Gray v The State of Western Australia
[2014] WASCA 206
•5 NOVEMBER 2014
GRAY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 206 | |
| THE COURT OF APPEAL (WA) | 05/11/2014 | ||
| Case No: | CACR:172/2014 | 27 OCTOBER 2014 | |
| Coram: | MAZZA JA | 27/10/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused Urgent appeal order granted | ||
| B | |||
| PDF Version |
| Parties: | DANIEL MICHAEL GRAY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeal |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A |
Case References: | Colwell v The State of Western Australia [2012] WASCA 149 Shrivastava v The State of Western Australia [2010] WASCA 96 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GRAY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 206 CORAM : MAZZA JA HEARD : 27 OCTOBER 2014 DELIVERED : 27 OCTOBER 2014 PUBLISHED : 5 NOVEMBER 2014 FILE NO/S : CACR 172 of 2014 BETWEEN : DANIEL MICHAEL GRAY
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HERRON DCJ
File No : IND KAR 26 of 2013
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Bail refused
Urgent appeal order granted
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms S Markham
Solicitors:
Appellant : Saupin Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Colwell v The State of Western Australia [2012] WASCA 149
Shrivastava v The State of Western Australia [2010] WASCA 96
- MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
1 This is an application for bail pending the appellant's appeal against sentence pursuant to sch 1 pt C cl 4A of the Bail Act 1982 (WA) and, in the alternative, an expedited appeal order. The application is supported by an affidavit sworn by the appellant's solicitor, Marc Saupin. The issue to be determined is whether, as cl 4A requires, the appellant has demonstrated exceptional reasons for a grant of bail.
2 The background is as follows. The appellant was charged on indictment that on 17 October 2012 he drove an Iveco truck which was involved in an accident occasioning the death of Mr Andre Padilla, and that at the time of the accident he drove the truck in a manner that was, having regard to all of the circumstances, dangerous to the public or any person. The maximum penalty for this offence is 10 years' imprisonment.
3 After a four-day trial in the District Court, the appellant was found guilty by a jury as charged. On 12 September 2014, the appellant was sentenced by Herron DCJ to 2 years 2 months' imprisonment with eligibility for parole, to commence on that day. He was also disqualified from holding or obtaining a driver's licence for a period of 5 years. By my calculation, the appellant is eligible for release on parole on 12 October 2015.
4 On 3 October 2014 the appellant filed his appeal notice. On 17 October 2014 he filed his appellant's case.
5 There are five grounds of appeal. Grounds 1 and 2 are interlinked.
6 Grounds 1 and 2, in effect, allege that the learned sentencing judge made a material error of fact which should have led his Honour to suspend the term of imprisonment that was imposed. Ground 3 alleges that his Honour erred in finding that the deceased Mr Padilla was 'driving carefully and without fault'. Ground 4 alleges another error of fact, in not accepting that the appellant had decelerated to a speed of 10 km per hour prior to the collision. Ground 5 alleges that the sentence was manifestly excessive.
7 The appellant submits that there are exceptional reasons for a grant of bail in this case, being:
(1) the grounds of appeal, particularly grounds 1 and 2, are strongly arguable; and
(2) there is a very real risk that, absent a grant of bail or, in the alternative, an urgent appeal order, the appellant will serve most if not all of the non-parole period of his sentence before the court delivers its judgment.
8 The facts of the offending are as follows. On 17 October 2012, the appellant was employed at Wickham in the Pilbara as a trades assistant and rigger with a company called Powerlines Plus. He was instructed to drive to Tom Price to pick up a cable stand and to then bring it back to Wickham. The appellant set off for Tom Price at about 7 or 7.30 am in an Iveco truck. He arrived at Tom Price at about midday. After the cable stand was loaded, he began the return journey on a gravel road known as the Rio Tinto Rail Access Road. The laden weight of the appellant's truck was approximately 10 tonnes.
9 The road is wide enough for two large vehicles to pass one another. The use of the road is governed by several safety regulations, including a maximum speed limit of 80 km per hour and that headlights had to be on at all times. A known safety hazard when driving on such roads is dust caused by other vehicles, and that matter was, so the evidence suggests, drawn particularly to the attention of the appellant when he undertook a training course before he was issued with a permit to drive on the road.
10 The evidence was that the appellant overtook a Toyota Hilux ute being driven by Mr Polkinghorne. After doing so, he drove behind a road train being driven by Mr Armer, which was creating a large amount of dust, through which it was difficult to see. Instead of dropping back further behind Mr Armer's road train so as to avoid the obscuring cloud of dust, the appellant kept on driving in the cloud.
