MacCAULEY v The State of Western Australia
[2017] WASCA 38
•27 FEBRUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MacCAULEY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 38
CORAM: MAZZA JA
HEARD: 22 FEBRUARY 2017
DELIVERED : 22 FEBRUARY 2017
PUBLISHED : 27 FEBRUARY 2017
FILE NO/S: CACR 183 of 2016
BETWEEN: SARAH LEE-ANNE MacCAULEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAUDE DCJ
File No :IND KAL 49 of 2016
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: Mr S Vandongen SC
Respondent: Mr B M Murray
Solicitors:
Appellant: Paul Vale Criminal Law
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 the appellant's application for bail pending her appeal against sentence pursuant to cl 4A pt C sch 1 of the Bail Act 1982 (WA) which provides that bail cannot be granted unless the appellant demonstrates exceptional reasons why he or she should not be kept in custody.
Background
On 7 November 2016 in the District Court, the appellant was sentenced to a total effective sentence of 2 years' immediate imprisonment with eligibility for parole in respect of six offences for which the appellant was convicted after pleas of guilty. Five of the offences arose in the course of one episode of serious criminal behaviour that took place on 3 June 2015 in Gibson, near Esperance.
The offences committed by the appellant that day were:
•one count of criminal damage contrary to s 444(1)(b) of the Criminal Code (WA) (the Code);
•one count of aggravated burglary contrary to s 401(2) of the Code;
•one count of making a threat to kill contrary to s 338B of the Code;
•one count of aggravated assault contrary to the s 313(1)(a) of the Code; and
•one count of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997 (WA).
The sixth offence, one count of breach of bail, occurred on 13 August 2015, when the appellant failed to answer her bail in respect of the five offences committed on 3 June 2015.
Application for bail
As revealed in the appellant's case filed 13 February 2017, she relies on two grounds of appeal.
Ground 1 alleges that, as a result of new evidence in the form of expert opinion by Dr Mark Hall, a psychiatrist, the true significance of facts known at the time of sentence has now been revealed, so as to justify the imposition of a different sentence.
Ground 2 alleges in the alternative that the total effective sentence infringed the first limb of the totality principle.
The appellant seeks an order that she be resentenced to a suspended imprisonment order with or without conditions.
The application for bail pending appeal is supported by two affidavits sworn on 13 February 2017 by the appellant's solicitor, Sarah Pratt, a further affidavit sworn by Ms Pratt on 17 February 2017 and an affidavit by Dr Mark Hall sworn 15 February 2017.
Dr Hall visited the appellant on 10 December 2016 at Eastern Goldfields Regional Prison. He has written two reports dated 3 February 2017 and 15 February 2017 respectively. Those reports are included in the material filed on behalf of the appellant. I have read the transcript of the sentencing proceedings and read the materials which were provided to the primary judge.
The parties have filed written submissions with respect to the application in accordance with orders I made on 14 February 2017. The application for bail is opposed by the respondent.
The appellant submits that the grounds of appeal, particularly ground 1, is strongly arguable and, further, that by the time the appeal is heard and determined, she will have served a significant part of the non‑parole period of her sentence.
With respect to the second submission, that may be alleviated by the granting of an urgent appeal order. As I indicated to counsel, having regard to the length of the sentence and matters personal to the appellant, such an order is appropriate in this case. Based on the inquiries I have made, this court is able to hear the appeal on 17 March 2017.
As to the merits of the appeal, on a preliminary basis I have not been persuaded that ground 2 is strongly arguable. Ground 1 appears at this stage to be stronger. However, I have not been persuaded that it is so strongly arguable as to meet the threshold of exceptional circumstances.
I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody. Accordingly, the application for bail must be dismissed; however, as I have already indicated, I will make an urgent appeal order. The orders that I would make are as follows:
(1)The application for bail pending appeal is dismissed.
(2)Leave to appeal is granted in respect of ground 1. The question of leave in respect of ground 2 is referred to the hearing of the appeal.
(3)An urgent appeal order is granted.
(4)The respondent shall file and serve the respondent's answer by no later than 4.00 pm on 8 March 2017.
(5)The appellant shall file appeal books no later than 4.00 pm on 13 March 2017.
(6)The appeal will be heard on 17 March 2017 at not before 10.30 am.
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