Hawkins v The State of Western Australia
[2005] WASCA 63
•17 MARCH 2005
HAWKINS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 63
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 63 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:2/2005 | 17 MARCH 2005 | |
| Coram: | ROBERTS-SMITH JA | 17/03/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | DANIEL JOHN HAWKINS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Pending appeal Whether custodial sentence likely to be substantially served before appeal heard Prospects of success on appeal Combination of those and other factors Whether exceptional reasons why applicant should not be kept in custody pending appeal |
Legislation: | Acts Amendment (Court of Appeal) Act 2004 (WA), s 28(4), s 38(1) Bail Act 1982 (WA), Sch 1 Pt C, cl 4 |
Case References: | McMaster v The Queen [2004] WASCA 52 Stalker v The Queen [2002] WASCA 364 Tieleman & Anor v The Queen [2004] WASCA 295 United Mexican States v Cabal & Ors (2001) 209 CLR 165 Latham v The Queen [2000] WASCA 338 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HAWKINS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 63 CORAM : ROBERTS-SMITH JA HEARD : 17 MARCH 2005 DELIVERED : 17 MARCH 2005 FILE NO/S : CCA 2 of 2005 BETWEEN : DANIEL JOHN HAWKINS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Pending appeal - Whether custodial sentence likely to be substantially served before appeal heard - Prospects of success on appeal - Combination of those and other factors - Whether exceptional reasons why applicant should not be kept in custody pending appeal
Legislation:
Acts Amendment (Court of Appeal) Act 2004 (WA), s 28(4), s 38(1)
Bail Act 1982 (WA), Sch 1 Pt C, cl 4
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr J Mactaggart
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
McMaster v The Queen [2004] WASCA 52
Stalker v The Queen [2002] WASCA 364
Tieleman & Anor v The Queen [2004] WASCA 295
United Mexican States v Cabal & Ors (2001) 209 CLR 165
Case(s) also cited:
Latham v The Queen [2000] WASCA 338
(Page 3)
1 ROBERTS-SMITH JA: By application for leave to appeal dated 6 January 2005 the applicant seeks leave to appeal against sentences imposed upon him by his Honour Mazza DCJ in the District Court at Perth on 16 December 2004. The application presently before me is an application for bail made on 8 February 2005. The applicant is representing himself both on this application and, thus far at least, on his application for leave to appeal.
2 Following the applicant's pleas of guilty to a number of offences, he was sentenced in December last year to an aggregate term of imprisonment of 4 years' 8 months' imprisonment with an order that he be eligible for parole. The sole ground of appeal on the application for leave to appeal against sentence is that the sentence was excessive and a suspended sentence should have been imposed.
3 The application for bail is supported by an affidavit of the applicant also sworn on 8 February 2005. In that affidavit the applicant deposes that the facts he is asking the Court to take into account when considering the bail application are as follows:
"5. Diagnosed Post Traumatic Stress Disorder caused by severe assault while in prison, condition intensified by return to prison and lack of counselling available in prison.
6. Ongoing medical problems associated with stabbing and lack of medical attention in prison.
7. Liberty required to better research case as access to research material is restricted in prison as I am conducting appeal myself. Therefore large portion of non-parole term likely to have already been served prior to outcome of appeal.
8. Strongly argueable [sic] case against severity of sentence. Appeal likely to succeed and sentence suspended.
9. Civil case pending, require liberty to instruct solicitors and attend further medical and psychological reports.
10. Liberty required to continue career and better prospect of promotion as further delays through imprisonment will cost me seniority within company and hamper chance of promotion and jeopardise job availability.
(Page 4)
- 11. My imprisonment has burdened my fiancee and young son both financially and psychologically and liberty is required to provide for my young family."
4 By virtue of s 38(1) of the Acts Amendment (Court of Appeal) Act 2004 (WA) ("the Court of Appeal Act"), the application for leave to appeal is to be taken as having been commenced before the Court of Appeal which was established on 1 February 2005. The application for bail was made to this Court after that date.
5 The power of a single Judge of the Court of Appeal to grant or refuse the application for bail pending application to the Court of Appeal for leave to appeal against sentence is to be found in s 13(1) and item 4(d) of sch 1 to the Bail Act 1982 (WA) - see s 28(4) of the Court of Appeal Act.
6 Clause 4 of Pt C of sch 1 to the Bail Act stipulates that in deciding whether or not to grant bail to an offender who is awaiting the disposal of appeal proceedings, the Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody and, if there are, even then shall only grant bail if satisfied bail may properly be granted, having regard to the provisions of cl 1 and cl 3 of that part. Those are the provisions which set out the general considerations relevant to any application for bail. For the reasons I explained in some detail in Stalker v The Queen [2002] WASCA 364 at [19] to [40], I take the law to be that something more than an arguable ground of appeal must be shown in order to go to establishing exceptional circumstances for the purposes of cl 4 of Pt C of sch 1. I said there it must be shown without detailed argument that the appeal is most likely to succeed.
