Duckworth v The State of Western Australia [No 3] - [2016] WASCA 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DUCKWORTH -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2016] WASCA 12

CORAM: MAZZA JA

HEARD: 17 DECEMBER 2015

DELIVERED : 17 DECEMBER 2015

PUBLISHED : 13 JANUARY 2016

FILE NO/S: CACR 98 of 2015

BETWEEN: NEIL JAMES DUCKWORTH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DERRICK DCJ
File No  :IND 888 of 2012

Catchwords:

Criminal law - Stealing as a director or officer of a company - Appeal against conviction - Application for bail pending appeal - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1
Sentence Administration Act 2003 (WA), s 115A

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P N Bevilacqua

Solicitors:

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

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

Duckworth v The State of Western Australia [2015] WASCA 137
Duckworth v The State of Western Australia [No 2] [2015] WASCA 228
Duckworth v The Water Corporation [No 2] [2015] WASC 411
Hunter v The State of Western Australia [2014] WASCA 184
MAZZA JA:
(This judgment was delivered extemporaneously on 17 December 2015 and has been edited from the transcript.)

Before the court is the appellant's application for bail pending his appeal against conviction. The application was filed on 9 December 2015. It is made pursuant to cl 4A of pt C of sch 1 to the Bail Act 1982 (WA). This is the appellant's third such application in this appeal. His previous applications were dismissed: see Duckworth v The State of Western Australia [2015] WASCA 137 (Duckworth No 1) and Duckworth v The State of Western Australia [No 2] [2015] WASCA 228 (Duckworth No 2). The background to the appeal is set out in Duckworth No 1 and Duckworth No 2. These reasons should be read in conjunction with those decisions.
The present application is supported by the appellant's affidavit sworn on 8 December 2015. In effect, the appellant argues that new circumstances have arisen since the delivery of the decision in Duckworth No 2, as a consequence of which this court's jurisdiction to grant bail pending appeal could properly be invoked again.
The alleged new circumstances are, first, that the appellant has been denied parole; and second, that his release on bail is necessary to enable him to defend an application for costs which will be heard in the general division of this court on 13 January 2016 in a civil action entitled Duckworth v The Water Corporation (CIV 1795 of 2013). In my opinion, although these matters arose after the decisions in Duckworth No 1 and Duckworth No 2 and thus, may be considered 'new', neither is sufficient to justify a grant of bail pending appeal. My reasons for this conclusion may be briefly stated.
The appellant was sentenced to 4 years' immediate imprisonment on 20 December 2013 with eligibility for parole. Thus, the earliest date on which the appellant could be released on parole was 19 December 2015. By letter to the appellant dated 30 November 2015,[1] the appellant was notified by the Prisoners Review Board (the Board) that he had been denied release on parole. The Board's reasons for this decision are twofold.
[1] Annexure NJD12 to the appellant's affidavit sworn on 8 December 2015.
First, the Board considered the appellant had unmet treatment needs relating to his offending behaviour; and that he had refused to undertake a Think First program designed to address these needs. The Board cited a document signed by the appellant dated 4 February 2015 in which he stated '…will be released completely exhonerated (sic)' and that '…by starting this program will be a wast (sic) of time and resources'.
The second reason given by the Board was the appellant's 'unsatisfactory imprisonment behaviour', noting that the appellant had pleaded guilty to a prison charge dated 24 July 2015 relating to '…approaching other prisoners in an attempt to secure loans to the value of $25,000 and $12,000'. The Board considered that this charge indicated that the appellant's risk of re‑offending remains elevated and reinforced the view that he had unmet treatment needs.
It is clear that the appellant disputes the Board's decision and its reasons. By letter dated 2 December 2015,[2] the appellant wrote to the Board seeking review of its decision pursuant to s 115A of the Sentence Administration Act 2003 (WA). I am not in a position to resolve the matters in dispute between the appellant and the Board, nor is it appropriate for me to do so.
[2] Annexure NJD13 to the appellant's affidavit sworn on 8 December 2015.
The appellant asserts that the denial of parole arises from the existence of this appeal and thus, his right of appeal has been impaired. The appellant cites Hunter v The State of Western Australia [2014] WASCA 184, a case in which this court granted an appellant bail pending appeal, in part because the appellant's appeal provided the basis for the denial of access to a treatment program regarded as a precondition to the grant of parole [83]. The evidence in support of this application is a long way short of establishing that the appellant has been refused parole because of his appeal. The position here is not analogous to Hunter.
I now turn to the second aspect of the application for bail. Presently, the appellant's children are conducting civil litigation in the general division of this court against the Water Corporation. The appellant entered into certain agreements with the Water Corporation in connection with a subdivisional development he wished to undertake on undeveloped land at Ocean Farm Drive in Nilgen.
Pursuant to a bond agreement entered into by the appellant with the Water Corporation, the appellant was required to provide security by way of a $3 million banker's undertaking. That sum was drawn down by the defendant. The appellant's children claim the defendant had no right to do so and that the money should be repaid. The appellant is a bankrupt. His trustee in bankruptcy purported to assign any rights the appellant had under the agreements to his children.
Questions arose as to the children's standing to enforce the alleged rights of the appellant. These questions were tried as preliminary issues by Mitchell J. On 5 November 2015, his Honour decided those preliminary issues: see Duckworth v The Water Corporation [No 2] [2015] WASC 411.
In very simple terms, the preliminary issues were decided against the appellant's children. The appellant's children were jointly and severally ordered to pay the defendant's costs of the action to date, to be taxed. The appellant's children in turn seek costs against the appellant. It is this application which is listed for hearing in the general division on 13 January 2016. The appellant claims that he cannot properly prepare for this application while he is in custody.
While it may be accepted that the appellant will suffer some disadvantage in having to prepare submissions in custody, I do not consider that this, of itself, constitutes a sufficient reason to justify the appellant's release on bail.
The appellant's application for bail dated 9 December 2015 is dismissed.