwise. He did, however, submit that since Mr Welch claimed that the sentence should have included a direction that the period of imprisonment be served by periodic detention, the continued detention of Mr Welch in full-time custody in those circumstances did render the delay a special or exceptional circumstance.
It would, of course, be desirable for appeals to be heard promptly. The present resources of the Court do not permit any speedier dispatch of business. For example, the judicial resources do not permit two benches of the Court of Appeal to sit concurrently or that additional sittings be scheduled.
That Mr Welch’s appeal cannot be heard in November 2011 is regrettable but unalterable. It is an inescapable fact that full-time custody that has been already served cannot be restored; that is always so: Markovina v The Queen (1998) 72 ALJR 1522 (at 1523; [9]). It is also clear on the authorities that even if a successful appeal means that the appellant would not be liable for imprisonment at all, this is not in itself a special or exceptional circumstance: Stevenson v The Queen (1984) 58 ALJR 422.
There is nothing special or exceptional about when the appeal will be heard.
Prospects of success on the appeal
Mr Whybrow accepted that, where the only ground supporting the application for bail is the prospects of success of the appeal, then very strong grounds need to be shown.
I said in Sherd v The Queen (at [60]):
It is also worth noting that if the prospects of success of the appeal is the only basis for applying for bail, then the applicant is required to show that the appeal is ‘most likely to succeed’ which would be required to meet the test of exceptional circumstances: Tieleman v The Queen (2004) 149 A Crim R 303. Very strong grounds must be shown, sometimes referred to as ‘virtually certain of success’ (R v Waters (at 4018)) or ‘extraordinarily high prospects of success’ (R v Wilson (at 7)).
There were three issues principally addressed by Mr Whybrow, namely:
· the subjective circumstances of Mr Welch;
· the facts on which he was sentenced;
· an intimation that the imprisonment would be served by periodic detention.
I shall deal with each in turn, but relatively briefly. The assessment of the prospects of success on appeal is always problematic. As Parker J said (at 5) in Willers v The Queen (WACCA, Parker J, 64 of 1995, 7 June 1995, unreported)
The prospects of success of an appeal can only be viewed in a very preliminary and cursory manner on a bail application. The issues are viewed without benefit of full argument and without the reflection that is possible on a full hearing of the appeal. There is therefore reason for circumspection when assessing the prospects of success and the weight that should be attached to this consideration in any application for bail pending appeal.
Subjective circumstances(a)
It was clear from the Pre-Sentence Report that Mr Welch had a distressingly troubled childhood, where he was subject to significant physical and emotional violence from his father and he witnessed similar violence against his mother.
He co-operated extensively with the author of the Pre-Sentence Report in a way she described as “one of the best feedback that I’d got from him ... He had lots of information in there, much more than I’d ever received from anyone.” She verified the information about him attending various programs through which he was attempting to address anger management, unresolved issues with his upbringing and abuse of alcohol and drugs. She believed his attempts were genuine.
These views were complemented by a report from the Canberra Men’s Centre where Mr Welch had attended for counselling. He had completed the anger management program and was attending for individual counselling to address the other issues. The author expressed the opinion that:
... a custodial sentence would almost certainly have negative consequences in terms of deeper depression with attendant risk of suicidality and more importantly would negate to some extent the gains that Mr Welch has made in rehabilitating himself to be a responsible, moral and productive contributor to our society and within his own life
His assessment of his own situation was accepted by the author of the Pre-Sentence Report as “an unemotional and detached, objective assessment of himself.”
He had good support from his family and friends; his stepfather and sister were in court with him. His mother, who lived in Tasmania, remains in contact with him.
He had on his own initiative, no doubt triggered by his arrest for these offences, taken steps to address the contributors to his violent and anti-social behaviour. He was, as Mr Whybrow submitted, a very good candidate for rehabilitation from a violent and dysfunctional life.
I also had a report from the Canberra Men’s Centre dated 1 August 2011, which detailed ongoing contact with Mr Welch while he was serving his sentence. The report confirmed the considerable development that Mr Welch had made “in terms of moral responsibility, judgment and maturity.” It was also clear from it that he had continued to demonstrate those qualities whilst in custody. He carefully chooses his associates in custody to avoid drug taking, violence and other anti-social or criminal behaviour. He has continued his counselling and has been “able to retain energy towards his rehabilitation ... in spite of his incarceration.” He has engaged in a general education program.
