Lynden v The State of Western Australia
[2013] WASCA 147
•22 MAY 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | LYNDEN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 147 |
| CORAM | : MAZZA JA | ||
| HEARD |
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| DELIVERED |
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| PUBLISHED |
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| FILE NO/S |
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| BETWEEN | : RICHARD ANTHONY LYNDEN |
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : STEVENSON DCJ | ||
| File No |
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| Catchwords: |
Criminal law and procedure - Bail - Application for bail pending appeal - Urgent appeal order - Exceptional circumstances - Turns on own facts
[2013] WASCA 147
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application dismissed
Urgent appeal order made
Category: B
Representation:
Counsel:
| Applicant | : | Mr S Freitag |
| Respondent | : | Mr J Newton-Palmer |
Solicitors:
| Applicant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
KWLD v The State of Western Australia [No 2] [2013] WASCA 129
[2013] WASCA 147
MAZZA JA
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited
from the transcript.)
This is an application for bail pending the appellant's appeal against sentence and, in the alternative, an urgent appeal order.
2 On 19 April 2013, the appellant pleaded guilty in the District Court
to one count of stealing a quantity of jewellery and cash worth approximately $12,450. On that day, Stevenson DCJ sentenced the appellant to 20 months' immediate imprisonment with eligibility for parole. The appellant's non-parole period expires on or about 19 February 2014.
3 The unchallenged facts of the offence are as follows. At about 1 pm
on 22 August 2012, the appellant was at a shopping centre in Port Kennedy, where he entered a women's clothing shop and approached the front counter. At the time, the shop was temporarily unattended. The complainant, who was working in the shop, was in a back room hanging up some clothing and there were no customers present.
4 The appellant looked around the shop, reached behind the counter,
and then picked up the complainant's handbag, placing it under his hooded sweatshirt. He then walked out of the store and left the shopping centre. Unknown to the appellant was the fact that closed-circuit television cameras installed in the premises captured his actions inside the store.
5 The complainant's handbag contained $5,300 in Australian currency,
10 million Indonesian rupiah valued at approximately $1,000 and jewellery valued at approximately $6,150 which the complainant had put in her handbag, intending to take it to a jeweller for repairs.
6 On 4 October 2012, the appellant voluntarily participated in a video
record of interview at the Rockingham police station. In that interview, he admitted being in the shop at the time of the offence, but denied taking the complainant's handbag. None of the stolen property has been found, although the complainant has recovered the sum of $7,575 from her insurer.
7 It was accepted that the appellant was not aware of the contents of
the handbag before he stole it, although, once he became aware, he made no attempt to return any of the property to its owner. As it turned out, the appellant threw some of the jewellery into a bin.
[2013] WASCA 147
MAZZA JA
8 The appellant is almost 24 years of age. He has been in a long-term
personal relationship and has two young children aged under 10. He has limited education and work experience. He is in good physical health and has no mental health issues. He is a regular user of cannabis. He has what his Honour described as a lengthy criminal record, including as an adult at least six stealing offences and at least four burglary offences. He has in the past been placed on intensive supervision orders and breached them.
9 Before the learned sentencing judge, defence counsel conceded that
the only appropriate sentencing option was a term of imprisonment, but submitted that the term could be suspended or conditionally suspended. The prosecutor submitted that immediate imprisonment was the only appropriate penalty.
10 His Honour characterised the offence as serious. He found that the
appellant entered the store only for the purpose of committing the offence. He said that, consistently with the appellant's criminal record, the appellant did not have any genuine empathy or insight in relation to the impact of his offending on his victims. He took into account the appellant's plea of guilty, but noted that the CCTV footage meant, in effect, that the appellant had been caught red-handed. Having regard to this factor and pursuant to s 9AA of the Sentencing Act 1995 (WA), he reduced the head sentence by 10%. His Honour does not appear to have reduced the sentence for any other mitigating factors.
11 The learned sentencing judge said that there was a need for the
sentence he imposed to reflect both general and personal deterrence. He declined to suspend the term of imprisonment having regard to the seriousness of the offence, the appellant's lack of insight into his conduct, his poor antecedents and 'the very strong requirement and need for personal deterrence' (ts 48).
12 The sole ground of appeal is that the sentence imposed by the learned
sentencing judge was manifestly excessive. It is submitted that a suspended term of imprisonment should have been imposed. Alternatively, the length of the term of immediate imprisonment should be significantly reduced.
13 The power to grant bail pending an appeal is found in cl 4A of pt C
of sch 1 of the Bail Act 1982 (WA). I have, in a series of decisions, set out the relevant legal principles that apply to these applications. Most recently in KWLD v The State of Western Australia [No 2] [2013] WASCA 129, I described those principles in these terms ([23] - [25]):
[2013] WASCA 147
MAZZA JA
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.
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.
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].
14 The appellant's counsel submitted that bail should be granted, having
regard to what is said to be a strongly arguable ground of appeal, combined with the fact that the appeal will not be heard in the normal course until November or December 2013, by which time the appellant will have served most of the non-custodial period of his sentence, thereby making any successful appeal, in substance, nugatory.
15 The respondent submitted that the ground of appeal is not strongly
arguable and that the prospect of the appeal not being heard until the end
of this year should not justify a grant of bail.16 The appellant has not yet filed an appellant's case. The written and
oral submissions made on behalf of the appellant, however, give me some reasonable indication of the arguments which the appellant wishes to put on appeal. Essentially, it is argued that having regard to:
(a) the fast-track plea of guilty; (b)
the appellant's lack of knowledge as to the contents of the handbag;
[2013] WASCA 147
MAZZA JA
(c)
the plea of guilty indicating an acceptance of the nature of the contents of the handbag in circumstances where there was no corroborating evidence that the handbag in fact contained high value items;
(d) the spontaneous nature of the offending; and (e) the appellant's family and personal circumstances, it is strongly arguable that the sentence imposed was plainly unjust and
unreasonable.17 It is not necessary or appropriate for me to attempt to predict the
outcome of the appeal. My assessment of its strength is, at the moment, a
provisional one which may change in due course.18 Having regard to the circumstances of the offence, the amount of
property stolen and the need for general and particularly personal deterrence, I do not think that it is strongly arguable that something other than a term of immediate imprisonment should have been imposed. The length of the term of imprisonment is another question which may be more arguable, although how much more arguable is debatable. I acknowledge that, in the absence of an urgent appeal order, the appellant's appeal may not be heard until later this year. However, this factor may be alleviated by the making of such an order.
19 In all of the circumstances, I have not been persuaded that
exceptional reasons exist for a grant of bail pending appeal. The delay in the hearing of the appeal can, as I have just said, be alleviated by making an urgent appeal order. I will dismiss the application for bail pending appeal, but make an urgent appeal order.
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