"N" v The State of Western Australia
[2006] WASCA 276
•18 DECEMBER 2006
"N" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 276
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 276 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:158/2006 | 12 DECEMBER 2006 | |
| Coram: | ROBERTS-SMITH JA | 17/12/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time to file notice of appeal granted Bail refused | ||
| B | |||
| PDF Version |
| Parties: | "N" THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against sentence Application for bail pending appeal Attempting to pervert course of justice Obtaining by false pretences Aggregate of 18 months' imprisonment Whether manifestly excessive Whether suspended sentence should have been given Delay before hearing of appeal Personal and familial circumstances of 27yearold single mother 6yearold child Whether exceptional reasons |
Legislation: | Bail Act 1981 (WA), cl 4, Pt C, Sch 1 |
Case References: | Bolton v The State of Western Australia [2005] WASCA 232 Fermanis v The State of Western Australia [2005] WASCA 212 Forkin v The State of Western Australia [2006] WASCA 10 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Faithfull (2004) 142 A Crim R 554 R v Tieleman (2004) 149 A Crim R 303 Ranford v The State of Western Australia (No 2) [2006] WASCA 243 Woods v The Queen (1994) 14 WAR 341 Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "N" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 276 CORAM : ROBERTS-SMITH JA HEARD : 12 DECEMBER 2006 DELIVERED : 18 DECEMBER 2006 FILE NO/S : CACR 158 of 2006 BETWEEN : "N"
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HEALY DCJ
File No : IND 1382 of 2006
Catchwords:
Criminal law and procedure - Appeal against sentence - Application for bail pending appeal - Attempting to pervert course of justice - Obtaining by false pretences - Aggregate of 18 months' imprisonment - Whether manifestly excessive - Whether suspended sentence should have been given - Delay before hearing of appeal - Personal and familial circumstances of 27yearold single mother - 6yearold child - Whether exceptional reasons
(Page 2)
Legislation:
Bail Act 1981 (WA), cl 4, Pt C, Sch 1
Result:
Application for extension of time to file notice of appeal granted
Bail refused
Category: B
Representation:
Counsel:
Appellant : Ms L B Black
Respondent : Mr G J Huggins
Solicitors:
Appellant : Ms L B Black
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bolton v The State of Western Australia [2005] WASCA 232
Fermanis v The State of Western Australia [2005] WASCA 212
Forkin v The State of Western Australia [2006] WASCA 10
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Faithfull (2004) 142 A Crim R 554
R v Tieleman (2004) 149 A Crim R 303
Ranford v The State of Western Australia (No 2) [2006] WASCA 243
Woods v The Queen (1994) 14 WAR 341
Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992
(Page 3)
Case(s) also cited:
Nil
(Page 4)
1 ROBERTS-SMITH JA: This is an application for bail pending appeal filed 4 December 2006.
2 The appellant was convicted on her plea of guilty before Healy DCJ in the District Court at Perth on one count of attempting to pervert the course of justice and one count of fraud. On 7 November 2006 she was sentenced to 18 months' imprisonment for each offence, ordered to be served concurrently with an order that she be eligible for parole.
3 The appellant's appeal notice was filed on 4 December 2006. That set out two grounds of appeal, namely that:
1. The sentence was manifestly excessive having regard to the appellant's antecedents; and
2. The sentencing Judge erred in declining to order that the terms of imprisonment imposed be suspended.
4 Also included on the appeal notice was an application for extension of time. That application was supported by an affidavit of Linda Beryl Black, counsel for the appellant, purportedly dated 5 December 2006, but in fact witnessed and filed on 4 December.
5 In that affidavit Ms Black deposes that on 28 November 2006 she was contacted by Legal Aid (WA) and asked whether she was available to accept a brief to appeal the sentence imposed on the appellant on 7 November 2006. She deposes that she was informed that previous counsel had provided a legal opinion on the merits of the appeal but was not available to proceed with the appeal. Upon her acceptance of the brief, she was provided with a limited bundle of papers pertaining to the appeal, on 29 November. On the same day she contacted the appellant's former solicitor to request that she provide the balance of the papers. Ms Black deposes that she received them on 1 December. Accordingly, she was unable to file the notice of appeal within the requisite time period.
