Scolaro v Shephard - [2010] WASC 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SCOLARO -v- SHEPHARD [2010] WASC 77

CORAM: HALL J

HEARD: 15 APRIL 2010

DELIVERED : 15 APRIL 2010

FILE NO/S: SJA 1037 of 2010

BETWEEN: EVA GRACE SCOLARO
Appellant
AND
DAVID CHARLES SHEPHARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 20613 of 2009

Catchwords:

Bail pending appeal - Appeal from Magistrates Court - Appellant deemed not to have been convicted for the purposes of bail - Bail Act sch 1 pt C cl 5

Legislation:

Bail Act 1982 (WA), s 13, sch 1 pt C, cl 4, cl 5

Result:

Application for bail granted

Category: B

Representation:

Counsel:

Appellant: Mr S F Rafferty
Respondent: Mr J C Whalley

Solicitors:

Appellant: Evan Shackleton
Respondent: Director of Public Prosecutions (WA)

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

Nil

HALL J: (This judgment was delivered extemporaneously on 15 April 2010 and has been edited from the transcript).
This is an application for bail pending appeal from a decision of a magistrate.
The background facts are that the applicant was charged with unlawful wounding arising from an incident at a Northbridge nightclub on 7 March 2009. She pleaded not guilty to that charge and the matter proceeded to a hearing on 16 and 17 December 2009 in the Perth Magistrates Court. The magistrate who heard the matter reserved his decision until 27 January 2010 on which date he delivered written reasons for concluding that the charge was proven.
Some sentencing submissions were then made, a presentence report was ordered and the matter was adjourned to 14 April 2010. On that day the applicant was sentenced to 18 months' imprisonment and was made eligible for parole. Following that, the applicant's solicitor filed an appeal notice seeking leave to appeal against both conviction and sentence.
It is important to set out the provisions that govern an application for bail of this nature. Section 13 of the Bail Act 1982 (WA) (the Act) provides that the jurisdiction to grant bail and the way in which that jurisdiction is exercised are as set out in schedule 1 to the Act. A judicial officer exercising such jurisdiction is obliged to do so in accordance with sch 1. Section 13 uses mandatory terms in this regard stating that the jurisdiction 'shall be exercised subject to and in accordance with' the provisions of the schedule.
A person is only eligible for bail whilst proceedings are continuing. One of the primary purposes of bail is to ensure attendance at court. Once proceedings are completed any need for bail falls away. A person who is a convicted and sentenced prisoner would not generally be eligible to be considered for bail because their conviction and punishment marks an end to court proceedings.
However, there may be an exception where a prisoner commences an appeal either against conviction or sentence. In such cases the Act provides that bail may be granted pending finalisation of the appeal. The Act does not treat all sentenced prisoners who appeal in the same way however.
If the person is serving a sentence imposed by the District or Supreme Courts bail can only be granted if the court is satisfied that exceptional circumstances exist: cl 4(a) pt C of sch 1. However, where the person is serving a sentence imposed by the Magistrates Court the position is different. In such a case the requirement for exceptional circumstances does not exist. Furthermore, cl 5 states that a person who is awaiting the disposal of appeal proceedings from a Magistrates Court shall be deemed to be awaiting an appearance in court before conviction for an offence. The effect of this is that this court when considering bail pending an appeal from a magistrate is required by law to treat the applicant as if they had not been convicted.
There may well be good reasons why Parliament has chosen to treat appellants in this category differently from appellants from higher courts. It is possible that one rationale is that it was assumed that offences dealt with by magistrates would be of lesser seriousness and attract comparatively short sentences and that if bail was difficult to obtain such sentences would be completely served before the appeal was heard. There are grounds to question the validity of such an assumption. Firstly, many of the offences now dealt with in the Magistrates Court are very serious and unlawful wounding, as here, might be thought to be one such offence. Secondly, it is not now common for very short sentences of imprisonment to be imposed. In fact, sentences of less than six months are prohibited by s 86 of the Sentencing Act.
Thirdly, because of the seriousness of matters dealt with by the Magistrates Court some sentences imposed there are sufficiently long as not to be at risk of being completely served before the appeal is heard. Fourthly, many offences can be dealt with either on indictment in a higher court or summarily in the Magistrates Court. It is not immediately apparent why a conviction for the same offence in one jurisdiction should have a more provisional quality than in another jurisdiction.
In any event whatever the rationale for cl 5 of the Act may be, I am required to act in accordance with it. This means that I am obliged to treat the applicant as if she is merely facing a charge of unlawful wounding notwithstanding that she has been tried and convicted for that offence. I am obliged to treat her as if she had not been convicted.
Accordingly, I have to consider whether the applicant, as a person deemed not to be convicted, should be entitled to bail. In this regard I take into account that prior to her actual conviction on 27 January 2010 and sentence on 14 April 2010 the applicant had been on bail since 16 March 2009. She had complied with the conditions of bail and attended court when required.
I also take into account that given the applicant's personal circumstances including her lack of record, stable employment and strong family connections she is a person who would normally be considered a suitable candidate for bail.
The Act sch 1 pt C cl 1 sets out some of the relevant considerations. They include whether the person may fail to attend court. In my view there is no reason to think that that is the case given her past compliance with bail. Secondly, whether the applicant may commit further offences - she is, I understand, a person other than the latest conviction, of no criminal convictions although she has a traffic record.
Thirdly, whether if she was released to bail it would endanger the safety of others. Other factors include whether there is a danger that justice would be interfered with; whether bail should be refused to ensure the applicant's own protection; whether the prosecution has put forward grounds for opposing bail; and whether conditions could be imposed that would alleviate any of the concerns that have been referred to; and then, finally, the seriousness of the alleged circumstances of the offence.
I note in regard to this matter that the prosecution does not oppose bail. The circumstances of this offence are, in my view, serious. I cannot, however, anticipate the outcome of the appeal. The circumstances as alleged in this matter do weigh heavily against bail but taking into account that by law the applicant is deemed to be unconvicted and that she has a previous good bail history, that there is a low risk of absconding, and that the prosecution does not oppose bail, in my view the law requires that bail be granted. However, I intend to impose conditions that will obviate any possibility of other offences being committed.
Taking into account, as a matter of fact, that the applicant was convicted and sentenced to 18 months' imprisonment, in my view the bail conditions that previously applied are no longer sufficient. The bail that I intend to impose will be significantly more onerous in terms of the conditions.
The terms of bail are a personal recognisance of $10,000, a surety of $10,000 and conditions to report on Mondays, Wednesdays and Fridays to the police, not to enter any licensed premises and not to consume alcohol.