Ness v The State of Western Australia
[2012] WASCA 273
•17 DECEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NESS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 273
CORAM: McLURE P
HEARD: 17 DECEMBER 2012
DELIVERED : 17 DECEMBER 2012
FILE NO/S: CACR 272 of 2012
BETWEEN: LIZA ANGELA NESS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 1006 of 2012
Catchwords:
Criminal law - Bail pending appeal - Whether exceptional reasons for grant of bail - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1 pt C, cl 1, cl 3, cl 4A
Misuse of Drugs Act 1981 (WA), s 6(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: Mr K P Bates
Respondent: Mr J Newton-Palmer
Solicitors:
Appellant: Lawson Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Fermanis v The State of Western Australia [2005] WASCA 212
Milenkovski v The State of Western Australia [2011] WASCA 99
Shrivastava v The State of Western Australia [2010] WASCA 96
The State of Western Australia v Johnson [2010] WASCA 187
McLURE P: This is an application for bail pending appeal against sentence. On 23 November 2012 the appellant was convicted on her own fast-track plea of guilty of possessing a prohibited drug with intent to sell or supply contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). She was sentenced to 12 months' imprisonment with eligibility for parole.
The appellant has lodged an application for leave to appeal against sentence on three alternative grounds. All relate, in one way or another, to alleged error in the imposition of a term of immediate imprisonment.
The facts of the offending are as follows. On 24 May 2012 the appellant was driving her vehicle, which was stopped by police. The vehicle was searched. During the search police located three clipseal bags, one of which contained .03 g of heroin. That quantity is the subject of the relevant conviction. The other two clipseal bags contained traces of heroin.
The appellant admitted that the substance in the clipseal bag was heroin but said she purchased it for a friend and was on her way to give it to him. She said she purchased the heroin in one single purchase but split it into three bags in order to give it to her friend on three separate occasions.
The police also found one clipseal bag containing .5 g of speed and one clipseal bag containing less than 1 g of cannabis, both of which the appellant said were for her personal use.
There were other clipseal bags containing other items said to be Xanan and Serepax tablets. A set of scales was found at the foot of the driver's seat. The appellant said that she used the scales to weigh the drugs after the purchase to confirm their weight.
Under cl 4A of pt C of sch 1 of the Bail Act 1982 (WA) a judicial officer shall only grant bail pending appeal if he or she is satisfied that there exist exceptional reasons why the appellant should not be kept in custody and it is otherwise an appropriate case for the grant of bail, having regard to cl 1 and cl 3 of pt C of sch 1. See Milenkovski v The State of Western Australia [2011] WASCA 99 [37].
The test to be applied where the prospect of a successful appeal is one of the matters relied on in establishing exceptional reasons has been expressed in various ways. It is sufficient for present purposes to adopt the formulation used by the appellant in her written submissions, which is that the appeal have strong arguable grounds: Shrivastava v The State of Western Australia [2010] WASCA 96 [32].
That formulation, like others, is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by being kept in custody on an unsound conviction or sentence: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
The appellant says exceptional reasons exist because her grounds of appeal are strongly arguable. As this court has said on many occasions, a sentence of suspended imprisonment for a contravention of s 6(1) of the Misuse of Drugs Act is, as a matter of fact, exceptional. There are very few cases where suspended terms of imprisonment have been upheld or imposed on appeal: The State of Western Australia v Johnson [2010] WASCA 187 [23].
The sentencing judge expressly rejected the appellant's explanation for why she was in possession of the heroin. He found that the appellant was engaged in active, low level or end‑of‑the‑chain drug dealing. There is no challenge to that finding in the appeal. The primary mitigating factor is the fast-track plea of guilty.
On all of the material presently before the court I am not persuaded that the grounds are strongly arguable so as to satisfy the test of exceptional reasons, and therefore I would dismiss the bail application.
On the other hand, I am of the view that it would be appropriate to order that the appeal be the subject of an urgent appeal order and I make that order.
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