Duong v The State of Western Australia
[2005] WASCA 148
•27 JULY 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DUONG -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 148
CORAM: ROBERTS-SMITH JA
HEARD: 27 JULY 2005
DELIVERED : 27 JULY 2005
FILE NO/S: CACR 114 of 2005
BETWEEN: BUUSON DUONG
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :IND 902 of 2005
Catchwords:
Criminal law and procedure - Bail - Pending appeal - Whether custodial sentence likely to be substantially served before appeal heard - Whether strong prospects of success on appeal - Whether exceptional reasons why applicant should not be kept in custody pending appeal
Legislation:
Nil
Result:
Application for bail allowed
Category: B
Representation:
Counsel:
Applicant: Mr S B Watters
Respondent: Mr D Dempster
Solicitors:
Applicant: Simon Watters
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Dinsdale v The Queen (2000) 202 CLR 321
Hawkins v The State of Western Australia [2005] WASCA 63
Hull v The State of Western Australia [2005] WASCA 107
R v Bernt (1994) 70 A Crim R 1
R v Latham (2000) 117 A Crim R 74
R v Walser (1994) 73 A Crim R 154
Samuel v The State of Western Australia [2004] WASCA 154
Stalker v The Queen [2002] WASCA 364
Tieleman & Anor v The Queen [2004] WASCA 285
United Mexican States v Cabal & Ors (2001) 209 CLR 165
Case(s) also cited:
Ferry v The Queen [2003] WASCA 64
Johansen v The Queen, unreported; CCA SCt of WA; Library No 980087; 23 February 1998
Mullally v The Queen [2000] WASCA 26
R v Brittain (2001) 121 A Crim R 525
ROBERTS-SMITH JA: This is an application for bail pending an appeal against sentence. The applicant was convicted in the District Court at Perth on 21 June 2005 and sentenced to 18 months' immediate imprisonment with an order that he be eligible for parole. The sentence was ordered to commence on 20 June 2005. The conviction was in respect of one count of possessing methylamphetamine with intent to sell or supply.
The appeal notice was filed on 5 July 2005 and, accordingly, falls within the statutory regime of the Criminal Appeals Act 2004 (WA) and the Supreme Court (Court of Appeal) Rules 2005 (WA) ("the Court of Appeal Rules") which came into operation on 2 May 2005. An amended appeal notice was filed on 11 July 2005. I have given leave to amend in accordance with that notice and indeed given further leave to amend ground 1 by changing the reference to the subparagraphs of s 39(2) there referred to.
Leave to appeal is required in respect of each ground of appeal whether against conviction or sentence: s 27(1) of the Criminal Appeals Act.
Leave must not be given on any ground unless the court is satisfied that ground has a reasonable prospect of succeeding: s 27(2). The question of leave to appeal in this case has not yet been considered. That would ordinarily be done once the appellant's case has been filed in accordance with r 32 of the 2005 Rules which must be done within 35 days of the filing of the appeal notice. That is in this case from the date of filing of the original appeal notice.
The grounds of appeal are:
(1)the learned sentencing Judge failed to give proper consideration to s 39(2)(e) ‑ (h) of the Sentencing Act 1995 (WA);
(2)the learned sentencing Judge failed to consider adequately or at all the imposition of a suspended sentence;
(3)the learned sentencing Judge's discretion miscarried when she determined not to suspend the applicant's term of imprisonment.
Before turning to the present application, it is necessary to refer to the legal principles which apply to it. I have previously articulated them in the context of applications for bail pending appeal under the new statutory appeal regime in Hawkins v The State of Western Australia [2005] WASCA 63, and Hull v The State of Western Australia [2005] WASCA 107, and I will not repeat what I have said in those decisions.
It is sufficient to appreciate that cl 4 of Pt C of Sch 1 to the Bail Act 1982 (WA) stipulates that a Judge shall not grant bail to a convicted offender pending his or her appeal unless satisfied there are exceptional circumstances or reasons why the offender should not be kept in custody and even then, only if further satisfied bail should be granted having regard to the general considerations relevant to any application for bail as set out in cls 1 and 3 of Pt C.
There is thus a two‑stage process. The first and threshold stage is for the applicant to demonstrate that there are exceptional reasons why he or she should not be kept in custody pending the appeal. Unless the applicant can satisfy the court of that, they do not get to the second stage. If exceptional reasons are shown, the applicant must still satisfy the court bail should be granted having regard to the ordinary considerations.
