Melvin v The Queen - [2020] WASCA 219

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MELVIN -v- THE QUEEN [2020] WASCA 219
CORAM:   BUSS P
HEARD:   15 DECEMBER 2020
DELIVERED          :   15 DECEMBER 2020
PUBLISHED           :   4 JANUARY 2021
FILE NO/S:   CACR 183 of 2020
BETWEEN:   DIANNE LILLIAN MELVIN
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   IND 1436 of 2019

Catchwords:

Criminal law - Appeal against sentence - Application for bail pending the determination of the appeal - Exceptional circumstances - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A
Crimes Act 1914 (Cth), s 29D
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)
Criminal Code (Cth), s 134.2(1)
Prisons Act 1981 (WA) s 83, pt VIII
Prisons Regulations 1982 (WA), reg 54D(k), reg 54E(3), reg 54F(2)

Result:

Application for bail dismissed
Programming orders made

Category: B

Representation:

Counsel:

Appellant	:	Mr S W O'Sullivan
Respondent	:	Mr H P K Kopsen

Solicitors:

Appellant	:	Gunning Young Barristers & Solicitors
Respondent	:	Director of Public Prosecutions (Cth)

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Peters v The State of Western Australia [2012] WASCA 274
Timbrell v The State of Western Australia [2013] WASCA 74

BUSS P:

The appellant was charged on indictment with two counts.
Count 1 alleged, in essence, that between 10 October 2000 and 23 May 2001, the appellant defrauded Centrelink by falsely declaring that she was not a member of a couple, in order to receive payments of disability support pension to which she was not entitled, contrary to s 29D of the Crimes Act 1914 (Cth).
Count 2 alleged, in essence, that between 24 May 2001 and 28 October 2010, the appellant, by falsely declaring to Centrelink that she was not a member of a couple, dishonestly obtained a financial advantage for herself, namely payments of disability support pension, from Centrelink, contrary to s 134.2(1) of the Criminal Code (Cth).
On 16 October 2020, the appellant was convicted, on her pleas of guilty, of both offences.
The maximum penalty for count 1 was 10 years' imprisonment or a fine of 1,000 penalty units ($110,000) or both. The maximum penalty for count 2 was 10 years' imprisonment or a fine of 600 penalty units ($66,000) or both.
On 4 December 2020, Birmingham DCJ sentenced the appellant to 6 months' imprisonment on count 1 and to 2 years 6 months' imprisonment on count 2. His Honour ordered that the sentences be served cumulatively. The total effective sentence was therefore 3 years' imprisonment. His Honour made a recognizance release order in respect of the total effective sentence. The appellant was to be released after serving 9 months upon entering into a recognizance in the sum of $1,000 to be of good behaviour for 2 years 3 months.
On 4 December 2020, the appellant began serving her sentence.
On 10 December 2020, the appellant filed an appeal notice in respect of the sentencing decision. She has yet to file her appellant's case. However, the appellant has indicated that she proposes to rely upon two grounds of appeal. First, the sentencing judge erred in imposing immediate terms of imprisonment by concluding that prison facilities could meet the appellant's needs in relation to her medical conditions. Secondly, his Honour erred in concluding that the offending was so serious that only immediate terms of imprisonment could be imposed when that conclusion was not the only sentencing option given the appellant's medical conditions and other mitigating factors.
On 10 December 2020, the appellant made an application in her appeal for an order that she be granted bail pending the determination of her appeal.
The Crown opposed the application for bail. The Crown submitted, in essence, that his Honour did not make either of the errors alleged in the proposed grounds of appeal.
On 15 December 2020, I heard the application for bail. At the conclusion of the hearing, I dismissed the application. I then made programming orders in relation to the appeal as follows:
1The appellant is to file and serve the appellant's case by 4.00 pm on 8 January 2021.
2The appellant is to file and serve:
(a)an application in the appeal for leave to rely upon additional evidence as to the appellant's medical condition and disabilities and as to the impact of the appellant's detention in custody upon her condition and disabilities; and
(b)affidavits containing detailed and admissible evidence (including expert medical evidence) in relation to those matters,
by 4.00 pm on 20 January 2021.
3The respondent is to file and serve the respondent's answer by 4.00 pm on 27 January 2021.
4The respondent may file and serve an application in the appeal together with affidavits in relation to the matters referred to in order 2 by 4.00 pm on 27 January 2021.
5The appellant is to serve an unbound copy of the appeal book on the respondent for checking in accordance with the Registrar's approved appeal book index by 4.00 pm on 1 February 2021.
6The appellant is to file the original appeal book and serve a bound copy on the respondent by 4.00 pm on 8 February 2021.
7A copy of the appeal book must be made available to the court by the appellant sharing a link by email to a DropBox account or a OneDrive folder which contains the appeal book by 4.00 pm on 8 February 2021.
8The appeal is to be listed for hearing on 11 February 2021 at 2.15 pm.

