Haddrill v The State of Western Australia

[2019] WASCA 58

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HADDRILL -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 58

CORAM:   MAZZA JA

HEARD:   22 MARCH 2019

DELIVERED          :   22 MARCH 2019

PUBLISHED           :   5 APRIL 2019

FILE NO/S:   CACR 14 of 2019

BETWEEN:   DARRYL PETER HADDRILL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   PETRUSA DCJ

File Number             :   IND 300 of 2018

Catchwords:

Criminal law - Application for bail pending appeal - Exceptional circumstances - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 4A

Result:

Bail application dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Nil

MAZZA JA:

(This decision was delivered extemporaneously on 22 March 2019 and has been edited from the transcript.)

1. Before me is Mr Haddrill's application filed on 1 March 2019 for bail pending his appeal against sentence.  The appellant has also appealed against his conviction, but this application has only been brought in the sentence appeal.  The application is supported by Mr Haddrill's affidavit sworn 28 February 2019, and by the affidavit of his fiancée, Deanne Lee Wright, sworn 14 March 2019.  Ms Wright's affidavit annexes a number of character references which appear to have been tendered to the sentencing judge.

2. The relevant background is as follows.  The appellant was tried in the District Court and convicted of three offences, namely, detaining another with intent to gain a benefit, assault occasioning bodily harm, and aggravated burglary.  On 14 December 2018, he was sentenced to a total effective sentence of 8 years' imprisonment, with eligibility for parole, backdated to commence on 13 October 2018.

3. It is unnecessary to describe the facts of the offending as found by the sentencing judge.  It is enough to observe that, based on those findings, it was very serious offending. 

4. On 24 January 2019, the appellant's solicitor filed notices of appeal against sentence and conviction. 

5. With respect to the appeal against sentence, the draft ground of appeal is, in effect, a ground of appeal that alleges that the total effective sentence infringed the first limb of the totality principle. 

6. I note that no appellant's case has yet been filed. 

7. The appellant's solicitor has informed the court that he has not been instructed to appear at this bail hearing.  The bail application was filed by the appellant in person, and has been argued by him. 

8. The application is brought pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA). This clause creates a rebuttable statutory presumption against a grant of bail pending appeal. A judge shall only grant bail if he or she is satisfied that there are exceptional reasons why the appellant should not be kept in custody, and it is otherwise an appropriate case for the grant of bail.

9. The onus is on the appellant to establish exceptional reasons.  What constitutes exceptional reasons in a particular case may vary according to the facts of that case, but usually the focus of the inquiry is on the merits of the appeal. 

10. In the absence of an appellant's case I am unable to assess the merits of the appeal, but, it appears to me, given the seriousness of the offending, that even if the ground of appeal against sentence succeeds, the total effective sentence of immediate imprisonment would only be somewhat reduced.  It does not appear to me, at least on a preliminary basis, that the appellant would receive a suspended term of imprisonment or some lesser penalty. 

11. From what the appellant has told me in oral submissions, and from his affidavit, the main reason that he has proffered for the grant of bail is the adverse effects his incarceration is having upon his family, particularly his children, and his business.  He is also concerned about the health of his mother.  He has told me that his mother has dementia, and that while he has been incarcerated her condition has deteriorated quickly. 

12. All of this is unfortunate for the appellant, his family and his business, but the impact of a term of imprisonment on others is not usually a mitigating factor, and it is not a matter which could constitute exceptional reasons in this case. 

13. For these reasons, exceptional reasons have not been demonstrated.  The application must be dismissed, and I so order. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CS
Associate to the Honourable Justice Mazza

5 APRIL 2019