Hull v The State of Western Australia
[2005] WASCA 107
•24 MAY 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HULL -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 107
CORAM: ROBERTS-SMITH JA
HEARD: 24 MAY 2005
DELIVERED : 24 MAY 2005
FILE NO/S: CACR 77 of 2005
BETWEEN: DEBRA GILLIAN HULL
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HEALY DCJ
File No :ALB 39 of 2005
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 personal factors - Whether exceptional reasons why applicant should not be kept in custody pending appeal
Legislation:
Acts Amendment (Court of Appeal) Act2004 (WA), s 28(4)
Bail Act 1982 (WA), s 13(1), Sch 1 Pt A, item 4(1), Sch 1 Pt C, cl 4
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Mr S D Freitag
Respondent: Mr A L Troy
Solicitors:
Applicant: Simon Freitag
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Anderson v The Queen (1996) 18 WAR 244
House v The King (1936) 55 CLR 499
Markarian v The Queen [2005] HCA 25
R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998
R v Kepa Pou (1988) 33 A Crim R 99
Stalker v The Queen [2002] WASCA 364
Tieleman & Anor v The Queen [2004] WASCA 285
Case(s) also cited:
R v Gmeinder [2001] QCA 354
R v Wallis, unreported; CA(Qld); No 62 of 1999; 27 July 1999
Walser v The Queen (1994) 73 A Crim R 154
ROBERTS-SMITH JA: This is an application for bail pending an application for leave to appeal against sentence. The applicant was convicted before Judge Healy in the District Court at Albany on 2 May 2005 of two offences - firstly, that being a public officer she, on 30 December 2003 at Albany without lawful authority or a reasonable excuse, acted corruptly in the performance or discharge of the functions of her employment so as to gain a benefit for another contrary to s 83(c) of the Criminal Code (WA), and secondly that on 30 January 2004 at Albany, without proper authorisation, she gained access to information stored in a restricted‑access system, namely the Department for Planning and Infrastructure corporate computer database contrary to s 440A(2)(a) of the Criminal Code.
On the first count the applicant was sentenced to 12 months' immediate imprisonment; on the second count she was sentenced to three months' imprisonment to be served cumulatively. That was therefore an overall sentence of 15 months' immediate imprisonment. The Judge ordered that she be eligible for parole with the result that under the present sentence regime she will be eligible for parole after serving seven and a half months.
The applicant's appeal notice under the Supreme Court (Court of Appeal) Rules 2005 (WA) was filed on 12 May 2005. Since 2 May this year all criminal appeals require leave. Leave to appeal is required for each ground of appeal under s 27(1) of the Criminal Appeals Act 2004 (WA). Section 27(2) stipulates that the Court of Appeal must not give leave to appeal on the ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. Under r 43(2)(b), a single Judge of the Court of Appeal may grant or refuse leave to appeal . (See also r 7).
The applicant's application for leave to appeal has not yet been dealt with. The applicant's case has not yet been filed as required by the rules. There are only two proposed grounds of appeal. They are that:
(1)having regard to the applicant's antecedents the sentence was manifestly excessive;
(2)the sentencing Judge erred in not giving consideration to whether, if a sentence of imprisonment was warranted, that sentence ought to have been suspended.
The power of a single Judge of the Court of Appeal to grant or refuse an 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(1) of Pt A of Sch 1 (previously item 4(d)) to the Bail Act 1982 (WA). See s 28(4) of the Acts Amendment (Court of Appeal) Act 2004 (WA). 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 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.
The law is 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 Pt C of sch 1. It must be shown without detailed argument that the appeal is most likely to succeed: see Stalker v The Queen [2002] WASCA 364 [19] to [40]. The same question was considered by the Full Court in Tieleman & Anor v The Queen [2004] WASCA 285 where Murray J, with whom Steytler and Templeman JJ agreed, considered the proper principles to be applied on an application for bail pending appeal.
Murray J emphasised in that case that the court has no power to grant bail unless the Judge is satisfied there are exceptional reasons why the applicant should not be kept in custody pending the final determination of his or her appeal. I will not canvass the authorities referred to by his Honour but they include the propositions that ordinarily this court would grant bail in criminal cases 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.
It was in that context of the statutory prescription that in Stalker, I referred to the requirement to demonstrate that the appeal is most likely to succeed. In Tieleman, Murray J expressed it somewhat differently but essentially in similar terms, pointing out 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 a custodial sentence would be substantially served before the appeal was finally determined.
