Fry v Collins - [2013] WASC 371

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FRY -v- COLLINS [2013] WASC 371

CORAM: HALL J

HEARD: 23 SEPTEMBER 2013

DELIVERED : 23 SEPTEMBER 2013

FILE NO/S: SJA 1109 of 2013

BETWEEN: MATTHEW AARON FRY
Appellant
AND
MARTIN PAUL COLLINS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :BU 122033 of 2012, BU 122034 of 2012

Catchwords:

Criminal law - Bail pending appeal from Magistrates Court - Whether grounds for granting bail made out - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 7F, s 13, sch 1 pt C

Result:

Bail granted

Category: B

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondent: Mr L M Fox

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Scolaro v Shepherd [2010] WASC 77
HALL J:
(These reasons have been edited from the transcript).

This is an application for bail pending appeal from a decision of a magistrate.
The background facts are that the appellant was the driver of a car involved in an accident on 4 March 2012. Two passengers in the car were injured. The appellant was charged with dangerous driving occasioning bodily harm and dangerous driving occasioning grievous bodily harm. He pleaded not guilty to those charges.
There was a trial in the Bunbury Magistrates Court between 6 and 9 May 2013. At the completion of the trial the magistrate reserved his decision. On 9 July 2013, the magistrate delivered his decision and found the appellant guilty of both charges.
The appellant was then release on bail to appear for sentence on 13 September 2013. On that date, the appellant was sentenced to 12 months' imprisonment on the offence of dangerous driving occasioning grievous bodily harm and 6 months' imprisonment concurrent on the dangerous driving occasioning bodily harm. He was made eligible for parole. He has been in custody as a serving prisoner since that time.
The appellant has appealed against both his conviction and sentence. The appeal against conviction was filed on 24 July 2013 and the appeal against sentence on 17 September 2013. The appeal against conviction has been set down for hearing on 22 November 2013. It is appropriate to consolidate the appeals and hear them at the same time and I will make orders in that regard.
The issue for determination today is whether the appellant should be released on bail. The power to grant bail to a person who is in custody in connection with the decision of a magistrate and who has commenced an appeal against that decision arises under s 7F of the Bail Act 1982 (WA). That section requires that notice of the application be given to the DPP or the State Solicitor, as the case may require. Bail cannot be granted unless such notice has been given, and the respondent has had an opportunity to be heard. Those requirements have been met. The DPP was represented at this hearing and does not oppose bail being granted.
Section 7F does not otherwise prescribe any factors relevant to the exercise of the power to grant bail. However, s 13 of the Bail Act is of general application. It provides that the jurisdiction to grant bail and the way in which that jurisdiction is to be exercised are as set out in sch 1 of the Bail Act.
Schedule 1 provides that if an appeal under the Criminal Appeals Act 2004 (WA) from the Magistrates Court is to be determined by a single judge then bail pending the appeal is also to be determined by a single judge.
Generally the grant of bail to an appellant serving a sentence of imprisonment will require exceptional circumstances: see cl 4A sch 1 pt C. However, where the appellant is serving a sentence imposed by the Magistrates Court the position is different. In such a case, the requirement for exceptional circumstances does not exist. Furthermore, cl 5 of sch 1 pt C states that a person who is awaiting the disposal of appeal proceedings from the Magistrates Court shall be deemed, for the purposes of pt C, to be awaiting an appearance in court before conviction for an offence. The practical effect of cl 5 is that this court, when considering bail pending appeal from a magistrate, is required by law to treat the appellant as if they have not been convicted; see Scolaro v Shepherd [2010] WASC 77.
This means that the factors referred to in cl 1 of pt C are relevant. Those factors relate to considerations of whether the person will appear at a future court date, will commit an offence, will endanger the safety or welfare of others, will interfere with witnesses or obstruct justice, or needs to be in custody for his or her own protection. The court is also required to consider whether any conditions can be imposed which would remove any of the risks referred to.
The offences of which the appellant was convicted are serious in nature. The summary conviction penalty for the offence of dangerous driving occasioning grievous bodily harm is three years imprisonment, or a fine of 720 penalty units. The summary conviction penalty for the offence of dangerous driving occasioning bodily harm is 9 months' imprisonment, or 180 penalty units fine for a first offence, and 18 months or a 360 penalty unit fine for a second or subsequent offence. Higher penalties apply to offences dealt with on indictment, or in specified circumstances which do not apply here.
The fact that the appellant was found guilty and sentenced to imprisonment cannot be ignored. Whilst he is deemed to be a person awaiting conviction for the purposes of bail, it is nonetheless relevant to take into account that the appellant has knowledge of that outcome and given the possibility that his appeal may be dismissed that may provide an incentive to abscond.
As against that, the appellant complied with bail throughout the Magistrates Court proceedings. This included being released on bail following his conviction and before sentence. He was on a personal undertaking in the sum of $1,000 prior to being sentenced. There is no suggestion that there was ever thought to be any risk of the appellant absconding whilst he was on bail.
The appellant's personal circumstances also favour a grant of bail. Prior to his conviction for these offences he had no criminal or traffic record. He is 27 years old and in a stable relationship with a woman who has three young children. He has a four‑year‑old son of his own by an earlier relationship with whom he has regular contact. He has lived in the Bunbury area since he was six and has extended family there. He has worked at a large retailer in Bunbury for many years and proposes to continue to do so in the event he is granted bail. Whilst the lease on the property he shared with his partner and her children has expired, I am advised that he can live with his mother who is also willing to act as a surety, if required.
Any risk of the appellant committing offences if released on bail appears to be negligible. At least, no evidence in support of the existence of such a risk has been provided. The possibility of the appellant committing any driving offences is minimised by the fact that the appellant was disqualified from driving for two years by the magistrate.
That disqualification continues to be operative. An appeal only results in automatic suspension of a disqualification order if leave is granted: s 11 Criminal Appeals Act. Leave has not been granted on the conviction appeal. Rather, the question of leave has been referred to the hearing. I propose to do the same in respect of the sentence appeal. Accordingly, if released on bail, the appellant will remain disqualified from driving.
I am satisfied that conditions can be imposed that will address the matters referred to in cl 1, pt C, sch 1 of the Bail Act, and bail will therefore be granted.