Morrison v Chiera - [2020] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MORRISON -v- CHIERA [2020] WASC 42
CORAM:   DERRICK J
HEARD:   14 FEBRUARY 2020
DELIVERED          :   14 FEBRUARY 2020
PUBLISHED           :   17 FEBRUARY 2020
FILE NO/S:   SJA 1003 of 2020
BETWEEN:   ROBERT FRANK MORRISON
Appellant

AND

CHRISTOPHER CHIERA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A C LONGDEN
File Number             :   MH 5192 of 2018

Catchwords:

Bail pending appeal against conviction and sentence - Appeal from Magistrates Court - Bail Act 1982 (WA) s 7F(1)(b), s 13, sch 1 pt C cl 1, cl 3 and cl 5

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)

Result:

Application for bail pending appeal allowed

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Mark Andrews Legal Pty Ltd
Respondent	:	The Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Scolaro v Shephard [2010] WASC 77
YSN v The State of Western Australia [2017] WASCA 155

DERRICK J:

(These reasons were delivered extemporaneously and have been edited from the transcript.)

Introduction

The appellant applies pursuant to s 7F(1)(b) of the Bail Act 1982 (WA) (the Act), for bail pending the determination of his applications for leave to appeal against his conviction and sentence for an offence of unlawful wounding. The application for bail (the application) is supported by an affidavit sworn by the appellant's solicitor on 4 February 2020.
The appellant filed his appeal notice containing his application for leave to appeal against conviction on 28 January 2020. He filed a 'modified' appeal notice which included his application for leave to appeal against sentence on 11 February 2020.
The appellant's applications for leave to appeal are yet to be listed for hearing.
The appellant's pleaded ground of appeal against conviction is that the verdict was unreasonable and/or unsupported by the evidence. His pleaded grounds of appeal against sentence are that the sentence of immediate imprisonment imposed was manifestly excessive as to type and that the court erred in determining that a term of conditionally suspended imprisonment was not appropriate.
The application for bail is not opposed by the respondent.

Background to the application

The more detailed background to the application is as follows.
On 8 September 2018 the appellant was charged with one offence of unlawfully wounding Mr Reece Bool (MH 5192/2018). The appellant was alleged to have committed the offence on 7 September 2018.
The appellant pleaded not guilty to the charge. He was released on bail pending his trial.
The appellant's trial took place before Magistrate Longden on 18 and 21 November 2019. The appellant was released on bail during his trial. At the conclusion of the trial Magistrate Longden reserved her decision.
On 22 November 2019 Magistrate Longden delivered her detailed oral reasons for decision. Her Honour found the appellant guilty of the charged offence and recorded a judgment of conviction against him.
Magistrate Longden adjourned the sentencing of the appellant until 10 January 2020. Her Honour released the appellant on bail pending his sentencing hearing.
On 10 January 2020 Magistrate Longden sentenced the appellant to 11 months imprisonment. Her Honour made the appellant eligible for parole.

Transcript

The appellant has filed with the court as part of his appeal papers the transcript of the proceedings that took place before Magistrate Longden, save for the transcript of the second day of the trial. The transcript of the second day of the trial is missing.
I have had reference to the transcript for the purpose of dealing with the application. The absence of the transcript for the second day of the appellant's trial has not prevented me from dealing with the application.

The facts of the offence

The facts of the unlawful wounding offence of which the appellant has been convicted, as found by the magistrate and stated as briefly as possible, are as follows.[1]
[1] ts 98 ‑ 99, 10 January 2020.
On 7 September 2018 the appellant and the complainant, Mr Bool, were at the Ravenswood Hotel. They had both been drinking alcohol.
At some stage during the evening the appellant and the complainant were in the hotel toilet. A verbal altercation occurred between them. The appellant, in response to the verbal altercation and without provocation, deliberately and forcefully struck the complainant to the head with a glass bottle that he was holding in his hand. The blow caused the bottle to break. As a result of the blow the complainant suffered two lacerations to his scalp, measuring 6 cm and 8 cm in length, and one laceration to an area just below his ear. All three lacerations required stapling.