6 The delay is not significant, there is no apparent prejudice to the respondent and the explanation given is reasonable. I would accordingly grant the extension of time.
7 There is a further affidavit of Ms Black which is undated but which was also filed on 4 December 2006, in support of the bail application.
8 In that affidavit, Ms Black deposes that she is informed that independent counsel was engaged by Legal Aid (WA) to determine if there was merit in an appeal. Counsel formed a view that there "was
(Page 5)
- considerable merit" and aid was duly granted. She deposes that the relevant personal circumstances of the appellant to which it will be alleged insufficient regard was paid, were that:
(a) she had no prior criminal convictions;
(b) she was 25 years of age at the time of the offence and the sole carer for a 6-year-old child;
(c) the impact of the conviction on the appellant including her exclusion from her chosen employment;
(d) her remorse including her plea of guilty and cooperation with the authorities;
(e) the fact that the offences were isolated incidents and not indicative of a course of conduct;
(f) the fact that she represented no continuing danger to the community and was extremely unlikely to reoffend.
10 She deposes that she is informed that if the appellant is not granted bail, she will serve a significant portion, if not all of her sentence, before her appeal can be heard. She states she has been informed by the Criminal Appeal Registry that this appeal is unlikely to be heard before six months from now and may take as long as 12 months to be listed. She states she is further informed that the appellant's mother is currently the primary carer of the appellant's 6-year-old child. If bail is not granted to the appellant, Mrs N will be forced to discontinue her employment, particularly given the school holidays are commencing and thus the child will require a full-time carer. She says she is further informed by Mrs N that due to the imprisonment of her daughter and the need for a carer for the son, she has taken unpaid leave from her employment. This has caused an additional hardship to her due to the fact that she no longer receives rent from her daughter pursuant to an arrangement that was in place prior to the appellant's incarceration. She adds that:
"… Based on the information I have received from the Appellant and from [Mrs N], combined with my consideration of the opinion received by Counsel [sic] and all other matters referred to, I am of the view that there are exceptional circumstances in existence here that would warrant the making of an order for eligibility for bail."
(Page 6)
11 Finally, Ms Black deposes that she is instructed the appellant will abide by any orders that are made including a residential condition.
12 It is obvious that Ms Black has had very little opportunity to become familiar with the case with which she had no previous involvement, and that she has done as much as could be done with the little material available to her.
13 It is necessary, I think, to make one preliminary observation about the content of the affidavit in support, because it reflects an approach which is not uncommon.
14 With all due respect to counsel, it is neither appropriate nor relevant for a lawyer to put her or his personal views or beliefs to the court even in the form of submissions, much less an affidavit of evidence of facts bearing on the application before the court. The personal or professional views of a party's legal advisors or representatives are simply irrelevant. What the law requires is proof (in whatever form and of whatever weight) of facts which will go for or against the matters the court has to decide. It is the view or opinion of the court or Judge about the facts and the law which must be the determining factor. Were it otherwise, a view by the lawyer for one party that their client's case has merit would be met simply with an assertion by the lawyer for the other party that in their view it does not.
15 On the hearing of the application, Mrs N gave oral evidence to confirm and expand upon those personal matters relating to the appellant which were set out in Ms Black's affidavit.
16 Her evidence was as follows. She has employment as a casual sales assistant at a major department store. She lives at home with her husband and youngest daughter. They own their own house and have two investment properties. One of those was the house in which the appellant lived until her incarceration. She was paying rent of $350 a fortnight to her parents. She lived there with her son ("A") who has just turned six years of age. A's father has never lived in that house; they split up when A was about one year old. The appellant has been A's primary care giver. The child has had what Mrs N described as the usual "grandparent" contact, including sleeping overnight with them once a fortnight and occasional visits.
17 Mrs N's husband works in the housing construction industry.
(Page 7)
18 Mrs N's own income varies - the average she was earning before the appellant's incarceration was $500 per week over the preceding couple of months.
19 Mrs N said she became aware of the appellant's offences on 7 November 2006, during the process of sentencing. There had been no intimation of them earlier. The appellant's lawyer telephoned her and explained the situation. She agreed to be responsible for A. He did not know either and she had to tell him that his mother was not going to be coming home. Mrs N has been A's primary care giver since then.