7 The same question was considered by the Full Court of Western Australia in Tieleman & Anor v The Queen [2004] WASCA 295 where Murray J, with whom Steytler and Templeman JJ agreed, discussed the proper principles to be applied on an application for bail pending appeal. His Honour emphasised that the Court has no power to grant bail unless the Judge is satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the final determination of his or her appeal.
8 His Honour referred to a number of cases including the decision of the High Court in United Mexican States v Cabal & Ors (2001) 209 CLR 165 in which that Court said that the history of decisions of the Court showed that ordinarily it would grant bail in criminal cases only if the applicant could demonstrate there were strong grounds for concluding the
(Page 5)
- appeal would be allowed and that, secondly, the sentence or at all events the custodial part of it, was likely to have been substantially served before the appeal is determined.
9 In relation to that, Murray J said (at [24]) that he would think that such considerations would loom large for this Court in considering whether there are exceptional reasons why the applicant should not be kept in custody. His Honour said he would not suggest that it ought to be held that those matters must necessarily be found in considering the case for bail and that it was clear that what may constitute exceptional reasons will depend upon the facts of the particular case.
10 Having said that, however, his Honour went on to add that it seemed to him, speaking generally, that it would be difficult to find exceptional reasons where there were not strong grounds for concluding the appeal would be allowed and nor would it generally be possible to demonstrate exceptional reasons in a case where it could not be shown that the custodial sentence will be substantially served before the appeal is finally determined. Furthermore, even if those things could be shown, it may yet be necessary to demonstrate additional circumstances in a particular case before the Court would exercise its discretion to grant bail on the basis it was satisfied that exceptional reasons justifying that course existed.
11 In the present case I am informed by Mr Mactaggart who appears for the respondent that the applicant's earliest release date if parole were to be granted to him would be 15 August 2007 and that if he is not paroled during the term of his imprisonment, then he would not be released until 15 August 2009. There is therefore something more than two years outstanding at this stage which the applicant will have to serve, even on the most optimistic estimation of his possible release on parole.
12 In those circumstances I do not think it can be said at all that there is a prospect that his non-parole period of imprisonment would be served or substantially served by the time his appeal came on for hearing. That therefore brings me back to the consideration of the likely prospect of success in combination with the other matters to which the applicant has referred.
13 So far as the prospects of success on appeal are concerned, I emphasise that it is not for a single Judge sitting on an application of this kind to decide whether or not the appeal would or would not be allowed and whether the grounds of appeal would succeed or not.
(Page 6)
14 The question which the single judge is required to consider is what is the prospect of the appeal succeeding, that is to say what is the likelihood of it doing so.
15 In the sentencing remarks made by Judge Mazza his Honour was dealing with a multiplicity of offences, as Mr Mactaggart has pointed out.
16 There were two indictments. On 16 December 2004 the applicant was sentenced to a total of 4 years' 8 months' imprisonment structured by the imposition of a 3 year term of imprisonment in respect of Indictment 997 of 2004, 8 months for breaches of suspended imprisonment order and intensive supervision order offences, as well as 12 months' imprisonment for breach of an intensive supervision order imposed in respect of Indictment 698 of 2000.
17 In respect of Indictment 997, the applicant was sentenced in respect of two counts of aggravated burglary and one of receiving. He was sentenced to 2 years' imprisonment in respect of each of the aggravated burglaries, the second being concurrent with the first, and a cumulative term of 12 months' imprisonment in respect of an offence of receiving.
18 In relation to the breach of a suspended imprisonment order imposed by Judge Kennedy on 12 February 2002, which was a 2 year suspended sentence suspended for 18 months on a charge of conspiracy, the applicant was sentenced to 8 months' imprisonment. He was also sentenced to 8 months' imprisonment in respect of another breach of a suspended imprisonment order imposed by Judge Kennedy on the same date for the same period and for the same term but in respect of an offence of robbery.
19 He was sentenced to 8 months' imprisonment again in respect of a breach of a suspended imprisonment order imposed by Judge Kennedy on 26 February 2002 in respect of an offence of aggravated burglary. That was a sentence of two years suspended for 18 months. Those sentences were concurrent with each other but cumulative on those imposed in respect of Indictment 997 of 2004.
20 On an indictment dated 10 July 2000, which charged a breach of a 2 year intensive supervision order imposed by Judge Kennedy on 12 February 2002, the applicant was sentenced to 8 months' imprisonment in respect of each of two counts of stealing a motor vehicle and two counts of stealing, those sentences concurrent with each other and concurrent with Indictment 997, and finally on Indictment 698, which was a breach of a 2 year intensive supervision order imposed by Judge
(Page 7)
- Kennedy on 12 February 2002, 12 months' imprisonment for burglary. That was made cumulative on Indictment 997.