He continues to suffer depression, which has been exacerbated to some extent by his incarceration. While applauding his continuing commitment to rehabilitation, the author expressed a fear that the circumstances of his incarceration “may impact on the very good progress Mr Welch was making, when previously on bail.”
It is also necessary to note that Mr Welch has a prior criminal history. It contains eighteen prior offences, mostly traffic offences, but including some dishonesty offences and, in particular, a conviction for recklessly inflicting actual bodily harm in 2008, the offence having been committed in October 2007.
All these matters are relevant to sentence. Prospects of rehabilitation can mitigate sentence. It is not suggested, nor could it sensibly be, that Nield AJ did not take that matter into account. He specifically mentioned Mr Welch’s rehabilitation efforts. Whether he made adequate provision in the sentence is a matter for argument.
Periodic Detention(b)
As required under s 78 of the Crimes (Sentencing) Act 2005 (ACT), the Pre-Sentence Report assessed Mr Welch for suitability for service of any imprisonment imposed by the court by periodic detention. The Report assessed him as unsuitable based on his statement reported as follows:
During a conversation with Mr Welch regarding Periodic Detention, he stated – ‘If I have to go to full time jail I feel I could cope with that better then if I have to do PD. I honestly feel that I would consider topping myself if I am sent there’.
During the sentencing hearing, his Honour remarked on that comment and noted that there was no psychiatric material before the court. His Honour then said:
... what I’m particularly concerned about is that if a prison sentence is appropriate and, Mr Whybrow, the starting point would be a prison sentence, he’s denied a useful alternative by reason of something about which I know nothing.
In part, this was addressed by some further questions to the author of the Pre-Sentence Report, who said in answer:
I based – my reasons for saying that he is unsuitable for periodic detention is that I took his – his words quite seriously. I built up quite a good rapport with David since the time he’s been with me and I took his claims of mentioning that he’s going to – he would top himself if he were sent to PD and I also took into account the fact that he has had, during his schooling years, an attempt at suicide, that’s what I was basing my facts on. I did verify with Mental Health that he attended Mental Health ...
... [i]n Belconnen. They actually suggested he did come into their service, however they didn’t seem – they didn’t feel the need to see him again because of his ongoing support in the community. However, I did take his claims of, you know, topping himself, killing himself if he was sent to PD and he said he would rather, for his own reasons, he would rather be in full time custody at the AMC rather than go to PD.
His Honour later said:
What I’m concerned about is, if it should be that for a man that involves himself with others in attacking people with baseball bats in 2010, now only 11 months ago and why it’s taken so long, I don’t know. But a number of people set upon the two victims, beating the two victims, or at least one of them, with baseball bats and metal poles – were there three victims, I’m sorry. Mr Welch is party to it. Now, that sort of offending is offending that the community just won’t tolerate. And offending that the community expects there be a salutary punishment.
And then when you top it off that three and a half years ago there were other offending of a similar kind, I’m worried that the only appropriate penalty is going to be imprisonment and yet, he’s not able to avail himself of periodic detention. So that’s what concerns me. Now, in the absence of a medical report, I’m left with half the detail.
His Honour then said:
Well, it’s not for me to tell you what to do, Mr Whybrow, but I wouldn’t like to go into a fight with one hand tied behind my back.
...
Yes, well it may well be, Mr Whybrow, that a report from a psychiatrist or a psychologist or even a general practitioner might be sufficient to have a different view taken as to periodic detention.
As a result, the proceedings were adjourned so that some of this material could be presented.
On the resumption of the proceedings, a Report from a psychologist was tendered. He formed the opinion, based on his detailed clinical assessment, that Mr Welch would achieve greater rehabilitation if he were sentenced to periodic detention for three reasons:
· it would disrupt his weekend association when and with whom he abused alcohol;
· he is in need of employment and achieving this on a full-time basis would significantly impede his former recreation involving alcohol;
· he is likely to be taken advantage of in prison, given his character leading to abuse but also undesirable associations when released.
