SJMD v The State of Western Australia

[2018] WASCA 85

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SJMD -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 85

CORAM:   MAZZA JA

HEARD:   10 MAY 2018

DELIVERED          :   10 MAY 2018

PUBLISHED           :   24 MAY 2018

FILE NO/S:   CACR 59 of 2018

BETWEEN:   SJMD

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

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:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr B M Murray

Solicitors:

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

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

Nil

MAZZA JA:

(These reasons were delivered extemporaneously on 10 May 2018, and have been edited from the transcript.)

1. Before the court is the appellant's application for bail, pending appeal, dated 5 April 2018, pursuant to sch 1, pt C, cl 4A of the Bail Act 1982 (WA). The application is supported by the affidavit of the appellant's lawyer, David Fort, sworn 5 April 2018. The application is opposed by the State.

2. In support of the State's position I have read the affidavit of Kirsten Jane Doman, sworn 12 April 2018.  The parties have filed written submissions with respect to the application, which I have read. 

Background 

1. The relevant background may be briefly outlined in this way.  The appellant and her former partner were each convicted on their plea of guilty of one count of being a person having the care or control of a child and engaging in conduct, knowing the conduct might result in the child suffering harm as a result of neglect, contrary to s 101(1) of the Child and Community Services Act 2004 (WA).

2. On 16 March 2018, the appellant was sentenced to 18 months' immediate imprisonment with eligibility for parole.  On 5 April 2018, the appellant filed her appeal notice.  On 1 May 2018, the appellant filed her appellant's case. 

3. The appellant proposes to rely on four grounds of appeal.  Grounds 1 and 2 allege express error on the part of the sentencing judge.  Grounds 3 and 4 allege, in effect, that the sentence was manifestly excessive as to type and length.

4. The question of leave to appeal has been referred to a hearing before two judges of this court on 8 June 2018; that is in a little less than one month's time.  In accordance with this court's practice, such a hearing occurs when two judges of this court form the preliminary view that none of the grounds of appeal has a reasonable prospect of success. 

5. It is unnecessary to set out at length the admitted facts of the offending.  In essence, the appellant, who was, at the time, 22 years of age, and her then partner, were the parents of a 7-week‑old baby girl, S. 

6. On 4 May 2016, the appellant and her co-offender took S to a doctor.  The doctor observed that S was unwell, and failing to thrive.  The doctor was so concerned about the child's health that she arranged for S's immediate admission to hospital, and directed the appellant and the co‑offender to take the child to the Joondalup Health Campus without delay.  Instead of doing what the doctor said, the appellant and the co‑offender took the child to their home without treatment.  S remained with the appellant and the co-offender until 19 May 2016, when she finally took S to hospital.

7. On examination, it was revealed that S had 35 separate bone fractures, and was unwell.  She was given morphine and treated at Princess Margaret Hospital.  S, as I understand it, is presently under the care of the Department of Child Protection. 

8. The appellant acknowledges that sch 1, pt C, cl 4A of the Bail Act provides a rebuttable presumption against the granting of bail pending appeal.  In order for this court's jurisdiction to grant bail to be enlivened, the appellant must demonstrate exceptional reasons why she should not be kept in custody. 

9. The appellant's submissions in support of the application emphasise the strength of the grounds of appeal, and the measures that the appellant has taken towards her rehabilitation since her arrest, with the aim of reuniting her with S. 

10. It is not appropriate, at this point, for me to engage in a detailed analysis of the proposed grounds of appeal.  Contrary to the submissions made on behalf of the appellant, I have not been persuaded, at this point, that the grounds of appeal have sufficient strength to justify a grant of bail, pending appeal.  Nor have I been persuaded that any of the other matters referred to by the appellant's counsel in argument constitute exceptional reasons why the appellant should not be kept in custody. 

11. Accordingly, the court's jurisdiction to grant bail has not been enlivened.  The application dated 5 April 2018 for bail pending appeal must be dismissed, and I so order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA

24 MAY 2018