Lawson v The State of Western Australia - [2017] WASCA 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LAWSON -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 137

CORAM: MAZZA JA

HEARD: 5 JULY 2017

DELIVERED : 5 JULY 2017

PUBLISHED : 24 JULY 2017

FILE NO/S: CACR 130 of 2017

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 No  :INS 213 of 2015

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 R G Wilson

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Nil
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

Before me is Mr Lawson's application filed 16 June 2017 for an order for bail pending his appeal against sentence pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA) and, in the alternative, an urgent appeal order.
The relevant background is as follows. On 25 November 2015, the appellant pleaded guilty to one count of armed robbery on Coles Express Canning Vale. This offence was committed on 12 August 2014. On 28 January 2016, the appellant pleaded guilty to 33 summary offences contained in a notice under s 32 of the Sentencing Act 1995 (WA). The s 32 notice charges included offences of dangerous driving causing grievous bodily harm, careless driving, possession of prohibited drug, forging a prescription, giving false details to police, stealing, fraud, criminal damage, stealing a motor vehicle, trespass, breach of bail and various traffic offences.
On 1 March 2016, Corboy J placed the appellant on a 12 month pre‑sentence order for all of the offences I have mentioned. On 7 December 2016, the appellant was remanded in custody having breached the terms of the pre‑sentence order and a condition of his bail. On 20 December 2016, Corboy J cancelled the pre‑sentence order and remanded the appellant in custody for sentence.
On 2 March 2017, the appellant was sentenced by Corboy J to a total effective sentence of 4 years and 9 months' immediate imprisonment with eligibility for parole. In doing so, his Honour took into account time the appellant had already served in custody. The appellant will not be eligible for release on parole until 2 December 2019. It is unnecessary to set out all of the individual sentences that were imposed upon the appellant, but the large bulk of the total effective sentence was made up of a sentence of 2 years' immediate imprisonment for the armed robbery and a cumulative sentence of 1 year and 6 months' immediate imprisonment for the offence of dangerous driving occasioning grievous bodily harm.
Nor is it necessary to describe the individual circumstances of all of the offences. The appellant's overall criminality was high. With respect to the armed robbery offence the appellant stole property from a convenience store and petrol station brandishing some secateurs. The dangerous driving offence resulted in the victim suffering serious life‑threatening injuries as a consequence of the appellant's vehicle intruding onto the wrong side of the road.
At the time he was sentenced, the appellant was 31 years of age. He suffers from chronic paranoid schizophrenia. This illness has been complicated by the appellant's chronic substance abuse, particularly methylamphetamine, and his poor compliance with medication and treatment. The sentencing judge did not consider that the appellant's offending could be wholly explained by his mental illness. His Honour expressed the view that substance abuse played a significant part in the offending. The appellant has a prior record of offending, although he had not been previously sentenced to a term of immediate imprisonment.
His Honour took into account as mitigating factors the appellant's plea of guilty (for which he received a discount of 25% pursuant to s 9AA of the Sentencing Act); his 'serious psychiatric condition' which his Honour found had some connection with his offending; his prospects of rehabilitation and that, due to his mental illness, his time in prison would be more difficult than for a prisoner in normal health. His Honour declined to suspend the terms of imprisonment he imposed because of the seriousness of the offending, his failure to comply with the requirements of the pre‑sentence order and because, if he was released into the community, his Honour was not confident that the appellant would refrain from further offending.
The appellant filed his appeal notice on 5 June 2017. The draft grounds of appeal allege, in substance, that the total effective sentence infringed the first limb of the totality principle. The appellant, who is self‑represented, has not yet filed an appellant's case.
The appellant's statutory declaration in support of his application and his written submissions emphasise that due to his mental illness he has found it very difficult to adapt to prison life. He has informed me that he has already been admitted to the Franklin Centre for treatment, as he puts it, 'because … [of] my vulnerability in prison'. There are no documents which support these statements, but the State does not challenge them and, for present purposes, I will accept them.
The State opposes the application for bail pending appeal. It takes a neutral stance in respect of the application for an urgent appeal order. The State submits that the appellant has not demonstrated exceptional reasons why he should be released on bail. Further, it is submitted that even if exceptional circumstances were demonstrated, it would otherwise be inappropriate to grant bail having regard to the appellant's breach of the pre‑sentence order made by Corboy J and a prior conviction for breach of bail.
My power to admit the appellant to bail pending appeal cannot be enlivened unless the appellant 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 cls 1 and 3 of pt C in sch 1 of the Bail Act. 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 appeal has strong prospects of success or is most likely to succeed.
At this point in time, which I recognise is early in the proceedings, and based on the information presently before me, it cannot be said that the appeal has strong prospect of success or is most likely to succeed. Further, while I am prepared to accept that he is struggling to cope with his imprisonment, this factor does not, in my view, constitute exceptional reasons. As I am not satisfied that exceptional reasons exist, I have no power to release the appellant on bail pending appeal.
However, even if the appellant had demonstrated exceptional reasons, it would not have been appropriate to release the appellant on bail having regard to his performance on the pre‑sentence order, and that the proposed conditions on which he would be granted bail are, in my view, insufficient to protect the public from the risk of reoffending that he poses.
For these reasons, the application for bail pending appeal must be dismissed.
This leaves the application for an urgent appeal hearing. I think this part of the appellant's application is better left for the moment, pending the filing of the appellant's case. I will adjourn the appellant's application for an urgent appeal order sine die and give him liberty to relist the application after his appellant's case is filed on giving seven days' notice to the respondent.