His Honour went on to point 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 were satisfied that exceptional reasons justifying that course existed.
The application for bail is supported by the affidavit of the applicant sworn on 16 May 2005. The transcript of the sentencing hearing is annexed to the affidavit. That shows that the facts as recounted to the court by the prosecutor were in brief as follows: the applicant was employed at the Albany Licensing Centre in the positions of Client Services Officer, Senior Client Services Officer and eventually Acting Manager, Licensing Services. Her duties included liaising with customers and processing transactions for vehicle licensing and motor drivers licences. As a Senior Client Services Officer she supervised a team of other staff and had financial responsibilities. As Acting Manager she had team leadership responsibilities, guided and trained other members of staff and generally managed the operations of the licensing centre.
At the time of the offences she was in a de facto relationship with Mr Bell who held a current C‑class motor driver's licence. On 30 November 2003 she unlawfully entered into the DPI corporate computer database and falsely loaded into the system a theory test and a pass result for an additional RE-class for a Western Australian motor driver's licence in the name of David John Bell. That was a motorcycle licence subject to some restriction. There was a fee payable for the licence which in normal instances would have been made but here was not. It is apparent from the outline of facts given by the prosecutor that the applicant went to some trouble to complete this transaction and, indeed, used another employee's computer which that employee had left logged on.
As a result of what the applicant did a new plastic driver's licence was issued in the name of David John Bell. Her action was uncovered by other staff members, as a result of which there was an internal investigation and she was put on annual leave commencing on 20 January 2004.
In relation to the second count, the applicant observed a motor vehicle with a particular registration number and noted that the male driver matched the description of the person who had first raised the complaint with the licensing centre staff in relation to the offence represented in count 1. She then went to the licensing centre and placed an unlawful request upon another female employee to perform a vehicle registered owner check on the DPI corporate computer database for that vehicle and to print out a hard copy of the information. That employee performed the transaction in accordance with the applicant's request, believing that it was for a lawful purpose and that the applicant was still her supervisor.
The female employee obtained the printout and gave it to the applicant who put it in her handbag. Subsequently the female employee reassessed her actions and realised she may have performed an illegal transaction, immediately taking steps to retrieve the printout from the applicant and subsequently notifying her superiors of the incident.
The applicant was interviewed by detectives on 28 September 2004 and in the course of a video record of interview admitted the offences. She told them she had made the motorcycle licence addition to her de facto's driver's licence to enable him to ride his motorcycle to work as at that time he had no other mode of transport as his motor vehicle had broken down. The prosecutor acknowledged that in the course of the interview the applicant showed remorse and did acknowledge that she was in a position of trust and authority within the licensing centre.
The applicant's solicitor made a comprehensive plea in mitigation. I do not propose to canvass all that was put to the Judge in that way. Counsel recounted the applicant's antecedents commencing with her work in the public service from the age of 18 years. She was married when she was 25 years old and gave birth to twin boys at the age of 26. Her husband left the family when the boys were one and a half years old. They are now 16, going on 17. She raised them as a single parent and it was said she did not receive much support from her extended family in raising them.
Her relationship with Mr Bell was canvassed before the Judge. It was put to his Honour that the applicant believed that was going to be the first stable and promising relationship she had had since her marriage broke down. Reference was made to problems within the broader family and, in particular, the fact that her mother had recently undergone hip replacement surgery and her father had recently, at that stage, had operations and was unwell. Her younger sister suffers from schizophrenia and in October 2003 went off her medication which caused a lot of difficulties for the family. There were reports before his Honour which referred to these matters.
It was put to his Honour that the applicant was, around the time of the offences, suffering considerable increased stresses in her personal life; indeed, was on antidepressant medication. She was described as an insecure sole parent who was endeavouring to ingratiate herself into a relationship so that she could have the emotional security that had been so lacking in her life. A further particular point made was that notwithstanding the seriousness of the offences committed, apart from what she saw as the benefit to her relationship from the first offence, it was accepted that the applicant did not have any personal gain from it.
Counsel for the applicant urged the Judge to deal with the matter by way of a community based order. As I have indicated, the prosecutor accepted the offender, that is, the applicant, did not have any personal gain from the commission of the first offence, that she had cooperated with police and had no criminal record, but submitted that a term of imprisonment was certainly open to his Honour.
