Pitt v The State of Western Australia - [2020] WASCA 54

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   PITT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 54
CORAM:   MAZZA JA
HEARD:   25 MARCH 2020
DELIVERED          :   25 MARCH 2020
PUBLISHED           :   14 APRIL 2020
FILE NO/S:   CACR 15 of 2020
CACR 16 of 2020

BETWEEN: GEORGE HENRY PITT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACV 6 of 2020
BETWEEN: GEORGE HENRY PITT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
File Number            :   IND 51 of 2018

Catchwords:

Criminal law - Application for bail pending appeal - Exceptional circumstances - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 4A

Result:

Application dismissed

Category: B

Representation:

CACR 15 of 2020

CACR 16 of 2020

Counsel:

Appellant	:	In person
Respondent	:	B M Murray

Solicitors:

Appellant	:	In person
Respondent	:	Director Of Public Prosecutions (WA)

CACV 6 of 2020

Counsel:

Appellant	:	In person
Respondent	:	B M Murray

Solicitors:

Appellant	:	In person
Respondent	:	Director Of Public Prosecutions (WA)

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

Nil

MAZZA JA:

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

Before me is the appellant's application for bail pending appeal. The application is made pursuant to cl 4A of pt C sch 1 of the Bail Act 1982 (WA).
The relevant background is as follows. On 7 November 2019, the appellant was convicted on his pleas of guilty of one count of attempting to possess a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another, and one count of offering to supply a prohibited drug, namely, MDMA,[1] to another.
[1] The relevant prohibited drug which is the subject of count 2 is incorrectly referred to in the indictment as methylamphetamine. This appears to be an error as all parties in the court below proceeded on the basis that this count related to MDMA. No issue has been made of this error in the court below or in this court.
Bowden DCJ (the sentencing judge) imposed a partly suspended term of imprisonment which was structured as follows. On count 1, the appellant was sentenced to 2 years' imprisonment and, on count 2, 12 months' imprisonment. His Honour ordered that the sentences be served cumulatively, but that the appellant was to be released after serving 12 months, with the remaining 2 years to be suspended for a period of 2 years. The sentence commenced on 7 November 2019. Thus, the custodial portion of the appellant's sentence will expire on or about 6 November 2020. The sentencing judge also declared the appellant to be a drug trafficker.
The appellant has filed appeal notices in respect of conviction, sentence and the drug trafficker declaration. The appellant has not yet filed an appellant's case in any of his appeals. He has been granted two extensions of time to file an appellant's case. The draft grounds of appeal in each appeal notice are, in substance, the same. The focus is on the appellant’s conviction. There is no draft ground of appeal which specifically addresses the appellant’s sentence or the drug trafficker declaration. The draft grounds read:
(1)I was advised by counsel to plead guilty because I would receive a suspended term of imprisonment due to the length of time [since] the alleged offences and the positive steps I have taken to rehabilitate myself;
(2)I did not commit these offences. I will be filing for appeal against the conviction/sentence due to having legal representation that erred in their advice to me;
(3)My counsel asked for $5500 in additional funds despite being paid by Legal Aid. A complaint has been lodged regarding this. After rejecting his request, my barrister's attitude changed completely.
The facts of the offending to which the appellant entered his pleas of guilty may be summarised as follows.
Count 1: Between 27 November and 7 December 2010, the appellant and his co-offender, Zunaid Anthony, attempted to obtain 28 g of methylamphetamine from an associate who was residing in Perth. An arrangement was made for the appellant to fly to Perth for the purpose of obtaining the drug. On 2 December 2010, the appellant met with the associate and was provided with a sample of the methylamphetamine. The appellant informed Anthony that the drugs were of good quality. Anthony instructed the appellant to purchase 1 oz of the drug. The associate said that he would provide the methylamphetamine as soon as he was paid for it. An initial sum of $1,500 was transferred to an account in part payment, but ultimately the transaction was not completed.
Count 2: On 14 February 2011, the appellant offered to sell Anthony 200 MDMA tablets known as ‘white supermans’ for $24.00 a tablet. Anthony declined the offer and it did not proceed.
Pursuant to cl 4A of pt C sch 1 of the Bail Act, a judicial officer shall only grant bail pending appeal if he or she is satisfied that there exists exceptional reasons why the appellant should not be kept in custody and it is otherwise appropriate for the grant of bail having regard to cls 1 and 3 of pt C sch 1.
The appellant says exceptional reasons exist because his grounds of appeal are strongly arguable, and if he is not granted bail and the appeal is heard and determined in the normal course, he will have served all or nearly all the custodial portion of his partly suspended sentence.
Further, the appellant says that by being released on bail, he will be able to better prepare his appeals and, in particular, file his appellant's case in each appeal. Finally, he relies upon an unsworn letter dated 23 March 2020 which has been sent to the court by his partner, Ms Jasmine King. The respondent does not object to the court taking notice of the letter, in which Ms King sets out in some detail the considerable hardship she is experiencing as a result of the appellant being in custody.
It is well‑established that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty, particularly where, as in this case, the appellant was legally represented. Although the categories of case in which a guilty plea may be set aside are not closed, there are three well‑recognised situations in which an appeal of this kind can succeed, being:
(1)where the appellant did not understand the charge and did not intend to plead guilty;
(2)where, on the admitted facts, the appellant could not be guilty of the offence; and
(3)where the guilty plea was obtained by inducement, fraud or intimidation.
At its highest, it appears from the draft grounds of appeal against conviction that the appellant contends that his pleas of guilty were obtained by inducement of some kind. It may also be that he contends that he was not guilty of the charges. At present, there is nothing before this court other than the appellant's as yet unsubstantiated assertions concerning the conduct of his counsel. I am not presently persuaded that the draft grounds of appeal are strongly arguable so as to satisfy the test of exceptional reasons.
So far as the appellant alleges that he requires to be released from custody in order to properly prepare his appeals, this court understands the difficulty that in‑person litigants who are in custody, such as the appellant, have in preparing their own appeals. However, that is not generally, or in this case, a sufficient reason to justify a grant of bail.
Then there is the contents of Ms King's letter dated 23 March 2020. I accept that Ms King is experiencing considerable hardship as a result of the appellant's incarceration, but I do not consider the hardship to be such as to justify a grant of bail.
Finally, there is the issue concerning the fact that the appellant may serve all of, or nearly all of, the custodial portion of his partly suspended sentence if his appeal is heard and determined in the normal course. This matter can ordinarily be alleviated by the granting of an urgent appeal order. I would be prepared to make an urgent appeal order, but the court does not yet have the appellant's case. The appellant has been given an extension of time until 24 April 2020 to file his appellant's case. Once his appellant's case has been filed, without the necessity of a further hearing, I will make an urgent appeal order so that this matter can be heard and determined as quickly as possible.
The order that I make is as follows:
(1)The appellant's application filed 28 January 2020 for bail pending appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
9 APRIL 2020