Jasevski v The Queen - [2010] WASC 43

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JASEVSKI -v- THE QUEEN [2010] WASC 43

CORAM: HALL J

HEARD: 25 FEBRUARY 2010

DELIVERED : 25 FEBRUARY 2010

FILE NO/S: MCS 5 of 2010

BETWEEN: VASKO JASEVSKI
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Bail pending sentence - Whether conviction relevant in exercising discretion to grant bail

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 4, s 13, s 14

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr H C Quail
Respondent: Mr D W L Renton

Solicitors:

Applicant: D G Price & Co
Respondent: Director of Public Prosecutions (Cth)

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

Nil

HALL J: (This judgment was delivered extemporaneously and edited from the transcript).
This is an application for bail under s 14 of the Bail Act 1982 (WA) (Bail Act). Such an application is not an appeal and does not require the demonstration of error; rather, it is an application in the original jurisdiction of this court to exercise the power to grant or refuse bail in any case. Accordingly, such an application requires that the court consider afresh whether or not bail should be granted. That jurisdiction is to be exercised in accordance with s 13 and sch 1 of the Bail Act.
The facts are as follows. The applicant was charged by summons on 27 August last year with three counts of social security fraud. There was one count of obtaining disability support pension to which the applicant was not entitled, contrary to s 215 and s 217 of the Social Security (Administration) Act 1999 (Cth), and two counts of obtaining a financial advantage for which he knew he was not eligible, contrary to s 135.2(1) of the Criminal Code (Cth).
The applicant appeared in answer to the summons on 20 November 2009 and was then bailed on a personal undertaking to appear again on 8 January this year. There was a further adjournment before the applicant appeared on 19 February and pleaded guilty to all charges. The facts were read and admitted and the magistrate then adjourned the matter to 24 March for a presentence report and declined to grant further bail. Accordingly, the applicant has been remanded in custody since 19 February 2010.
Schedule 1, pt C, cl 4 of the Bail Act provides that other than where clauses 3(a) or 3(c) apply ‑ (which do not apply here) the grant or refusal of bail to a person who is in custody awaiting sentence shall be discretionary and that the discretion is to be exercised having regard to the matters referred to in cl 1 as well as any other matters that the judicial officer considers relevant.
Previously, the Bail Act provided that where a person was awaiting sentence, having been convicted, bail could only be granted if there was a strong likelihood of a non-custodial sentence or there were exceptional circumstances.
In practical terms, this meant that there was an effective presumption against bail where a person was convicted of serious offences that were likely to result in a prison sentence. This was suggested by the Law Reform Commission as being a discouragement to early pleas of guilty. Accordingly, the Bail Act was amended to remove any presumption against bail following conviction.
In the explanatory memorandum to the Bail Amendment Bill 2007, the recommendation of the Law Reform Commission is referred to, and the explanatory memorandum then goes on to state that the proposed cl 4 of pt C, sch 1 achieves what the recommendation of the Commission envisages. It states that the new clause accommodates the use of post‑conviction bail to facilitate various sentence diversion programs that are becoming more common and encourages early pleas of guilty by removing the presumption against post-conviction bail.
The position now is that the discretion to be exercised regarding bail is not different in kind before or after conviction. It does not, however, follow from this that the recording of a conviction is irrelevant to whether bail should be granted. An accused person who has not been convicted is in a very different position to an offender who has admitted their conduct and is awaiting sentence.
The former faces only the risk of conviction and punishment whereas the latter knows the certainty of it. Depending upon the seriousness of the conduct and the likelihood of custodial sentence, the certainty of impending punishment may act as an incentive to abscond. If the person ever harboured hopes that they may be acquitted or that they may delay their case for a prolonged period, such hopes would have to be abandoned after conviction. Accordingly, whilst there is no presumption against bail following conviction, conviction for serious offences may justify the exercise of discretion to refuse bail pending sentence.
I turn to a consideration of the factors contained in sch 1, pt C, cl 1. Those factors are, firstly, would the applicant fail to appear if not kept in custody? Having regard to the applicant's history of bail, it would seem that he is no risk of absconding. However, as I have noted, there is a greater incentive now to abscond given he has been convicted of these offences.
I also take into account that he has family connections in Western Australia and that he has expressed a willingness to meet stringent terms. The second factor I have had regard to is would the applicant commit any further offences? There is no reason to think so in this case.
The third factor is would release on bail endanger the safety, welfare or property of any person. There is no reason to think that in this case, nor is there any reason to think that the applicant would interfere with witnesses or that he needs to be remanded in custody for self protection.
The next factors are whether the prosecution has advanced reasons for the applicant to be remanded in custody, and I will return to this in a moment, and whether conditions could be reasonably imposed that would limit the risk of absconding. I accept that there are conditions that could meet any such risk.
However, the final factor is whether the alleged circumstances of the offence amounts to wrongdoing of such a nature as to make bail inappropriate. The circumstances of the offending, and I understand the facts in this regard have been admitted, are that the applicant has been guilty of three long periods of collecting social security benefits whilst he was not entitled. Those periods cover a total of six years. The total amount of benefits that were obtained to which the applicant was not eligible is slightly in excess of $41,000. The maximum penalty for each of the three offences of which he has been convicted is 12 months' imprisonment. I note that the facts indicate that during the period he collected benefits the applicant used different (if not false) names, making detection of his offending more difficult. He was also employed by six different employers during the period. There was at least one occasion where false statements were made in respect of the collection of benefits which also made detection more difficult.
It would appear that he was only caught due to an anonymous tip-off to Centrelink, and for this reason there is no reason to think the offending would have stopped were it not for this tip-off. There are no obvious exceptional mitigating circumstances in this case that would cause me to think that there is anything other than a high likelihood of an immediate custodial term.
I also note that the applicant has a prior record of dishonesty offences and that those offences attracted suspended terms of imprisonment which appear to have been breached by these offences. Whether any breach proceedings are contemplated isn't known but the risk of that is also a factor that may act as an incentive to abscond.
I note the matters that are raised in the affidavit that has been filed in support of this application, in particular, the personal factors which I accept are favourable to the applicant.
I take into account what has been said on his behalf in regard to his business and that the business requires his current attendance in order to employ a replacement truck driver, and that failing that there is a risk that that business will fail, however, such measures should have been put in place well before the applicant pleaded guilty. He had no right to expect that he would continue to be free pending his plea of guilty and conviction for these offences such that he could then attend to his business affairs. It was within his power to make arrangements prior to that plea of guilty. Nor is there an assurance that if he was now released on bail it would achieve the objects that have been referred to.
I accept that he has favourable family circumstances, that he has the assets to meet stringent bail terms and that the proposed bail plan would significantly obviate any risk of absconding, but none of those factors, in my view, outweigh the serious nature of these offences, the fact of conviction and the high likelihood of a custodial term.
I also take into account that 24 March is four weeks away and remand in custody for that period would not in itself be unjust, particularly bearing in mind the power of the magistrate to backdate any custodial term if it is imposed by the magistrate, or indeed to take such time in custody into account if some other disposition is imposed. For those reasons the application is dismissed.