The relevant legislative provisions

As I have already stated, the application is made pursuant to s 7F(1)(b) of the Act. Section 7F(1)(b) vests in a judge of this court jurisdiction to determine an application for bail made by a person who has commenced an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) against a decision of a magistrate by virtue of which they are in custody.
Section 13 of the Act provides that the jurisdiction to grant bail and the way in which the jurisdiction is to be exercised are as set out in sch 1 of the Act. A judicial officer exercising such jurisdiction is obliged to do so in accordance with sch 1.
Clause 5 of pt C of sch 1 of the Act provides that a person who is awaiting the disposal of appeal proceedings from the Magistrates Court shall be deemed to be awaiting an appearance in court before conviction for an offence. The effect of this provision is that the court, when considering an application for bail pending an appeal from the decision of a magistrate, is required by law to treat the applicant for bail as if they had not been convicted. That is, I am obliged to treat the appellant as if he is merely facing the charge of unlawful wounding notwithstanding that he has been convicted after trial of the offence.[2] The result is that in determining the application I am required to have regard to the questions specified in cl 1 of pt C of sch 1 of the Act and to any other matters that I consider to be relevant.[3]
[2] Scolaro v Shephard [2010] WASC 77 [11].
[3] Act, sch 1, pt C, cl 1.

Should bail be granted?

I propose to deal with each of the questions specified in cl 1 of pt C of sch 1 in turn to the extent that they are relevant. In dealing with the questions I will apply the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia[4] and YSN v The State of Western Australia.[5]

First question - cl 1(a)

[4] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99[39] ‑ [44].

[5] YSN v The State of Western Australia [2017] WASCA 155 [14] ‑ [21].