20 She has had to take time without pay from her casual employment and has not been back to it since then because of the need to care for A. He is attending pre-primary school. She has to drive him there every day. It is about a 25 minute drive. She usually then checks the appellant's house, plants and animals and attends to other domestic tasks before returning to pick up A at 3 pm. He attends pre-primary five days a week. On occasion, her husband is able to pick A up.
21 Mrs N has to keep A active, happy and entertained.
22 She said he has visited the appellant in prison, probably about five times. She took him on the first occasion, which was on his birthday. He was angry with his mother and did not want to acknowledge that he was there at all. She said it was very hard for him, although the last time he went he was better.
23 Since the appellant's incarceration, A has been a lot quieter and has been trying hard not to disappoint Mrs N so she will not go as well.
24 She said that before this happened, her youngest daughter had moved out of the family home and she and her husband were just starting to get life on track with just the two of them. She said it has been hard adjusting to having a small child to look after again.
25 A will of course be home during the school holidays and she will need to look after him.
26 Mrs N said she is unable to return to work while she is looking after A. She has been told her job will be held until the beginning of February next year but after that, unless she can return to work, she will have to resign.
(Page 8)
27 In cross-examination she said her husband is self-employed and owns his own business. Pre-primary starts at 8.40 am. She could not drop him off and leave him there earlier, although if she did, she might be able to get to work by 9 am. However, she does not want to do that to him. It would not be practicable for her husband to arrange his own days to pick A up after school because he works all around the metropolitan area and could not arrange his own days to do that. So far as her own employment is concerned, as a casual employee she does not organise her own roster. Asked about her income from her casual employment, she said last year she thought she earned about $18,000. If she had to give up work until August (the appellant's present earliest eligibility date for parole), they would survive financially but it would be more difficult.
28 A's paternal grandparents live in London, but they have been making some financial contribution for him.
29 Mrs N said that if the appellant were to be released on bail pending appeal and the appeal then not succeed and she had to return to prison "it would be devastating" for A. She said they had not told him the whole truth - the situation was that his mother was there and then suddenly she was gone. Should she have to return to prison after her appeal, at least they would be able to prepare him for that. They have not told him she is in prison, because if he were to mention that at school he would get bullied.
30 There is no contest here about the principles to be applied on an application for bail pending appeal. Clause 4 of Pt C of Sch 1 of the Bail Act 1981 (WA) stipulates that in deciding whether or not to grant bail to an offender awaiting the disposal of appeal proceedings, a Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody, and even if there are, shall grant bail only if satisfied it may properly be granted having regard to the provisions of cl 1 and cl 3 of that Part. Those latter clauses are the provisions which set out the general considerations relevant to any application for bail.
31 Where such an application is based wholly or partly upon the prospect of success of the appeal, the appellant is required to demonstrate that there is a high prospect of success. This requires demonstration of a better prospect of success than is required to be shown for the granting of leave to appeal (Forkin v The State of Western Australia [2006] WASCA 10, [6] to [11] and Bolton v The State of Western Australia [2005] WASCA 232).
(Page 9)
32 To constitute exceptional reasons, more must be shown than that there is an arguable case for appeal; or even that there is a reasonable prospect of success - the latter being the test for leave to appeal (see Fermanis v The State of Western Australia [2005] WASCA 212).
33 In R v Tieleman (2004) 149 A Crim R 303, Murray J (with whom Templeman J agreed) said that in the context of an argument that the prospects of the appeal succeeding constitute exceptional reasons, bail would be granted ordinarily only if the appellant could demonstrate there were "strong grounds for concluding the appeal would be allowed" and that the sentence, or at least the custodial part of it, was likely to have been substantially served before determination of the appeal. His Honour said that even then, it may be necessary to demonstrate additional circumstances in a particular case before the court would exercise its discretion to grant bail on the basis it was satisfied that the exceptional reasons justifying that course existed.
34 As I explained in Fermanis (supra) (at [15]), there is no particular distinction between expressions such as "most likely to succeed" and "strong grounds for concluding the appeal would be allowed", in this context. Neither purports to set some specific threshold of potential success. Each case must be determined on the basis of its own facts. Each expression is predicated upon the notion in the context of the particular case that the prospect of success must be sufficiently likely as to give rise to a real concern that the appellant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.
