Foale v The State of Western Australia - [2019] WASCA 122

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FOALE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 122
CORAM:   BUSS P
MAZZA JA
SOFRONOFF AJA

HEARD:   19 JULY 2019
DELIVERED          :   22 AUGUST 2019
FILE NO/S:   CACR 97 of 2019
BETWEEN:   KEVIN JAMES FOALE
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number             :   ALB IND 55 of 2018

Catchwords:

Criminal law - Bail - Differences between applications for bail pending appeal and applications for bail pending sentence - Jurisdiction of Court of Appeal to hear bail application - Factors relevant to bail pending sentence - Significant term of imprisonment - Seriousness of offences

Legislation:

Bail Act 1982 (WA), s 3, s 13, s 15A, s 15B, sch 1, pt A, pt C
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Not applicable
Respondent	:	Director Of Public Prosecutions (WA)

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

Hutton v The State of Western Australia [2016] WASC 83
Jasevski v The Queen [2010] WASC 43

BUSS P:

I joined in the court's order to dismiss the application for the reasons given by Sofronoff AJA.

MAZZA JA:

I joined in the court's order to dismiss the application for the reasons given by Sofronoff AJA.

SOFRONOFF AJA:

The applicant is a 33 year old man who was found guilty by a jury on 31 May 2019 of two counts of possession of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The learned trial judge, Birmingham DCJ, adjourned sentencing until 9 August 2019. By his counsel, the applicant applied for bail pending sentencing. The learned trial judge refused the application and the applicant has made an application to this court. After hearing the applicant and counsel for the respondent, the court dismissed the application. These are my reasons for joining in that order.
At the time that the applicant applied for bail, Birmingham DCJ observed that 'there can be no possible sentence other than a significant term of [immediate] imprisonment'. The applicant's trial counsel did not submit to the contrary and no contrary submission has been made at the hearing of this application.
The reason that the applicant gave to Birmingham DCJ for seeking bail was to permit him to get his affairs in order. On this application, the applicant has added that he wishes to be released on bail because he is acting for himself in his appeal and it is difficult to confer with the prosecution while in custody.
The learned trial judge's reasons, given ex tempore after the conclusion of trial, and in response to an oral application for bail made instanter, were, naturally, succinct. His Honour referred to two factors which he regarded as significant to his decision to refuse bail. The first was that the applicant had committed offences while he was on bail for the offences of which he had just been convicted. The second was that it was 'inevitable that [the applicant] was going to gaol for a very

significant period of time'. The learned trial judge said that the applicant's release on bail pending sentence would be 'wholly inappropriate' (ts 403).

