KWLD v The State of Western Australia [No 2]
[2013] WASCA 129
•20 MAY 2013
KWLD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 129
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 129 | |
| THE COURT OF APPEAL (WA) | 20/05/2013 | ||
| Case No: | CACR:229/2012 | 11 APRIL 2013 | |
| Coram: | MAZZA JA | 17/04/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KWLD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeal Exceptional circumstances Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Ness v The State of Western Australia [2012] WASCA 273 Windie v The State of Western Australia [2012] WASCA 61 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KWLD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 129 CORAM : MAZZA JA HEARD : 11 APRIL 2013 DELIVERED : 17 APRIL 2013 PUBLISHED : 20 MAY 2013 FILE NO/S : CACR 229 of 2012
- CACR 49 of 2013
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : GN 372 - 374 of 2011, GN 434 - 439 of 2011, CC 5382 of 2011, CC 5383 of 2011, CC 5384 of 2011, CC 5385 of 2011
(Page 2)
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L M Fox
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Ness v The State of Western Australia [2012] WASCA 273
Windie v The State of Western Australia [2012] WASCA 61
(Page 3)
- MAZZA JA:
(This is a decision delivered orally and subsequently edited from the transcript).
1 This is an application for bail pending the determination of the appellant's appeals against conviction and sentence. On 13 February 2012 the appellant pleaded guilty in the Children's Court to the following sexual offences:
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2 The appellant also pleaded guilty to a number of what I will call non-sexual offences being:
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3 A trial of the issues in respect of the sexual offences was conducted by Birmingham DCJ sitting as the Acting President of the Children's Court. His Honour delivered his findings on 24 August 2012. On 13 September 2012, his Honour sentenced the appellant on all offences to a total effective term of 30 months' imprisonment with eligibility for parole. The sentence was backdated to commence on 16 November 2011. The individual sentences that were imposed are as follows:
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4 In respect of the non-sexual offences:
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(Page 5)
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5 The appellant's appeals concern only the sexual offences. It is unnecessary to set out in detail the facts of the offences. It was accepted that in respect of the complainants TB, MC and SM the appellant had sexually penetrated them and, in the case of TB, he had also attempted to sexually penetrate her. It was also accepted that, at the appellant's behest, SW had sent an indecent photograph to him and that he possessed that material.
6 With respect to the complainant MC, his Honour made the following findings of fact:
(a) At the time of the offences the appellant and the complainant were in a boyfriend-girlfriend relationship.
(b) He was not satisfied that MC's participation in the sexual relationship with the appellant was the result of any manipulative conduct on his part that was so overbearing that her consent was not freely and voluntarily given in every sense.
(c) The appellant sought information of a private nature from MC with the intention of ensuring the complainant's trust and dependency upon him.
(d) The appellant had genuine feelings for MC and the sexual conduct that occurred happened in that context.
7 As to TB, his Honour made the following findings:
(a) In relation to the charge of attempted sexual penetration, he was satisfied that the appellant actually penetrated the complainant's vagina with his penis.
(b) The appellant attempted to sexually penetrate TB with his penis and then digitally penetrated her without her consent.
(Page 6)
- (c) At the time of the sexual penetration and the attempted sexual penetration, the appellant did not believe that the complainant was consenting.
8 In respect of the offence of sexual penetration of SM, his Honour made the following findings:
(a) At the time SM was 13 years of age, and the appellant was aware that she had run away from home and was vulnerable.
(b) The complainant's apparent consent to an act of penile penetration of her vagina in her bedroom was procured by the appellant's persistent pressure and her will was overborne by this conduct, such that her consent was not freely and voluntarily given.
(c) The appellant knew that SM's consent to sexual intercourse was a direct result of pressure that the appellant had applied.
(d) The appellant was aware that save for the persistent nature of the pressure he applied, the complainant would not have participated in sexual conduct with him.
9 In respect of SW, his Honour found that:
(a) The complainant was one of 40 to 50 girls in Perth randomly targeted by the appellant to engage in chat via social media with a view to becoming friends.
(b) The complainant sent the appellant an indecent photograph of herself.
(c) The material was sent without any undue threat being made by the appellant.
10 In respect of the charge of possession of child exploitation material, although it is not completely clear, it appears that the material the subject of this charge was the material sent to the appellant by SW.
11 The offences against SM and SW were committed while the appellant was subject to a youth community based order for offences which I will mention later.
12 At the time the appellant committed the offences he was 15 or 16 years of age. At the date of his sentencing he had turned 18. Although
(Page 7)
- he was to be sentenced as an adult, the sentencing principles applicable to young offenders applied.
13 It is clear from his sentencing remarks that his Honour regarded the offences committed on TB and SM as the most serious because they had been committed without consent and in circumstances in which the appellant did not believe that they were consenting.