35 Here the Appellant's Case has not yet been filed, so I do not have the benefit of the submissions in support of the appeal.
36 Counsel for the appellant says the exceptional reasons are the combination of delay before hearing of the appeal, the likely prospect of success and the appellant's personal and familial circumstances (including the effects of her incarceration upon her family).
37 I have already mentioned that in her affidavit Ms Black says that if leave to appeal is granted, the appeal would be unlikely to be heard for six months and perhaps as long as 12 months.
38 I am informed by the Court of Appeal Office that appeals are currently being listed for hearing as soon as they are ready to be given dates and the Court of Appeal is presently listing for March and April 2007.
(Page 10)
39 On an application for bail pending appeal, I think it is necessary to proceed on the assumption that the parties will comply with all necessary time limits and the appeal will be ready for hearing according to the timeframe directed by the Criminal Appeals Act 2004 and the Supreme Court (Court of Appeal) Rules 2005 (WA).
40 By r 32 an appellant has 35 days from the date of filing their appeal notice to file their Appellant's Case. In this instance allowance is to be made for the Christmas break. In addition, the Registrar will ordinarily allow a period somewhat longer than the 35 days. In this case the Registrar has given the appellant 56 days to file her Appellant's Case, that is to 29 January 2007. It could of course be filed earlier.
41 Once filed, the Appellant's Case will be considered by a single Judge, who may grant leave to appeal on the papers. If the single Judge considers leave to appeal may be refused, he or she will list the matter for hearing within two weeks. If leave to appeal is granted, by r 33 the respondent will have 21 days to file the respondent's answer. Once that is done the index to the appeal books can be settled and the appeal listed for hearing. These processes ought to be complete by mid-March at the latest in this case. I would expect the appeal to be listed for hearing in May or June 2007. It certainly ought not to be longer than that.
42 Nonetheless, as the appellant's sentence is 18 months' imprisonment from 7 November 2006, she will be eligible for parole after having served 9 months, that is on 6 August 2007. She is therefore likely to have served 5 or 6 months of her non-parole period (and obviously the same period amounting to about one-third of her total 18 month sentence).
43 I am prepared to accept that the likely delay is such as to make a successful appeal largely nugatory, should the outcome of the appeal be the substitution of a suspended sentence. The position would be somewhat different if the result were to be a reduction of the sentence. But the likelihood that should the appeal succeed, the outcome would be a suspended sentence, is alone not sufficient to constitute an exceptional reason. That is because if her appeal were not to succeed, then the appellant would quite properly have served the period of imprisonment to which she was, on that outcome, properly sentenced. There would be no injustice were she not to be released on bail pending appeal. So it is that the likely prospect of success of the appeal is of critical importance where delay is advanced as part of the exceptional reasons relied upon.
(Page 11)
44 It is logical to deal with count 2 first. That was a charge that on 20 November 2004 at Clarkson, the appellant, by falsely pretending to an employee of GIO General Limited that her Hyundai Excel car was stolen and damaged, obtained from GIO repairs to the sum of $4934.48.
45 The facts in relation to that were that between Tuesday 16 and Friday 18 (sic 19)November 2004, the appellant was at her home address when she was approached by her juvenile co-accused in her front yard. They had a conversation about her car being for sale. She told him that she was having trouble selling it. She had previously borrowed $3000 from her parents to purchase another car. She also had a finance debt of approximately $3500 and bills totalling approximately $1000. Her debts in total were approximately $7500.
46 The Hyundai car was insured with GIO General Ltd for an agreed value of $8600.
47 The juvenile co-offender told the appellant he knew someone who could take the car and burn it to enable her to claim the sum on insurance. She agreed to that, and the co-offender left.
48 About 8 pm on Friday 19 November 2004, the juvenile co-offender went to the appellant's home in company with the third offender, Dash. The juvenile knocked on the door and spoke with the appellant. He told her they were there to take the Hyundai.
49 The appellant went inside and obtained the spare key and an immobiliser for the vehicle and handed them to the juvenile. He then took them to Dash who was standing in the driveway near the car and gave them to him. Dash then drove the Hyundai away from the premises and the juvenile left separately.
