DeBono v Director of Public Prosecutions for Western Australia [No 2]

[2024] WASC 306

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DEBONO -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [No 2] [2024] WASC 306

CORAM:   MCGRATH J

HEARD:   26 AUGUST 2024

DELIVERED          :   26 AUGUST 2024

FILE NO/S:   SJA 1036 of 2024

BETWEEN:   JAMIE CHARLES DEBONO

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

Catchwords:

Criminal law - Bail application - Bail pending determination of single judge appeal - Appellant deemed not to have been convicted for the purposes of bail - Bail Act sch 1 pt C cl 5 - Other convictions not subject to appeal

Legislation:

Bail Act 1982 (WA), s 7F, s 13
Criminal Appeals Act 2004 (WA), s 12
Criminal Code (WA), s 68(1)
Sentence Administration Act 2003 (WA), s 6, s 7

Result:

Bail application dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Ms M L Wong

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Scolaro v Shephard [2010] WASC 77

MCGRATH J:

Introduction

1. The applicant, Mr DeBono has applied for bail pending the determination of appeal against his conviction in the Magistrates Court in respect of one charge of being armed with a dangerous weapon, namely a knife, in circumstances that were likely to cause fear to any person contrary to s 68(1) of the Criminal Code (WA) ('charge PE 44576/2023').

2. On 7 November 2023, the appellant appeared in the Perth Magistrates Court and pleaded guilty to 21 offences, including charge PE 44576/2023.  The appellant has not appealed his conviction for any of the other 20 offences.  He has only appealed his conviction on charge PE 44576/2023.

3. On 15 November 2023, the learned Magistrate sentenced the appellant. His Honour imposed a 9‑month term of imprisonment in respect of charge PE 44576/2023.  That term of imprisonment was ordered to be served cumulatively with the total effective sentence of 15 months imposed for four other charges of being armed in circumstances that were likely to cause fear to any person and three charges of stealing.  Therefore, the learned Magistrate imposed a total effective sentence of 2 years' imprisonment, backdated to 7 September 2023 with time already spent in custody in respect to the seven charges.  In respect to the other 14 charges, the learned Magistrate imposed fines.

4. On 20 June 2024, the appellant filed his appeal against conviction in respect to charge PE 44576/2023.  The appellant seeks to set aside his plea of guilty to charge PE 44576/2023 as a miscarriage of justice. 

Legal principles and assessment of bail application

1. Clause 5 pt C of sch 1 of the Bail Act1982 (WA) states that a person who is awaiting the disposal of appeal proceedings from the Magistrates Court shall be deemed to be awaiting an appearance in court before conviction for an offence. The effect of this provision is that this court, when considering bail pending an appeal from a Magistrate, is required by law to treat the applicant as if they had not been convicted.[1] There is no requirement for an applicant to establish exceptional circumstances. Rather, the application is determined in accordance with s 13 and sch 1 of the Bail Act.

   [1] Scolaro v Shephard [2010] WASC 77.

2. During the hearing of the application for bail, I raised with Mr DeBono and counsel for the respondent that the application for bail was only in respect to the conviction for charge PE 44576/2023.  Mr DeBono has not appealed his other convictions, in particular, the two charges for which the 15‑month term of imprisonment was imposed. 

3. Mr DeBono submitted that he would be eligible for parole on 5 September 2024 but that parole will not be considered by the Prisoners Review Board until his conviction appeal has been determined.  The appeal against conviction is listed for 17 September 2024. 

4. In the circumstances, I determined that it was appropriate to list the appeal on an expedited basis for the reason that even if I granted bail to Mr DeBono in respect to charge PE 44576/2023, he will remain in custody for the term of imprisonment imposed in respect to the other charges.  That is, I was unable to grant bail for the totality of the term of imprisonment.  My reasoning for forming that view is as follows.

5. Section 7F of the Bail Act provides that a person may apply for bail if 'in custody and an appeal has been commenced under the Criminal Appeals Act 2004 Part 2 in connection with the decision by virtue of which the person is in custody'.

6. Accordingly, s 7F of the Bail Act has the effect that Mr DeBono is only entitled to apply for bail in relation to the sentence imposed for PE 44576/2023 for the reason that his appeal is in respect to the conviction on that charge only. Section 7F does not enable the grant of bail in relation to the sentences imposed in respect to the other charges because those decisions, by virtue of which Mr DeBono is in custody, are not the subject of an appeal.

7. Section 12(1) of the Criminal Appeals Act2004 (WA), provides relevantly, that after an appeal is commenced against a decision of a court of summary jurisdiction, the Supreme Court may make any order it thinks fit that suspends the decision until the appeal is concluded, including any sentence imposed by the court of summary jurisdiction. However, subsection 12(5) provides that despite subsection 12(1) if an appellant is serving a sentence of imprisonment the sentence must not be suspended unless he or she is granted bail under the Bail Act and must not be released from custody until he or she becomes entitled to be released under that Act.

8. Sections 6 and 7 of the Sentence Administration Act 2003 (WA) have the effect that Mr DeBono is required to serve 15 months' imprisonment for the other two charges before serving the 9 months' imprisonment imposed on charge PE 44576/2023 because the sentence imposed on that charge was expressed as being cumulative on the other sentences, subject to being released on parole.

9. The effect of the relevant provisions of the Bail Act and the Sentence Administration Act is that while Mr DeBono may apply for, and be granted, bail in relation to PE 44576/2023, the grant of bail will not result in his release into the community.  That is because Mr DeBono will remain subject to lawful imprisonment in relation to the remaining charges for which he was sentenced to imprisonment and to which, no appeal is on foot. 

Conclusion

1. In the circumstances, I decided to hear the appeal against conviction forthwith and dismiss the application for bail.  That is because having determined the appeal there will no longer be a basis for the application for the grant of bail pending the determination of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

NA

Associate to the Honourable Justice McGrath

26 AUGUST 2024