Pallister v The State of Western Australia
[2015] WASCA 161
•24 AUGUST 2015
PALLISTER -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 161
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 161 | |
| THE COURT OF APPEAL (WA) | 24/08/2015 | ||
| Case No: | CACR:126/2015 | 10 AUGUST 2015 | |
| Coram: | MAZZA JA | 10/08/15 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL NIELSEN PALLISTER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail pending appeal against sentence Turns on own facts |
Legislation: | Bail Act 1982 (WA), cl 4A pt C sch 1 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PALLISTER -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 161 CORAM : MAZZA JA HEARD : 10 AUGUST 2015 DELIVERED : 10 AUGUST 2015 PUBLISHED : 24 AUGUST 2015 FILE NO/S : CACR 126 of 2015 BETWEEN : PAUL NIELSEN PALLISTER
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BOWDEN DCJ
File No : IND 371 of 2015
Catchwords:
Criminal law - Application for bail pending appeal against sentence - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 4A pt C sch 1
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Ms N R Sinton
Respondent : Mr L M Fox
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
- MAZZA JA:
(This judgment was delivered extemporaneously on 10 August 2015 and has been edited from the transcript.)
1 Before the court is the appellant's application for bail pending appeal against sentence. The appellant pleaded guilty at an early stage to one count of sexual penetration of a child of or over the age of 13 years and under the age of 16 years.
2 On 30 June 2015, he was sentenced by a District Court judge to 9 months' immediate imprisonment, backdated to commence on 20 June 2015. On 13 July 2015, the appellant filed an appeal notice, an appellant's case, and an application for an urgent appeal order. The application for an urgent appeal order was premised upon the risk that, if such an order was not made, there was a real prospect that the appellant's appeal will not be heard and decided until after he is potentially released, which the appellant's counsel estimates to be on or around 5 November 2015 (being the date upon which the appellant would have served half of his sentence).
3 On 19 July 2015, leave to appeal was granted on the sole ground contained in the appellant's case, namely, that the sentence of 9 months' immediate imprisonment was manifestly excessive. On 20 July 2015, McLure P granted an urgent appeal order. The matter has now been listed for hearing on 9 September 2015. On 6 August 2015, the appellant filed the present application. The facts of the offending may be briefly described.
4 On 31 October 2014, there was a party at the appellant's home. The complainant was at the party. She was provided with alcohol and cannabis by the appellant, but not with the intention of disinhibiting her in order to engage in sexual behaviour with the appellant. At around 10.00 pm, the appellant went to bed. A housemate came in and indicated that the complainant wished to have sex with him. The complainant then entered the bedroom and the appellant engaged in sexual intercourse with her. At the time, the complainant was 13 years of age.
5 The appellant was sentenced upon the basis that he may have had an honest misconception as to her age, although any such misconception was not a reasonable one. The appellant was, at the time he was sentenced, 24 years of age. His antecedents are not altogether favourable, although he has not been convicted in the past of any sexual offence.
6 Clause 4A of pt C sch 1 to the Bail Act 1982 (WA) provides that bail pending appeal shall only be granted where exceptional reasons exist as to why an appellant should not be kept in custody, and it is otherwise an appropriate case for the grant of bail.
7 The test to be applied for establishing exceptional reasons has been expressed in various ways in the case law. Inevitably, the focus is upon the merits of an appeal, although that is not the only matter to be considered. In this case, it is relevant that the appellant received a relatively short term of immediate imprisonment.
8 The appellant submits that the ground of appeal is strongly arguable, and although the appeal has been listed on an urgent basis, there is still the prospect that, if the appeal is successful, it will be rendered nugatory, or substantially nugatory.
9 An appellant who asserts that an individual sentence is manifestly excessive must demonstrate that the sentence imposed is plainly unjust or unreasonable. This is a high threshold to overcome.
10 While the ground of appeal is reasonably arguable, I have not been persuaded on the material presently before me that the ground is so strongly arguable so as to satisfy the 'exceptional reasons' test. Moreover, this court has granted an urgent appeal order, and the matter will be heard in less than a month. It is of course open to the appellant to make a further application for bail at the conclusion of the hearing of the appeal, at which time the coram would have heard the argument in support of the appeal in full.
11 The appellant's application for bail pending appeal filed on 6 August 2015 is dismissed.
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