In his sentencing remarks the Judge noted the applicant's pleas of guilty and also pointed out that the penalty for the first offence was a maximum term of 7 years' imprisonment and for the second one was a maximum of 12 months' imprisonment or a fine. His Honour referred to the circumstances of the offences and the pre-sentence report and psychological reports which had been provided to him. He acknowledged that the applicant was then 44 years old and a single mother of two boys. He noted she was providing support for her own parents who were ill and for her sister.
His Honour referred to the position of trust occupied by the applicant and the use of another employee in the commission of the second offence. He described what the applicant did as a gross abuse of trust and concluded with these sentencing remarks:
"In my view, bearing in mind your early plea of guilty and your good antecedents and the fact that imprisonment is a sentence of last resort, in all the circumstances of this case general deterrence really means that imprisonment and immediate imprisonment is the only sentence which is appropriate to be imposed."
His Honour then went on to impose the sentences which I have mentioned.
In addition to the material before the sentencing Judge there is further material annexed to the applicant's affidavit. In particular, there is a letter written by her mother but signed by both her mother and father in which the mother states that for the last three years the applicant has cleaned their house every weekend because at first Mrs Kentish was waiting for a hip replacement and after that she had her operation. Mrs Kentish says she is now the carer for her husband who has cancer and spends most of her time looking after him, going to hospital, to doctors and for blood tests and the like. She says that she now has the care of the applicant's twin boys who are in their last year of high school which is very important for their future life, but says it is becoming hard on her as she is not young or fit herself.
There is an attachment which describes the applicant's mother's medical condition and a brief report from Dr J Lindsey, a physician, who has been treating the applicant's father for the last eight months. Dr Lindsey writes that Mr Kentish has metastatic bowel cancer with liver secondaries and is on chemotherapy. He also has diabetes. The doctor says it is difficult to predict his survival time but it would be in the order of six to 18 months.
Mr Freitag accepts the applicant must show exceptional circumstances before the discretion to consider bail will arise pending appeal. In relation to ground 1, he submits there is a strong argument for a sentence other than one of immediate imprisonment which is, as the law states, a sentence of last resort. Those matters which he says support the proposition the applicant would be a suitable candidate for a community based disposition or a suspended sentence he lists as being that the applicant was a first offender who had pleaded guilty on the fast track system, who had confessed her conduct to her supervisor and cooperated with the police investigation and that the false plastic driver's licence had been recovered as a result of her handing it to the investigators.
It was accepted that the false licence was never accepted nor used by the applicant's then de facto. Mr Freitag says the applicant has expressed remorse and, as I have indicated, that in fact was acknowledged by the prosecutor during the sentencing submissions, as was the fact there was no financial motive in relation to the offences and no material benefit to the applicant.
He makes the further point the offences were no part of any corrupt scheme or course of conduct but were the product of the applicant's concerns in her domestic relationship. Finally, he points out that as a result of the offences the applicant resigned from her job and that the commission of the offences is likely to reduce her employment prospects in the future.
As to proposed ground 2, it is asserted that the Judge was in error in not considering suspending the sentence of imprisonment were the court to conclude that imprisonment was the only available option. He contends there were a number of reasons at the time of sentencing why a suspended sentence was appropriate, including those to which I have already referred, and in particular the applicant's care and support of her parents and her care as a sole parent of her twin 16 year old sons.
Finally, it is submitted that the applicant will have served half of the 7½ months she is required to serve before becoming eligible for parole by about 17 August 2005. The head sentence will expire on 17 December 2005. Mr Freitag submits that whilst it is unknown how long the matter will take to be heard, there is a real likelihood she will have completed half her sentence before it is dealt with.
Whilst the mitigating features adumbrated by Mr Freitag are clearly strong considerations going to a sentence other than immediate imprisonment, there were countervailing considerations strongly going the other way. Both were urged upon his Honour and he had regard to them. Counsel for the respondent, Mr Troy, has adumbrated a number of them, not the least of which he says are the seriousness of offences of this kind involving as they do an abuse of trust in public office and the need for general deterrence as well as specific deterrence. The point made by counsel for the applicant about the applicant's cooperation with the investigation and in particular her confession of her conduct to her supervisor was qualified by Mr Troy who points out that occurred only after the applicant was confronted by another employee and told to own up to her conduct or that employee would bring it to the attention of more senior people within the office.
