"LJW" v The State of Western Australia
[2007] WASCA 68
•8 MARCH 2007
"LJW" -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 68 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:16/2007 | 8 MARCH 2007 | |
| Coram: | ROBERTS-SMITH JA | 7/03/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | "LJW" THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against sentence Bail pending appeal Unlawfully administering sedative to wife Unlawful and indecent assault Photographs of wife naked and sedated 2 years' immediate imprisonment Prospects of success on appeal Delay before hearing of appeal Whether exceptional reasons why appellant should not be kept in custody pending appeal |
Legislation: | Nil |
Case References: | Bell v The Queen (2001) WASCA 40 Featherston v The State of Western Australia (2006) WASCA 154 Fermanis v The State of Western Australia (2005) WASCA 212 GAS v The Queen [2004] HCA 22 Mill v The Queen [1988] HCA 70 Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Scott v The State of Western Australia (2006) WASCA 28 Stalker v The Queen (2002) WASCA 364 Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "LJW" -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 68 CORAM : ROBERTS-SMITH JA HEARD : 8 MARCH 2007 DELIVERED : 8 MARCH 2007 FILE NO/S : CACR 16 of 2007 BETWEEN : "LJW"
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Bail pending appeal - Unlawfully administering sedative to wife - Unlawful and indecent assault - Photographs of wife naked and sedated - 2 years' immediate imprisonment - Prospects of success on appeal - Delay before hearing of appeal - Whether exceptional reasons why appellant should not be kept in custody pending appeal
Legislation:
Nil
Result:
Application granted
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Category: B
Representation:
Counsel:
Appellant : Mr R Young
Respondent : Mr M R Jones
Solicitors:
Appellant : Robert Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bell v The Queen (2001) WASCA 40
Featherston v The State of Western Australia (2006) WASCA 154
Fermanis v The State of Western Australia (2005) WASCA 212
GAS v The Queen [2004] HCA 22
Mill v The Queen [1988] HCA 70
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scott v The State of Western Australia (2006) WASCA 28
Stalker v The Queen (2002) WASCA 364
Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303
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1 ROBERTS-SMITH JA: This is an application for bail pending appeal against sentence, an aggregate sentence of 2 years' imprisonment with eligibility for parole imposed by his Honour Judge McCann in the District Court at Perth on 20 February 2007. The application is opposed by the respondent.
2 The applicant was convicted on his own plea of guilty on 14 February of this year to two counts on an indictment dated 13 February 2007. That indictment replaced an earlier one dated 28 March 2006 which was discontinued by a notice from the Director of Public Prosecutions dated 13 February 2007 which was presented on the morning of the applicant's plea.
3 The counts to which the applicant pleaded guilty are that:
(1) between 1 August and 4 November 2001 he unlawfully and with intent to injure or annoy his then wife caused a noxious thing, namely a sedative, to be administered to her contrary to s 301(2) of the Criminal Code ("the Code").
(2) on the same date and place he unlawfully and indecently assaulted his then wife by positioning her to expose her vagina and that he did an act which was likely seriously and substantially to degrade or humiliate her, namely photographing her, contrary to s 324 of the Code.
4 The applicant filed his appeal notice on 26 February 2007. He filed his application for bail and an affidavit in support of that application at the same time. The affidavit is also sworn on 26 February 2007, that being an affidavit of his solicitor, Mr Robert Young.
5 The facts as they appear from the sentencing remarks of his Honour, broadly expressed, are that count 1 was said to be representative in nature and occurred at a different time to count 2. The circumstances of count 1 are that the applicant caused his wife to ingest sedatives, in particular benzodiazepine, so as to cause her to fall fast asleep and that occurred on five or six occasions over 10 years.
6 Expert evidence suggested that such sedatives take many hours to wear off. His Honour found that the administration of the sedatives in this case was intended to make the complainant fall asleep and that she did so and subsequently she felt after effects such as drowsiness for some time.
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- He found that all of that occurred without her being aware that she had taken a sedative and without her consenting to its administration.
7 His Honour said that the applicant told the police (and his Honour accepted) that he did this in order to get some respite from what the applicant regarded as his wife's unpleasant behaviour. He denied (and again his Honour accepted) that the sedatives were administered in order to take indecent photographs of the complainant.
8 In respect of count 2, on or about 3 November 2001 at night, the applicant took photographs of the complainant while she was asleep and lying naked on her bed. At the time she was unable to resist what he was doing and did not know what was happening. He positioned her so as to expose her genitals. She did not consent to this in any way. When he had done that he took photographs of her without her consent.
