Hagart v Viles - [2010] WASC 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HAGART -v- VILES [2010] WASC 200

CORAM: SIMMONDS J

HEARD: 8 & 9 JULY 2010

DELIVERED : 9 JULY 2010

PUBLISHED : 4 AUGUST 2010

FILE NO/S: SJA 1065 of 2010

BETWEEN: PETER CLIFFORD HAGART
Appellant
AND
CHRISTOPHER JON VILES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
File No  :BU 4583 of 2009, BU 845 of 2010

Catchwords:

Bail pending appeal - Appeal from sentence and other order in Magistrates Court following plea of guilty - Proper approach to such bail application

Criminal procedure - Appeal notice's appeal details not matching grounds of appeal - Substitution of new appeal notice - Suspension of orders for immediate imprisonment

Legislation:

Bail Act 1982 (WA), s 13, sch 1 pt C cl 1, cl 3, cl 4
Criminal Appeals Act 2004 (WA), s 10, s 12
Criminal Procedure Rules 2005 (WA), r 65
Sentencing Act 1995 (WA), s 80 s 84F

Result:

Orders made

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Mr P B Cassidy (8 July 2010) Mr P B Cassidy (9 July 2010)
Respondent: Ms S T Fox (8 July 2010) Mr S M Nunn (9 July 2010)

Solicitors:

Appellant: Thames Legal
Respondent: State Solicitor for Western Australia

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

Cullen v Rollings [2009] WASC 80
Dabag v The State of Western Australia [2005] WASC 22
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988)
Lutey v Jacques [2010] WASC 78
Mieli v Beros [2006] WASC 294
Sabau v The State of Western Australia [2007] WASC 183
Saka v The Queen [2001] WASC 92
Scolaro v Shephard [2010] WASC 77
The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34

SIMMONDS J:

Introduction

This is an application for the court to grant bail. The applicant for bail has applied for leave to appeal against his sentence of 7 months imprisonment to be immediately served, following his plea of guilty in the Magistrates Court to a charge of breach of an interim violence restraining order. The sentencing magistrate had both sentenced the applicant for that offence and, as a result, activated a sentence of suspended imprisonment of 7 months for a traffic offence, with the sentences of immediate imprisonment to be served concurrently. The grounds for the leave to appeal make it plain that the appeal is against both orders.
At the same time the appeal notice (form 20 under Criminal Procedure Rules 2005 (WA) r 65) might appear on its face (see the entries in the box under 'Primary Court's Decision') to relate to the sentencing disposition for the breach of the violence restraining order as well as a charge of common assault. The latter is a charge that was withdrawn. Also, there is no reference in that box on the first page to an identifier for the activation of the sentence of suspended imprisonment. While there is an indication of such activation in another box, there was also an indication in still another box on the same page that the appeal was only against the sentence for the breach of the violence restraining order. I will have occasion to say more about the appeal notice at the end of my reasons, as it was brought back to me on the day following the first hearing.
The respondent does not oppose the grant of bail, provided that certain conditions were imposed.
Bail Act 1982 (WA) s 13 read with sch 1 pt A cl 4(1) gives me jurisdiction to grant bail for an appearance in connection with an appeal, under the Criminal Appeals Act 2004 (WA), to be determined by a single judge.
As the appeal is under Criminal Appeals Act pt 2, by Bail Act sch 1 pt C cl 5, the jurisdiction is to be exercised as if the applicant is awaiting an appearance in court before conviction for an offence. This is by way of exception to the requirement for applicants for bail pending appeal in other cases (see Bail Act sch 1 pt C cl 4A). They must show exceptional circumstances for the grant of bail: see Scolaro v Shephard [2010] WASC 77 (Hall J).
In Scolaro, the applicant was convicted following a trial. In this case, given the applicant's plea of guilty, I consider that the Bail Act requires that I approach his application on the basis that he had indicated an intention to plead guilty to the charge of breach of a violence restraining order, but had not yet been convicted. I further consider that the applicant should be taken to have admitted the facts as to the offending as presented to the sentencing magistrate.
This application and the reasons I set out below relate to two hearings.
At the conclusion of the first hearing I granted bail, on certain terms and conditions. I first indicate my reasons for granting bail at that hearing, by describing the approach to the matter I consider I should adopt, and then the circumstances of the case to which that approach had to be applied.
I then turn to the matters which brought about the second hearing and give my reasons for the orders made at that hearing.

