Debono v The State of Western Australia
[2019] WASCA 109
•1 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: DEBONO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 109
CORAM: MAZZA JA
HEARD: 11 JULY 2019
DELIVERED : 11 JULY 2019
PUBLISHED : 1 AUGUST 2019
FILE NO/S: CACR 92 of 2019
BETWEEN: JAMIE CHARLES DEBONO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 738 of 2018
Catchwords:
Criminal law - Application for bail pending appeal - Application for urgent appeal order - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 4A
Result:
Application for bail pending appeal dismissed
Application for urgent appeal order granted
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms MM Yeung |
Solicitors:
| Appellant | : | In person |
| Respondent | : | The Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Debono v The State of Western Australia [2018] WASCA 208
KWLD v The State of Western Australia [No 2] [2013] WASCA 129
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Before me is an application, filed on 24 June 2019, for bail pending an appeal against sentence, pursuant to cl 4A of pt C of sch 1 of the Bail Act1982 (WA). In the alternative, the appellant seeks an urgent appeal order.
The application is supported by two affidavits sworn by the appellant on 22 June 2019.
The application for bail pending appeal is opposed by the State. As noted in previous proceedings before this court (see Debono v The State of Western Australia),[1] the appellant was indicted in the District Court on seven counts which alleged the following offences:
(1)criminal damage and aggravated burglary of a KFC store in Mirrabooka on 28 April 2017;
(2)burglary in company and an associated stealing of watches from a Prouds Jewellers store at the same place and date;
(3)burglary in company and an associated stealing of watches from a Shiels Jewellers store on 1 May 2017; and
(4)attempting to pervert the course of justice between 7 and 24 May 2017 at Canning Vale.
[1] Debono v The State of Western Australia [2018] WASCA 208.
On 13 June 2019, the appellant appeared before his Honour Judge Staude in the District Court. He pleaded guilty to all of the charges and was sentenced as follows:
Count 1
Unlawful damage at KFC
6 months' immediate imprisonment
Count 2
Aggravated burglary on KFC
12 months' immediate imprisonment
Count 3
Burglary in company on Prouds Jewellers
18 months' immediate imprisonment
Count 4
Stealing watches from Prouds Jewellers
No sentence, pursuant to s 11 of the Sentencing Act 1995 (WA)
Count 5
Burglary in company on Shiels Jewellers
18 months' immediate imprisonment
Count 6
Stealing watches from Shiels Jewellers
No sentence, pursuant to s 11 of the Sentencing Act 1995 (WA)
Count 7
Attempting to pervert the course of justice
6 months' immediate imprisonment
His Honour ordered that the sentences on counts 2, 3 and 7 be served cumulatively and the other sentences be served concurrently. Thus, the total effective sentence imposed upon the appellant was 3 years' immediate imprisonment.[2]
[2] ts 248 - 249.
His Honour ordered that the sentences commence on 23 December 2018 and that the appellant be made eligible for parole.[3] By my calculation, the appellant will be eligible for release on parole in mid‑2020.
[3] ts 249.
On 24 June 2019, the appellant filed in person a notice of appeal against sentence. The appellant has not yet filed his appellant's case.
However, from his oral and written submissions in support of this application, his complaints may be distilled into the following prospective grounds of appeal:
(1)the term of imprisonment imposed for the offence of attempting to pervert the course of justice was manifestly excessive;
(2)his Honour failed to have regard to a relevant sentencing consideration, namely the time the appellant had spent in custody on other matters and, in particular, terms of imprisonment imposed in the District Court on 22 March 2018 and in the Magistrates Court on 27 March 2018 and 6 February 2019;
(3)the learned sentencing judge had been misinformed as to the appellant's length of time in the community after his release from prison in 2013;
(4)the appellant's counsel at the sentencing hearing failed to inform the court of a relevant sentencing consideration, namely that after the recent death of a friend, the appellant had not resorted to illicit drug use;
(5)the learned sentencing judge erred by not making a pre‑sentence order to allow the appellant to continue his rehabilitation at the Wandalgu residential support program;
(6)the learned sentencing judge erred in imposing terms of imprisonment having regard to the fact that he had been granted bail pending sentence from 24 January 2019 to the date of his sentencing and had during that time successfully engaged in rehabilitation at the Wandalgu residential support program; and
(7)the learned sentencing judge erred in his assessment of the time the appellant had spent in custody, such that the total effective sentence should have been backdated to commence earlier than 23 December 2018.
There was no dispute before the primary court as to the facts of the appellant's offending. They may be summarised as follows.
With respect to counts 1 and 2, on 28 April 2017, the appellant, in company with another, used a brick to smash the window of a KFC restaurant in Mirrabooka. The appellant and the co‑offender then entered the premises and rummaged around an office.[4]
[4] ts 242.
In relation to counts 3 and 4, on the same night, the appellant went to the premises of Prouds Jewellers in Mirrabooka in company with another. There, he and his co‑offender smashed a window and entered the store. While in the store, 159 watches worth about $47,000 were stolen.[5]
[5] ts 242 - 243.