9 His Honour accepted that, at the time, the complainant was so intoxicated by alcohol as to be incapable of resistance and that prior to doing these things the applicant had showered her and put her to bed. The assault came to light when the complainant inadvertently came across an email in the "Sent" box of the family's computer which had the heading, "Wife drunk - passed out and fucked." Photographs taken by the applicant were attached to the email and were seen by the complainant and indeed copies had been provided to his Honour.
10 The complainant's inquiries revealed that the applicant had applied for and in some cases gained membership of a number of web sites which are dedicated to the subject of the sexual and/or pornographic abuse of unconscious females. His Honour found that the purpose of taking the photographs of the complainant and emailing them to others was to assist him to gain access to web sites of that kind; however, he accepted in the absence of the evidence to the contrary that the photographs were encrypted before being sent.
11 Nonetheless, his Honour said in his view that had very little significance to the disposition of the matter because the gravamen of the offence is the humiliation of the victim which was pronounced once she found out what he had done. His Honour then referred to the victim impact statement and took into account in particular what he described as the dreadful shock, hurt and humiliation suffered by the complainant.
12 His Honour then referred to the relevant sentencing principles. He noted the relevance of the fact that in relation to count 2 there was no
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- form of sexual molestation or penetration or genital contact. The assault consisted of moving the complainant's body.
13 But the gravamen of the offence, as he observed, is the circumstance of aggravation, namely the humiliation inherent in photographing the complainant in a degrading way with the intention of using the photographs to gain Internet access and without any evident intent to hide the photographs so that they could not later be found by the victim.
14 His Honour took the view that the circumstance of aggravation in this case made it an extremely serious one. He also said that in relation to count 1, one aggravating factor was the real risk to the complainant's health. It was not possible to say what dosages of the sedatives the applicant had given to the complainant and so whilst a risk to her life and health existed, there was insufficient evidence before him to enable him to find that there was a grave risk of immediate harm being suffered by her, but nonetheless the secret administration of powerful sedatives was a serious matter.
15 His Honour also took into account that the offence was not opportunistic in nature and indeed to the contrary was clearly premeditated. The applicant had a supply of sedatives hidden in the house. The particular offence was the culmination of at least five or six offences of the kind.
16 His Honour also took into account there was a breach of trust involved insofar as one expects one's spouse to take care of one.
17 In relation to count 2 again his Honour said it was not opportunistic in nature and not a spare of the moment thing and the evidence of the email clearly showed this.
18 His Honour dealt with the applicant's personal circumstances, noting that he was 46 years of age with four children all of whom are adults except for one. He noted the applicant has had a successful career as an auctioneer and real estate agent and excellent references and no relevant criminal antecedents. He was to be treated accordingly as a first offender. His Honour noted the applicant had attended counselling after separation from his wife in 2002 and that he had complied with all his matrimonial obligations since the separation occurred, including his financial obligations. His Honour noted there was clear evidence to establish that fact.
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19 I interpolate here the observation that that was an issue which was in contest initially in the sentencing process before his Honour, as the victim impact statement and other information put to his Honour by the respondent indicated that the applicant had not in fact complied with his matrimonial obligations. Subsequently additional information was provided to his Honour to demonstrate that was incorrect.
20 I think I have probably said enough for present purposes in respect of this application as to the facts and some of the considerations which his Honour addressed in his sentencing remarks. He did of course address considerably more remarks to the personal background and circumstances of the applicant beyond those which I have mentioned.
21 The applicant's case has not yet been filed so the grounds of appeal are still only the draft grounds as set out in the Appeal Notice. Also, of course, the question of leave to appeal has not yet been considered as that can only be done once the Appellant's Case is filed. Leave to appeal is required for each ground of appeal, (s 27(1) of the Criminal Appeals Act 2004 (WA)).
22 The Court or a single Judge of appeal must refuse leave to appeal unless satisfied the particular ground has a reasonable prospect of success on appeal (s 27(2) of the Criminal Appeals Act and see Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473).
23 There is no dispute here about the principles to be applied on this application as both counsel acknowledge the threshold test for bail pending appeal is that the applicant must demonstrate there are exceptional reasons why he should not be kept in custody pending the hearing of his appeal. That is what is required by clause 4 of part C of schedule 1 of the Bail Act 1982 (WA). (For convenience I shall compendiously refer to that phrase henceforth as simply "exceptional reasons".)
24 It is only if exceptional reasons are demonstrated that the discretion of the Court to grant bail is enlivened. It is only if that is done that the Court may then consider bail and even then may grant bail only if the Court considers that may properly be done having regard to the ordinary considerations which apply to any bail application, they being those set out in clauses 1 and 3 of part C.
