Heaney v The State of Western Australia
[2013] WASCA 146
•10 JUNE 2013
HEANEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 146 | |
| THE COURT OF APPEAL (WA) | 10/06/2013 | ||
| Case No: | CACR:63/2013 | 13 MAY 2013 | |
| Coram: | MAZZA JA | 13/05/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Urgent appeal order made | ||
| B | |||
| PDF Version |
| Parties: | DENIS FRANCIS HEANEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeal Urgent appeal order Exceptional circumstances Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A |
Case References: | Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Zande v The State of Western Australia [2012] WASCA 100 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEANEY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 146 CORAM : MAZZA JA HEARD : 13 MAY 2013 DELIVERED : 13 MAY 2013 PUBLISHED : 10 JUNE 2013 FILE NO/S : CACR 63 of 2013 BETWEEN : DENIS FRANCIS HEANEY
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 1424 of 2012
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Urgent appeal order - Exceptional circumstances - Turns on own facts
(Page 2)
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application dismissed
Urgent appeal order made
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Ms G M Cleary
Solicitors:
Appellant : Abigail Rogers Barristers & Solicitors Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Zande v The State of Western Australia [2012] WASCA 100
(Page 3)
- MAZZA JA:
(This decision was delivered orally and has been edited from the transcript).
1 This is an application for bail pending the appellant's appeal against sentence, or, in the alternative, an urgent appeal order. On 8 March 2013, the appellant was sentenced to a total effective term of 2 years' immediate imprisonment with eligibility for parole following his earlier pleas of guilty to two counts of stealing as a servant contained in indictment 1424 of 2012, and four counts of stealing contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA). He will be eligible for release on parole on 8 March 2014.
2 The relevant facts are as follows. The appellant, who is now 69 years of age, was a self-employed taxation accountant. In relation to the indictable offences, one of his clients was his brother's business, Leo Heaney Pty Ltd, which traded under the name of Leo Heaney. On 28 December 2010, the offender went to his brother's house and advised him that his company had incurred a Goods and Services Tax (GST) liability of $18,623. The appellant told him to make the cheque payable to him and he would ensure that it was paid to the correct department within the Australian Taxation Office (ATO). On this basis, Mr Leo Heaney wrote a cheque for $18,623 payable to the appellant. The appellant did not pay the GST liability and used the money for his own purposes.
3 With respect to count 2, the appellant used a similar modus operandi. On 1 January 2011, he went to his brother's house and advised him that he had calculated a company tax liability in the sum of $39,710. Again, he told his brother to make the cheque out to him, and that he would pay the ATO. Again, the appellant used the money for his own purposes and did not pay the ATO.
4 In respect of the s 32 notice offences, the appellant completed four income tax returns for each of the complainants. He calculated that each was due a tax refund. He came to a verbal agreement with each of his clients that the tax refund would be paid into his general account, and that the refund less his professional fees would be paid from that account by electronic fund transfers. Instead of paying the refunds less his fees, as promised, totalling approximately $19,190, the appellant kept them and applied them for his own purposes.
(Page 4)
5 The appellant has paid full restitution to his brother's company and to the other victims. By my calculation the total amount stolen is $77,523, although his Honour found that the total amount stolen was $87,759.
6 As I have said, the appellant is now 69 years of age. He has no prior convictions and, in common with most white collar offenders, has excellent antecedents. The appellant's case has been filed and the appeal is being pursued on three grounds. Essentially, the appellant alleges that the total effective sentence was excessive and that he should have been sentenced to a suspended imprisonment order.
7 The legal principles relating to bail pending appeal are well known and hardly need to be repeated. Clause 4A of pt C sch 1 of the Bail Act creates a rebuttable statutory presumption against the grant of bail. Bail can only be granted if the court is satisfied of two matters. First, the court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody; second, bail must be appropriate having regard to the provisions of cls 1 and 3 of pt C sch 1: see Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
8 The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case. However, because the context of the application for bail is an appeal, the focal point must be on the merits of the appeal. This is not to say that other matters are not to be considered. So far as the merits of the appeal are concerned, I consider that it is necessary for the appellant to show, without detailed argument, that the appeal has strong arguable grounds.
9 The appellant submits that his appeal has strong arguable grounds, essentially having regard to the relatively small sum stolen, the appellant's good antecedents and that full restitution has been made, a suspended term of imprisonment should have been imposed. Alternatively, a shorter custodial sentence to be served should have been imposed. The appellant cites a number of cases in which it is said that more serious offending has resulted in a sentence not materially different to the sentence imposed upon the appellant.
10 Further, it is said the appeal is unlikely to be heard before September 2013 and, therefore, if bail is not granted, there is a risk that he will have served a substantial portion of the non-parole period of his sentence, thus rendering a successful appeal largely nugatory.
(Page 5)
11 The general sentencing principles applicable to stealing as a servant and stealing by persons in a position of trust have been discussed in a number of cases, most recently in Zande v The State of Western Australia [2012] WASCA 100 and Colwell v The State of Western Australia [No 2] [2012] WASCA 196. It is clear from those cases that the dominant sentencing factor in such cases is general deterrence. Matters personal to the offender, although relevant, have less weight.
12 The offences committed by the appellant were not isolated. They were committed approximately 10 to 11 months apart. The motive for the offending was apparently that the appellant had encountered some financial difficulty as a result of a property transaction in which he and his son were involved. The material indicates that the appellant had other resources from which he could have legitimately dealt with these difficulties, but chose to use his brother's and his client's funds instead.
13 At this early stage in the appeal, and without in any way foreshadowing the outcome of the appeal, I am not persuaded that it is strongly arguable that the appellant should have been sentenced to a suspended term of imprisonment. The appellant's argument that the length of the term of imprisonment is too long is reasonably arguable, but I would not put it any higher than that at the moment. I have not been persuaded that exceptional reasons have been established for the appellant's release on bail. I dismiss that part of the application.
14 As to the appellant's application for an urgent appeal order, it is not opposed by the respondent and in the circumstances such an order is appropriate.
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