11 The appellant became disoriented as a consequence of the dust cloud and his truck drifted onto the opposite side of the road. His truck collided with a light vehicle being driven by Mr Padilla, who was travelling in the opposite direction on the correct side of the road. Mr Padilla's efforts to avoid the collision were unsuccessful. As a result of injuries sustained in the collision, Mr Padilla died.
12 The sentencing judge found that the appellant drove for a period of three or four minutes during which the driving conditions were dangerous by reason of the cloud of dust created by Mr Armer's road train. He rejected evidence that the appellant gave at trial that just prior to the collision he had slowed down to a speed of between 5 and 10 km per hour. The learned sentencing judge found that the appellant drove dangerously because he 'failed to pay sufficient regard to [the] conditions and the dangers created by the dust'.
13 He found that the appellant's dangerous driving caused the collision with Mr Padilla's vehicle. He found that the manner of the appellant's dangerous driving was more than momentary inattention. He said that the appellant was impatient and failed to drive to the conditions of the road. The learned sentencing judge found that the appellant was driving below the speed limit on the road, that he was not affected by alcohol, and that he was unfamiliar with the road conditions. As to this latter point, his Honour said that the appellant's lack of familiarity required him to exercise greater caution when driving on the road.
14 It is not necessary for me to outline in detail the appellant's personal circumstances. He was at the time of sentencing 27 years of age. He is single. His parents and siblings are supportive of him. It appears that he has a good work history. His Honour described him as having a 'poor traffic record', having accumulated, in 2011 and in 2012, six infringements for speeding, in addition to speeding infringements which were incurred in 2006 and 2007. His Honour found that the appellant was remorseful and that he was unlikely to reoffend in the same way again and unlikely to be a danger to other road users in the future.
15 It is unnecessary for me to canvass in any detail what is meant by the phrase 'exceptional circumstances' in cl 4A. I have done this in a number of recent decisions, including Shrivastava v The State of Western Australia [2010] WASCA 96 and Colwell v The State of Western Australia [2012] WASCA 149.
16 The inquiry as to whether there are exceptional reasons must focus on the merits of the appeal. Exceptional reasons require the appellant to demonstrate without detailed argument that the appeal has strongly arguable grounds or is most likely to succeed. That is, the prospect of success must be sufficiently likely as to give rise to a real concern that the appellant will suffer injustice by having been kept in custody on an unsound conviction or sentence.
17 This is not to say that factors other than the merits of the appeal are irrelevant. One such factor may be, as claimed in this case, that the appellant may serve such a period in custody prior to the appeal being determined so as to render a successful appeal nugatory or substantially nugatory. A relevant factor in the consideration of this point is whether it is appropriate to grant an expedited appeal order.
18 In assessing the strength of the grounds of appeal, it must be emphasised that I am not myself deciding the appeal and that my impressions as to the strength of the case are not my final impressions and may change. The respondent has not yet filed its answer, and the court does not have the benefit of the parties' detailed oral submissions as to the merits of the case.
19 On a preliminary basis, I do not think that grounds 3 and 4 are strongly arguable. It seems to me at this point that those findings were open to his Honour to make on the evidence called at trial. However, there is more force in the alleged error that is the subject of ground 1 and which is the basis for ground 2.
20 The State concedes that his Honour erred in his findings concerning the distance and the length of time that the appellant drove in the dust cloud. The respondent accepts that the appellant drove for a lesser distance and time - approximately 1.4 km over a time of approximately 1 1/2 minutes. The State's position is that, even if his Honour's findings were incorrect, the appellant was nevertheless driving dangerously for a substantial period of time, his culpability was not materially reduced, and that no different sentence should be imposed.
21 The materiality of the error and, if material, whether a different sentence should be imposed, cannot be determined on the materials before me to the degree that I could be satisfied at the moment that ground 1, and consequently ground 2, are strongly arguable.
22 With respect to ground 5, while I acknowledge that leave to appeal has been granted in respect of this ground, that does not mean that the ground is strongly arguable, and on a preliminary basis I am not yet persuaded that it is.
23 So far as the issue of time served in custody is concerned, I want to make a comment about an aspect of Dr Saupin's affidavit. With respect to him, I think he is unduly pessimistic as to when the appeal will be heard and determined, if an urgent appeal order was not made.
24 I am not satisfied that exceptional circumstances have been demonstrated. Accordingly, the application for bail is refused. However, having regard to the concession made by the State with regard to grounds 1 and 2, I will make an expedited appeal order.
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