Serukai v The State of Western Australia - [2020] WASCA 127

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SERUKAI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 127
CORAM:   BUSS P
HEARD:   12 AUGUST 2020
DELIVERED          :   12 AUGUST 2020
FILE NO/S:   CACR 93 of 2020
BETWEEN:   CLIVE DAVIS SERUKAI
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S: CACR 94 of 2020
BETWEEN: PAUL IAN SERUKAI
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GLANCY DCJ
File Number            :   IND 320 of 2020

Catchwords:

Criminal law - Appeals against sentence - Applications for bail pending the hearing of the appeals - Applications for urgent appeal orders - Exceptional circumstances - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A
Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)
Criminal Code (WA), s 401(2)(a)

Result:

Applications for bail dismissed
Applications for an urgent appeal order granted

Category: B

Representation:

CACR 93 of 2020

Counsel:

Appellant	:	Mr C J Hampson
Respondent	:	Mr T B L Scutt

Solicitors:

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

CACR 94 of 2020

Counsel:

Appellant	:	Mr C J Hampson
Respondent	:	Mr T B L Scutt

Solicitors:

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

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Peters v The State of Western Australia [2012] WASCA 274
Timbrell v The State of Western Australia [2013] WASCA 74

BUSS P:

The appellant in CACR 93 of 2020 (Clive Serukai) and the appellant in CACR 94 of 2020 (Paul Serukai) were charged on indictment with one count.
The count alleged that on 25 October 2018, at Como, the appellants, while in the place of Joshua Bosveld and Jennifer Lang without their consent, threatened Joshua Bosveld.
The count pleaded circumstances of aggravation as follows:
(a)the appellants were armed with an offensive instrument, namely a wooden baseball bat;
(b)the appellants were in company with each other;
(c)immediately before the commission of the offence, the appellants knew or ought to have known that there was another person in the place; and
(d)the place was ordinarily used for human habitation.
The charged offence of aggravated burglary and committing an offence in a dwelling, contrary to s 401(2)(a) of the Criminal Code (WA) (the Code), carries a maximum penalty of 20 years' imprisonment.
The appellants were convicted, on their pleas of guilty, of the charged offence.
On 25 June 2020, Glancy DCJ sentenced each of the appellants to 2 years 6 months' immediate imprisonment. The start date for each sentence was 25 June 2020. A parole eligibility order was made.
Each of the appellants has appealed against sentence to this court. Neither of the appellants has yet filed an appellant's case. However, each appellant has indicated, in effect, that he proposes to rely upon two grounds of appeal. First, the sentence of immediate imprisonment was, in all the circumstances, manifestly excessive as to type. Secondly, the sentence of immediate imprisonment was, in all the circumstances, manifestly excessive as to length.
The facts and circumstances of the offending were, in summary, as follows. On 25 October 2018, the appellants' sister-in-law (Chanel Williams) had her house burgled. Several items of her property were stolen, including her mobile telephone and credit cards. Ms Williams tracked the location of her mobile telephone to a block of units at 300 Canning Highway, Como. Ms Williams spoke to a group of people on a second floor balcony at that address. The group of people denied involvement in the burglary. However, as two members of the group responded in a rude and dismissive manner, Ms Williams formed the belief that those people were involved in the burglary. Ms Williams then left the block of units and reported the burglary to police. By about 6.30 pm on 25 October 2018, the appellants were informed by Ms Williams and her partner of the burglary and what had occurred at the block of units at 300 Canning Highway, Como. The appellants decided to attend the block of units. After arriving at the block of units they searched the grounds. They located Ms Williams' mobile telephone and bankcard in bushes at the rear corner of the grounds. The appellants formed the belief that the people who occupied one of the units had information about the burglary. They decided to enter the victims' unit and ask about the burglary and look for the stolen items that had not been recovered. Clive Serukai returned to his car and removed a wooden baseball bat, before walking upstairs with Paul Serukai and knocking on the door of unit 12. The victims occupied that unit. Both suffered from mild intellectual and physical impairments. The male victim opened the door. The appellants pushed past him and entered the unit without consent. They closed the door behind them. The appellants began questioning the victims about their alleged involvement in the burglary. Paul Serukai searched the premises. Clive Serukai went onto the balcony. The appellants did not touch any of the victims' property. Prior to leaving unit 12, Clive Serukai told the victims that if he found out they were involved in the burglary, he and his brother would return. After giving the items of stolen property they had recovered to Ms Williams, the appellants were arrested by police. They participated in an electronically recorded interview and made full admissions.