The approach to the jurisdiction to grant bail

It is convenient to start with certain provisions of the Bail Act. They are sch 1 pt C cl 1(a)(i) and (ii), (c), (e), (f) and (g), and cl 3(a) to (d).
Schedule 1 pt C cl 1(a)(i) and (ii), (c), (e), (f) and (g) are as follows:
1.Bail before conviction to be at discretion of bail authority, except for a child
Subject to clauses 3A and 3C, the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant ‑
(a)whether, if the accused is not kept in custody, he may ‑
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
…
…
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
…
(e)whether there is any condition which could reasonably be imposed under Part D which would ‑
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Bail Act sch 1 pt C cl 3A and 3C have no application here.
Schedule 1 pt C cl 3 is as follows:
3.Matters relevant to consideration of clause 1(a)
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant ‑
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The general principles applicable to a grant of bail prior to conviction where Bail Act sch 1 pt C cl 3A and 3C are inapplicable are, in my view, as I reviewed them in Dabag v The State of Western Australia [2005] WASC 22 [13] ‑ [15], from which the following is taken.
Saka v The Queen [2001] WASC 92 [16] ‑ [17] (McKechnie J) is authority that the general approach to the grant of bail under the Bail Act, except to the extent it expressly modifies that approach, is as stated in a frequently cited passage from the judgment of Nicholson J in KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988) (dealing with applications for bail under the Criminal Code (WA) s 573). See also The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34 [31] ‑ [32] (EM Heenan J).
Nicholson J in KM as quoted in Saka [17] said:
It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The Court is therefore called upon to balance the interests of the accused and the public interest in the trial proceeding. The onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it. This position is well established; R v Fraser (1892) 13 LR (NSW) 150; R v Lythgoe (1950) QSR 5; R v Watson (1947) 24 WN (NSW) 100; R v Light [1954] VLR 152; R v Fisher [1964] Tas SR NC 7; R v Appleby 83 WN (PT1) (NSW) 300; Reg v Wakefield [(1969) 89 WN (Pt 1) (NSW) 325] and Burton v R (1974) 3 ACTR 77. Those decisions discuss factors which are relevant to the exercise of the Court's discretion, attention to which is directed in the sub‑headings which follow in these reasons.
I turn now to the circumstances of this case.