The exceptional reasons which the applicant says exist here are that:
(a)the custodial (that is to say, the non‑parole) period of his sentence, will be entirely or substantially served by the time his appeal comes on for hearing; and
(b)his appeal has a real prospect of success.
It may be accepted that time spent in custody pending appeal is a relevant factor when considering whether exceptional reasons exist, particularly where it operates in conjunction with some other strong factor, including that there are strong grounds for concluding the appeal would be allowed - United Mexican States v Cabal & Ors (2001) 209 CLR 165.
The strength of the case to be demonstrated has been described in various ways. In Stalker v The Queen [2002] WASCA 364 at [19] to [40], I took the law to be that more than an arguable prospect of success must be shown and that what must be demonstrated is that the appeal is most likely to succeed. This view was endorsed by the Full Court of Western Australia in Tieleman & Anor v The Queen [2004] WASCA 285. Murray J, with whom Steytler and Templeman JJ agreed, said the extent to which the custodial part of the sentence was likely to have been served before the appeal is determined is a consideration which would loom large for the court in considering whether there are exceptional reasons why an applicant should not be kept in custody. However, his Honour said he would not suggest that it ought to be held that that and other matters must necessarily be found in considering the case for bail, and that it is clear that what may constitute exceptional reasons will depend upon the facts of the particular case. His Honour went on to add that it seemed to him that it would be difficult to find exceptional reasons where there were not strong grounds for concluding the appeal would be allowed, and nor would it generally be possible to demonstrate exceptional reasons in a case where it could not be shown that the custodial sentence would substantially be served before the appeal was finally determined. Further, his Honour said that even if those things were shown, it may still be necessary to demonstrate additional circumstances in a particular case before the court would exercise its discretion to grant bail on the basis it was satisfied that exceptional reasons justifying that course existed. That was no doubt a reference to the ordinary considerations adumbrated in cls 1 and 3 of Pt C.
The consideration that the custodial portion of a sentence will likely be served or largely be served before the appeal is heard may have greater weight as going to the "exceptional reasons" requirement in a case in which the appeal is against sentence, and the ground is that some disposition other than an immediate term of imprisonment ought to have been made. That point was recognised by White J in R v Walser (1994) 73 A Crim R 154 in which his Honour referred to a number of authorities on the question of exceptional reasons, or exceptional circumstances, beginning with Chamberlain v The Queen (No 1) (1983) 153 CLR 514.
In relation to the point to which I just referred, his Honour noted at 158 of Walser that in the context of the case before him, which was that of an effective four and a half months' imprisonment, the applicant would have served at least three months by the time his appeal was heard and possibly even more, and as the appeal was predicated upon the submission that a non‑custodial penalty was an appropriate disposition, refusal to grant bail at that stage would very largely, in his Honour's opinion, render the appeal nugatory. In his opinion, that fact constituted an exceptional reason at least in the case of an appeal against sentence.
His Honour then turned to address the question of likelihood of success on appeal, pointing out that could only be a tentative or prima facie view at the stage of an application for bail. His Honour referred to R v Bernt (1994) 70 A Crim R 1 in which Scott J regarded the fact that if bail were not granted, the applicant would have served all or the majority of the custodial portion of his sentence prior to the appeal being heard thus rendering the appeal futile, was a matter of importance in deciding whether the necessary exceptional reasons existed.
His Honour appropriately concluded with the observation that in finding that the appeal in that case would be rendered nugatory should bail not be granted, and that should outweigh other considerations, it should be brought to the applicant's attention that if his appeal failed (and there could be no certainty that it would not), he would be returned to prison to serve out the remainder of his sentence.
That of course is a pertinent observation in the present case as well, in that should the application for bail be successful, then if the appeal ultimately were not to succeed then the applicant would have to be returned to prison to serve the balance of his time. That, however, is a consequence of the consideration of the merits of the application. It is not a factor of itself in my view which weighs upon the consideration of it.
Against that briefly sketched background of the relevant legal principles I return to the substance of this application.
