Stephens v The Queen
[2004] WASCA 22
•18 FEBRUARY 2004
STEPHENS -v- THE QUEEN [2004] WASCA 22
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 22 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:190/2003 | 18 FEBRUARY 2004 | |
| Coram: | ROBERTS-SMITH J | 18/02/04 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | TERRY NORMAN STEPHENS THE QUEEN |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeal Previous application for bail refused Whether new facts or changed circumstances Whether exceptional reasons |
Legislation: | Bail Act 1982 (WA), Sch 1, Pt C, cl 4, s 22 |
Case References: | Nil Davis v The Queen [2002] WASCA 298 Stalker v The Queen [2002] WASCA 364 Trivett & Ors v Jeffrey [2003] WASCA 151 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Previous application for bail refused - Whether new facts or changed circumstances - Whether exceptional reasons
Legislation:
Bail Act 1982 (WA), Sch 1, Pt C, cl 4, s 22
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr C G Astill
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Davis v The Queen [2002] WASCA 298
Stalker v The Queen [2002] WASCA 364
Trivett & Ors v Jeffrey [2003] WASCA 151
(Page 3)
1 ROBERTS-SMITH J: In the course of my dealing with the Court of Criminal Appeal motions list this morning and the applicant's application for leave to appeal against sentence, the applicant made an application for bail pending appeal.
2 There is before me in support of that application a document headed Affidavit but merely signed by the applicant and dated 17 February 2004. He explains to me that it was not possible for him to have the document sworn before a justice of the peace because of a lock-down in the prison.
3 Under the circumstances it seemed to me appropriate to receive the document for the purposes of dealing with his application and I did so (see Bail Act 1982 (WA), s 22).
4 The grounds of the application really come down to these: first, that the applicant's wife and daughter are suffering a particular and extreme hardship as a consequence of his imprisonment; secondly, that he is in a position to obtain employment should he be released to assist his family to recover financial stability, and thirdly they do have a place to live, as evidenced by a home tenancy agreement for the next 12 months in respect of premises in Kennedy Street, Morley.
5 He has submitted letters from the Australian Taxation Office and Centrelink which indicate that he has significant amounts outstanding to them and they require payment from him.
6 The position, of course, is that following conviction and pending appeal the principles which apply are those set out in cl 4 of Pt C of sch 1 to the Bail Act which provides that in deciding whether or not to grant bail to a person convicted and awaiting the disposal of appeal proceedings, the Court must be satisfied that there are exceptional reasons why he should not be kept in custody and if those exceptional reasons are shown, then shall only grant bail if satisfied that bail may properly be granted in any event having regard to the provisions of cl 1 and cl 3 of Pt C of sch 1.
7 In addition the applicant made a similar application for bail to Hasluck J on a prior occasion and that was dealt with by his Honour on 17 December last year when his Honour refused the application.
8 The law in that regard is, I note, that once bail has been so refused it may only be granted on a subsequent application if the applicant shows either that new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused or that the applicant failed to adequately present his case for bail on the occasion of
(Page 4)
- the prior refusal. There is no suggestion that the applicant did not adequately present his case for bail before Hasluck J and so the threshold question is whether there are new facts or circumstances which would justify bail being considered again.
9 I note from the transcript of the proceedings on 17 December 2003 that the matters advanced by the applicant were essentially the same matters as he now advances before me. He says, however, that the change or changes which bear upon this are that as the situation stood before Hasluck J there was no claim for payment by Centrelink or the Australian Taxation Office and nor at that stage did the applicant have potential to get employment pending the hearing of his appeal.
10 I take the law to be that when the statutory provisions talk about changed circumstances or new facts, one must look for a relevant change in relevant circumstances and indeed a change or new facts which would be likely to weigh in the outcome of the application being different to what it had been on the earlier occasion.
11 The applicant's appeal is against a sentence of 2 years' imprisonment with parole in respect of three counts of attempted fraud and one of failing to answer bail. The circumstances appear from the sentencing transcript which is included now in the appeal material handed up today by the applicant as to constitute the appeal book before the Court of Criminal Appeal and in the reasons given by Hasluck J on 17 December 2003. I do not propose to recite them again now. It is sufficient to note that one count involved a fraudulent attempt to gain a benefit of $8,000 credit from the National Bank. Another was an attempt to gain $71,000.95 from Esanda Finance and a further count was to obtain an $8,000 credit from the Commonwealth Bank of Australia.
12 I appreciate what was put to the learned sentencing Judge on behalf of the applicant in relation to the facts and in particular that these were in substance credit applications to the amounts referred to and did not actually, as it transpired, result in the loss to those institutions of the amounts of money mentioned. Those circumstances were, of course, before the learned sentencing Judge and taken into account by him.