50 About 9 pm that evening Dash returned to the vicinity of the appellant's home and picked up the juvenile in the Hyundai. They drove around the suburban area at excessive speeds in a reckless manner. Dash dropped the juvenile offender in the vicinity of the local High School.
51 About 10.30 pm Dash was involved in a police pursuit in the Hyundai in an adjacent suburb. He was apprehended by police approximately 10.39 pm when he crashed the Hyundai into a garden bed and a police car. This caused $2423.31 worth of damage to the Hyundai. Approximately 11 pm the appellant telephoned police and told them that the Hyundai had been stolen. She made a report to Constable Fitzmorris and was issued an incident report number.
(Page 12)
52 On 20 November the appellant telephoned GIO General Ltd Insurance and informed them that her Hyundai had been stolen and had been involved in a police pursuit where it had been crashed.
53 GIO made arrangements to have the car towed, repaired and later returned to the appellant. She obtained a hire car through GIO while the Hyundai was being repaired. The total cost for the hire car, the towing costs and investigation costs associated with investigating the claim was $4934.48.
54 Count 2 concerned the appellant falsely representing to police that the Hyundai had been stolen. Her intention at the time was that Dash would burn the vehicle and she would claim the full "write off" value of $8600 from GIO. As is apparent from the circumstances outlined above, Dash did not burn the car because he was apprehended by police before he had a chance to do so.
55 Dash was arrested by police and charged with stealing the motor vehicle contrary to s 378 of the Criminal Code. Police officers interviewed the appellant on 20 November 2004 and obtained a written statement from her in respect of that. The statement was later typed and she signed it with the usual declaration at its conclusion, to the effect that the content of the statement was true and she knew she would be committing an offence if it were not.
56 In her statement the appellant maintained that the car had been stolen and that she had no knowledge of who stole it, nor the circumstances in which it was stolen. She stated that she may have left her keys in the ignition while she was watering her garden.
57 Dash appeared in the Joondalup Magistrates Court charged with stealing on 24 November 2004. He made several other appearances between that date and 20 April 2005, when a trial date was set for the District Court on 2 June 2006.
58 In late April 2006, Dash told police what had in fact happened. As a result, the appellant was interviewed further by police. On 26 April 2006 she took part in a video record of interview with detectives and admitted to having made a false initial statement to the police.
59 The appellant was 27 years of age when she appeared for sentencing before Healy DCJ. She was 25 when she committed the offences. Ms Gibbs, who appeared counsel on her behalf, pointed out that the appellant had never previously been charged with any kind of offence and
(Page 13)
- did not even have a traffic conviction; for the last 27 years she had lived a blameless life.
60 Without going into details for present purposes, Ms Gibbs submitted the appellant found herself in financial difficulties and was also experiencing significant emotional trauma. She had recently suffered the death of her grandmother to whom she had been very close. She was deeply upset by that loss. In addition, she was in receipt only of a single parent's pension and was struggling financially. The father of her child was not paying child support. Ms Gibbs referred to the pre-sentence report which noted that the appellant appeared to struggle to cope with stress and anxiety.
61 Ms Gibbs made a number of submissions in relation to the appellant's personal circumstances. She did indicate that the appellant had the sole care of her 6-year-old son who was currently in pre-primary and was due to start year 1 of primary school next year.
62 At that stage that was all the sentencing Judge was told about the appellant's situation with respect to her child. His Honour queried what the family situation was. Counsel for the appellant told his Honour that the appellant had not discussed the matter with any other family member and therefore had not canvassed the issue of other family members perhaps being able to care for her child. Counsel sought to take further brief instructions. Following that, counsel informed his Honour that the appellant's parents were both 49 years of age and are still together in their marriage. She said they both worked, her father working full-time and her mother working on a casual basis for a large department store. Counsel said the appellant has an older brother who was 29 years of age and has a relationship and works full-time. She said the appellant has a middle sister who also works full-time and is also in a relationship. Her younger sister has a full-time job but still lives at home with her mother and father.
63 In her submissions the State prosecutor put to his Honour that an immediate term of imprisonment was the only appropriate sentencing disposition. She expanded upon that.