The applicant relies upon his affidavit sworn on 15 July 2005 in which he deposes generally as follows. He was born on 8 July 1979 and his currently 26 years of age and ordinarily lives at 71 Redcliffe Avenue, Balga, with his parents and older brother. He pleaded guilty in the District Court on 21 June 2005 on the fast‑track system. When sentencing him her Honour had the benefit of an antecedent report which confirmed that he had one minor conviction for possession of cannabis for which he received a fine and which offence occurred more than seven years prior to the commission of the offence the subject of the appeal notice. There were also before her Honour two character references and a report from Holyoake, the Australian Institute for Alcohol and Drug Addiction, resolutions dated 17 June 2005 and these are annexed to his affidavit.
As to the circumstances of the offence he says he was found with 6.739 grams of methylamphetamine in his possession, that the sentencing Judge accepted that a quantity of the drug found was for his personal use. He relates his personal circumstances as follows: after completing year 12 at Balga Senior High School he commenced and completed an upholstery apprenticeship following which he became self‑employed and in approximately November 2004 established his own business trading under the name Weststyle Furniture, manufacturing and upholstering furniture and couches in particular.
He deposes that as a result of his imprisonment that business has been forced to close down. He is currently in a stable relationship with a young woman and in the three months that they have been seeing each other he has become like a father figure to her 14‑month‑old daughter. Although he and the woman are in a stable relationship and he spends most nights at her residence he ordinarily lives with his elderly Chinese parents in Balga to whom whenever possible he provides financial assistance. He has two brothers, one of whom is a schoolteacher in Sydney and the other who works for a radio station in Perth and who lives at home. He also has a sister in Perth who is a full-time mother.
He states that he is concerned that if not granted bail it would cause his parents hardship and he will also have to spend a significant portion of his sentence in custody before his appeal is heard and if remaining in custody until that time considers he would be unable to resurrect his business which he believes he would be otherwise able to do were he to be granted bail pending appeal.
As to the merits of his appeal he advances as a basis for contending there are strongly arguable appeal grounds personal circumstances including the fact that he has only one minor previous criminal conviction committed more than seven years ago, the fact that his elderly Chinese parents rely to an extent on financial assistance provided to them by him, his fast-track plea of guilty, the fact that he has lost his employment and the business he started has been forced to close and the extent of the sentence that will have been served before his appeal is heard. He deposes that he has been advised that his appeal against sentence will not be listed for hearing before this court until later in 2005 and indeed that if all timetables are adhered to it can only be indicated at this stage that the matter may be heard this year.
The applicant's personal circumstances were before the sentencing Judge. There is nothing in them which either of themselves nor in conjunction with other factors would constitute an exceptional reason why he should not be kept in custody pending appeal. The reference to the applicant's business is vague in the extreme. Regrettable although it may be, the consequences he describes are common consequences of conviction in many cases.
The applicant's relationship with his female friend and her daughter is of only short duration. There is nothing in that which is capable of constituting nor contributing to an exceptional reason. I accept the applicant's elderly parents are to some extent financially and emotionally dependent upon him. Again that is by no means an unusual circumstance. He does have three siblings who presumably can provide some financial support. One brother lives at home with their parents. There is nothing in the applicant's personal circumstances going to show exceptional reasons for why he should not be kept in custody pending the hearing of his appeal.
The application turns on the question whether the time spent in custody pending appeal combined with the applicant's prospects of success constitute exceptional reasons. So far as the issue of time is concerned, the inquiry made of the office of the Court of Appeal evidenced by an annexure to the applicant's affidavit indicates simply that if leave to appeal is granted and all the timetables in the Court of Appeal Rules are complied with promptly, the appeal may be heard this year.
From the Bar table I am informed that the Court of Appeal is presently listing at least for October. I would think it likely that the appeal, were the timetables to be adhered to promptly, may be listed by November or certainly by December this year. I am further informed from the Bar table that the applicant's date of eligibility for release on parole is around about 19, 20 or 21 March. There is apparently some difference of view about that, but the point is it will at least be mid-March 2006.
If this appeal is heard in November, then he would have served approximately half of his non‑parole period in custody. I emphasise that is the period before eligibility for release on parole, not, obviously, the overall sentence. That is not a significant period in itself absent any other considerations. It seems to me that in light of that, the question of the prospects of success becomes of overriding importance to the outcome of this application.