14 His Honour described the non-sexual offences as 'very serious'. These offences were committed while the appellant was on bail for the sexual offences.
15 The aggravated burglary offences occurred on two premises next door to each other on the same night. With respect to the first premises, the appellant entered the house on the pretext of being a police officer. He was armed with a steel used for sharpening knives. He required the two occupants and their child to lay down on the floor with their hands behind their backs. The appellant yelled at them, demanding to know where 'the drugs' were. The adult occupants came to realise that the appellant was not a real police officer and telephoned the police. In respect to the second premises, the appellant entered that house and conducted himself in such a way as to terrify the occupant.
16 His Honour described the appellant as an intelligent young man who had a very troubled upbringing. His Honour said that this upbringing played a significant part in the commission of the offences. His Honour referred to reports which indicated that the appellant had a significant alcohol abuse problem and posed a high risk of reoffending. His Honour found that the appellant used his intelligence to manipulate young girls to comply with his needs.
17 The reports highlighted the need for the appellant to participate in rehabilitative programs.
18 The appellant has a prior record of offending for offences of breaching a violence restraining order, making a threatening statement, fraud, possession of child exploitation material and stalking. All of these offences, which were committed in 2010 at various times, were dealt with on 17 December 2010 by a 9-month youth community based order.
19 His Honour said that had the offences in respect of MC been 'stand-alone matters', he would not have imposed terms of imprisonment to be immediately served.
(Page 8)
20 His Honour considered that a total effective sentence of 2 years and 6 months' imprisonment properly reflected the appellant's overall criminality.
21 The appeals and the application presently before the Court have been prepared by the appellant in person. They bear out his Honour's finding that the appellant is an intelligent young man. The appellant's application for bail was originally founded on the erroneous premise that he was appealing from a decision of a court of summary jurisdiction; thus, at first, he approached the application on the basis that the sentences that had been imposed upon him could be suspended pending the hearing of his appeals pursuant to s 12(1)(b) of the Criminal Appeals Act 2004 (WA) and that cl 5 pt C of sch 1 of the Bail Act 1982 (WA) applied so that he was to be treated as if awaiting an appearance in court before conviction for an offence.
22 At the hearing of the appeal, having seen the respondent's written submissions, the appellant conceded that these provisions did not apply because he was not appealing from a court of summary jurisdiction: see s 19(3) and s 19B(4)(d) of the Children's Court of Western Australia Act 1988 (WA). He conceded, correctly, that this application had to be considered pursuant to cl 4A of pt C of sch 1 of the Bail Act which reads:
Bail after conviction for accused awaiting disposal of appeal
In deciding whether or not to grant bail to an accused who is in custody waiting for the disposal of appeal proceedings, the judicial officer shall consider whether there are exceptional reasons why the accused should not be kept in custody, and shall only grant bail to the accused if satisfied that -
(a) exceptional reasons exist; and
(b) it is proper to do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
23 The principles relating to bail pending appeal are well known. Clause 4A 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 2 and 3 of pt C sch 1 of the Bail Act: see Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
(Page 9)
24 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. Of course other matters may be considered.
25 So far as the merits of the appeals are concerned, I consider that it is necessary for the appellant to show without detailed argument that the appeal has strong arguable grounds. The many cases in this area reveal various formulations, although I do not regard them as being materially different to the one I have just stated. Whatever the formulation, each one is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction or sentence: see Ness v The State of Western Australia [2012] WASCA 273 [9].
26 In his oral submissions the appellant placed little reliance upon the strength of his grounds of appeal against conviction. This is understandable having regard to the difficulty that an appellant ordinarily has seeking to overturn verdicts based on pleas of guilty. SeeWindie v The State of Western Australia [2012] WASCA 61. However, he submitted that his appeal against sentence had strong arguable grounds.
27 The appellant has not yet filed his appellant's case in both appeals. In an annexure to his written submissions in support of his application for bail, MAH1, the appellant set out seven grounds of appeal which he proposes to rely upon. He explained that the annexure combined the grounds in both appeals. They are:
1. The appellant was the subject of a malicious prosecution.
2. The learned trial judge erred in his assessment of the mischief at which the legislation is aimed and in his Honour's application of the legislative views formed.
3. The learned judge erred in his decision not to apply s 24 of the Criminal Code.
4. The learned judge failed to take into account all circumstances personal to the offender.
5. The learned judge erred in sentencing the offender to an immediate term of imprisonment.
(Page 10)
- 6. The learned trial judge erred in failing to adequately take into account the medical circumstances of the appellant.
7. The learned judge erred in application of parity principles.
28 Ground 1 could only be relevant to an appeal against conviction. Grounds 2 to 7 could only be relevant to an appeal against sentence.