With respect to counts 5 and 6, on 1 May 2017, the appellant broke into a shopping centre at Mirrabooka and smashed the window of Shiels Jewellers. Once inside the store, the appellant stole 52 watches valued at $17,089.[6]
[6] ts 227, 243.
Count 7 occurred while the appellant was on remand at Hakea Prison. During recorded telephone conversations with his mother, the appellant spoke to the co‑offender with whom he committed counts 1 and 2. In one conversation with the co‑offender, the appellant asked him to tell the police that the appellant had nothing to do with the offences and that the appellant would pay him money if he did so. In another recorded conversation, the appellant proposed that the co‑offender make an affidavit saying that the appellant was not present when the offences described in counts 3, 4, 5 and 6 were committed.[7]
[7] ts 243.
It is clear that the offences committed by the appellant were particularly serious. The burglaries were calculated, committed at night and involved the theft of a substantial amount of property, in respect of the jewellery stores. The attempt to pervert the course of justice involved a degree of persistence.
At the time he was sentenced, the appellant was 35 years of age. He has what his Honour described as a long and significant history of prior offending, including other burglary offences.[8]
[8] ts 244.
His Honour observed that the appellant's offending behaviour related to his illicit substance use, negative peer associations, unstable mental health, poor problem solving, poor impulse control, poor emotional regulation, poor coping and poor consequential thinking skills.[9]
[9] ts 245.
It is clear from the sentencing remarks that the learned sentencing judge was well aware of the appellant's most recent attempts at rehabilitation and accepted that he had successfully engaged in residential rehabilitation at the Wandalgu residential support program.[10] The learned sentencing judge gave the appellant credit for his pleas of guilty,[11] and for the steps that he had taken towards his rehabilitation.[12] It is evident that his Honour extended leniency towards the appellant, having regard to this latter point.
[10] ts 245 - 247.
[11] ts 242.
[12] ts 245 - 247.
His Honour said he considered whether it was appropriate to make a pre-sentence order. However, having regard to, in particular, the seriousness of the offences, the need for public protection and the requirement to impose sentences which reflected both personal and general deterrence, his Honour considered that the only appropriate penalties for counts 1, 2, 3, 5 and 7 were terms of immediate imprisonment.[13]
[13] ts 250.
The appellant, who was self‑represented before me, submitted that bail pending appeal should be granted, because he should be permitted, at least, to complete the rehabilitation program he had embarked upon before he was sentenced and, further, that his prospective grounds of appeal have merit.
The principles relating to bail pending appeal are well‑known. Clause 4A of pt C of sch 1 of the Bail Act creates a rebuttable statutory presumption against the grant of bail.
Bail can only be granted if the court is satisfied of two matters. First, it must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Second, bail must be appropriate, having regard to the provisions of cls 1 and 3 of pt C of sch 1 of the Bail Act.
The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some ways special, or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case.
In this case, because the context of the application for bail is an appeal, the focal point must be on the merits of the appeal. Of course, other matters may be considered. So far as the merits of the appeal are concerned, I consider that it is necessary for the appellant to show, without detailed argument, that the appeal has strong, arguable grounds. The many cases in this area reveal various formulations, although I do not regard them as being materially different to the one I have just stated.
Whatever the formulation, each one is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction or sentence. See KWLD v The State of Western Australia [No 2].[14]
[14] KWLD v The State of Western Australia [No 2] [2013] WASCA 129 [23] ‑ [25].
Let me turn to the appellant's submissions.
As to the desire of the appellant to complete the residential rehabilitation program in which he participated prior to his sentencing, while understandable, it is an insufficient basis to justify a grant of bail pending appeal.
Although the appellant appears to have done well in his residential rehabilitation program, his rehabilitation is but one of a number of relevant sentencing considerations, including the serious nature of the offences, and the need to provide a proper level of personal and general deterrence.
On a preliminary basis, it appears that it was well open to the sentencing judge to conclude that, notwithstanding the appellant's rehabilitative efforts, the only appropriate penalty to be imposed upon the appellant were terms of immediate imprisonment.
As to the appellant's prospective grounds of appeal, as I have already noted, the appellant has not yet filed an appellant's case. Based on his written and oral submissions in support of this application, none of the prospective grounds appear to be sufficiently strong, save for the ground relating to backdating. As to this, the State acknowledges that his Honour was not provided with complete or accurate information, and that the total effective sentence should have been backdated by an additional 25 days or so.[15]
[15] Appeal ts 25 - 27.
On the assumption that this ground succeeds, it would not automatically result in the imposition of a lower total effective sentence. It may be that this court would impose no different sentence other than to change the date on which the total effective sentence commenced.
For these reasons I am not satisfied that the appellant has established that exceptional reasons for a grant of bail pending appeal exist. Accordingly, the application for bail pending appeal must be refused.
This leaves the appellant's application for an urgent appeal order. In my opinion, this application should be granted. I do so primarily because the date on which the total effective sentence was ordered to commence appears to be erroneous, and that error should be corrected as soon as possible.
Further, the information that I have indicates that the appellant's place at Wandalgu is not open indefinitely.
I dismiss the application for bail pending appeal, but I grant the application for an urgent appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza1 AUGUST 2019
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