The facts which were before her Honour on 21 June were that at about 12 pm on Thursday, 14 April, investigators of the Gang Response Unit executed a search warrant under the Misuse of Drugs Act 1981 (WA) at the applicant's work address in Beaufort Street at Inglewood. While the search was being conducted and about an hour and a half into it the applicant arrived in his car. A search of his backpack which was found in his vehicle located two metal tins. They contained what appeared to be crystal methylamphetamine or "ice".
He was subsequently interviewed by police, the interview being videotaped. He admitted the drugs were his and said he had purchased them for $390 the day before off an unknown person in Forrest Chase in Perth. He told the police that the drugs were for his own personal use but would share them with his friends if asked. On further examination it appeared that the tins contained a total of 6.739 grams of methylamphetamine in 13 small plastic clip seal bags. One bag contained some 3.4 grams whilst the remaining drugs were split up into clip seal bags in smaller amounts.
The applicant also had $225 cash in his possession for which he could not offer any explanation. While searching his backpack the investigators also found a notebook containing notations which appeared to be drug transactions conducted by him. He admitted the notebook was his and that it was his writing but said that he used the notebook for a poker game. When questioned about the large quantity of notes on the page he said they were from a lot of poker games and that he liked to record how much money he was winning or losing. He was then arrested.
The street value of the drugs was $4170. The larger amount was some 25 per cent pure which indicated it could have been cut further into smaller amounts. Pertinently to the submissions put before me this morning I should note that in concluding her outline of the facts to the sentencing Judge the State Prosecutor said the State was putting the matter to the court on the basis that it was part of a commercial enterprise on the part of the applicant. She specifically referred to the manner in which the drug was packaged, the small amounts in the individual bags which she described as dealing bags, the amount of the drug that was located, namely, an amount which was three times the presumptive amount, the fact that there was one bag that contained a larger amount of greater purity and therefore being capable of being cut further and the possession of the money and a notebook with names and amounts listed.
Counsel for the applicant submitted to her Honour that the drugs were in his possession primarily for his own use but also on the basis that he would share them. When that submission was put to her, her Honour pointed out that if the applicant intended to contest the State's submission or the basis upon which the matter had been put to her, then it would be necessary to have a trial of the issues because that would affect the sentence significantly. Counsel for the applicant then said that the applicant did not wish to challenge that approach. Her Honour said:
"It flies in the face of commonsense for a person to have their methylamphetamine for personal use in 13 little deal bags".
There was some further discussion between counsel and her Honour about the notations in the book and other matters and that concluded with her Honour saying:
"So what you are asking is, although I would accept the State's submission that this was a commercial enterprise, not all of it was for ‑ ‑ ‑"
and Counsel said: "Yes". Her Honour said: "That is how you would like me to approach it." I take that to be an indication that her Honour was saying that counsel was accepting the proposition that her Honour should accept the State's submission that it was a commercial enterprise, but that some of the drug was for the applicant's use. The matter was left on that basis.
In her sentencing remarks her Honour reiterated the facts as they had been put to her and, on the matter to which I just adverted, she pointed out that the State had submitted this was a commercial enterprise and that based on the packaging, the quantity, the way the applicant was carrying the drug, and particularly the notebook that was found in which he had recorded the sales, she was quite satisfied beyond reasonable doubt this was a commercial enterprise, but that she was going to take into account the fact that he himself was a heavy user and so an amount of that was for his own use. She said she also accepted that he was going to share some of it with other people without actually selling it, so that although it was 6.739 grams she did not think the commercial aspect of it applied "to all of that".
Her Honour then referred to the applicant's personal background and circumstances. She adverted to the prevalence of the offence and the fact that the possession of the methylamphetamine was in a commercial enterprise and at the higher end of the hierarchy of seriousness for drugs. She said she normally would have imposed a sentence of three years' imprisonment but reduced that to two years "because of the need to do so," which I take to be a reference to the legislative requirement to reduce the sentence by one third.
Her Honour continued that because of matters favourable to the applicant, particularly his fast track plea and his undertaking rehabilitation and the fact that she found not all of the quantity was involved in the commercial enterprise, she reduced the sentence to one of 18 months. Her Honour then went on to say:
"The most important issue really for you is whether it is possible in the circumstances in which I find you for me to suspend that term of imprisonment, and I start by saying it's highly unusual to even consider it. Considering it in your case, because of the commercial nature, even though for a small amount, it does seem to me that the interests of the community and the need for general deterrence would stop me from suspending your term of imprisonment. I am going to have to order that you immediately serve your imprisonment otherwise people in the community - [sic] and although your age is taken into account at 25, you are plenty old enough to know that you should not be dealing in methylamphetamines. So your sentence is one of 18 months' imprisonment."
