De Faria v the Queen - [2012] WASCA 256

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DE FARIA -v- THE QUEEN [2012] WASCA 256

CORAM: MAZZA JA

HEARD: 21 & 23 NOVEMBER 2012

DELIVERED : 23 NOVEMBER 2012

FILE NO/S: CACR 236 of 2012

BETWEEN: MARIA MANUELLA DE FARIA
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BIRMINGHAM DCJ
File No  :IND 743 of 2012

Catchwords:

Criminal law - Application for bail pending appeal against sentence - Urgent appeal order - Social security fraud - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1 pt C

Result:

Bail application dismissed
Urgent appeal order granted

Category: D

Representation:

Counsel:

Appellant: Mr G C R Yin
Respondent: Ms S J Oliver

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (Cth)

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

Milenkovski v The State of Western Australia [2011] WASCA 99
Shrivastava v The State of Western Australia [2010] WASCA 96

MAZZA JA:
(This judgment was delivered extemporaneously on 23 November 2012 and has been edited from the transcript.)

The appellant, by an application filed 14 November 2012, seeks bail pending the hearing of her appeal against sentence or, in the alternative, an urgent appeal order. The relevant background is not in dispute. The appellant pleaded guilty in the District Court on the fast‑track system to one count of defrauding the Commonwealth and one count of dishonestly causing a loss to the Commonwealth.
Essentially, the appellant, over approximately 11 years between 3 September 1997 and 18 March 2009, defrauded the Commonwealth in a continuous course of conduct of a total of $65,410 by falsely claiming Centrelink benefits to which she was not entitled to. She did this by failing to declare, as she was obliged to, that during the relevant period she was in paid employment.
On 28 September 2012, Judge Birmingham sentenced the appellant to a total effective sentence of 3 years' imprisonment with an order that she be released after serving 12 months of that term upon entering into a recognisance release order to be of good behaviour in the sum of $10,000.
At the time she was sentenced, the appellant was 69 years of age and the money she had defrauded from the Commonwealth had been repaid in full. She has a minor and irrelevant criminal history. Her husband, who is currently aged 84 years, is in poor health and is confined to a nursing home.
With the consent of the respondent, I received in evidence, with respect to this application, a medical report in relation to the appellant's husband by his general practitioner, Dr James Aniyi, dated 15 November 2012. The appellant's husband is receiving full time nursing care for a number of conditions including poor cognition, partial blindness and Parkinson's disease. He receives support from his family members. Dr Aniyi regards this emotional support as important and identified it as 'one of the factors that is keeping him going'. Dr Aniyi assumed that the appellant's husband was unaware of her incarceration. Mr Percy QC, on behalf of the appellant, explained to me that this is incorrect and that the appellant's husband is aware of this fact.
I have been provided with another medical report written by Dr D Oldham, erroneously dated 26 November 2012; it in fact should be dated 22 November 2012. That report is based on information that was provided to Dr Oldham by a geriatrician, Dr Mark Wilson. The report confirms the information provided to me by Dr Aniyi with the addition that there is now more precise information as to Mr De Faria's life expectancy. The report states that Mr De Faria's prognosis is poor with a high risk of mortality in the next few years. Later there is the following statement:
There is a significant risk that Mr Di Faria may not survive one year.
The appellant herself suffers from ill health. The most significant condition from which she suffers is severe osteoarthritis to the left knee which restricts her mobility. She also has other conditions including anxiety and depression.
The appellant relies on four grounds of appeal. Ground 1 alleges that his Honour imposed the wrong type of sentence. This ground contends that his Honour should have, in all of the circumstances, imposed the Commonwealth equivalent of a suspended imprisonment order. In this way it was said that the sentence imposed by Judge Birmingham was manifestly excessive. Grounds 2 and 3 allege that his Honour erred in his treatment of the appellant's age and her husband's ill health. Ground 4 alleges that the learned sentencing judge erred by ordering that the sentences on each count be served cumulatively.
Leave to appeal has been granted in respect of grounds 1 and 4. The question of leave to appeal in respect of grounds 2 and 3 has been referred to the hearing of the appeal. The appellant has filed her appellant's case. The time for the respondent to file its written submissions has not expired. In the normal course of events it is unlikely to be heard before March 2013.