The first question specified in cl 1(a) of pt C is whether, if the appellant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence, or endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Further, by cl 3 of pt C of sch 1 I am required, in considering whether the appellant may do any of the things mentioned in cl 1(a), to have regard to the following matters, as well as to any other matters which I consider to be relevant:
1.The nature or seriousness of the appellant's offence and the probable method of dealing with the appellant for the offence if he is convicted (remembering that I must by reason of cl 5 of pt C of sch 1 treat him as if he has not been convicted);
2.The character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the appellant;
3.The history of any previous grants of bail to the appellant; and
4.The strength of the evidence against the appellant.
As to the first of the matters specified in cl 3, I am in effect being required to consider the appellant's prospects of succeeding in his appeal against sentence in the event that his appeal against conviction is unsuccessful.
I have not heard any argument in relation to the appropriateness or otherwise of the sentence imposed on the appellant. It is therefore not appropriate that I attempt to undertake any detailed analysis of the merits of the appellant's appeal against sentence. All I will say is the following.
The maximum penalty for the offence of unlawful wounding is 5 years imprisonment, although the maximum summary conviction penalty which applies in the Magistrates Court is 2 years imprisonment and a fine of $24,000.[6] The conduct comprising the offence of which the appellant has been convicted, which for the purposes of dealing with the application I must treat as alleged conduct, is quite obviously serious. Further, the appellant has a relevant criminal record to which I will refer further below. In these circumstances I am not currently of the view that the appeal against sentence is strongly arguable. Consequently, I am also not currently of the view that the prospects of success of the appellant's appeal against sentence is a factor that points strongly in favour of him being granted bail.
[6] Criminal Code (WA) s 301(1).
I emphasise that the view that I have just expressed in relation to the merits of the appellant's appeal against sentence is a preliminary view only, expressed solely for the purpose of dealing with the application and without having had the benefit of hearing argument on the point. If I am the judge who ultimately hears the appeal I may well, after hearing detailed argument on the point, change my currently held preliminary view. Further, and at the risk of stating the obvious, if another judge is ultimately allocated to hear the appeal nothing I have said in this context will in any way bind them if and when they come to consider the appeal against sentence.
As to the second and third of the matters specified in cl 3, I make the following remarks.
The appellant is now 43 years old. He was married for 16 years but the marriage is now at an end. The marriage came to an end a number of years ago.
The appellant has two children from his marriage who are aged approximately 7 and 10. He was, prior to being imprisoned, playing a major role in the care of his children. The existence of his children means that the appellant does have strong ties to this State.
The appellant graduated from high school. He has a good and consistent work history. He was in full time employment at the time of being imprisoned.
The proposal is for the appellant to reside at an address in Gosnells if he is granted bail. Accordingly, the appellant does have secure and stable accommodation to go to if he is released on bail.
The appellant cannot be described as a person of prior good character. He does have a reasonably significant adult criminal record. He has been convicted of a number of drug related and dishonesty type offences including burglary. He has three prior convictions for breaching bail the last of which was recorded in 2001. He has convictions for breaching community orders. He has been sentenced to terms of immediate imprisonment.
Perhaps of most relevance in the present context are the appellant's prior convictions for two offences of violence. In 2000 he was convicted of an offence of assault occasioning bodily harm for which he was placed on a 12 month community based order. In 2015 he was convicted of another offence of assault occasioning bodily harm for which he was fined $1,200. In short, and even taking into account the age of the first of these convictions, the appellant does have a history of resorting to violent conduct.
The most positive thing that can be said about the appellant's record is that between his conviction in August 2015 for the assault offence and his involvement in September 2018 in the incident the subject of his unlawful wounding conviction, his only convictions were for speeding.
The last of the matters specified in cl 3 is the strength of evidence against the appellant.
I have not heard any argument in relation to the strength of the evidence against the appellant. This is unsurprising given that the issue of the strength of the evidence against the appellant is something that will, given the pleaded ground of appeal against conviction, no doubt be the subject of argument at the hearing of the appeal.
Given the appellant's pleaded ground of appeal against conviction, and given that I have not heard any argument on the point, it is not appropriate that I attempt to undertake any detailed analysis of the strength of the evidence against the appellant for the purpose of dealing with the application. All I will say, having read Magistrate Longden's summary of the evidence contained in her reasons for decision,[7] is that the prosecution case does not strike me as an obviously weak one.
[7] ts 3 ‑ 8, 22 November 2019.
I stress that what I have just said about the strength of the evidence against the appellant reflects only my very tentative view, which I have expressed solely for the purpose of dealing with the application and without having had the benefit of hearing argument on the issue. If I am the judge who ultimately hears the appeal I may well, after hearing detailed argument in relation to the appeal against conviction, change my currently tentatively held view in relation to the strength of evidence issue. Further, and once again at the risk of stating the obvious, if another judge is ultimately allocated to hear the appeal nothing I have said in this context will in any way bind them.
So that deals with the four matters specified in cl 3 which I am required, to the extent that I am able, to take into account in determining the question posed by cl 1(a).
I come back then, in light of the observations that I have made in relation to the matters specified in cl 3, to the question posed for determination by cl 1(a).
If the appellant is released on bail he will face the prospect of having to be returned to custody in the event that his appeal is unsuccessful. Moreover, given my preliminary assessment of the merits of the appeal against sentence and the strength of the evidence against him, I do not consider that this prospect can be described as highly remote or unlikely. Accordingly, the prospect of the appellant ultimately being returned to custody is something that must necessarily be viewed as providing him with some motivation for fleeing the jurisdiction and/or failing to appear in court if he is released on bail. In addition, the appellant's prior convictions for breaching bail and breaching court orders also point to there being some risk of the appellant not attending court if he is released on bail.
To be weighed against these matters, however, are two factors. First, that the appellant, as I have already pointed out, has reasonably strong ties to this State in the form of his children. Second, and this is of some significance, that the appellant was on bail from the time that he was charged with the unlawful wounding offence in September 2018 until the time that he was imprisoned in January 2020, and while on bail complied with the conditions thereof and appeared in court as required.
Taking the various competing considerations into account, I am satisfied that the risk of the appellant fleeing the jurisdiction and/or failing to appear in court for the hearing of his appeal if he is released on bail is relatively low.
As to the risk of the appellant committing an offence, or endangering the safety, welfare or property of any person, the appellant's criminal record points towards the conclusion that there is some risk of him engaging in further criminal conduct if he is released on bail. However, once again it cannot be ignored that while the appellant was on bail for the unlawful wounding offence of which he has been convicted he did not commit any offence. In these circumstances, and bearing in mind the nature of the appellant's criminal record in more recent times, I am satisfied that the risk of the appellant engaging in any serious criminal conduct if he is released on bail pending the hearing of his appeal is no higher than low to moderate.
There is no basis for concluding that the appellant will, if released on bail, be at any particular risk of interfering with witnesses or otherwise obstructing the course of justice whether in relation to himself or any other person.
That deals with the question posed in cl 1(a).
The question specified in cl 1(b) is whether the appellant needs to be held in custody for his own protection. There is nothing before me to suggest that the appellant does need to be held in custody for his own protection.
The third question, specified in cl 1(c), is whether the prosecutor has put forward grounds for opposing the grant of bail. I have already pointed out that the State does not oppose the granting of bail provided appropriate conditions are imposed.
The question specified in cl 1(d) is not relevant to the application.
The fifth question for my consideration, specified in cl 1(e) is, so far as is relevant, whether there is any condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the possibilities of the appellant, if he is not kept in custody, failing to appear in answer to his bail and committing any further offences. I will return to this question shortly.
The question specified in cl 1(f) is not relevant to the application.
The final question, which is specified in cl 1(g), is whether the circumstances of the appellant's unlawful wounding offence, which for the purposes of the application must be treated as an alleged offence, amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. The offence of which the appellant has been convicted is serious. However, it is clearly not of such a serious nature as to of itself make a grant of bail inappropriate.
As I have already indicated, in dealing with the application I am required by cl 1 to have regard not only to the questions specified in the clause but also any other matters that I consider to be relevant. One such other relevant matter is the amount of time that the appellant will spend in custody if he is not granted bail prior to his appeal being determined.
The appellant will be eligible for release on parole after serving five and a half months of his sentence, that is, towards the end of June this year. Accordingly, if the appellant is not granted bail pending the determination of his appeal he will, even if an order for the urgent hearing of the appeal is made, likely serve a reasonably significant portion of the non-parole period of his sentence before his appeal is heard and determined. This is, given that the appellant is to be treated as though he has not been convicted, a factor that weighs in favour of a grant of bail.
I come back now to the question whether there are any conditions which can reasonably be imposed which will sufficiently remove the possibilities of the appellant, if he is not kept in custody, committing further offences and failing to appear in answer to his bail. I note that the question is not whether the imposition of conditions will completely remove the possibility of the appellant engaging in such conduct, but rather whether the imposition of conditions will sufficiently reduce the possibility of this occurring.[8]
[8] YSN v The State of Western Australia [20].
The possibilities of the appellant, if he is not kept in custody, failing to appear in court and committing further offences will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing him bail.[9] The question whether the remaining risk no longer constitutes a proper ground for refusing bail must be considered in light of the possibility that the appellant will suffer an injustice if he is held in custody pending the determination of his appeal and is ultimately successful in his appeal.[10] As was stated by the court in YSN v The State of Western Australia[11] this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted (or in the present circumstances is deemed not to have been convicted) and is presumed to be innocent.
[9] YSN v The State of Western Australia [20].
[10] YSN v The State of Western Australia [19].
[11] YSN v The State of Western Australia [20].

