KWLD v The State of Western Australia [No 3]
[2013] WASCA 127
•21 MAY 2013
KWLD -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2013] WASCA 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 127 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:229/2012 | 10 MAY 2013 | |
| Coram: | McLURE P BUSS JA MURPHY JA | 21/05/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KWLD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Review of single judge decision refusing bail pending appeal Whether exceptional reasons for grant of bail Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C, cl 2, cl 3, cl 4A, sch 1 pt D Children's Court of Western Australia Act 1988 (WA), s 19, s 19B |
Case References: | Ness v The State of Western Australia [2012] WASCA 273 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KWLD -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2013] WASCA 127 CORAM : McLURE P
- BUSS JA
MURPHY JA
- 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 - Review of single judge decision refusing bail pending appeal - Whether exceptional reasons for grant of bail - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C, cl 2, cl 3, cl 4A, sch 1 pt D
Children's Court of Western Australia Act 1988 (WA), s 19, s 19B
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):
Ness v The State of Western Australia [2012] WASCA 273
(Page 3)
1 McLURE P: This is an application to review the decision of Mazza JA to dismiss the appellant's application for bail pending appeal.
2 On 13 September 2012 the appellant was convicted before Birmingham DCJ sitting as a judge of the Children's Court of Western Australia on 13 counts. The appellant pleaded guilty to the offences. The offences and the penalties imposed are as follows:
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3 The sentencing judge imposed a total effective sentence of 30 months' imprisonment with eligibility for parole. The sentences on counts 8 and 11 were ordered to be served cumulatively, with the balance of the sentences to be served concurrently.
4 The appellant was aged 15 and 16 years when he committed the offences. At the date of his sentencing, he had turned 18.
(Page 4)
5 An appeal notice against sentence was filed on 4 October 2012. The appellant was represented in the Children's Court and at the commencement of his appeal. However, he filed a notice of self-representation on 18 February 2013.
6 The appellant has also filed an appeal against conviction. That was done on 26 February 2013, some four and a half months out of time. The appeals against conviction and sentence are confined to the sexual offences.
7 A trial of issues was conducted by the sentencing judge in respect of the sexual offences. His Honour delivered his findings on 24 August 2012. The sexual offending involved four complainants. The sentencing judge found that the appellant had sexually penetrated two of the complainants without their consent. The sentencing judge assessed the appellant as both intelligent and manipulative.
8 The non-sexual offences were committed while the appellant was on bail for the sexual offences. The aggravated burglary offences occurred at adjacent houses on the same night. With respect to the first house, the appellant entered it on the pretext of being a police officer. He was armed with a steel rod used for sharpening knives. He required the two occupants and their child to lay face down on the floor with their hands behind their backs. The appellant yelled at them, demanding to know where the drugs were. The appellant then entered the second house and conducted himself in such a way as to terrify the occupants.
9 The sentencing judge found the appellant had a very troubled upbringing, a significant alcohol abuse problem and posed a high risk of reoffending.
10 The appellant had a prior record of offending. The prior offences include breach of a violence restraining order, making a threatening statement, fraud, possession of child exploitation material and stalking. On 17 December 2010 the appellant was placed on a 9-month youth community based order for these offences. Sexual offences against two of the complainants referred to above were committed while the appellant was serving the youth community based order.
11 When the Children's Court is constituted by a judge, it is not a court of summary jurisdiction: Children's Court of Western Australia Act 1988 (WA) (the Children's Court Act), s 19(3). In any event, where a young person is convicted of an indictable offence by any judicial officer of the Children's Court, the conviction is to be treated as if it were a conviction
(Page 5)
- upon indictment for any proceedings consequential on the conviction: s 19B(4)(d) of the Children's Court Act. Accordingly, cl 4A of pt C of sch 1 of the Bail Act 1982 (WA) applies.
12 Clause 4A provides:
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.
13 Following a review of the merits of the grounds of appeal against conviction and sentence, the primary judge concluded that none of the grounds was strongly arguable. There is no challenge to that assessment. It is clearly correct.
14 As at 5 February 2013 the appellant had completed the non-parole term of his sentence. However, parole had been refused. The appellant pointed out to the primary judge that on 16 May 2013 he would have served the head sentence of 18 months in respect of the sexual offences. He submitted that if the total effective sentence was reduced on appeal, any victory would be hollow.
15 The primary judge concluded:
Having arrived at the conclusion that none of the proposed grounds of appeal are strongly arguable, 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.
16 The primary judge went on to say that even if he was wrong in that conclusion, he 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, having concluded that the appellant may commit an offence on bail and that he was not satisfied that any condition which could be imposed under pt D sch 1 of the Bail Act would sufficiently remove the possibility that the appellant may commit a further offence.
17 The grounds of review are that the primary judge:
(Page 6)
- 1. failed to adequately conduct himself in considering whether or not the appellant's submissions established 'exceptional reasons';
2. failed to give due consideration to or adequately address all of the appellant's grounds in support of exceptional reasons;
3. erred in his opinion that there was no condition which he could reasonably impose under pt D sch 1 of the Bail Act which would sufficiently remove the possibility that the appellant may commit a further offence.
18 There is no justification for the appellant's claim that the primary judge confined his consideration of exceptional circumstances to the prospects of success of the grounds of appeal. The primary judge said:
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.
19 The primary judge also referred to the broader statement that the prospects of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by being kept in custody on an unsound conviction or sentence: Ness v The State of Western Australia [2012] WASCA 273 [9].
20 The fact that, if not released to bail, the benefit of any successful appeal would be lost is a relevant, but not a stand-alone or determinative, factor. It is closely linked with an assessment of the prospects of success of the appeal. The exceptional circumstances requirement was not met in this case.
21 Moreover, it was open on the evidence for the primary judge to fail to be satisfied that any pt D condition would sufficiently remove the possibility that the appellant may commit a further offence. The appellant used his intelligence and social media to target, manipulate and pressure young girls. The sentencing judge also found that the appellant randomly targeted 40 to 50 girls in Perth via social media with a view to securing their involvement in sexual conduct.
22 The primary judge made no error in the exercise of his discretion to refuse bail. The review should be dismissed.
(Page 7)
23 BUSS JA: I agree with McLure P.
24 MURPHY JA: I agree with McLure P.
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