The circumstances of this case

I had a handwritten account of the statement of the material facts as to the offending presented by the prosecution to the sentencing magistrate, which was compiled by the solicitor for the applicant who represented him at that hearing. I also had the printed (less detailed) statement of material facts forming part of the prosecution brief, as well as a copy of the violence restraining order and a letter from that solicitor to another solicitor dated 1 July 2010 which, among other things, provides further background. From a reading of all of that material, the following appeared.
At the relevant time the applicant was 35 years old, 180 cm tall and of slim build. The victim was 13 years old, approximately 145 cm tall and of slim build. The victim was the protected person under an interim violence restraining order which, subject to immaterial exceptions, directed the applicant, among other things, not to communicate with the victim; not to be within 5 m of the external boundary of the unit where the victim lived, except to access the applicant's own nearby unit; and not to touch the victim.
On 1 February 2010 at about 5.00 pm, the applicant was in front of his unit supervising his three daughters who were playing there. The victim was also playing in the area. He called the daughters derogatory names. The applicant did not respond. After the victim went back into his unit, the applicant went to get his mail. On his way back from getting his mail he came within 5 m of the boundary of the victim's unit and became involved in an argument with the victim's mother. During the course of that argument the victim came up and addressed strong words to the applicant that culminated in 'what the fuck are you going to do?'
The applicant then grabbed the victim and after a short struggle the applicant and the victim collided with a wall. This collision caused a small graze to the victim and bruising to his throat area.
The applicant's explanation was that he would do anything to protect his daughters.
The applicant was charged with two offences. One was common assault. The other was breach of the violence restraining order. The prosecution agreed to withdraw the former charge if there was a plea of guilty to the latter.
The applicant has a criminal record, not limited to traffic offences, which included breaches of violence restraining orders as well as four offences of breach of bail. The penalties for the first were community based orders, while the penalties for the second were fines. The breaches of bail were explained to me as, for the majority of them, consisting in non-compliance in the circumstances the applicant then faced with bail undertakings, not non‑appearance. The applicant's record showed (ignoring, as I consider I am required to do, the present matters) no sentences of immediate imprisonment, and only one custodial sentence, that of suspended imprisonment previously referred to.
The applicant was granted bail on the charges including the present charge. The conditions were a personal undertaking of $2,000 and that he not contact the victim by any means, or come within 2 m of the victim. It was not suggested he had not complied with or answered that bail.
In my view, the breach of the violence restraining order in this case was a serious one, involving aggressive (if provoked) physical contact with, and some (if apparently minor) injury to, the protected person. Further, the protected person was a child, which has a bearing on this assessment, altogether apart from Bail Act sch 1 pt C cl 1(f). However, in my view, the matters of provocation and minor injury should also be weighed for the purposes of the factor in sch 1 pt C cl 1(g), on which see Sabau v The State of Western Australia [2007] WASC 183 [53] (Johnson J).
Of course, I have still to determine whether or not a grant of bail is appropriate, taking account of the presumption in favour of the grant of bail referred to in KM. However, in making that determination, I consider that the fact of the prior grant of bail for the charges, including the present charge, should of itself have no weight in favour of my granting bail. That is because I am exercising a discretion of my own whether or not to grant bail. However, I say 'of itself', because I consider that it is a factor weighing in favour of bail that the applicant had complied with and answered the previous bail. I return to this below.
It is a more difficult question to determine whether or not I should consider as a factor weighing against bail that the applicant received the sentence of immediate imprisonment he did. In my view, the effect of sch 1 pt C cl 5 is that I have to ignore the actual sentencing outcome.
Rather, by sch 1 pt C cl 3(a), I must have regard to the probable method of dealing with the accused for the charge of breach of a violence restraining order on a conviction on a plea of guilty. I consider I should also have regard to the probable method of dealing with the applicant under a sentence of suspended imprisonment on his conviction for the charged offence, as a matter falling within 'any others' which I consider 'relevant' (see sch 1 pt C cl 3, opening words). That is because of the seriousness of the penalty the applicant is facing as a result of his conviction for the charge of breach of violence restraining order.
I note for the purpose of determining the probable method of dealing with the applicant for the breach of the violence restraining order, my review of the authorities on sentencing for an offence of that kind in Lutey v Jacques [2010] WASC 78 [53] ‑ [68], referring to an earlier review of mine in Cullen v Rollings [2009] WASC 80 [28] - [42], [64], [71]. On those reviews, it might be readily said the probable method of dealing with the applicant was a custodial sentence.
However, I note that I do not have any more information with respect to the applicant's personal circumstances than that which I have previously described.
As to the remaining matters, I note that the respondent did not oppose the grant of bail on suitable conditions, and the conditions were ones to which the applicant was prepared to submit. While this is by Bail Act sch 1 pt C cl 1(c), a matter to which I had to have regard, it is not necessarily determinative of the exercise of my discretion, as there is a public interest in the grant of bail.
As to the matter of the probable method of dealing with the applicant under the sentence of suspended imprisonment, I note that it was not clear under which of Sentencing Act 1995 (WA) s 80 or s 84F the sentencing magistrate proceeded, except from the grounds of appeal, ground 2 of which refers to s 80. However, it is not apparent to me that there is a material difference between the provisions for my purposes. Under both, the court must make an order to serve the terms of imprisonment that were suspended unless it decides it would be 'unjust' to do so in view of 'all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed' (s 80(3); s 84F(3)). The only circumstances of either type apparent to me from the matter before me are to do with the nature of the offending represented by the breach of the violence restraining order. From those circumstances, it might be concluded it would not be unjust to activate the entire sentence of suspended imprisonment. See Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [33] (Murray J, Kennedy & Pidgeon JJ agreeing).
By Bail Act sch 1 pt C cl 3(b), I must have regard to the matter before me in respect of the items there listed. I consider I only have information as to the applicant's convictions and place of residence. I have referred to the former, which in my view weighs against the grant of bail. As to the applicant's place of residence, to me this appears to be a matter of some significance because of the proximity to the victim. However, in my view, it is a matter that is particularly capable of being addressed by a condition to any grant of bail, in the form of requiring the appellant to reside some distance further away, if such a condition could reasonably be imposed. In any event, the matter of such a condition is one to which I am directed to have regard by sch 1 pt C cl 1(f).
By Bail Act sch 1 pt C cl 3(c), I must also have regard to the history of any previous grants of bail to the applicant, which I understand as a reference to grants of bail in relation to the charges he faced in this case. I have previously referred to his bail history in relation to the present charges.
Finally, by Bail Act sch 1 pt C cl 3(d), I must have regard to the strength of the evidence against the appellant. Here, as I have said, I have to treat the applicant as intending to plead guilty to the charge of breach of the violence restraining order and so admitting the facts I have set out. I consider that there is uncontradicted evidence which will result in his conviction.
Applying KM, the primary consideration in determining whether or not to grant bail before conviction is the degree of risk that the respondent has shown that the applicant will not answer his bail. Particularly in view of the bail history for the present charges and the explanation of the prior breaches of bail, as well as the conditions I set out below (see Bail Act sch 1 pt C cl 1(e)(i)), and the lack of grounds put against bail by the respondent, I consider I should grant bail, on those conditions, and orders are so made.