For present purposes, the material facts are these. After the applicant was charged he was granted bail. He answered his bail but, while on bail, he committed two further drug offences and two drug‑related driving offences. According to character references placed before this court, until he committed the offences of which he was found guilty, the applicant had been held in very high regard by his employers and his peers as a person of excellent character and work ethic. It is not necessary to go into the detailed facts that support those opinions and, for present purposes, they can be accepted as a true reflection of the applicant’s previous good character. It is also relevant that the applicant did not abscond while on bail previously. If granted bail, the applicant would live with his parents, who have undertaken to support him and who had furnished surety on his previous bail. The applicant is also willing to submit to conditions to address any risk of absconding, such as a stringent reporting conditions.
Section 13(1) of the Bail Act 1982 (WA) vests jurisdiction to grant bail in certain 'judicial officers'. That is an expression that is defined in s 3 so as to refer, relevantly, to a District Court judge or the Court of Appeal, depending upon the circumstances. Those circumstances are set out in pt A of sch 1 of the Act. Column 1 of pt A of sch 1 refers to the various kinds of appearances at which an applicant for bail may be ordered to appear at some time in the future. Column 2 specifies the 'judicial officer' in whom jurisdiction to grant bail is vested by s 13 of the Act in each instance. Relevantly, jurisdiction to grant bail is vested in the Court of Appeal, or in a single judge of this court, if the appearance is 'in connection with an application or appeal made under the Criminal Appeals Act 2004' (cl 4). In the case of any proceeding (other than a committal for trial or sentence) for an appearance in any court before a judicial officer after 'any adjournment of proceedings for an offence', jurisdiction to grant bail is vested in the judicial officer who has ordered the adjournment (cl 2). Otherwise, for '[a]ny appearance in a court not otherwise provided for in this Part or by regulations under this Act', jurisdiction is vested in the 'judicial officer who, or court which, orders the appearance' (cl 6). Since pt A of sch 1 makes no express provision for an appearance for sentence after a trial, and there are no relevant regulations, either cl 2 or cl 6 is applicable in this case. It makes no difference in this case which is the relevant provision because, in either case, the relevant judge in whom jurisdiction was vested was Birmingham DCJ and not the Court of Appeal or a member of this court.
Section 13(1) of the Bail Act also provides that the jurisdiction to grant bail that is vested in, relevantly, the judicial officer specified in the second column of pt A of sch 1 to the Act shall be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1. While pt A makes no express provision for bail pending sentence, cl 4 of pt C of sch 1 does so. It provides that the grant or refusal of bail to a person who is in custody awaiting sentence is at the discretion of the judicial officer 'in whom jurisdiction is vested'. I will return to this provision in due course.
The applicant is self-represented. While he has not yet been sentenced, the applicant has been convicted and he has filed an application for leave to appeal against his conviction. There has been some confusion as to whether the applicant has made an application for bail pending appeal or whether he is before this court on an application for leave to appeal the refusal of bail or whether he is applying afresh for bail pending sentence. At least in form, the applicant has filed a written application that was expressed as an 'application in appeal to this court for bail to be considered'. The respondent has treated this proceeding as an application for bail pending appeal. In my respectful opinion, that was correct for the following reasons.
By virtue of s 13, cl 2 and cl 6 of pt A of sch 1 vest jurisdiction to grant bail in the 'judicial officer who orders the adjournment' (cl 2) or in the 'judicial officer who … orders the appearance' (cl 6). The relevant appearance that was the subject of the application for bail before Birmingham DCJ was an appearance after an adjournment (of the sentence proceeding) that had been ordered by his Honour or, at least, it was a further appearance that his Honour had ordered. Consequently, whether the relevant provision is cl 2 or cl 6, jurisdiction is vested in the judge 'who order[ed] the adjournment' or in the judge 'who … order[ed] the appearance', namely Birmingham DCJ. The Court of Appeal has no original jurisdiction to grant bail pending a sentence hearing in the District Court or the General Division of the Supreme Court.
In the case of a person awaiting sentence, cl 4 of pt C provides that the application 'shall be at the discretion of the judicial officer in whom jurisdiction is vested' and is to be exercised 'having regard to the questions set out in clause 1' and any other relevant matters. Clause 1 sets out questions that are relevant to applications for bail pending conviction. As a result, the same questions are relevant to an application for bail pending sentence.
However, s 13(1) and cl 4 of pt A of sch 1 confer original jurisdiction upon members of this court to grant bail pending appeal and in such cases the relevant considerations are very different. Clause 4A of pt C of sch 1 provides that this court shall only grant bail to a person who is 'in custody waiting for the disposal of appeal proceedings' if it is satisfied, inter alia, that 'exceptional circumstances exist'. Accordingly, rather than treating the application as an incompetent application for bail pending sentence, I would determine it as an application for bail pending appeal.
None of the reasons offered by the applicant constitute 'exceptional circumstances'. The need to arrange one's affairs before serving a term of immediate imprisonment, as well as the difficulties associated with the preparation of an appeal from prison, are common to all persons who are being held in custody awaiting the disposition of an appeal. Further, the facts about the applicant's previous good character and the unlikelihood of his absconding, cannot, on their own, constitute such circumstances. These, too, are not exceptional. In some cases the strength of an appellant's case may go some way towards establishing exceptional circumstances but, as counsel for the respondent has pointed out, in this application there is no material upon which the court could make any assessment of that kind.
Because the applicant is self-represented, it is as well to explain that under any possible test his application would have failed. In particular, if this court had jurisdiction to consider the application pursuant to cl 4 of part C, as Birmingham DCJ did, then the result would have been the same for the following reasons.
In Hutton v State of Western Australia,[1] Fiannaca J observed that, after a guilty verdict, the seriousness of the offence that the applicant committed, as well as the likely sentencing disposition, both become material factors in addition to the other matters referred to in cl 1 of Part C. I would respectfully agree with that observation. In this case the offences were serious and it is common ground that the applicant faces a significant term of immediate imprisonment.
[1] Hutton v The State of Western Australia [2016] WASC 83 [7].
Fiannaca J said [9]:
In my opinion, apart from the risk of flight, there is another matter that is a relevant consideration for the purposes of cl 4. As a matter of public policy, there would be an expectation that persons who are convicted of very serious offences, and will inevitably be sentenced to a lengthy term of imprisonment, should be required, generally, to be met with the consequences of conviction and not be at large. The general entitlement to be at liberty that stems from the presumption of innocence is removed by the guilty verdicts. This does not mean that there is a presumption against bail following conviction, as was noted by Hall J in Jasevski,[2] but it provides another factor, in my opinion, which needs to be weighed in the balance, for the purposes of cl 1, in considering whether there is a proper foundation for refusing bail.
[2] Jasevski v The Queen [2010] WASC 43 [9].
I respectfully agree.
In a case in which the applicant has been convicted of a serious offence that is very likely to result in a sentence of immediate imprisonment for a significant term, as in this case, that fact alone will generally justify a refusal of bail pending sentence for the reasons stated by Fiannaca J. I understood Birmingham DCJ's statement that the grant of bail in this case would be 'inappropriate' to be a succinct reference to this consideration. The position is otherwise when an applicant for bail pending sentence is not likely to be sentenced to immediate imprisonment and, of course, other exceptional circumstances of a particular case may even justify a grant of bail for a person facing long immediate imprisonment.
The low risk of offending that the applicant seems to present, as well as the undoubted inconvenience that immediate imprisonment will cause to the applicant's preparation of his appeal, could not outweigh the other factors to which I have just referred, namely the convictions for serious offences and the imminence of the sentence of immediate imprisonment.
If contrary to my view, this application was actually an application for leave to appeal Birmingham DCJ's refusal of bail under s 15A read with s 15B of the Act, then a fortiori such an application would have been dismissed.
For these reasons, I joined in the court's order to dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss
22 AUGUST 2019