Rodi v The State of Western Australia - [2014] WASCA 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RODI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 138

CORAM: MAZZA JA

HEARD: 20 JUNE 2014

DELIVERED : 20 JUNE 2014

PUBLISHED : 30 JULY 2014

FILE NO/S: CACR 81 of 2014

BETWEEN: PAUL JOSEPH RODI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
File No  :IND 495 of 2013

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11, s 34(2)(a)

Result:

Application for bail pending appeal granted

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Ms S Markham

Solicitors:

Appellant: Shadgett Legal
Respondent: Director of Public Prosecutions (WA)

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

Armstrong v The State of Western Australia [2013] WASCA 290
Lester v The State of Western Australia [2011] WASCA 128
Shrivastava v The State of Western Australia [2010] WASCA 96
Timbrell v The State of Western Australia [2013] WASCA 74
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

This is an application by the appellant for bail pending his appeal against sentence, pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA).
The background to the application may be briefly stated. On 14 April 2012, police officers executed a search warrant at the appellant's home in the northern suburb of Madeley. There they found a quantity of cannabis. In the shower recess was found six shopping bags of cannabis head material and a shoebox which contained loose cannabis material. The police also discovered cannabis material in the laundry and cannabis head material drying on a frame above a spare bed.
The total weight of cannabis seized by the police was 925.19 g. Its value was estimated at trial to be approximately $7,000. The police also found some of the typical indicia of commercial dealing in cannabis, namely, a box of clipseal bags, scissors with traces of tetrahydrocannabinol on the surfaces, and digital scales.
The appellant was charged with possession of cannabis with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act1981 (WA). Pursuant to s 34(2)(a) of that Act, the maximum penalty for this offence is a fine not exceeding $20,000 or to imprisonment for a term not exceeding 10 years, or both.
The appellant pleaded not guilty to this charge, and was in due course tried by a District Court judge and jury. The State's case at trial was that the appellant was engaged in the sale of cannabis to others. The State's case relied in part on the presumption in s 11 of the Misuse of Drugs Act and on the indicia of drug-dealing that I mentioned earlier.
The appellant admitted the element of possession. Accordingly, in the light of the operation of the presumption, the only factual issue for the jury was whether the appellant could demonstrate, on the balance of probabilities, that he possessed all of the cannabis for his own use.
He testified that he was a long‑term cannabis user. He further testified that he not only used cannabis recreationally, but that he also used it as an analgesic to relieve his chronic back pain. He gave evidence that he regularly prepared and used cannabis butter. He denied that he had an intention to either sell or supply any of the cannabis to others.
On 27 November 2013, the appellant was convicted as charged. Plainly, the jury did not accept his testimony that none of the cannabis would be sold or supplied to others. On 14 April 2014, the appellant was sentenced.
It is common ground that the learned sentencing judge applied the wrong maximum penalty for the offence. The erroneous maximum penalty applied by his Honour was a fine of $100,000 or 25 years' imprisonment or both, pursuant to s 34(1)(a) of the Misuse of Drugs Act (ts 526).
His Honour found that, while the appellant used cannabis for pain relief and for recreational purposes, the dominant purpose was commercial gain. His Honour found that the appellant was selling ounce bags of cannabis. He said that the appellant was not a street dealer, but rather, perhaps, closer to the middle level of distribution of cannabis.
His Honour noted that the appellant was a 36‑year‑old man with no prior record of convictions. He found that the appellant was not remorseful, and that both personal and general deterrence were relevant sentencing factors. The learned sentencing judge rejected the notion that a community based disposition was appropriate. He said that he had given lengthy consideration to the possibility of a term of suspended imprisonment, but, in view of the seriousness of the offending, concluded that a term of immediate imprisonment was the only appropriate disposition.
He imposed a term of 12 months' imprisonment, with eligibility for parole, to commence on 14 April 2014. On 29 April 2014, the appellant filed his notice of appeal against sentence. On 16 June 2014, he filed his appellant's case. The sole ground of appeal relied upon by the appellant is that the learned sentencing judge erred in taking into account a maximum penalty that was not prescribed by law.
The appellant's application for bail is supported by the affidavit of his solicitor, Steven Murray Shadgett, sworn 13 June 2014. The affidavit refers to a number of factual matters concerning the appellant's business and family. The affidavit states that the appellant will be eligible for release on parole on 15 October 2014. The affidavit also proposes possible bail conditions in the event that bail is granted .
The legal principles relevant to an application for bail pending appeal have been canvassed by the parties in their written submissions. The principles are well known and uncontroversial. The focus is upon whether exceptional reasons exist to grant bail. What is meant by 'exceptional reasons' has been discussed in many cases in this court. I will not canvas those cases now. I incorporate into these reasons what I have said about this subject in other cases, including Shrivastava v The State of Western Australia [2010] WASCA 96 [26] ‑ [33] and Timbrell v The State of Western Australia [2013] WASCA 74 [9].
The appellant submits that exceptional circumstances exist in this case, being that:
(a)the proposed ground of appeal is strongly arguable; and
(b)the appellant is likely to have served a substantial portion of his sentence before the appeal is determined, such that success in the appeal will be rendered either partially or completely nugatory.
The respondent submits that, while his Honour made an error as to the maximum penalty, the error was not material, in that this court should not, upon exercising the sentencing discretion afresh, impose a different sentence (see Armstrong v The State of Western Australia [2013] WASCA 290 [27].)
As I frequently observe in applications of this type, in assessing the strength of the proposed ground of appeal, the views that I express are tentative and may change in due course. They are not to be understood as my final considered views, either as to the ground of appeal or as to the merit of the appeal, nor the final views of the court. In other words, the appeal may ultimately fail. Having said that, the respondent has conceded that his Honour made the error alleged.
The real issue in this appeal is whether the error is material, that is, whether a different sentence should be imposed. It is enough to say at this stage that I have been persuaded that a different sentence may be imposed. However, in doing so, I note the cautionary remark made by McLure P, with whom Newnes JA and Hall J agreed, in Lester v The State of Western Australia [2011] WASCA 128 [23] ‑ [24].
I observe that the appellant has already served more than 2 months of his sentence. I accept that, given the relatively short sentence imposed upon the appellant and the sentencing dispositions open if this court exercises the discretion to resentence the appellant, even if an urgent appeal order was made, any success in the appeal would be rendered largely or completely nugatory.
I have been persuaded that exceptional reasons exist for the grant of bail in this case. I observe that the respondent has not submitted that, if exceptional reasons exist, bail should not be granted for other reasons.
The terms and conditions of bail will be as follows:
(1)The appellant shall enter into a personal undertaking in the sum of $50,000, with a surety in the sum of $50,000.
(2)The surety may be approved by a Justice of the Peace, or the associate of any justice of the Supreme Court.
(3)The appellant is not to attend any point of departure from the Commonwealth of Australia.
(4)The appellant is to reside at [address provided].
(5)The appellant is to surrender any passport or passports that he has to a registrar of the Supreme Court.