These are my reasons for dismissing the application for bail.
The facts and circumstances of the offending were, in summary, as follows.
Between 10 October 2000 and 28 October 2010, the appellant engaged in a single course of conduct whereby, as a result of a false declaration to Centrelink (namely, that she did not have a partner), the appellant obtained payments of disability support pension to which she was not entitled.
For the period of offending relevant to count 1, the total overpayment was $1,112.26. For the period of offending relevant to count 2, the total overpayment was $93,521.07.
The combined amount obtained dishonestly was therefore $94,633.33.
Centrelink first detected the offending on 28 April 2010 as a result of information Centrelink had received to the effect that the appellant was residing with Alan Markland.
During the period of the offending, Centrelink sent the appellant information on a regular basis which informed her of the need to advise Centrelink about changes to her relationship status and to provide details of any partner she had.
During investigations carried out by Centrelink and in proceedings in the Social Security Appeal Tribunal and the Administrative Appeals Tribunal on various dates between 9 November 2010 and 8 October 2014, the appellant consistently denied being in a relationship with Mr Markland at any material time.
When sentenced, the appellant had repaid a total of $62,240.44 of the combined amount obtained dishonestly.
The appellant was not charged until 17 July 2017.
On 14 October 2020, the appellant confirmed her intention to plead guilty to the charged offences. As I have mentioned, on 16 October 2020 she entered pleas of guilty. Those pleas were taken at a directions hearing shortly prior to the commencement of a 14‑day trial that had been listed to begin on 20 October 2020.
The appellant had no prior criminal record.
The appellant was aged between 47 and 57 years at the time of the offending and was aged 67 years when sentenced.
The appellant's physical health has deteriorated significantly since Centrelink detected the offending. She has extensive medical conditions.
The appellant's medical conditions include:
(a)spinal degeneration involving her cervical and lumbar spine with evidence of previous upper cord injury;
(b)partial loss of function in both the upper and lower limbs;
(c)peripheral neuropathy;
(d)spinal syrinx;
(e)osteoarthritis in the spine;
(f)chronic pain;
(g)Graves' disease;
(h)anxiety and severe depression associated with chronic illness; and
(i)monoclonal gammopathy.
Since 2016, the appellant's sister has acted as her carer. The appellant's sister has assisted the appellant in feeding, dressing, showering and walking any distance.
Since 9 September 2020, the appellant has been advised not to drive a motor vehicle.
The appellant has at her home a reclining hospital bed with rails and a special needs recliner.
The appellant takes medication several times a day.
The sentencing judge accepted that the appellant had a number of disabilities and that a term of immediate imprisonment would create a greater burden for the appellant (ts 9). However, his Honour was satisfied, in effect, that the appellant's medical conditions could be 'properly managed and completed within a prison setting' (ts 13).
On the hearing of the bail application, the information before this court in relation to the appellant's medical conditions included:
(a)The information before the sentencing judge.
(b)Material in and annexed to an affidavit sworn 9 December 2020 by the appellant's lawyer, Mark Russell Gunning.
(c)Material in an affidavit sworn 14 December 2020 by the appellant.
(d)Material in an affidavit sworn 15 December 2020 by counsel for the Crown, Hugh Patrick Kershaw Kopsen.
(e)A letter dated 15 December 2020 from Dr Adam Tomison, the Director General of the Department of Justice.
(f)Information provided orally to the court by Dr Joy Rowland at the hearing of the application. Dr Rowland has been a general medical practitioner for more than 20 years. She is a fellow of The Royal Australian College of General Practitioners. She has been a prison medical officer. Currently, she is Director of Medical Services at the Department of Justice. She has overarching responsibility for the health and medical care of prisoners.
Some of the information relied upon by the appellant was self‑serving and was not in an admissible form.
The principles relating to the granting of bail pending the determination of an appeal are well established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia;[1] Timbrell v The State of Western Australia.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[2] Timbrell v The State of Western Australia [2013] WASCA 74.
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.
In Peters v The State of Western Australia,[3] McLure P observed, in the context of an appeal against conviction:
It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
[3] Peters v The State of Western Australia [2012] WASCA 274 [10].
In the present case, I will deal with the appellant's application for bail by considering whether she has a strongly arguable case that a different sentence should have been imposed. See s 31(3) read with s 31(4) of the Criminal Appeals Act 2004 (WA).
The chief executive officer of the Department of Justice, Corrective Services must ensure that medical care and treatment is provided to the prisoners in each prison. If and to the extent reasonably necessary, the chief executive officer would be obliged to arrange for the appellant to receive medical treatment at a facility in the community. See s 83 and pt VIII of the Prisons Act 1981 (WA); reg 54D(k), reg 54E(3) and reg 54F(2) of the Prisons Regulations 1982 (WA).
At the conclusion of the hearing of the application for bail, I was not satisfied (having regard to the apparent probative value of the information before the court as to the appellant's medical conditions and having regard to the submissions made by counsel for the appellant) that the merits of the appellant's appeal, including whether a different sentence should have been imposed, were of sufficient strength to justify a grant of bail.
My assessment, at the conclusion of the hearing of the application, as to the apparent merits of the appellant's appeal, including whether a different sentence should have been imposed, may change after:
(a)the appellant has filed and served the appellant's case; and
(b)the appellant has filed and served an application in the appeal (as contemplated by the programming orders set out at [11] above) for leave to rely on additional evidence as to the appellant's medical condition and disabilities and as to the impact of the appellant's detention in custody upon her condition and disabilities, together with affidavits containing detailed and admissible evidence (including expert medical evidence) in relation to those matters.
In all the circumstances, I was not satisfied, at the conclusion of the hearing of the application, that there were exceptional reasons why the appellant should not be kept in custody pending the determination of the appeal.
The application for bail was therefore dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
4 JANUARY 2021