64 Following the submissions made by the State prosecutor, his Honour said to counsel for the appellant that he thought that the appellant was going to have to tell her parents or her family and get some information about the child because she was really looking at a term of immediate imprisonment. He said he was surprised she had not been advised to make those arrangements because it was apparent (as counsel herself had
(Page 14)
- said) that it was a serious matter and imprisonment was certainly on the cards so the appellant really had to make a clean breast of it to the family to see what arrangements, if any, could be made and it was relevant for his Honour to know about that.
65 Counsel requested that the matter be stood down until the afternoon so she could make further inquiries. His Honour acceded to that request.
66 When the hearing resumed that afternoon, counsel for the appellant told his Honour that he had spoken with the appellant's mother and explained the circumstances to her. The appellant's mother was shocked and upset but was able to confirm that she would be in a position to care for A. She said it appeared they did have a good relationship.
67 Counsel told his Honour that the appellant wished to clarify her explanation for failing to put her affairs in order. She said she was advised previously that there was a risk of imprisonment and she needed to make arrangements, both in relation to personal affairs and her son. She said that the appellant's explanation was that she struggled a number of times to speak with her parents about what had happened but was so ashamed of herself and scared of losing the love and respect of her family, she could not bring herself to do it. Counsel said there was nothing further she could usefully add. His Honour then proceeded to pass sentence on the appellant.
68 In his sentencing remarks his Honour acknowledged that the appellant had pleaded guilty to both of the offences at the first opportunity. He noted the statutory maximum penalty for each of the offences was a term of 7 years' imprisonment. That had to be reduced by one-third because of the amendments to the sentencing legislation. He noted that the facts outlined by the State had been accepted by the appellant and he proceeded to recite them.
69 His Honour noted that the co-offender was charged with the offence of stealing and that was to go to trial on the basis of the statement made by the appellant to the police that the vehicle had been stolen without her knowledge, knowing that was false. He observed that the appellant was allowing the co-offender to go to trial and face the possible consequence of imprisonment if found guilty. He recounted how the truth had come to light once the co-offender had told the police what had happened.
70 His Honour referred to the appellant's personal circumstances and in particular that she was a single mother with the care of a 6-year-old son and that her life to that date had been blameless.
(Page 15)
71 He noted that the offence of attempting to pervert the course of justice is usually regarded very seriously because of the damage it does to the administration of justice. He observed that in this case it went a very long way with the co-offender facing a trial for an offence that he did not commit. He said that the fraud on the insurance company was serious and the appellant knew exactly what the position was and yet was prepared to take advantage of her insurance policy to claim the value of the vehicle being repaired and the hire costs, knowing that she was the person who had arranged for it to be destroyed. He said he realised that she was older at the time of sentencing, acknowledging that she was 25 at the time the offences occurred. He said it was clear that a term of imprisonment was warranted and the issue was whether or not that needed to be served immediately. He said he realised that a term of (immediate) imprisonment is a sentence of last resort and referred to the submissions made by the appellant's counsel that the term should be suspended. However, his Honour said that in his view there were no sufficient reasons why the term should be suspended. He said an immediate term of imprisonment should be imposed for two reasons; first, to deter people of like mind from committing offences of perverting the course of justice which is always viewed seriously by the courts, and in relation to insurance fraud, it has an impact on the whole community. He said there was an issue whether the sentences should be concurrent or cumulative, but that as they arose out of the same events, he considered they should be served concurrently. He said that reducing the sentence by one-third to take into account the transitional legislation, the appropriate sentence was 18 months' imprisonment in respect of each offence, to be served concurrently.
72 It is important to appreciate that on an application of this kind, when assessing the likely prospect of success of an appeal, it is neither appropriate nor possible for a single Judge to purport to make any final determination of a ground of appeal nor of the outcome of the appeal itself. It is a preliminary assessment of the apparent strength or otherwise of an appeal, made without a full hearing and without the benefit of full argument.
73 On the face of it, a sentence of 18 months' immediate imprisonment for an offence of attempting to pervert the course of justice is a severe sentence which is arguably outside the range for offences of that kind in the sort of circumstances evident here. I say that having regard to Ranford v The State of Western Australia (No 2) [2006] WASCA 243 and the cases discussed therein.