The conditions of bail proposed by the appellant are that he reside at a specified address in Gosnells, that he provide a personal undertaking in the sum of $5,000, that a surety in the amount of $5,000 be provided and that he not contact, or attempt to contact, by any means Reece Mathew Bool, Richard Troy Lucas or Dean Thomas Boaler. The appellant has indicated that he is willing to subject himself to any other conditions considered by the court to be appropriate.
Messrs Lucas and Boaler were civilian witnesses for the prosecution at the appellant's trial.
Based on the material before me, I am satisfied that it is appropriate to grant the application for bail on the conditions proposed by the appellant with some additional conditions. I am satisfied that the imposition of the proposed conditions and the additional conditions that I have in mind will sufficiently remove the risks of the appellant, if he is not kept in custody, committing further offences and failing to appear in court. To put the matter more fully, when I take into account the risk of the appellant suffering an injustice by reason of being kept in custody pending the determination of his appeal notwithstanding that he is deemed not to have been convicted of the unlawful wounding offence the subject of his appeal, I am of the view that the risks of him committing further offences and not appearing in court if he is not kept in custody will be sufficiently reduced by conditions such that the extent to which these risks remain no longer constitutes a proper ground for refusing bail.
The conditions that I intend to impose in addition to those proposed by the appellant are, in my view, warranted to further reduce the risks of the appellant committing further offences and not appearing in answer to his bail.
I therefore grant the application and order the release of the appellant on bail on the following conditions:
1.The appellant is to provide a personal undertaking in the amount of $5,000;
2.A surety in the amount of $5,000 is to be provided;
3.The appellant is to reside at 125 Chamberlain Street, Gosnells, Western Australia;
4.The appellant is not to contact or attempt to contact, by any means, Reece Mathew Bool, Richard Troy Lucas or Dean Thomas Boaler;
5.The appellant is to report each Monday, Wednesday and Friday to the Armadale Police Station between the hours of 9.00 am and 5.00 pm;
6.The appellant is to surrender any passport held by him to the Principal Registrar of the Supreme Court by 4.00 pm on 17 February 2020, and is not to apply for any further passport; and
7.The appellant is not to leave the State of Western Australia or approach within 500 m of any international or domestic point of departure.
The appellant will be remanded on bail on the conditions I have specified to appear in this court at 9.15 am on 4 May 2020 for mention only. If prior to 4 May 2020 the date for the hearing of the appellant's appeal is allocated by the court, the date for the appellant's next appearance can be administratively varied to the appeal hearing date thus avoiding the need for him to appear on 4 May 2020. However, at this point the date on which the appellant is next due to appear in this court is 4 May 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
17 FEBRUARY 2020