Imposition of an appropriate sentence self-evidently calls for the exercise of a discretion: see Markarian v The Queen [2005] HCA 25. The effect of family circumstances on the sentencing process will ordinarily be minimal and even then only really in terms of the exacerbation it gives to the situation of the offender in prison. There may be circumstances in a particular case where a court may take into account the effect a sentence will have upon the offender's family, notably for example in the case of a young mother with an infant child and without any relative or friend to help look after the child. That is not the situation here.
The Judge expressly had regard to the circumstances of the applicant and in that respect to the situation of her parents. A sentencing court may have regard to the effect of imprisonment on an offender's children or other persons and it has been held that the ill health and responsibilities of an offender towards his or her family are matters which it may be appropriate to take into account when determining eligibility for parole (R v Kepa Pou (1988) 33 A Crim R 99). Again that is not this case because his Honour did make an order that the applicant be eligible for parole.
The fact that an offender is solely responsible for a small child is a relevant consideration in deciding whether to impose a custodial sentence and that is usually of more effect in deciding whether to impose a custodial sentence at all rather than reducing a lengthy sentence of imprisonment (R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998).
More pertinently to the present case though, a sentencing court in an extreme case may take into account serious illness suffered by a member of the offender's family in which that member will be subjected to an unusual measure of hardship as a result of the offender's imprisonment and in which the offender him or herself will therefore, because of the family member's illness, be subjected to an unusual measure of hardship as a result of imprisonment (Anderson v The Queen (1996) 18 WAR 244).
The exercise of the sentencing discretion will not be interfered with on appeal unless error can either be specifically demonstrated or necessarily inferred (House v The King (1936) 55 CLR 499 at 5045). In effect, it is submitted for the applicant here in respect to proposed ground 1 that immediate imprisonment was so disproportionate to the circumstances of the offence and of the applicant that it could not have been imposed on any proper exercise of the sentencing discretion.
It is not for me on this application to express any final conclusion about that submission nor even whether it is a ground in respect to which leave to appeal should be given. The question here is whether it is a ground which has a strong prospect of success or, as Murray J put it in Tieleman, a high chance of success - that is here a high chance the sentence would be set aside and a suspended sentence substituted for it.
One of the most significant considerations in this case is the effect on the applicant of the ill‑health of her parents and her father in particular. The appeal court may well take the view that there is a real prospect that her father may not survive her imprisonment even to the extent of the expiration of the non-parole period. Furthermore, given his prognosis, to deprive her of time with him in what is the last period of his life would make imprisonment a disproportionate punishment is also a view the court may take on the hearing of the appeal.
Those are matters which the court might conclude ought to have driven his Honour in combination with the other circumstances both of the offence and personal to the applicant, to conclude that a suspended sentence was appropriate. It is for those reasons, albeit not without some hesitation, I have come to the conclusion that this ground does have the required prospect of success.
But that is not enough by itself.
The next proposed ground is that his Honour erred in not giving consideration to the imposition of a suspended sentence. In his sentencing remarks quoted above his Honour used the phrase "imprisonment and immediate imprisonment". That reference reveals clearly enough that his Honour had in mind the distinction between immediate imprisonment and a suspended sentence. The remark can sensibly mean nothing else. A ground which asserts simply that his Honour did not give consideration to suspending the sentence of imprisonment therefore cannot be sustained and is bound to fail.
It follows that the first limb of the applicant's submission that there are exceptional reasons why bail should be granted, namely, there is a strongly arguable ground of appeal, is made out with respect to ground 1 only.
The second limb is that the applicant will have served a significant part of her non-parole period before the appeal can be determined. It is now 24 May 2005. The applicant will not be eligible for parole until about 17 December. Mr Freitag states simply that it is unknown how long this matter will take to be heard.
That is not particularly helpful. Some inquiry should have been made if such a submission is to be advanced. It is the fact that appeals by offenders in custody are given priority over appeals by those who are not. Furthermore, if there are good reasons, it is possible sometimes to expedite an appeal, particularly if it is likely to require only a short hearing.
For present purposes I will assume the applicant will be granted leave to appeal at least on the first ground and that she will have served her non-parole period before her appeal is heard. That is a significant factor in the particular circumstances of this case which, in combination with a ground of appeal having a strong prospect of success, constitutes an exceptional reason why bail should be granted pending appeal.
The applicant has accordingly shown exceptional reasons for a consideration of the exercise of the discretion to grant bail and once beyond that point, the ordinary considerations which bear upon any application for bail, in my view, militate in favour of bail being granted in this case.
Accordingly, the application will be allowed.
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