Manisco v The State of Western Australia
[2013] WASCA 133
•29 MAY 2013
MANISCO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 133
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 133 | |
| THE COURT OF APPEAL (WA) | 29/05/2013 | ||
| Case No: | CACR:70/2013 | 6 MAY 2013 | |
| Coram: | MAZZA JA | 6/05/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail dismissed Urgent appeal order made | ||
| B | |||
| PDF Version |
| Parties: | COSIMO ANTONIO MANISCO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail Application for urgent appeal order Uttering threats with intent to gain a benefit Turns on own facts |
Legislation: | Criminal Code (WA), s 397(2) Bail Act 1982 (WA), sch 1 pt C cl 4A |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Ness v The State of Western Australia [2012] WASCA 273 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANISCO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 133 CORAM : MAZZA JA HEARD : 6 MAY 2013 DELIVERED : 6 MAY 2013 PUBLISHED : 29 MAY 2013 FILE NO/S : CACR 70 of 2013 BETWEEN : COSIMO ANTONIO MANISCO
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 315 of 2012
Catchwords:
Criminal law - Application for bail - Application for urgent appeal order - Uttering threats with intent to gain a benefit - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 397(2)
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application for bail dismissed
Urgent appeal order made
Category: B
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Ms S Markham
Solicitors:
Appellant : Abigail Rogers, Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Ness v The State of Western Australia [2012] WASCA 273
(Page 3)
- MAZZA JA:
(This decision was delivered extemporaneously and has been edited from the transcript).
1 This is an application for bail pending the appellant's appeal against sentence or, in the alternative, an urgent appeal order. On 20 March 2013, the appellant was sentenced to 2 years' immediate imprisonment with eligibility for parole following his early plea of guilty to one count of uttering threats with intent to gain a benefit, contrary to s 397(2) of the Criminal Code (WA). The maximum penalty for that offence is 14 years' imprisonment. The appellant will be eligible for release on parole on or after 19 March 2014.
2 The relevant facts may be briefly stated as follows. The complainant, who I will refer to as MP, had been in a personal relationship with a woman, who I will refer to as VC, which ended in or about May 2011. Sometime during the course of the relationship the complainant had borrowed $12,000 from VC. As at 15 September 2011, $8,000 of that debt remained unpaid.
3 On 15 September 2011, VC approached the complainant and demanded repayment of the balance of the debt that was owing to her. The complainant did not pay VC and forcibly removed her from his premises. Word got around to members of the Serbian community about what had happened. On 20 September 2011, the appellant and a co-offender named Stone attended at the complainant's mechanical workshop and said that they were there to collect the money that he owed VC. The complainant told them that he did not have the money. As I understand the facts, the appellant then told the complainant that he and the co-offender would return at midday on 23 September 2011 to collect the money.
4 The complainant knew that he would be unable to pay the money by that time. Although the appellant and the co-offender did not have any weapons with them and did not raise their voices, the complainant felt intimidated by their attendance at the workshop and as a result he contacted the police.
5 At midday on 23 September 2011, the appellant and the co-offender attended upon the complainant's workshop. The complainant was wearing an electronic device which recorded what occurred. The appellant told the complainant that if he did not come up with the money he owed VC by Tuesday of the following week, they would 'repossess' his cars and
(Page 4)
- 'end up fucking shooting the place up'. Both the appellant and the co-offender were arrested by the police as they left the workshop. At the sentencing hearing, it was not suggested by the State that either the appellant or his co-offender would have benefitted from the money obtained.
6 At the time of sentencing, the appellant was 46 years of age. He had a lengthy criminal history related predominantly to his long-term abuse of illicit drugs. It was said that at the time of the offending the appellant was unemployed, unstable and associating with negative peers. However, at the time of sentencing he had moved to Melbourne to commence a new life and was residing with a new partner, had full-time employment and was studying. The learned sentencing judge had before him evidence concerning the appellant's health difficulties.
7 The legal principles relating to bail pending appeal are well known. Clause 4A of pt C sch 1 of the Bail Act 1982 (WA) 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 1 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.
8 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. This is not to say that other matters are not to be considered.
9 So far as the merits of the appeal are concerned, I consider that it is necessary for the appellant to show, without detailed argument, that the appeal has strong arguable grounds. 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 case 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 sentence: see Ness v The State of Western Australia [2012] WASCA 273 [9].
(Page 5)
10 The appellant has filed an appellant's case. The grounds of appeal in that document do not allege any express error on the part of the sentencing judge, although counsel today has foreshadowed amending the appellant's case to include an allegation of express error on the part of the sentencing judge, in that his Honour has made an erroneous finding of fact. I am going to proceed on the basis that the merits of the appeal should be considered in light of the foreshadowed amended ground of appeal as well as the grounds which are presently contained in the appellant's case.
11 The grounds of appeal allege that the sentence imposed upon the appellant was manifestly excessive in that he should have been sentenced to a suspended term of imprisonment. Alternatively, he should have been sentenced to a lesser term of immediate imprisonment. The proposed ground of appeal alleges that his Honour made an error of fact in finding that the offending was premeditated.
12 Ms Rogers, on behalf of the appellant, acknowledged correctly that general deterrence looms large in cases of extortion and that generally the only appropriate sentence is a term of imprisonment. She submitted that having regard to:
(a) the circumstances of the case, including that no actual violence occurred or was intended;
(b) the fact that the appellant did not intend to personally gain by the offence;
(c) the appellant's early plea of guilty, his remorse, his prospects of rehabilitation and his health,
his Honour erred by imposing an immediate term of imprisonment, or alternatively a term of imprisonment as long as 2 years. Ms Rogers further submitted that there was no basis on the evidence for the finding that the appellant's offending was premeditated. In these circumstances Ms Rogers submitted that the grounds of appeal are strongly arguable.
13 The respondent has submitted that the grounds of appeal, including the foreshadowed amended ground of appeal, are not so strongly arguable as to justify a grant of bail. The respondent submits that the attempt to extort money from the complainant was indeed premeditated and occurred over a period of time and was in this sense persistent.
14 The respondent acknowledged that while the appellant did not threaten to physically harm the victim, he did threaten to take his property
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- and damage his business premises and, in the circumstances, there was implied some threat of harm, or at least some potential for physical harm.
15 The respondent placed emphasis on the need for general deterrence and submitted that the ground of appeal alleging that an immediate term of imprisonment should not have been imposed does not have strong prospects of success. The State further argued that the ground that the length of the sentence should be reduced is also not strongly arguable.
16 It is, of course, inappropriate for me to prejudge the outcome of the appeal. It is, however, sufficient for me to say that while I consider the ground of appeal relating to the length of the sentence as being reasonably arguable, I have not been persuaded that it and the other proposed grounds of appeal are strongly arguable.
17 I am mindful that the non-parole period in this case is relatively short, but it is not so short as to, by itself or in combination with the appellant's other arguments about the merits of his appeal, justify the conclusion that exceptional reasons exist for a grant of bail pending appeal. For these reasons, I dismiss the appellant's application for bail pending appeal.
18 The application for an urgent appeal order is more finely balanced. In the normal course the appeal would not be heard until September or October 2013, by which time the appellant would have served just over half or perhaps half of the noncustodial portion of his sentence. Of course the court may require additional time to consider the case and deliver its reasons. On balance, I am prepared to make an urgent appeal order.
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