(Page 16)
74 In that case, referring to the offence of attempting to pervert the course of justice, I made the following observations (Martin CJ and Pullin JA agreeing) about the factors which afford guidance to sentencing. In that case the particular concern was with the giving of a false name to avoid the consequences of traffic offences. The making of a false report to police for the purpose of committing an insurance fraud is clearly a more serious situation. At [36] I said:
"Without being at all exhaustive, the following considerations may be discerned from the authorities as affording guidance to sentencing in cases involving the giving of a false name to avoid the consequences of traffic offences:
(1) Offences of attempting to pervert the course of justice strike at the heart of the justice system and there is a need for general deterrence in such cases.
(2) There is no tariff for such offences.
(3) A term of imprisonment will ordinarily be imposed, although other dispositions are not excluded in an appropriate case, particularly for a youthful first offender. A fine would normally not be appropriate.
(4) Where imprisonment has been imposed, sentences have ranged from around 6 to 17 months pre-31 August 2003, or around 4 to 11 months after 31 August 2003. Clearly these are not fixed starting and ending points of sentences which may be imposed, but are general indicia only, for purposes of broad comparison.
In addition to all those circumstances relating to the particular case and the particular offender which must be taken into account, some of the factors which bear upon the assessment of the seriousness of offences of this kind include:
(a) the nature and seriousness of the consequences sought to be avoided (as for example, whether to avoid demerit points, or to avoid conviction);
(b) the period of time over which the deception occurred and whether it was merely allowed to continue or was repeated or persisted in and what else was done to maintain it;
- (c) whether the deception involved some other person, either as an accomplice or a victim;
(d) whether there was any threat or violence involved;
(e) whether the deception caused diversion of investigative, police or court resources;
(f) whether the offence was a 'spur of the moment' response or was premeditated, and if so, the degree of premeditation, planning and persistence;
(g) whether the deception was carried through to the extent of deceiving a court, or the creation of false public records, and if so, the extent and consequences of that."
75 There were features of seriousness in the present case which might well have justified a sentence at the upper end of the range, including the fact that the appellant's co-offender in the fraud on the insurance company was charged with stealing a motor vehicle, that the appellant allowed that to proceed for some months, and the only reason the appellant eventually admitted to the offence was because her co-offender himself finally told police about it . There was therefore the deliberate deception which resulted in the co-offender being wrongly charged for some months. That it did not get to the point where a court was deceived in a trial had little to do with the appellant. The offence was committed not simply in an attempt to avoid the consequences of a traffic offence or the like, but as part of a process to defraud an insurance company.
76 The appellant's personal and familial circumstances are relevant, but do not have the character of the sort of circumstances evident in Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992, referred to in Ranford at [33] - [34]:
"33 An aggregate sentence of 18 months' immediate imprisonment for two offences of attempting to pervert the course of justice was reduced on appeal to 12 months' imprisonment in Wright v The Queen, unreported; CCA SCt of WA; Library No 920531; 20 August 1992. There were very particular features going to mitigation in that case. When she was detected shoplifting, the applicant gave a false name and address. She had previously stolen a driver's licence from a friend and she produced that to
- support the false details. Later, she took part in a police interview under that name and subsequently attended a police station and received a summons in that name. Finally, she went to court, pleaded guilty to stealing and was fined in the false name. That was the first count. The second count arose out of a speeding offence. When she was stopped by police she gave another false name. That was a different one. A traffic infringement notice was issued in that name. When she was interviewed by police about the use of the false names, she told them she did not use her own name on the first occasion because she had a previous record, and did not use it on the second because she did not hold a current motor driver's licence.
- 34 She was a 32-year-old mother of a 12-year-old child from her first marriage and two children aged 7 and 8 from her second. She had been separated for three years from her second husband. After the offences were committed, her husband moved back into the house and took control of the 7 and 8-year-old children. The applicant had then moved into another house with her 12-year-old daughter, who she was supporting by a supporting parent's benefit. Following her imprisonment, the applicant's 12-year-old daughter went to live with the applicant's mother, who was 64 years of age and not coping well. The child had also been seriously affected and was seeing a counsellor and undergoing psychiatric counselling. The effect of the applicant's imprisonment on the young child was a significant factor in Wallwork J (with whom Pidgeon and White JJ agreed) concluding that the aggregate term was too severe. There were also other substantial mitigating circumstances."