The sentencing judge referred to a number of mitigating factors including the following. Each of the appellants pleaded guilty at an early stage. Her Honour afforded each appellant a discount of 20% pursuant to s 9AA of the Sentencing Act 1995 (WA). Her Honour found that each appellant was very genuinely sorry for his offending. Both appellants cooperated with the police and made full admissions. Each appellant was of prior good character. Clive Serukai had a prior conviction for a traffic offence. Her Honour accepted that the prior traffic offence was irrelevant for sentencing purposes. Paul Serukai had no prior criminal record. Her Honour found that each appellant was unlikely to reoffend.
The sentencing judge referred to the impact of the offending upon the victims. Her Honour said that it would have been a terrifying experience for them. Vigilantism of the kind engaged in by the appellants had to be deterred.
Each of the appellants has made an application in his appeal. Each appellant has applied for an order that he be granted bail pending the determination of his appeal and that an urgent appeal order be made.
The principles relating to the granting of bail pending the determination of an appeal are well-established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia;[1] Timbrell v The State of Western Australia.[2]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[2] Timbrell v The State of Western Australia [2013] WASCA 74.
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.
In Peters v The State of Western Australia,[3] McLure P observed, in the context of an appeal against conviction:
It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
[3] Peters v The State of Western Australia [2012] WASCA 274 [10].
In the present case, I will deal with each appellant's application for bail by considering whether he has a strongly arguable case that a different sentence should have been imposed. See s 31(3) read with s 31(4) of the Criminal Appeals Act 2004 (WA).
I have considered the material relied upon by each appellant in support of his application for bail, including his written submissions on the application, his affidavit and the affidavits of his solicitor. I have also taken into account the oral submissions made by counsel for each appellant today.
I am not satisfied, at this stage, that the merits of each appellant's appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail.
Also, I am not satisfied that the personal circumstances of each appellant, as set out in his affidavit, constitute exceptional circumstances.
In all the circumstances, I am not satisfied that there are exceptional reasons why each appellant should not be kept in custody pending the determination of his appeal.
Each appellant's application for bail should be dismissed.
However, I am persuaded, at this stage, that having regard to the strength of each appellant's case (in particular, the strength of each appellant's case based on the second ground of appeal, namely that the sentence of immediate imprisonment was, in all the circumstances, manifestly excessive as to length) is of sufficient strength to justify the making of an urgent appeal order.
Accordingly, I will make orders in relation to each appellant's application for an urgent appeal order as follows:
(1)The application for an urgent appeal order is granted.
(2)The appellant file and serve an appellant's case by 4.00 pm on 19 August 2020.
(3)The respondent file and serve the respondent's answer by 4.00 pm on 2 September 2020.
(4)The appellant serve an unbound copy of the appeal book on the respondent for checking in accordance with the Registrar's approved appeal book index by 4.00 pm on 11 September 2020.
(5)The appellant file the original appeal book and serve a bound copy on the respondent by 4.00 pm on 16 September 2020.
(6)A copy of the appeal book must be made available to the court by the appellant sharing a link by email to a Dropbox account or a OneDrive folder which contains the appeal book by 4.00 pm on 16 September 2020.
(7)The appeal be listed for hearing on 21 September 2020 at 10.30 am.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
12 AUGUST 2020