Rasheed v The State of Western Australia
[2023] WASCA 143
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RASHEED -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 143
CORAM: VANDONGEN JA
HEARD: 22 SEPTEMBER 2023
DELIVERED : Ex tempore
PUBLISHED : 2 OCTOBER 2023
FILE NO/S: CACR 95 of 2023
BETWEEN: ANJUM RASHEED
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 96 of 2023
BETWEEN: ANJUM RASHEED
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : IND 1858 of 2021
Catchwords:
Criminal law - Application for bail pending appeal against sentence and conviction - Whether exceptional circumstances are established
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Evidence Act 1906 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Application dismissed
Category: B
Representation:
CACR 95 of 2023
Counsel:
| Appellant | : | M R Gunning |
| Respondent | : | K Cook |
Solicitors:
| Appellant | : | Gunning Young |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
CACR 96 of 2023
Counsel:
| Appellant | : | M R Gunning |
| Respondent | : | K Cook |
Solicitors:
| Appellant | : | Gunning Young |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Serukai v The State of Western Australia [2020] WASCA 127
VANDONGEN JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Introduction
Before the court are two applications for bail pending appeals against conviction (CACR 95 of 2023) and sentence (CACR 96 of 2023), which were filed 6 September 2023. The applications are supported by affidavits sworn by the appellant's counsel, Mark Russell Gunning, sworn 5 September 2023.
On 24 May 2023, the appellant was convicted in the District Court by the verdicts of a jury of 19 counts of corruption, contrary to s 83(c) of the Criminal Code (WA) (Code). On 3 August 2023, the appellant was sentenced to 2 years and 2 months' imprisonment to be immediately served.
On 18 August 2023, the appellant filed two notices of appeal seeking leave to appeal against all the judgments of conviction that were entered against him, as well as against the sentences that were imposed as a result of those convictions. The appellant has filed documents in both appeals that purport to be an appellant's case. Although the court has been assisted by those documents, it must be noted that neither complies with the requirements of the Supreme Court (Court of Appeal) Rules 2005 (WA).
The State opposes a grant of bail, and has filed written submissions which explain why it has adopted that position.
Relevant principles
The relevant principles to be applied in the context of an application for bail pending an appeal to this court are well established. Pursuant to cl 4A of pt C sch 1 of the Bail Act 1982 (WA), in deciding whether or not to grant bail to an accused who is in custody awaiting the disposal of appeal proceedings, bail may only be granted if the court is satisfied that exceptional reasons exist, and it is proper to do so having regard to the provisions of cl 1 and cl 3 of pt C sch 1. Although the test to be applied has been expressed in different ways, the essential question is whether the appellant has demonstrated a strongly arguable case on appeal, giving rise to real concern that the appellant would suffer injustice by having been kept in custody on an unsound conviction.[1]
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
Background
The appellant was charged on indictment in the District Court with 33 counts of aiding a public officer acting corruptly in performance or discharge of their functions, contrary to s 83(c) of the Code. Two other accused persons were also charged on the same indictment.
The appellant pleaded not guilty to the charges and was tried in the District Court before Stewart DCJ and a jury between 28 March and 24 May 2023. On 24 May 2023, the jury returned unanimous verdicts of guilty in respect of 19 counts, and verdicts of not guilty in respect of 14 counts. The offences of which the appellant was convicted occurred on various dates between 3 January 2019 and 30 September 2019.
On 3 August 2023, the appellant was sentenced to a total effective term of 2 years and 2 months' immediate imprisonment, with eligibility for parole.
The prosecution case, in summary, was that the appellant was guilty of the offences charged because he aided a public officer, a Giacomo Maria Merolla, to act corruptly in the performance or discharge of the functions of his office, without lawful authority or a reasonable excuse, so as to gain a benefit for Mr Merrolla.
At all relevant times Mr Merrolla was employed within the Fremantle Port Authority. In his role he was required to manage the maintenance of the Port's navigational aids, and was authorised to engage local contractors to provide goods and services to the Port to maintain those aids. One of those contractors was the appellant's business, called Economy Electrical Services (EES).
Unbeknownst to the Port, Mr Merrolla also had a business. This business was called Inline Consultancy. The prosecution case was that Mr Merrolla improperly used his position within the Port by making an arrangement with the appellant that EES would make payments to Inline for goods and services purchased on behalf of the Port, and that EES would then recoup the cost of those goods and services (together with a profit margin) by invoicing the Port. Mr Merrolla would then, using his position within the Port, approve payment of the EES invoices. In this way Mr Merrolla was able to improperly obtain payments from the Port because he was able to avoid disclosing to the Port that he had a financial interest in the payments. As counsel for the State succinctly put it in her written submissions, Mr Merrolla achieved concealment by using the appellant as an intermediary or conduit for the purchase of goods or service from Inline on behalf of the Port, thereby obfuscating the true nature of the transaction between the Port and himself as Inline.
In relation to the counts that resulted in guilty verdicts, the appellant made formal admissions in accordance with s 32 of the Evidence Act 1906 (WA) that Mr Merrolla committed the offence of official corruption, that the appellant had received and paid the Inline invoices relevant to each count, and that the appellant had 'reinvoiced' the Port for those Inline payments. The only substantive issue for the jury to determine was whether the appellant had knowingly and intentionally aided Mr Merrolla. The defence case was, in essence, that the appellant did not know that Mr Merrolla had a financial interest in Inline. In other words, the appellant's case was that he did not knowingly and intentionally aid Mr Merrolla to commit any offence of corruption because he did not know or intend that Mr Merrolla would enrich himself with the Port's money.
