Hodder v The State of Western Australia - [2005] WASCA 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HODDER -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 243

CORAM: ROBERTS-SMITH JA

HEARD: 2 DECEMBER 2005

DELIVERED : 2 DECEMBER 2005

FILE NO/S: CACR 149 of 2005

BETWEEN: JAMES LESLIE HODDER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
File No  :IND 866 of 2004

Catchwords:

Criminal law - Bail - Indecent dealing with a child under 13 - Application for bail pending sentence appeal - Previous application pending conviction appeal refused by Judge of Supreme Court - Whether new circumstances or circumstances changed

Legislation:

Bail Act 1982 (WA), s 3

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Mr G F Edwards
Respondent: Mr D Dempster

Solicitors:

Applicant: Lisa Boston
Respondent: State Director of Public Prosecutions

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

Fazzari & Ors v The State of Western Australia (No 2) [2004] WASC 233
Fermanis & Mitchell v The State of Western Australia [2005] WASCA 212
Hodder v The State of Western Australia [2005] WASCA 218

Case(s) also cited:

Nil

ROBERTS-SMITH JA: The applicant was convicted on 15 June 2005 following a trial before his Honour Judge Eaton and a jury in the District Court at Perth. He was convicted of one count of indecently dealing with a child under the age of 13 by committing an indecent act in her presence.
That act occurred in Midland in November 2003. The complainant was an 11‑year‑old girl sitting at a bus terminal. The applicant attracted her attention by waving to her and then took out of his wallet either a $50 or $100 note. He then pointed his finger at her, pointed to his mouth and pointed his finger at his penis. She walked away and sat at another seat, ignoring him. He then followed her, approached her and made an indecent remark to her.
The applicant applied for leave to appeal against conviction by a notice filed on 23 August 2005, and also sought leave to appeal against sentence by another appeal notice filed that same day. On 16 November 2005, Wheeler JA refused leave to appeal against conviction (Hodder v The State of Western Australia [2005] WASCA 218).
That application had been heard by her Honour on 27 October 2005, on which date she also dismissed an application made by him on 23 September 2005, for bail pending the hearing of his appeal against conviction. The grounds upon which he had applied for bail were set out in an affidavit sworn by him on 16 September 2005. They were that he had very strong grounds for an appeal and needed to be released from custody to properly prepare his defence; that he was unfairly represented during his trial and needed a proper legal counsel to assist him and that his appeal against conviction was unlikely to be heard before his present sentence was completed.
His further reasons were that if granted bail he would have a permanent place of residence at Midland; that his mother was 88 years of age and had serious medical problems which restrict her movements causing her to need constant care and attention around the house, and that he (at the date of swearing the affidavit) had just recovered from a major operation that needed medical care.
On 23 November 2005, the applicant filed an application seeking an order that the hearing of his sentence appeal be expedited and for bail pending the hearing of his appeal against sentence.
The respondent did not object to the first, and on 29 November 2005, I made an order on the papers pursuant to r 7(1)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA), that the hearing of the appeal be expedited. It has accordingly been listed for hearing on 16 December 2005, some two weeks hence. As the bail application was opposed I listed it for hearing before me.
Both the applications are supported by an affidavit of Catherine Amelia White, solicitor, sworn on 17 November 2005. In that part which pertains to the bail application Ms White states:
"The applicant's earliest date for release to parole is 13 February 2006 and he considers himself aggrieved that his appeal against sentence has not been heard given that date of eligibility, and is further concerned that his sentence will have expired …"
by which obviously he means his non‑parole portion of that sentence:
"prior to the determination of his appeal."
He seeks bail on the basis that he would reside with his mother at the Midland address; that he could report to Midland police station; that his brother or sister‑in‑law are available as sureties, and that he would comply with any other conditions that the Court thinks fit.
Clause 2 of Pt B of Sch 1 to the Bail Act 1982 provides that, except where cl 4 applies, the power to grant bail for an appearance by an accused ceases to be vested in any judicial officer including a Judge of the Supreme Court after he or another judicial officer whose jurisdiction is co‑extensive with his has granted or refused bail for that appearance.
So far as is presently relevant, cl 4 reads that notwithstanding cl 2, where an accused has been refused bail for an appearance the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is co‑extensive with his has power to grant bail for that appearance if the accused makes application and satisfies him that (a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously refused for that appearance or that (b) he failed to adequately present his case to bail on the previous occasion when it was considered.
"Accused" is defined in s 3(1) of the Bail Act 1982 so as to include a person in respect of whom an appeal relating to an offence is pending.
The appearance for which the applicant was seeking to be bailed was on the hearing of his appeal against conviction. There was then extant his application for leave to appeal against sentence. They would both have been heard together. There is an obvious argument that the provision should be construed to mean an appearance before a particular court on a particular occasion.
It is commonplace for there to be multiple appeals in the sense of separate appeals against conviction and sentence which are for obvious reasons heard at the one hearing. The argument might well be mounted that it could not have been the legislative intention that the constraint at cl 2 could be avoided in such a case by the simple device of an appellant making separate applications for bail in respect of conviction and sentence.
The applicant does not here submit that any new facts have been discovered or new circumstances have arisen, nor does he contend that circumstances have changed since his bail was refused by Wheeler JA, although Mr Edwards, who appears for the applicant, has pointed out that her Honour did grant leave to appeal against sentence. I refer to what I said in Fazzari & Ors v The State of Western Australia (No 2) [2004] WASC 233 at [9] and [10], speaking of a change of circumstances:
"9 The change must be '… a relevant change in relevant circumstances' (Pinkstone, supra at [15]). In Rus v The Queen [2001] WASC 68, where service of the prosecution brief was also advanced as a change in circumstances reviving the discretion to consider bail, I took the view (at [7]) that the real question was whether what was on the prosecution brief revealed the earlier assessment of the strength of the prosecution case needed to be changed so as to recognise that case was not strong. I was there prepared to accept that should I be of that view, that would be a relevant change in circumstances. In that instance, having reviewed the material, I concluded the prosecution case was still very strong. That being so, the relevant circumstances had not sufficiently changed to revive the bail jurisdiction.