Clause 4A of pt C of sch 1 to the Bail Act 1982 (WA) provides:
4A.Bail after conviction: accused awaiting disposal of appeal
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 clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
As McLure P pointed out in Milenkovski v The State of Western Australia [2011] WASCA 99 cl 4A provides for a rebuttable statutory presumption against the grant of bail. Bail can only be granted if the Court is satisfied of two matters. First, jurisdiction to grant bail does not arise unless and until the Court is satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3. Second, the Court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody.
In this case there has been no suggestion that bail should not be granted having regard to the provisions of cl 1 and cl 3. The issue to be decided is whether there are exceptional reasons why the appellant should not be kept in custody.
In Shrivastava v The State of Western Australia [2010] WASCA 96 [28] ‑ [32], I discussed the meaning of the expression 'exceptional circumstances' in cl 4A. The use of the word 'exceptional' denotes something which is unusual, out of the ordinary, in some ways special or an exception to the general trend of cases. What might constitute exceptional reasons will depend upon the facts in each particular case. Because the context of the application for bail is an appeal, the focus must be on the merits of the appeal. This is not to say that other factors are irrelevant.
This is not the place for a full argument as to the merits of the appeal. Further, is it not appropriate that I undertake a detailed examination of the grounds. Nothing I say should be taken as a prejudgment of the ultimate outcome of the appeal.
In respect to the grounds of appeal I consider it is necessary for the appellant to show, without detailed argument, that her appeal has strongly arguable grounds.
Mr Percy QC, on behalf of the appellant, submitted that by reason of the combined strength of the following factors, exceptional reasons exist for a grant of bail, namely that:
(1)the grounds are strongly arguable;
(2)if the appeal succeeds, and in particular if a non‑immediate custodial sentence is imposed, the appeal will in effect be rendered nugatory unless bail is granted;
(3)the appellant's ill health; and
(4)the appellant's husband's ill health.
The respondent opposes the grant of bail. Ms Oliver, on behalf of the respondent, submitted that the grounds are not strongly arguable and that none of the other factors are, either alone or in combination, sufficient to constitute exceptional reasons for the grant of bail.
This brings me to the merits of the application. As I have already said, it is not appropriate for me to undertake a detailed analysis of the grounds of appeal; it is sufficient for me to say at this point I have not been persuaded of the contention that it is strongly arguable that his Honour erred in imposing immediate imprisonment upon the appellant. I observe that despite the mitigating factors the appellant's offending occurred over a very lengthy period of time as a result of which a substantial sum of money was defrauded.
General deterrence looms large in serious cases of this nature. Immediate imprisonment is, as a matter of fact, the usual disposition in such cases. It may be that the argument concerning the total length of the term of imprisonment which is embodied in ground 4 is stronger than the other grounds. However, I note that the minimum term imposed by his Honour was relatively low. Thus, any adjustment to the head sentence may not necessarily result in any adjustment or in any great adjustment to the minimum term so as to render the appeal nugatory.
With respect to the appellant's ill health, while a matter of relevance, is not enough to justify, alone or in combination with the other factors, bail. In relation to the appellant's husband's health, the evidence before both the sentencing judge and this Court is that the appellant's husband cannot be cared for at home and is receiving a proper standard of care at the nursing home in which he presently resides. Other members of the appellant's family have been assisting him and providing him with psychological support.
It is perfectly understandable that the appellant wishes herself to support her husband and that her separation from him is upsetting to her. However, I do not regard this factor as being sufficient, either by itself or in combination with the other factors, to amount to exceptional reasons.
I refer specifically to the argument that unless the appellant is released on bail there is a prospect that the appeal will be rendered nugatory. As I have already indicated, I am not satisfied that even if the appellant's appeal succeeds the effect will be nugatory. To alleviate any prospect of this occurring, I am prepared to make an urgent appeal order.
To sum up the position then, the appellant has not established exceptional reasons for a grant of bail pending appeal. However, I will grant an urgent appeal order.