25 So far as the expression "exceptional reasons" is concerned, it has been discussed in a number of authorities. In short the applicant is required to demonstrate reasons which are unusual or out of the ordinary
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- or in some way special or an exception to the general run of cases. (See Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 [14] - [15], [24], [42], [46], [48] and [51].)
26 To the extent that an applicant relies upon the likely prospects of success on appeal as one of the exceptional reasons or an exceptional reason on an application of this kind, what must be shown is that the appeal is most likely to succeed,Stalker v The Queen(2002) WASCA 364 [19] - [40], or that there are "strong grounds for concluding that the appeal would succeed" (Fermanis v The State of Western Australia(2005) WASCA 212 [14]).
27 What should also be emphasised is that it is not the fact alone that an appellant will or would most likely serve the custodial part of his sentence where that circumstance is relied upon which would constitute an exceptional reason, because that fact would potentially make the appeal nugatory only if the appeal was most likely to succeed. That is why the consideration of likely prospect of success in most applications of this kind assumes a dominant aspect; if an appeal is found to have no merit and does not in the end succeed it would obviously be proper and just that the appellant would have continued to serve his or her sentence in the meantime.
28 Furthermore, as Mr Jones for the respondent correctly points out in his submissions, what is particularly relevant on this application is the consideration whether the quashing of the applicant's immediate term and the substitution of a suspended term of imprisonment is the most likely outcome. (See Tieleman to which I have already referred at paragraph 31 and Featherston v The State of Western Australia(2006) WASCA 154 at [11].)
29 The grounds of appeal here are: (1) that the sentencing Judge erred in failing to suspend any sentence of imprisonment, having regard to a number of factors then particularised; (2) that his Honour erred in finding the appellant did not display remorse during the videotape record of interview in circumstances in which that was conducted two years after the offences were discovered and other considerations then mentioned in the ground; (3) that his Honour erred in not accepting that the appellant's significant financial support for his family including the complainant since the commission of the offences amounted to evidence of remorse and contrition in circumstances where the support provided went well beyond what his Honour described as merely complying with his matrimonial obligations; and (4) his Honour erred in that the seriousness
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- of the offences and consequently the need for punishment and general deterrence was overstated. A number of particulars are then given in relation to that ground.
30 Mr Young submits that the exceptional reasons here are that guilty pleas were entered following discussions with the DPP which resulted in a fresh indictment being prepared for the day set for trial, coupled with the submission from the State that immediate imprisonment was not called for, next, the likelihood of the appeal succeeding, then the fact that the applicant will not be able to continue to provide significant financial assistance to the complainant and his children, plus the fact that by the time the appeal is determined the applicant is likely to have served a significant portion of his non-parole period of 12 months.
31 Mr Young also submits there are other relevant factors such as the applicant's excellent antecedents and ability to meet any bail conditions. At [11] of his original submissions, Mr Young puts it that at the sentencing hearing in the District Court the State made a concession that an immediate term of imprisonment was not warranted. I think what is put as to that on behalf of the applicant somewhat overstates the prosecution position before his Honour.
32 At page 56 of the sentencing transcript the State prosecutor submitted:
"It is quite obvious, your Honour, that the State is seeking a term of imprisonment. In fact, the State is seeking a term of imprisonment to be imposed on both counts and that they be made cumulative upon each other."
33 She then went on to indicate that it was the State's submission that the offences were particularly serious and that concurrent sentences would not reflect the entire criminality of them. She continued at the bottom of page 57 to say that a term of imprisonment was not only open but appropriate in this case, and went on to seek to assist his Honour as to a decision as to whether that should be served immediately or suspended.
34 She then adverted to a number of considerations which have been mentioned by counsel for the applicant. I do not read what she said there as, by any stretch, wholeheartedly endorsing the submission that the sentence of imprisonment ought to be suspended.
35 At page 60 she emphasised the primary considerations should be personal and general deterrence and then added that given the submissions
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- she had made on the need for counselling, it may be that his Honour could suspend the term of imprisonment contingent upon a program that forced the applicant to seek the root of his problem. She continued:
"Otherwise, your Honour, it is unlikely that a suspended term of imprisonment will address either personal deterrence or general deterrence."