10I adhere to the view I took in Rus about the principle to be applied. It cannot be the case that the mere fact there has been a committal or the prosecution brief has been served and formal disclosure given, is a change in circumstances sufficient to revive the bail discretion. What must be shown is that what appears from that material is capable of leading to a new or different view about one or more of the factors significantly influencing the exercise of the bail discretion."
What must be shown is that what appears from that material is capable of leading to a new or different view about one or more of the factors significantly influencing the exercise of the bail discretion."
The fact that leave to appeal against sentence has been granted indicates no more than that a single Judge of Appeal was satisfied the applicant's appeal has a reasonable prospect of succeeding.
Fazzari concerned an application for bail pending trial. An application for bail pending appeal is subject to much more stringent restrictions. These were explained in Fermanis & Mitchell v The State of Western Australia [2005] WASCA 212 at [13] to [17]:
"13 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 was awaiting the disposal of appeal proceedings, a Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody, and if there are, even then shall grant bail only 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.
14Where the prospect of success of an appeal is one of the matters relied upon as establishing exceptional reasons for the purposes of cl 4 of Pt C of Sch 1, the law is that something more than an arguable case must be shown; it must be shown without detailed argument that the appeal is most likely to succeed (Stalker v The Queen [2002] WASCA 364 at [19] - [40]). In R v Tieleman (2004) 149 A Crim R 303, Murray J (with whom Steytler and Templeman JJ agreed), in discussing the prospects of the appeal succeeding in the context of exceptional reasons for the purposes of a bail application, said that bail would be granted ordinarily only if the applicant could demonstrate there were strong grounds for concluding the appeal would be allowed and that the sentence, or at least the custodial part of it, was likely to have been substantially served before determination of the appeal. His Honour said 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 a custodial sentence would be substantially served before the appeal was finally determined. His Honour further pointed out that even if those things could be shown, it may 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. That was, of course, a reference to the statutory requirement that once exceptional reasons were shown, bail could still not be granted unless it would be proper to do so having regard to the considerations which ordinarily apply.
15There is, in my view, no particular distinction between expressions such as 'most likely to succeed' and 'strong grounds for concluding the appeal would be allowed'. Neither purports to set some specific threshold of potential success. In context, each is predicated upon the notion that the prospect of success must be sufficiently likely as to give rise to a real concern that the applicant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.
16I would accept the submissions made by Mr Scott on behalf of Fermanis that as a general proposition the authorities reflect that exceptional reasons in this context primarily involve a consideration of the strength of the grounds of appeal and the effect of the applicant serving a substantial portion of his sentence thus rendering a successful appeal a hollow victory (AC v The Queen [2003] WASCA 280; Hickey v The Queen [2002] WASCA 221; R v Walser (1994) 73 A Crim R 154; R v Bernt (1994) 70 A Crim R 1; Johansen v The Queen, unreported; CCA SCt of WA; Library No 980087; 23 February 1998).
17So far as how the period of delay is to be measured, it must be from the date of sentence to the date of hearing the appeal. I do not understand Murray J to have meant otherwise when in Tieleman he referred to 'the determination' of the appeal. This must be so, because the appeal having been heard and if the circumstances then are seen to justify it, the appeal court may release the appellant to bail pending judgment."
Against that statutory background the mere fact that leave to appeal against sentence has been granted is not a change in circumstances which is by itself capable of bearing upon the decision whether or not to grant the applicant bail.
There is, too, a very real question whether it is a change which has occurred since bail was previously refused, it being a decision made by Wheeler JA at that time. However, I am satisfied the applicant failed to adequately present his case for bail to her Honour, that is because he concerned himself only with the prospect of success of his conviction appeal and that was the basis upon which her Honour dismissed the application.
Mr Dempster for the respondent concedes this to be so although he did not put that concession in quite that way. I should say that concession was, in the circumstances, quite properly made. That being so I do have power to deal with this application. The question then is whether the applicant has demonstrated exceptional reasons why he should not be held in custody pending the hearing of his appeal.
The applicant was sentenced to 16 months' imprisonment on 17 June 2005. As I have observed he will be eligible for parole on 13 February 2006. If he succeeds on his application the applicant seeks there be substitution of a shorter sentence of immediate imprisonment.
Were he to succeed the non‑parole portion of any such sentence would be likely to be served by or shortly after the hearing of his appeal. The offence here was serious and having read the applicant's case, noted the cases there relied upon as demonstrating some comparability of sentencing and having read his Honour's sentencing remarks handed up to me today by Mr Dempster there is, it seems to me, considerable merit in the respondent's submission that there is little mitigation and the applicant's significant history of this type of offending all gave rise to a need for personal deterrence notwithstanding long periods between convictions and the fact that the last conviction for a similar offence was quite a number of years ago, which his Honour expressly took into account. On that basis it seems to me that notwithstanding the appeal has a reasonable prospect of succeeding I am not persuaded that the prospect of success is so great as in combination with what will now be a very short period of incarceration until the hearing of his appeal as to constitute exceptional reasons why he should not be kept in custody pending that hearing, nor do the specific matters adverted to by the applicant either alone, or in combination with the foregoing factors, demonstrate exceptional reasons. The application will accordingly be refused.