She ordered that he be eligible for parole.
The applicant's counsel submits in relation to ground 1 that the sentencing Judge was in error by failing to determine what amount of the drug was for the applicant's own use, the amount that was going to be provided to other people without actually being sold and the amount to which the commercial aspect applied, and in so failing to inform herself of those matters she precluded herself from being able to give consideration to the factors identified in pars (e) to (h) inclusive of s 39(2) of the Sentencing Act.
Those paragraphs refer to consideration of an intensive supervision order, the imposition of suspended imprisonment or the imposition of a term of imprisonment. Given the material that was put to her Honour by counsel for the State and counsel for the applicant, and given the issue was specifically raised by her Honour and the response which was given by counsel for the applicant, it seems to me on the face of it that there was simply nothing further her Honour could have done in relation to identifying what amount was for the applicant's own use or either of the other purposes referred to.
She had raised the issue, counsel for the applicant agreed with the proposition and did not seek to advance it to any further degree, that she should deal with the matter on the basis that the drug was in the applicant's possession for a commercial purpose but some of it was for his own use and some of it was to be supplied. It seems to me there is no substance whatsoever in ground 1.
In relation to ground 2 it clearly cannot be said that her Honour failed to consider at all the imposition of a suspended sentence. She expressly referred to that. The extent to which the ground may be argued must necessarily be limited to the proposition that her Honour failed to consider it adequately. The way that is put by counsel for the applicant on this application is that her Honour erred in deciding first to impose a term of imprisonment and only then considering whether or not it could be suspended. The applicant relies upon Dinsdale v The Queen (2000) 202 CLR 321.
On the face of it, it is clearly arguable that that is the approach her Honour took. The applicant further relies upon the decision of the Court of Criminal Appeal in Samuel v The State of Western Australia [2004] WASCA 154 in which it was said that the High Court in Dinsdale made it clear it would be an error of law to conclude that a sentence of imprisonment is appropriate and only then consider whether it can be suspended.
Mr Dempster for the respondent points out that the earlier decision of R v Latham (2000) 117 A Crim R 74 was not referred to the Court in Samuel and in Latham the Court discussed at some length a detailed analysis of the decision of the High Court in Dinsdale in the context in particular of the provisions of the Sentencing Act. It is sufficient, I think, to say for present purposes that there is an arguable case either way on this ground of appeal. Whether or not one could come to the conclusion that it has a strong prospect of success is another question with which I do not for the moment propose to deal.
In relation to ground 3, the proposition as I understand it essentially is that in all the circumstances of the case her Honour erred in concluding that a suspended sentence was not an appropriate disposition. Given the nature of this application, it seems to me undesirable to canvass in any detail why I have come to the conclusion I have in relation to that, but it does seem to me that that is a ground of appeal which in all of the circumstances does have a strong prospect of success.
My conclusion is that there are strong grounds for concluding the appeal would be allowed in respect of ground 3 and if that were to be so and the appeal were thereby to succeed such that a suspended term of imprisonment or, arguably, an intensive supervision order were substituted, that outcome would likely be made to some not insignificant extent nugatory by the period of imprisonment that the applicant would by then have served.
Assuming the appeal is heard in November this year, only about a half of the non‑parole period would have been served, as I have said, but given the proposition is that the appellant is seeking on the outcome of the appeal a conclusion that no immediate imprisonment should have been ordered at all, that is in my view significant. In that way and for those reasons in the circumstances this combination of facts in my view constitutes an exceptional reason why the applicant should not be kept in custody pending his appeal.
I do not understand Mr Dempster to be contending that bail should not otherwise be granted, having regard to the factors in cls 1 and 3 of Pt C of the Bail Act. The applicant's personal circumstances and antecedents and the other factors put before me satisfy me that bail should otherwise be granted. I reiterate the observation made by White J that if the appeal does not eventually succeed and there is no guarantee that it will, the applicant would have to be returned to custody to serve the balance of his term.
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