The bail conditions

There are five conditions to the grant of bail.
1.There should be surety from the applicant's father, in a form suitable to the justices in the normal way, in the amount of $5,000.
2.There should be a personal undertaking from the applicant, in the amount of $2,000.
3.The applicant should reside at the address in Bunbury to which I was referred, not being his previous address, and subject to the next condition.
4.The applicant's residence should be more than 500 m from where the victim ordinarily resides, from time to time. I was told that the victim and his mother had recently moved, although it was not known to what address. Should that address or any other such address prove to be 500 m or less distant from the applicant's address in the previous condition, there would have to be an application for variation of one or other of these two bail conditions.
5.The applicant should not communicate or attempt to communicate with the victim or be within 50 m of him or his mother.

The effect of those orders

The effect of the decision on the application for bail at the end of the first hearing, as understood by the court and, I consider, by the parties, was that the applicant had received a grant of bail, in extendable form, in relation to his application for leave to appeal against the orders of imprisonment made by the sentencing magistrate.
However, following the first hearing it was drawn to my attention that the appeal notice might be defective in the ways I identified at the beginning of these reasons, and if so, that the applicant could not be released on bail on the activated term of suspended imprisonment. A further hearing arising out of that matter was heard on the day following the first hearing.

The second hearing

I begin my consideration of the matter by noting that it seems to me that the bail was granted in relation to the appeal proceedings commenced.
Further, it is clear that an appeal may be taken against an order by a magistrate activating a term of suspended imprisonment. It would appear that such an appeal is not against a sentence within Sentencing Act s 39(1) (see Criminal Law in Western Australia, looseleaf, [SA s 80.10]). However, it seems to me that it is at least an appeal against a 'decision, of a court of summary jurisdiction' which is an 'order made, as a result of a conviction' (Criminal Appeals Act s 6(f)). See [SA s 80.10] on the similarly worded s 23(2)(b). It would follow, in my view, that a reference on the first page of the appeal notice to the prosecution notice number or numbers for the charge or charges for which the sentence of suspended imprisonment was received would not be an appropriate way of referencing the order. Indeed it would be misleading, to the extent it suggested that the appeal was against the imposition of the sentence of suspended imprisonment.
That said, it is not clear from form 20 how a reference to the order under Sentencing Act s 80 or s 84F should be made in the box under 'Primary court's decision'. It seems to me it would be sufficient to refer only to the prosecution notice for the offence the conviction on which resulted in the activation of a term of suspended imprisonment. However, it might be better to refer to the identifying number used for the magistrate's activation of the term of suspended imprisonment, if there were one.
However, in any event, it would be necessary to refer to the activation in the box under the heading 'Decision details'. In fact, there is a reference in that box in the appeal notice in this case, alongside 'Other orders made' as follows:
A suspended sentence of 7 months imposed on 5 March 2009 (no mdl) be served concurrently with the above.
This is below the entries in that box, alongside 'Conviction recorded', of '1 x Breach of Violence Restraining Order Restraining Orders Act 1997 s 61(1)' and alongside the next entry down, 'Sentence imposed', of '7 months' immediate imprisonment'.
That of itself would not be sufficient, however. That is because there is the remaining box on the first page of the appeal notice under the heading 'Appeal Details', in which, alongside 'Notice of Appeal', there is provision, in the case of an application that is for leave to appeal against sentence or other order than conviction, for an endorsement alongside the two entries 'the above sentence' and 'the above order'. On the appeal notice in this case there is an 'x' alongside the first, but not the second, entry.
However, I consider the court has the power to disregard an obvious error in an appeal notice. Such an error is represented at least by the reference to the withdrawn common assault charge on the first page of the appeal notice (and as I will indicate in one of the grounds of appeal).
The error in not endorsing both entries I have referred to is not 'obvious', at least in the same way. However, it seems to me that the court could treat the appeal notice as if it indicated, on the first page, that leave to appeal was also sought in respect of the activation of a term of suspended imprisonment, that is 'the above order'. That is because it is clear from the Criminal Procedure Rules r 65(1)(c) that a notice of appeal includes the grounds of appeal. The grounds of appeal in this matter read in full as follows:
1.The sentence imposed in relation to the common assault and breach VRO was manifestly excessive in all the circumstances;
Particulars of circumstances:
1.1the plea of guilty;
1.2the agreed facts as presented;
1.3the VRO was an interim order only;
1.4the Appellant's antecedents.
2.The learned Magistrate erred when, in all the circumstances, she determined the suspended sentence be served;