37 Nonetheless, I would accept that the transcript does indicate the State prosecutor allowed that a suspended sentence was a live sentencing option for his Honour, although her position certainly did not amount to a concession that immediate imprisonment was not an appropriate disposition. Furthermore, and perhaps, I think in the end more importantly here, and again as Mr Jones correctly submits, it is the Judge's responsibility to decide the sentence to be imposed and that responsibility cannot be fettered nor circumscribed by the conduct of counsel, GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30] and [31].
38 I think any assessment of the likely prospect of the appeal succeeding to the extent a suspended sentence may be substituted by the Court of Appeal turns far more realistically on the other matters advanced by Mr Young. The first of those is that the Judge had no regard whatsoever to the delay in the matter coming to trial. The last of the offences occurred in November 2001, so that they were over five years old at the time of sentencing. It appears that delay was in no way attributable to the applicant. The submission is that it must detract from the need to reflect punishment and general deterrence.
39 Mr Young gives further history of the progress of the matters generally. The offences became known to the complainant in October 2002 but she chose for reasons of her own not to report them to the police until 26 January 2004. During that time the appellant had attended counselling at the Men's Domestic Violence Centre and with a private clinical psychologist. He had paid school fees for his four children and provided other financial support to his family. He had made no claim to
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- any property of the marriage and had allowed the complainant to live rent and mortgage free on a block of land paid for by his mother.
40 The complaint to police was made about six weeks after the parties had signed divorce papers and only one week before the divorce became final. For some reason unexplained, once the complaint had been made to police they did not interview the applicant until November 2004. In that interview he made numerous admissions which ultimately formed the basis of count 1, and it is submitted that without those admissions the State would have had exceptional difficulty in proving that count. That was indeed acknowledged by his Honour in sentencing.
41 The applicant was charged by police in December 2004, but the charges as initially laid consisted of the offence, still count 1, but an offence of transmitting objectionable material contrary to the Censorship Act. That latter charge was incompetent for legal reasons and ultimately indeed not only was it not withdrawn, the police then added a charge of stupefying with intent to commit an indictable offence.
42 The applicant was not committed to the District Court until August 2005, and following his committal no indictment was prepared until a couple of days prior to an appearance at a pleas day in March 2006. He was then arraigned in August that year on an indictment charging him with stupefying with intent to commit an indictable offence as count 1, and aggravated indecent assault as count 2, to which he pleaded not guilty.
43 Shortly before his trial was due to commence in February 2007, the defence and the DPP entered into discussions which resulted in a fresh indictment with offences of administering a poison and aggravated indecent assault. That was the first time that combination of charges had been preferred and this is therefore not a case where it could be said the applicant could have avoided delay earlier by pleading guilty and acknowledging his wrongdoing.
44 Mr Young refers to a number of authorities which establish that in appropriate circumstances delay in sentencing may be a mitigating factor. He says those circumstances are demonstrated here. Those authorities include Scott v The State of Western Australia(2006) WASCA 28; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 and Bell v The Queen(2001) WASCA 40.
45 It is submitted that in the instant case the applicant did all he could to atone for his offending, particularly by way of financial support for his
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- family, including the complainant. He had also assisted the complainant and his children in other ways. He had been deprived of contact with his youngest son. He had entered a new and supportive relationship with his present girlfriend. He had attended counselling. He had continued to work, and the factors that underlay his offending were no longer present and he was unlikely to re-offend.
46 The submission, therefore, is that for those reasons matters such as deterrence and punishment should not have been as prominent in sentencing as matters personal to him. Reference is made to the mitigating factors which applied in relation to the applicant and reliance is also placed on the assertion that his Honour erred in his observations as to lack of remorse. It is not necessary for me to expand on that aspect now.
47 The applicant also relies upon the time spent in custody or likely to be spent in custody by the time his appeal comes on before hearing, assuming, of course, leave to appeal is granted. It is likely that an appeal would not be heard for at least five months. I say that because as I have already observed, the applicant has not yet even filed his Appellant's Case and the question of leave to appeal has not yet been dealt with. That likely delay is a relevant consideration but, in my view, not enough on its own; however, it does add weight to the applicant's position given my assessment of his likely prospect of success having regard to the considerations otherwise relied upon by Mr Young.
48 I am persuaded by Mr Young's comprehensive, thorough and well-presented submissions. I am persuaded that the factors to which he adverts do constitute exceptional reasons for the purposes of the Bail Act. It then becomes necessary for me to consider whether bail should be granted having regard to the factors which ordinarily apply. As I understand the respondent's position, confirmed by Mr Jones, they accept those factors here do militate in favour of a grant of bail once my discretion is enlivened as I have found it is.
49 I will accordingly grant the application. Bail will be granted. I will hear further from counsel on the terms and conditions to be set.
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