DWL v The State of Western Australia
[2020] WASCA 65
•22 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DWL -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 65
CORAM: BUSS P
HEARD: 22 APRIL 2020
DELIVERED : 22 APRIL 2020
FILE NO/S: CACR 25 of 2020
CACR 28 of 2020
BETWEEN: DWL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
File Number : [X] of 2018
Catchwords:
Criminal law - Appeals against conviction and sentence - Applications for bail pending the hearing of the appeals - Applications for expedited appeal orders - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)
Criminal Code (WA), s 321(2), s 321(3), s 321(4), s 321(5)
Result:
Applications dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Appellant | : | Young & Young |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Peters v The State of Western Australia [2012] WASCA 274
Timbrell v The State of Western Australia [2013] WASCA 74
BUSS P:
The appellant has appealed to this court against conviction and sentence.
By an application in each appeal filed on 2 April 2020, the appellant has applied for bail pending the determination of the appeal, alternatively for an expedited appeal order. Each application is supported by an affidavit of the appellant sworn 24 March 2020.
The appellant was charged on indictment with 7 counts of sex offending against one male complainant who was, at the material time, aged 13 or 14 years.
Count 1 alleged indecent dealing, contrary to s 321(4) of the Criminal Code (WA) (the Code). Counts 2, 3 and 4 alleged sexual penetration, contrary to s 321(2) of the Code. Count 5 alleged encouraging a child to engage in sexual behaviour, contrary to s 321(3) of the Code. Count 6 alleged procuring a child to do an indecent act, contrary to s 321(5) of the Code. Count 7 alleged indecent dealing, contrary to s 321(4) of the Code.
The appellant pleaded not guilty to each count.
After a trial in the District Court before Lemonis DCJ and a jury, the appellant was convicted of count 5. He was found not guilty by the jury in relation to counts 1, 2 and 7. There was a directed acquittal in relation to counts 3, 4 and 6.
The trial judge sentenced the appellant to 3 years' immediate imprisonment on count 5. The sentence was backdated to 13 January 2020. A parole eligibility order was made.
In his conviction appeal the appellant relies on two grounds. Ground 1 alleges, in essence, that the verdict of guilty on which the conviction for count 5 is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. Ground 2 alleges, in essence, that the verdict of guilty on count 5 was inconsistent with the verdicts of not guilty that were entered, in that there was no evidence to distinguish count 5 from the other counts or to support a finding beyond reasonable doubt of his guilt on count 5 but not on the counts on which verdicts of not guilty were entered.
In the sentence appeal the appellant relies on two grounds. Ground 1 alleges, in essence, that it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt that count 5 was other than an isolated incident. Ground 2 alleges, in essence, that the length of the term of immediate imprisonment imposed for count 5 was manifestly excessive.
The principles relating to the granting of bail pending the determination of an appeal are well-established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia;[1] Timbrell v The State of Western Australia.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[2] Timbrell v The State of Western Australia [2013] WASCA 74.
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.
In Peters v The State of Western Australia,[3] McLure P observed, in the context of an appeal against conviction:
It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
[3] Peters v The State of Western Australia [2012] WASCA 274 [10].
In the present case, the appellant has submitted in the application relating to his conviction appeal that his grounds of appeal are strongly arguable. I will deal with the application relating to the conviction appeal by adopting that formulation.
I will deal with the appellant's application relating to his sentence appeal by considering whether he has a strongly arguable case that a different sentence should have been imposed. See s 31(3) read with s 31(4) of the Criminal Appeals Act 2004 (WA).
I have considered the material relied on by the appellant in support of his applications for bail, including his appellant's cases, his written submissions on the applications and his affidavits. I have also taken into account the oral submissions made by counsel for the appellant today.
I am not satisfied, at this stage, that the merits of the appellant's grounds in his conviction appeal, and the merits of the appellant's proposed submissions in his conviction appeal, are of sufficient strength to justify a grant of bail.
Also, I am not satisfied, at this stage, that the merits of the appellant's sentence appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of his conviction appeal and his sentence appeal.
The appellant's application for bail in each of his appeals should be dismissed.
My assessment, at this stage, having regard to the strength of the appellant's case in his conviction appeal and his sentence appeal, is that the making of expedited appeal orders is not justified.
However, subject to the availability of counsel, both appeals will be listed for hearing in the September or October 2020 sittings of the court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss23 APRIL 2020
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