A report from the Canberra Men’s Centre also addressed this issue. In it, the author notes that Mr Welch “knows that he cannot escape some form of punishment because of the serious nature of the offences. However, he hopes he does not receive a full custodial sentence as this will mean that his progress in life will to some extent ‘be put on hold’.”
An updated Pre-Sentence Report was also tendered which now assessed him as suitable for periodic detention.
Mr Whybrow submitted that the comments of his Honour had led Mr Welch reasonably to expect that if he tendered appropriate psychiatric or psychological reports, he would be directed to serve any imprisonment by periodic detention. It was, it appears to have been submitted, that this was similar to the situation where a Griffiths’ remand (see Griffiths v The Queen (1977) 137 CLR 293) is made, in which an indication of penalty is given dependent upon certain rehabilitation to be effected before sentence. As Hunt CJ at CL said in Tindall & Gunton (1994) 74 A Crim R 275 (at 276-7), where an adjournment is granted on the basis that if an expectation is expressed by a sentencer, the offender would have a justifiable sense of grievance if a more severe sentence than that expressed were to be imposed after compliance with the expectations.
In the sentencing remarks, his Honour was clearly mindful of the submissions that periodic detention was the sentence that Mr Whybrow was submitting should ultimately be imposed. The Crown’s submissions were not unsupportive. Crown prosecutor, Ms M Hunter, in her written submissions stated:
However, having said that, given the prisoners successful attempts to rehabilitate himself and the fact he continues to seek assistance with his violent behaviour management issues, it appears he may have turned a corner and it may be that the sentence can be served by way of either PD or full suspension with a community service aspect and good behaviour order or a combination of these sentencing options.
His Honour was aware of the rehabilitation that Mr Welch had undertaken but concluded that “frankly I am unable to say with any confidence that he is unlikely to re-offend”. His Honour referred to deterrence and the need for Mr Welch to “be told, loudly and clearly, that repeat offending will not be tolerated or condoned”.
His Honour later said:
I say at the outset, as I am required to say by s 10 of the Crimes (Sentencing) Act 2005, that I am satisfied, having considered all other possible alternatives, that the only appropriate sentences for the offences, committed by the offender are sentences of imprisonment, something conceded by the offender’s counsel as it is his submission, as I understand it, that the sentences should not be served on a full time basis, but rather on a periodic detention basis.
His Honour then addressed issues of concurrency and totality and after that said:
The question then arises whether the period of two years three months should be served on a periodic detention basis, in which case the period would not be called a non-parole period, or on a full time basis, in which case the period would be called a non-parole period. Not surprisingly, the offender’s mother and his mother’s partner believe that a sentence of imprisonment may undermine the steps taken by the offender towards his rehabilitation. Mr O’Brien, psychologist, has expressed the opinion, see Exhibit 9, that the offender, ‘would achieve greater rehabilitation if he was (sic) sentenced to weekend detention.’ Notwithstanding what the author of the pre-sentence report, see Exhibit D1, recorded when periodic detention was discussed by him with the offender, something denied by the offender, I expect that the offender, like anybody sentenced to imprisonment, would prefer to serve the sentence on a periodic detention basis, that is, weekend detention, rather than on a full time basis. Indeed, the author of the pre-sentence report, see Exhibit D2, records that the offender has now signed the undertaking to perform periodic detention if it is ordered. However, I do not accept that service of the sentences on a periodic basis is appropriate. If the assault upon Mr Mudge were the only offence committed by the offender, then service of the sentence of six months by periodic detention would be appropriate. However, the assault upon Mr Syed and the aiding of the assaults upon Mr Spence, Mr Connor and Mr Murphy are so serious offences that the sentences for them should be served on a full time basis, notwithstanding the steps taken by the offender towards, his rehabilitation.
It does not seem to me that his Honour ever suggested that were Mr Welch to satisfy him about his psychological situation, the inevitable sentence of imprisonment would be served by periodic detention. Indeed, it seemed that his Honour was concerned with Mr Welch’s counsel having full evidentiary material on which to promote his submissions in favour of periodic detention. While another construction of his Honour’s remarks may be available, it is arguable not inevitable.