Particulars of circumstances:
2.1Section 80(3) of the Sentencing Act 1995 affords the Court a discretion as to whether or not to order the suspended term be served;
2.2circumstances that had arisen post the imposition of the suspended sentence were such that a further term of suspended imprisonment should have been imposed; Section 80(1)(c).
Not every mismatch between the first page of the form 20 appeal notice and the annexed grounds of appeal will be capable of being treated in this way. Thus, a mismatch which does not clearly indicate which dispositions are being appealed against might not be so capable. However, it seems to me that this is a case where the mismatch is so clear as to be capable of such treatment. Thus, the failure to provide an 'x' alongside 'Other order' in the 'Appeal details' box appears to me to have been a slip.
It follows that I do not consider it is necessary for the applicant for bail to apply under Criminal Appeals Act s 10(3) for an extension of time for the commencement of an appeal against the sentencing magistrate's decision to activate a term of suspended imprisonment. It seems to me that if it were necessary for such application to be made, it would be one the Court could readily grant, and should in this case: see Mieli v Beros [2006] WASC 294 [3] ‑ [6] (Miller J).
Here, however, the applicant's legal representatives elected to proceed in another way.
Shortly after the lack of a reference on the first page of the appeal notice to an appeal against the activation of the term of suspended imprisonment was discovered, an application was made to the court for it to proceed in two other ways. Neither manner of proceeding was opposed by the respondent.
One was that the original appeal notice 'be substituted with the Appeal Notice (Amended) dated 9 July 2010'. A document 'Amended APPEAL NOTICE' dated 9 July 2010 was filed which was identical with the previous appeal notice except for the deletion of the prosecution notice number for the withdrawn charge of common assault; the deletion from ground 1 of the grounds of appeal of a reference to a common assault; and the addition of an 'x' alongside both of the entries referred to in the box under the heading 'Appeal Details'.
The other order sought was that:
the order made by the Learned Magistrate, namely that the Appellant serve the sentence of suspended imprisonment on charge BU 4583 of 2009, be suspended until the appeal is concluded.
The latter order is sought on the basis that the bail I granted was 'in relation to the sentence imposed on the breach of VRO'. That order was sought under Criminal Appeals Act s 12, the material provisions of which I reproduce below:
(1)At any time after an appeal under this Division is commenced against a decision of a court of summary jurisdiction, the Supreme Court may make any order it thinks fit that suspends or continues in effect until the appeal is concluded -
(a)the decision;
(b)any sentence imposed, or order made, by the court of summary jurisdiction as a result of the decision;
(c)any statutory consequence of the decision.
…
(3)An order may be made under this section before or after the Supreme Court decides whether or not to give leave to appeal.
…
(5)Despite subsections (1) and (2), if an appellant or respondent is serving a sentence of imprisonment -
(a)the sentence must not be suspended unless he or she is granted bail under the Bail Act 1982; and
(b)he or she must not be released from custody until he or she becomes entitled to be released under that Act.
It will be apparent from what I have already said that the applicant misunderstood the bail order I made, which was in relation to an appeal. Further, if the bail order was made on the basis assigned by the applicant, it is not altogether clear to me how, consistently with Criminal Appeals Act s 12(5), I could make a suspension order without making a fresh bail order. However, I consider that bail was granted, as I have previously indicated, in relation to the appeal. Accordingly, no fresh bail order is needed.
I should add that it might be suggested that a suspension order is necessary in respect of both the activated term of suspended imprisonment and the term of imprisonment for the breach of violence restraining order. This would be on the basis that both custodial terms were the result of the decision appealed against. I consider any such suggestion would be met by the response that the imposition of the terms of imprisonment was the decision appealed against, in what is an appeal against sentence. Thus, it is not apparent to me from Scolaro that a suspension order or orders was needed and it appears none was or were made in that case.
At the same time, I consider it would, in all of the circumstances of this case, be appropriate to make the orders sought; while I should make a further order for suspension of the sentence of imprisonment imposed for the breach of the violence restraining order.
Those orders are to ensure that there is a proper appeal notice for consideration by the court: for this purpose I would grant any necessary extension of time for the commencement of the appeal by that amended appeal notice.
Those orders are also to put beyond doubt that proper effect can be given to the grant of bail pending appeal in this case.
The bail papers to be forwarded to the prison authorities will be endorsed accordingly. In particular the release from custody papers will reference the prosecution notice numbers for both the charge of breach of violence restraining order and the traffic offence, for which the sentence of suspended imprisonment was activated.