29 In addition to the grounds of appeal, the appellant submitted that he was at significant risk of having served all or most of the sentence imposed before the appeals can be heard and determined. In relation to this point, the appellant informed me that as of 5 February 2013 he had completed the non-parole term of his sentence and he had been refused parole. He made the point that on 16 May 2013 he will have served the head sentence of 18 months in respect of sexual offences. He asserted that if the total effective sentence that was imposed is reduced, any victory will be hollow.
30 I will deal first with the proposed grounds of appeal. In doing so I emphasise that it is not for me to decide the appeal now and that my assessment is a preliminary one which may change in time.
31 There is no evidence before the Court capable of supporting the proposition that the prosecution against the appellant was malicious as asserted in ground 1. Accordingly it cannot be said at this stage that the ground is strongly arguable.
32 Ground 2 asserts that his Honour erred in his assessment of the legislative purpose of s 321(2) of the Criminal Code and erred in his assessment of the appellant's culpability. The appellant focused on his Honour's statement to the effect that the purpose of this provision and like provisions in the Criminal Code was to protect children from themselves and that his Honour, when assessing the appellant's culpability, failed to take into account that the appellant himself was a child when he committed the offences.
33 Upon a reading of the whole of his Honour's sentencing remarks, I am not currently persuaded that it is strongly arguable that his Honour made any material error in his assessment of the legislative purpose of s 321(2) and like provisions of the Criminal Code. Nor am I persuaded that it was strongly arguable that his Honour erred in his assessment of the appellant's culpability. In this regard, it is plain that his Honour was aware of the appellant's youth at the time that he committed the offences.
(Page 11)
- As to the appellant's culpability generally, on any reckoning the offences, especially those with respect to TB and SM, were very serious.
34 With respect to proposed ground 3, his Honour was not, in the context of sentencing proceedings, required to apply s 24 of the Criminal Code. This ground does not appear to me to be strongly arguable.
35 I will deal with grounds 4 and 6 together. Proposed ground 4 is clear enough in its terms. The medical circumstances referred to in proposed ground 6 appear to be a reference to conclusions reached in the psychological and psychiatric reports that were before his Honour. Based upon my reading of those reports and his Honour's sentencing remarks as a whole, I do not think that either ground is strongly arguable.
36 With respect to proposed ground 6 in particular, his Honour accepted the presence of chronic depressive symptoms in the appellant and observed that the symptoms fluctuated in their severity. His Honour said that during the period of the offending 'there were some periods of self-harm and his psychiatric state must have been questionable at some stage'. On a preliminary basis, it appears to me that his Honour had regard to these matters.
37 With respect to proposed ground 5, in light of the appellant's overall offending, I am not persuaded that the proposed ground is strongly arguable. I note that defence counsel in the sentencing proceedings before his Honour conceded that in light of the seriousness of the appellant's overall offending, an immediate term of imprisonment was called for.
38 Finally in respect of ground 7, it is not clear how the parity principle could apply to this case. No-one else was charged with any of the offences the subject of the appeal against sentence, although I understand that in relation to the aggravated burglary offences, which are not the subject of appeal, the appellant's aunt was also charged and, I am told, received a community based disposition. On the material before me, I am not satisfied that any of the appellant's proposed grounds of appeal are strongly arguable.
39 The appellant, in his written submissions and in his oral submissions, referred to another matter. According to the appellant, his Honour did not have a proper understanding of social media and the participation of young people in that field. He contended that his Honour should have heard expert evidence in respect of that issue before him. There is no ground of appeal to this effect, but I will assume for the moment that it is a proposed ground of appeal that the appellant wishes to pursue. In my
(Page 12)
- opinion, it is not a strongly arguable ground of appeal. I observe that the appellant, who was represented at the sentencing hearing by competent and experienced counsel, did not seek to adduce expert evidence of the type now mentioned.
40 Having arrived at the conclusion that none of the proposed grounds of appeal are strongly arguable and notwithstanding that the appellant has already served a substantial portion of his sentence, I am not persuaded that exceptional reasons have been demonstrated which would justify the release of the appellant on bail pending the disposal of his appeal against sentence.
41 If I am wrong in this conclusion, I would not have released the appellant on bail in any event, having regard to cls 2 and 3 of pt C sch 1 of the Bail Act.
42 I have arrived at that conclusion because of the following factors:
(1) The appellant committed serious offences while on bail. In addition, having regard to the expert opinion accepted by his Honour that the appellant is at high risk of reoffending and the appellant's capacity to engage in manipulative behaviour, I conclude that he may commit an offence on bail; and
(2) although a surety is available and the appellant is prepared to abide by strict bail conditions, including home detention, I am not satisfied that any condition which could be imposed under pt D of the Bail Act would sufficiently remove the possibility that the appellant may commit a further offence.
43 For these reasons the appellant's application for bail pending appeal must be dismissed, and I so order.
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