77 In this case I accept that the appellant is distraught about the effect her incarceration has had on her 6-year-old son. Clearly also, it has placed considerable strain, both emotional and financial upon her own parents, particularly her mother who now has the responsibility of caring for A. Nonetheless, although the family circumstances are difficult, they are not necessarily such that the Court of Appeal could be said to be most likely to conclude, that in combination with the circumstances generally, that a lesser term of imprisonment might have been imposed, or a
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- suspended sentence given, in respect of these offences. I am not persuaded the prospect of that is as strong as would be necessary here.
78 Specifically in relation to the fraud offence, once again, that was a deliberate sustained fraud. The amount was significant. It involved the participation of two other offenders. It was the appellant who stood to gain the benefit. A term of 18 months' imprisonment for that may be described again as severe, but it has not as yet at least, been shown to be outside the range of the proper exercise of a sentencing discretion.
79 The final question for the Court of Appeal would be whether the total sentence imposed bears a proper relationship to the overall criminality the appellant displayed in the two offences. They could, I think, reasonably be said to be sufficiently closely connected to attract the application of the "one transaction rule" (R v Faithfull (2004) 142 A Crim R 554, 558- 559). That though, is precisely the approach his Honour took and it is why he made the sentences concurrent. There can be no argument there. But that still does not dispose of the totality issue (Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610, 624). What would have to be asked is whether the aggregate sentence of 18 months' imprisonment (including the fact that it was one of immediate imprisonment) bears a proper relationship to the overall criminality of the offences, viewed in their entirety and having regard to all the circumstances of the case, including those referrable to the appellant personally (Woods v The Queen (1994) 14 WAR 341, 352).
80 It is submitted there is a strong prospect the appellant will succeed on the appeal to the extent of having her term of immediate imprisonment substituted with one of a suspended sentence. If I were to be of that view, I would regard that, in combination with the other two factors relied upon, as constituting exceptional reasons. The best that could be said is that the appellant has a strong prospect that her appeal will succeed to the extent of having her sentence of immediate imprisonment reduced to one in the order of 12 months or so; I would not regard that as constituting exceptional reasons, even in combination with the other two factors. That is because, as Mr Huggins submits on behalf of the respondent, the likelihood then would be the appellant would still not have reached her earliest eligibility date for parole by the time her appeal is heard, even on the substituted sentence.
81 So whether or not the appellant can demonstrate exceptional reasons in the circumstances of this case comes down to an assessment whether it
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- could be said the Court of Appeal is most likely to set aside the sentence of immediate imprisonment and substitute a suspended sentence.
82 The Court of Appeal could not do that merely because they themselves may have imposed a suspended sentence (Lowndes v The Queen (1999) 195 CLR 665). The Court would have to be persuaded the sentencing Judge's exercise of his sentencing discretion miscarried - and here, that it was not properly open to him to impose a term of immediate imprisonment.
83 In my opinion, although I consider the Court of Appeal might possibly come to that conclusion, there is not such a strong likelihood of that as to constitute exceptional reasons, either alone or in combination with the other two factors relied upon.
84 I am not persuaded the appellant has shown a sufficiently likely prospect of the Court of Appeal reaching the conclusion there was such a disproportion, whether in the length of the aggregate fixed term or in making that a sentence of immediate, rather than suspended imprisonment.
85 The appellant has failed to show such a high prospect of her appeal against sentence succeeding as to constitute, in combination with the likely delay before the hearing, her personal circumstances and those of her immediate family, exceptional reasons why she should not be kept in custody pending the hearing of her appeal. That being so, the occasion for considering whether bail should be granted having regard to the factors which ordinarily apply to any application for bail, does not arise.
86 The application must be refused.
87 Given the appellant's desire to have her appeal disposed of as soon as possible, I reiterate the point I made earlier, that the statutory time limits are maximum limits only. There is nothing to stop the appellant filing her Appellant's Case as early as that can be done, and if the appeal stages are progressed by her and the respondent as quickly as possible, the appeal can be listed as soon as it is ready for hearing.
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