21 Judge Mazza referred to the facts of the offences in the Fremantle Indictment 997 in the following way. In the early hours of 12 February the applicant and his co-offender went to commercial premises in Hilton with the intention of committing burglaries. They had a sledgehammer and screwdriver. He got onto the roof space above the business called "Ideal Cycles". The roof partially collapsed, causing damage. By virtue of that fact entry was gained to the shop and the float in the cash register was stolen. The damage caused by the partial collapse of the roof was valued at some $3200. The applicant then used a sledgehammer to smash a hole in the rear wall of the premises and by that gained entry into another store where an attempt was made to smash the safe in the office with the sledgehammer but the alarm was activated and he and the accomplice fled, empty-handed.
22 In relation to count 3, between 27 September and 30 September 2003, a newsagency was burgled. The offenders took a 500-kilogram safe and its contents from the newsagency and took it to one of the offenders' homes.
23 The applicant went to the offender's residence, his Honour said, with his de facto wife and at the same time the man named Lowe arrived and the applicant had with him a large angle grinder which was then used to try and open the safe. That was eventually successful. The contents of the safe included $11,903 cash together with other valuable items, that is, valuable if they were to be sold or used. The total amount of cash and other items was just over $28,000.
24 His Honour pointed out that the three offences the subject of the Fremantle Indictment 997 were serious offences, both individually and collectively, because they were deliberate, particularly the burglaries. They involved planning and so far as the receiving was concerned, that involved effort on the part of the applicant.
25 His Honour accepted that when the applicant went to the house with the angle grinder, he did not go there knowing there was a safe, but once there that fact was apparent and clearly knowing that he ought not be involved in it, he nonetheless attempted to open the safe.
26 His Honour made appropriate references to the lack of regard for the rights of small business proprietors and appropriately also observed that the offences were made more serious by the fact that the applicant was at
(Page 8)
- the time of committing the burglaries on an intensive supervision order and a suspended imprisonment order for serious offences including burglaries on businesses.
27 It is pertinent to part of what has been put to me by the applicant this afternoon to note that at that point his Honour pointed out that the applicant's explanations for committing the burglaries was that he had run out of work and did not have enough money to pay living expenses and nor did he have sufficient life experience to resort to legitimate means of relieving the financial stress he was under. That is a submission which the applicant repeated to me today, but the question of course in the context of an appeal against sentence is whether or not the sentencing Judge had regard to that and other relevant considerations and from what I have just said it is apparent that his Honour did have regard to those matters.
28 His Honour then went on to describe the applicant's personal circumstances, noting his de facto relationship and the fact that he had a young child under the age of two to whom he was and still is obviously very attached. He noted the applicant was employed and detailed further aspects of his background.
29 Significantly too his Honour referred to what was in the pre-sentence report before him and noted that the applicant on that indication had ceased illicit drug use which was a significant part of his prior offending. As to that, the sentencing Judge said it could fairly be said the applicant was by and large drug free and illicit drugs no longer posed a problem for him. However, his record of convictions as an adult is very substantial. He has convictions for burglary and receiving predating the very serious convictions in February 2002.
30 His Honour noted that the applicant's response to parole supervision between 1995 and 1999 was to break each and every one of the five orders made in his favour. His response to the intensive supervision order and the suspended imprisonment orders imposed by Judge Kennedy was mixed. It was unsatisfactory because of the applicant's offending, but on the other hand it seems he did pretty well everything that was required of him in terms of reporting.
31 His Honour accepted that the applicant was attempting to turn his back on his past associates and criminal activities. He noted the applicant had curtailed his drug use, had legitimate work and a partner and child to look after and that he seemed to have insight into his past offending. He
(Page 9)
- expressly recognised that the applicant was brutally assaulted in gaol in 1999. Again that is very significant in the context of the submissions made to me by the applicant today, who contended that the sentencing Judge did not give weight to the fact of the assault in prison (which was a stabbing in the prison kitchen), and nor did his Honour give any weight to the post-traumatic stress disorder and physical and medical problems which flowed from the stabbing assault. Again it is apparent from what his Honour said at the time of sentencing that indeed he did have regard to those matters. The question of how much weight to give them is and was very much a matter for his Honour's discretion.
32 His Honour also, importantly, noted that much of what had been put to him on 16 December was put to Judge Kennedy back in February 2002, on which occasion her Honour told the applicant that she was giving him a last and final chance. Mazza DCJ quoted from the sentencing transcript in which Kennedy DCJ expressed that, and correctly observed that it was made abundantly clear to the applicant on that occasion what the consequences of further offending would be.