Further, his Honour has adverted in detail to the reasons why his Honour did not consider periodic detention appropriate. Whether those reasons were sufficient to justify a sentence of full-time custody rather than periodic detention is a matter of argument.
Further, unlike the Griffiths’ remand, there was no rehabilitation or other conduct required of Mr Welch; this was merely the provision of additional evidence.
Finally, the reasons given in the psychologist’s report and in the letter from the Canberra Men’s Centre for preferring periodic detention to full-time custody are not really to be described as compelling.
While it is to Mr Welch’s credit that, as disclosed in the most recent report from the Canberra Men’s Centre, he is making appropriate use of his time in custody, which may be relevant on the appeal, it does not support the view that a full-time custodial sentence will interrupt or impede his rehabilitation.
It may be that a more detailed analysis of the proceedings could lead to a conclusion that his Honour erred in giving false expectations which he then failed to deliver, but this is no more than arguable.
Taking into account irrelevant considerations(c)
This ground related to the factual basis on which Mr Welch was sentenced. An Agreed Statement of Facts (the Agreed Statement), was tendered at the initial hearing on 9 February 2011.
The persons that Mr Welch was charged with aiding and abetting in the assaults were separately sentenced by his Honour, Nield AJ. They appeared before his Honour separately. They were charged with assault occasioning actual bodily harm of the three victims. They appeared in court for sentencing submissions on 3 May 2011. A separate Statement of Facts (the Separate Statement), with, it appears, some differences to the facts in the Agreed Statement was tendered, and the prosecution relied on it for those offenders.
It was submitted that his Honour, in fact, was influenced inappropriately by that Separate Statement when, of course, it was not before his Honour in the sentencing of Mr Welch.
The Separate Statement, used in the prosecution and sentencing of the other offenders, does give more detail of Mr Welch’s involvement in the events leading up to the assaults. It was submitted that the facts stated in the Separate Statement showed that Mr Welch played a more prominent and, perhaps, culpable, part in the events than was stated in the Agreed Statement of Facts tendered at his sentencing.
The difficulty with this submission is that the summary of the facts in his Honour’s reason is entirely consistent with the Agreed Statement. It does not, so far as I was able to ascertain, contain any facts not in the Agreed Statement or any facts from the Separate Statement used in the other proceedings.
Mr Whybrow referred to the fact that, in the proceedings in respect of the other offenders, photographs of the injured victims had been tendered and which his Honour would have seen. No such photographs were tendered in the proceedings against Mr Welch. He tendered the photographs in this Application so that I could see them. They did show, graphically, bruises, welts, cuts and abrasions on the victims.
Victim Impact Statements were, however, tendered by each of the victims. They described injuries entirely consistent with the photographs. It is to be expected that a judge experienced in the criminal law, as his Honour is, would understand the description of such injuries, including what they represent, and would not be inappropriately affected by photographs. There is no reference to photographs in his Honour’s Remarks on Sentence. The victims were obviously severely beaten and suffered painful and significant injuries. Experienced judges are expected to be able to set aside material they have viewed which must be ignored because irrelevant or inadmissible.
Mr Whybrow submitted that, between 9 February 2011, when sentencing submissions were made and the remarks about periodic detention referred to above (at [45] to [48]) were made and the imposition of sentence on 12 May 2011 there was a “sea change” in his Honour’s attitude to the seriousness of the offences.
That is, in itself, a matter for argument; it is by no means clear to me from having read the material tendered on this Application. If so, that the sentence imposed on Mr Welch was improperly influenced by what his Honour had read or seen in respect of the other offenders is by no means clear. Mr Welch may indeed convince the Court of Appeal of that after full and careful argument, but at this stage, it is at best arguable and does not rise to the level needed to justify a grant of bail on the ground of strong prospects of success in the appeal.
Other matters(d)
Mr Whybrow did refer to some other matters. He noted that Mr Welch had voluntarily made significant efforts to promote his rehabilitation. This is clearly so and he is to be strongly commended for that and to be given due credit for it. The court should, within proper limits, support such efforts.
He noted that Mr Welch had an offer of employment. That is clearly not a special or exceptional circumstance.
