Lawson v The State of Western Australia
[2018] WASCA 182
•17 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LAWSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 182
CORAM: MAZZA JA
HEARD: 11 OCTOBER 2018
DELIVERED : 11 OCTOBER 2018
PUBLISHED : 17 OCTOBER 2018
FILE NO/S: CACR 164 of 2018
BETWEEN: SHAUN PHILLIP LAWSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CORBOY J
File Number : INS 213 of 2015
Catchwords:
Criminal law - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1981 (WA), sch 1, pt C, cl 4A
Result:
Bail application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms G N Beggs |
Solicitors:
| Appellant | : | In person |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Lawson v The State of Western Australia [2017] WASCA 137
Lawson v The State of Western Australia [No 3] [2018] WASCA 129
Mallard v The Queen [2003] WASCA 296
Meissner v The Queen (1995) 184 CLR 132
MAZZA JA:
(These reasons were delivered extemporaneously on 11 October 2018 and have been edited from the transcript.)
Before the court are the appellant's applications for bail pending his appeal against conviction for the offence of armed robbery and, in the alternative, an order for an expedited hearing of the appeal filed 25 September 2018, for a lie detector test filed 4 October 2018, and to adduce additional evidence in the appeal, also filed 4 October 2018.
I have received and read the parties' written submissions in respect of the bail application, including the appellant's submissions in answer to the respondent's submissions filed 5 October 2018. I note that, on 9 October 2018, the appellant filed an application to rely on further material in relation to the bail application. I have had regard to that additional material.
On 18 September 2018, the appellant filed an appellant's case in this appeal. He seeks leave to appeal against conviction on two grounds. I will come back to the proposed grounds of appeal. The application for leave to appeal will soon be listed before three judges for hearing. Given that the hearing will occur within the next month or so, I will adjourn to that hearing the applications for an expedited hearing of the appeal, for a lie detector test and to adduce additional evidence.
In doing so, and with respect to the application for a lie detector test, I draw the parties' attentions to the Court of Criminal Appeal's decision in Mallard v The Queen.[1] It may be thought, based on that decision, that the application is problematic. This leaves for consideration today the application for bail pending appeal. The application is opposed by the respondent.
[1] Mallard v The Queen [2003] WASCA 296.
The facts and circumstances of the armed robbery offence and the other offences which he committed around that time are set out in a judgment of this court in Lawson v The State of Western Australia [No 3],[2] between [11] and [15]. I will not repeat what was written on that occasion.
[2] Lawson v The State of Western Australia [No 3] [2018] WASCA 129 [11] ‑ [15].
The procedural history with respect to the armed robbery and the other charges is also described in that judgment between [2] and [10]. Again, it is unnecessary to repeat what was written, save to say that (a) the offence of armed robbery was committed on 12 August 2014; (b) the appellant pleaded guilty to that offence on 25 November 2015; (c) on 1 March 2016, Corboy J placed the appellant on a 12‑month pre‑sentence order; (d) on 20 December 2016, at a pre-sentence order review hearing, the appellant was remanded in custody; and, (e) on 2 March 2017, Corboy J sentenced the appellant to a total effective sentence of 4 years 9 months' immediate imprisonment. The appellant received a term of 2 years imprisonment for the armed robbery offence.
I return to the appellant's two proposed grounds of appeal. Ground 1, as I understand it, alleges what the appellant has described as a 'mistake of fact'. In effect, he appears to be saying that he pleaded guilty and was dealt with on an erroneous factual basis, in that it was alleged that he was armed with secateurs, but in fact he kept the secateurs in his pocket and they were not used in the commission of the offence.
Ground 2 alleges in substance a number of things: first, that the appellant pleaded guilty because he was advised to by his lawyer and did so because he hoped he would be placed on a conditionally suspended imprisonment order; second, that when he pleaded guilty he was in a state of what he calls 'delirium'; third, he is in truth not guilty of the offence.
Essentially, the appellant says that he should be granted bail pending appeal, because his grounds of appeal have strong prospects of success; he has a number of health conditions which are not being adequately treated in prison; he has a considerable number of pressing debts; and he would be in a better position to prepare for his appeal if he was in the community. The appellant further says that he would answer his bail if bail was granted and that he would not reoffend while on bail.
The respondent submitted that the grounds of appeal do not have sufficient prospects of success to justify a grant of bail, and in any event bail would be otherwise inappropriate.
As I explained to the appellant in my reasons for dismissing a bail application he made in his earlier appeal against sentence,[3] my power to admit him to bail pending appeal cannot be enlivened unless he demonstrates that there are exceptional reasons why he should not be kept in custody and that it is otherwise appropriate to grant bail having regard to the matters in cl 1 and cl 3 of pt C in sch 1 of the Bail Act 1982 (WA).
[3] Lawson v The State of Western Australia [2017] WASCA 137.
When considering whether there are exceptional reasons, a very significant factor - although not the only matter that may be considered - is whether the appellant can demonstrate without detailed argument that the appellant has strong prospects of success or is most likely to succeed.
I have very carefully read all of the material filed by the appellant in relation to his appeal and with respect to this application.
Courts of appeal do not easily set aside a conviction based on a guilty plea, particularly when, as in this case, the offender was represented by legal counsel. An appellate court must not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred.[4] As was stated in Meissner v The Queen, a person may plead guilty upon grounds which extend beyond that person's belief in his or her guilt.[5]
[4] See Meissner v The Queen (1995) 184 CLR 132.
[5] Meissner v The Queen (157).
Of itself, the fact that the person has a defence does not invalidate the plea. A plea of guilty entered in the hope that it will lead to a lesser sentence or a non‑custodial sentence is not ordinarily an invalid plea. The appellant has a history of mental illness. But there is no evidence of what the appellant describes as 'delirium' at the time that he entered his plea of guilty. Nor is there any evidence that the appellant was incapable of properly making such a plea.
At this point in the proceedings, I am not persuaded that the grounds of appeal are sufficiently strong to constitute exceptional reasons why bail should be granted. As for the other matters raised by the appellant, namely, his health conditions, his debts and the need to prepare for the appeal, I am not satisfied that they are sufficient to justify a grant of bail.
To sum up, then, in my opinion, at this point in the proceedings, none of the arguments or circumstances put before this court either individually or in combination are sufficient to constitute exceptional reasons for a grant of bail.
Consequently, I have no power to release the appellant on bail. It is unnecessary to decide whether, had I been satisfied that exceptional reasons existed for a grant of bail, I would have granted bail having regard to the matters in cl 1 and cl 3 of pt C in sch 1 of the Bail Act. For these reasons, the appellant's application for bail pending his appeal against conviction must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA17 OCTOBER 2018
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