33 His Honour then finally pointed out that the offences were serious breaches and were offences of a similar nature to the ones dealt with by Judge Kennedy. He concluded under the circumstances that he would have to impose an immediate term of imprisonment. He gave express consideration to the possibility of imposing suspended imprisonment, but concluded that would not be an appropriate disposition because imprisonment to be immediately served was the only disposition appropriate to reflect the seriousness of the offences and the applicant's prior history in response to supervision and other such orders.
34 His Honour then went on to deal with the breach of the suspended imprisonment orders. I have already referred to what his Honour did about that and the offences in respect of which they were made.
35 It is apparent that the range of offences committed was extensive and the sentences imposed in respect of each of them, on the face of it, could not be said to be out of line with offences of that kind. I say, "out of line" in the sense of being manifestly excessive, and I make that observation because of the submission by Mr Mactaggart that, if anything, the sentences imposed on the applicant were, in the submission of the State, as I understand it, very much on the light side as a result of what Mr Mactaggart described as not any application of sentencing principle as such, but rather a compassionate approach taken by the sentencing Judge.
(Page 10)
36 When he was sentenced, the applicant had a very extensive criminal history which included convictions for aggravated robbery, burglary, receiving, escaping legal custody, breach of bail, resisting arrest, threatening behaviour, stealing motor vehicles, aggravated burglary, conspiracy and robbery, as well as a range of cannabis and driving offences.
37 He had been given the benefit of intensive supervision orders and suspended sentences, which he had breached by the commission of the offences for which he was sentenced in December last year. He was not to be punished again for offences committed in the past, but the sentencing Judge did not do that. Apart from the need to re-sentence the applicant for previous offences because of his breaches of intensive supervision or suspended sentence orders, it was appropriate for his Honour to have regard to the applicant's previous history when considering whether or not the present sentences should have been suspended, as the applicant contends.
38 The applicant submits, amongst other things, that, as I understand it, part of the circumstances going to why there are exceptional reasons he should be released on bail pending his appeal include that he is conducting the appeal himself and needs to be out of prison to do that because there is a lack of resources available to him in prison for the purpose.
39 I accept what he says about the lack of facilities in prison. That is something which applicants or appellants frequently raise in this Court. They are genuine difficulties but they are, unfortunately, not unusual nor out of the ordinary. They do not by themselves nor in combination with the other circumstances advanced by the applicant here constitute exceptional reasons why bail ought to be granted.
40 He refers also in the same vein to the comments made by the sentencing judge about his fiancee. That is the reference to which I have referred in the context of the use of the angle grinder. It is submitted, as I understand it, that by that reference his Honour was indicating he took what the applicant has described as a "Bonnie and Clyde" view of the relationship between him and his fiancee. I do not think that is to be discerned from what his Honour said. It is no more than speculative and is not reflected in what Mazza DCJ said otherwise about the applicant's relationship with his fiancee.
(Page 11)
41 So far as the effect of the previous stabbing of the applicant in prison is concerned and the consequences of that, the post traumatic stress disorder, stress and the medical and physical problems, it has to be said that of course is an unusual factor which applies to him, but they are all incidents of being in custody as a sentenced prisoner and they would have no particular weight on an application of this kind unless it was likely that the appeal would succeed and he would then be released from prison or required to serve a significantly shorter time.
42 Furthermore, as was recognised by this Court in McMaster v The Queen [2004] WASCA 52, the availability of treatment or supervision and matters of that kind are really matters for the medical or supervisory regime, which is the responsibility of the prison authorities, rather than factors which go to either justifying a reduction in an otherwise appropriate sentence or indeed acceding to an application for bail pending appeal.
43 As I indicated, I am not sitting on this occasion to determine the outcome of the applicant's appeal or his application for leave to appeal. The considerations which I have been mentioning go to the question of whether there are exceptional reasons why bail should be granted and as I have said, a most significant consideration in that respect - and probably the most significant consideration in the circumstances of this case - is whether the appeal is most likely to succeed.
44 It seems to me that it cannot be said that it would. Indeed, it would have to be said the application would be most likely not to succeed. There is some force in the submission which the State would no doubt be making on the hearing of the appeal that the sentences imposed by the sentencing Judge were indeed somewhat less than they appropriately ought to have been but were reduced apparently because of the compassionate view taken by his Honour and that when one considers the catalogue of offences committed combined with the breach by the applicant of previous orders of the nature of suspended sentences and the like, the appropriateness of an immediate sentence of imprisonment becomes an inevitable conclusion.
45 For those reasons it seems to me that none of the matters put forward by the applicant either individually or in combination would constitute exceptional reasons why the applicant should be released on bail pending what is most likely to be an unsuccessful appeal and the application must therefore be refused.
5
2