He noted, as I have earlier (at [40]), that he has not “slipped back” despite spending over 120 days in custody so far, including pre-sentence custody, though this was not continuous with the sentence. This is also to be commended.
The prosecution for the first group of offences was much delayed. The offences were committed on 9 June 2007. It appears from the materials before me that the summonses in respect of them were not issued until 24 June 2009. No explanation was provided for the delay of over two years. Delay may be mitigatory as Street CJ noted in R v Todd [1982] 2 NSWLR 517 (at 519-20), though this is by no means necessarily so, as was explained in R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63 (at 66).
In this case, that Mr Welch had been dealt with for a similar offence in the meantime may have meant the sentences for the earlier offences may have needed to be adjusted, but this would, in any event, not so reduce the sentence as to amount to special or exceptional circumstances.
There is one major matter that deserves attention. Mr Welch suffers from Epilepsy. It was undiagnosed for some years but he received a diagnosis in about 2009. Prior to the diagnosis, he suffered seizures about every six weeks.
He has been prescribed 200 mg of Tegretol for the condition. It has to be taken twice daily. A letter from the Epilepsy Australia ACT cited an academic report on “Adherence to Antiepileptic Drug Therapy Across the Development Life-span” which stated:
The primary treatment for patients with epilepsy is the use of antiepileptic drugs (AED). However, the efficacy of AEDs is compromised when patients do not adhere to their treatment regimen, which occurs approximately 50% of the time. Adherence is defined as the extent to which patient’s behaviour matches agreed upon recommendations from the health care provider (World Health Organisation, 2003). Poor adherence to AED therapy can lead to increased morbidity and mortality for patients with epilepsy. In turn, the need to identify targets for interventions that can improve adherence for individuals with epilepsy and subsequently promote better health outcomes is warranted.
The unchallenged evidence in the affidavit of Mr Welch’s lawyer was as follows:
The applicant has not received the required dosage of epilepsy medication at regular and consistent intervals whilst in custody at the AMC. On 12 July 2011, 13 July 2011 and 18 July 2011 the applicant did not receive epilepsy medication. On 18 July 2011 the applicant was refused epilepsy medication from a member of staff at the AMC. On the weekend of 4-5 June 2011 the applicant was confined to a cell for 23 hours during a prison-wide ‘lock down’ in the AMC. On that occasion, the applicant did not receive epilepsy medication, could not contact any staff for assistance and experienced feelings of dizziness and nauseousness amounting to a ‘near seizure’.
This does not seem to match what the Corrections Health Program states on its website:
The Corrections Health Program advocates the provision of health care and medical services conforming with accepted clinical standards and health care practices available in the community, while taking into account the complex health care needs of people in custody.
I do not have enough material to ascertain where any breakdown in medication provision has arisen.
This does not seem to me, at least at this stage, to justify a grant of bail. Were I able to do so, I would give directions about the proper delivery of medication to Mr Welch, but I do not know of a power I have to do so.
Nevertheless, I will and do recommend in the strongest possible terms that the appropriate authorities take all reasonable steps to ensure that the antiepileptic drugs prescribed for Mr Welch are provided to him in accordance with the appropriate prescription.
None of these matters amount to special or exceptional circumstances.
Conclusion
Whether Mr Welch has been severely sentenced, and whether his obviously creditable and desirable efforts to rehabilitate himself have adequately been taken into account, is not a matter for me. Indeed, it is irrelevant whether I would have imposed the same or a lesser sentence.
Unless I am satisfied that there are strong prospects of likely success in the appeal, there are no special or exceptional circumstances which would justify a grant of bail.
I have considered each of the matters mentioned both individually and also in combination.
Having given this matter careful consideration and anxious thought, I am not satisfied that a case has been made out to the requisite degree for a grant of bail and the application must be dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 22 September 2011
Counsel for the Appellant: Mr S Whybrow
Solicitor for the Appellant: Ben Aulich & Associates
Counsel for the Respondent: Ms M Hunter (5 and 11 August 2011)
Mr J White (8 August 2011)
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 5, 8 and 11 August 2011
Date of judgment: 22 September 2011
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