For the purposes of sentencing, the trial judge found, in summary, that the appellant had a corrupt arrangement with Mr Merolla, the object of which was to facilitate the unauthorised and improper payment of public money of the Fremantle Port Authority to Mr Merolla. She also found that:
1.he was well aware that Mr Merolla was acting corruptly with the improper purpose of the unauthorised use of his public position to obtain a private benefit;
2.he knew that Mr Merolla intended to gain that benefit for himself in the form of money paid to Inline;
3.he knew that Mr Merolla had no reasonable excuse and no lawful authority;
4.he knowingly acted as an intermediary or conduit for the corrupt payments;
5.he intended by acting as an intermediary or conduit that his conduct would aid or assist Mr Merolla to act corruptly; and
6.he actually assisted Mr Merolla by enabling him to corruptly receive the benefits of the payments to Inline and by enabling him to conceal Inline as the true supplier of the products purchased on behalf of the Port and the true recipient of the corresponding payments from the Port.
The trial judge also found that the appellant's conduct facilitated sustained and dishonest conduct by Mr Merrolla, over approximately a nine-month period. Further, although the appellant had received a relatively modest financial benefit of about $2,800 from his offending, he also benefited by securing an unfair ongoing advantage in the allocation of Port work.
The appellant does not challenge any of the trial judge's findings at this stage.
In terms of his personal circumstances, the trial judge took into account the appellant's prior good character, but there was nothing else of significance that could be taken into account in mitigation.
The appeals
In relation to the appeal against conviction the appellant relies on one ground of appeal. Stated briefly, the appellant alleges that the learned trial judge misdirected the jury with respect to one of the elements of the offences. The focus of the appellant's contention is on one paragraph in the context of very detailed directions to the jury, which concerned all three accused. Specifically, the appellant argues that the trial judge misdirected the jury in relation to the requirement that the jury were required to be satisfied that the appellant had knowingly and intentionally aided Mr Merrolla in committing the offence of corruption. As I understand it, the appellant says that the trial judge's directions erroneously equated proof that the appellant knew that Mr Merrolla had a financial interest in Inline with proof that the appellant knowingly and intentionally aided Mr Merrolla.
In relation to the appeal against sentence, the appellant asserts that the total effective sentence of 2 years and 2 months is manifestly excessive. According to the written submissions, the appellant submits that the sentencing judge erred in the exercise of her sentencing discretion by imposing that sentence of imprisonment because it was manifestly excessive by reference to both the length of the total sentence and the fact that it that was ordered to be immediately served.
Merits of the application
Because of the nature of a bail application pending the hearing and determination of an appeal, the court's ability to reach considered views about the merits of an appeal is limited. Quite apart from anything else, the court will not have had the benefit of full argument nor the opportunity to conduct a detailed review of the trial record. Further, as the appeals are yet to be heard, and any views expressed at this stage can only be preliminary in nature, I am of the view that it is generally appropriate to deal with the merits of the appeals in a conclusionary way.
I have considered all the evidence and submissions that are relied on by the appellant in support of his applications for bail pending the hearing and determination of both his appeal against conviction and his appeal against sentence. I have also taken into account what has been said on behalf of the appellant by his counsel during the course of the hearing. However, at this stage I am not satisfied that exceptional reasons exist sufficient to justify the grant of bail pending the hearing and determination of either appeal. I am not satisfied that the grounds of appeal have strong prospects of success.
In that regard, I am not persuaded that it is strongly arguable that the trial judge's directions to the jury gave rise to a real or perceptible risk of the jury falling into error. Namely, I am not persuaded that the jury might have understood that their consideration of whether the prosecution had proved, beyond reasonable doubt, that the appellant was guilty of the 19 counts he was convicted of, fell to be resolved by reference only to a question of whether he knew at the relevant times that Mr Merrolla had a financial interest in Inline. In reaching that conclusion I have taken into account the directions that were given to the jury as a whole, particularly those that related to what was required to be proved in order to find that the appellant aided Mr Merrolla to commit offences of corruption.
I am also not satisfied that it is strongly arguable that the sentence of 2 years and 2 months' imprisonment is manifestly excessive, either in relation to the overall length of the aggregate sentence or having regard to the fact that the sentences were ordered to be served immediately. The offences committed by the appellant were plainly very serious. Although the appellant's immediate financial reward was modest, the sentencing judge found that the appellant acted as he did in order to secure an unfair advantage in obtaining work from the Port through the assistance of Mr Merrolla. Further, it must be remembered that the appellant's acts were found by the jury to have intentionally facilitated Mr Merrolla's corrupt and dishonest conduct.
As the counsel for the respondent pointed out in her helpful written submissions, important sentence considerations when sentencing offenders for offences of this type include general deterrence, denunciation and punishment. In that light, and having regard to the overall seriousness of the appellant's offending, I am not satisfied that it is strongly arguable that it should be inferred, from the sentences imposed, or from the aggregate sentence imposed, that the trial judge erred in the exercise of her sentencing discretion in the way contended for by the appellant, or at all.
I note that an order was made by the sentencing judge that the appellant is eligible for parole. Accordingly, the appellant may be released in or about September 2024. On the assumption that these appeals might be ready to be listed in a relatively short time, having regard to the documents that have been filed to date, it cannot at this stage be concluded that the appellant will serve all or indeed a substantial proportion of his non-parole period before the appeals are heard and determined.
Conclusion
I am not satisfied that exceptional reasons exist such that bail should be granted pending the hearing and determination of these appeals. For that reason, both applications for bail must be refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Research Associate to the Hon Justice Vandongen
2 OCTOBER 2023
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