13 The applicant's original grounds of appeal as they were before Hasluck J, were as follows:
"1. That the solicitor representing the defendant did fail to fulfil her duties as instructed by the defendant. The defendant's solicitor was at the time of sentencing Ms
(Page 5)
- C.S. Amsden from Legal Aid. Ms Amsden failed to inform Viol DCJ that the defendant had completed a 12-months induction of Alcoholics Anonymous. She also failed to inform his Honour that the defendant had attended Gamblers Anonymous for 6 months and it is a strong opinion that had Viol DCJ known of the defendant's own attempts to resolve his offending behaviour, it would have leaned strongly towards his Honour sentencing the defendant to an ISO as recommended by the two reports completed on the defendant.
- 2. That the defendant's solicitor failed to inform the Court and his Honour that she had given the Supreme Court of South Australia an affidavit in the matter of Stephens v Lewis, a civil matter; that she, Ms Amsden, did believe the defendant would receive a noncustodial sentence at the matter before the District Court of WA, Perth and based on this information, his Honour of the Supreme Court in Civil Claims in South Australia did adjourn the matter for trial on 24 November 2003. If I am not able to appear it may cost the defendant a claim of $19 million being heard on 24 November 2003 unless the Supreme Court of WA Perth can inform the Supreme Court of South Australia of a date the defendant's appeal may be heard and considered prior to 24 November 2003.
3. That his Honour Viol DCJ was informed that the defendant was extradited from Melbourne, Victoria but the representative for the DPP and the defendant's solicitor both failed to inform his Honour that the defendant had two days prior to his arrest on an apprehension warrant already spoken to both the DPP and the arresting detective to hand himself in, but the defendant was attempting to negotiate bail prior to surrendering himself. A solicitor from Crisp and Sicard, solicitors at Joondalup, also spoke to the DPP file manager on behalf of the defendant. It is believed there is no doubt that this would have led his Honour strongly towards an ISO if his Honour had known that the defendant was going to surrender himself."
(Page 6)
14 On his appearance today, the applicant sought leave to amend his grounds of appeal and there being no objection by the respondent, I gave that leave. The amended grounds are:
"1. Severity of sentence based on the sentence handed down by Justice Viol (sic )of the District Court, Perth, Western Australia on the 9th day of October 2003. Justice Viol (sic) failed to take into account the fact that I had already spoken with the case manager of my file at the DPP in Perth, WA, re my handing myself in prior to my arrest in Melbourne, Victoria. It is also fact that I had also spoken with the arresting officer re my handing myself in prior to my arrest. All I was trying to do is arrange bail so I could get my family back to Perth prior to surrendering. My arrest took place about 48 hours after my talking to the DPP and the police in Perth.
2. Misjustice caused of the DPP failing to give the correct information to Justice Viol (sic) at the time of sentencing; Also Justice Viol (sic) failing to correctly state and/or take into consideration the past seven years that I have stayed out of trouble with the law other than my appearance before Justice French in 1996. Justice Viol (sic) also sentenced me on a charge I pleaded guilty to of one count of attempted fraud that was $2000 and I pleaded guilty to this in the lower Courts, but Justice Viol (sic) sentenced me to that charge saying it was for $8000 of which I was never found guilty, nor have I ever pleaded to this charge. Furthermore, by the DPP withholding the full and correct information from the District Courts and Justice Viol (sic), I believe there has been a true and grave act of misconduct by the DPP and/or its solicitor on the day of sentencing. Clearly, this alone caused great concern too if true justice was served on the day of my sentencing or was this information hidden by the DPP from Justice Viol (sic) so as it would look worse for me at the time?
3. Solicitors failed to act as instructed by myself, the client, hence causing the Judge to not be aware of all the work I had completed in my personal life prior to my arrest so as I could become a better member of the community and a better husband and father. Solicitor failed to inform
(Page 7)
- Justice Viol (sic) of my attendance at GA and AA in Victoria from 2002 to 2003. Clearly, if Justice Viol (sic) had been made aware of my own work to live a more honest and reliable life in the community, then it may have played a considerable role in his sentencing."
15 Although framed slightly differently, in substance they appear to be reflecting the same complaints or assertions which were before Hasluck J.
16 So far as the reference to the charge involving $8,000 is concerned, I see from the indictment before the learned sentencing Judge dated 9 October 2003 that counts one and three relate to attempts by fraud to obtain benefits each in that amount, and they were the offences in respect of which his Honour imposed sentence. On the face of it, there would accordingly seem to be nothing in that.
17 It seems to me on a consideration of the material before me, even taking it simply as put by the applicant and disregarding the way in which it has come before the Court, there is nothing demonstrated which is capable of amounting first of all to a change in circumstances in the sense that I have described or new facts which would justify a reconsideration of the application for bail. That in itself would mean necessarily that the application now before me must be dismissed. In any event, however, I should say that were my discretion to consider the application have been enlivened by the demonstration of new facts or changed circumstances, I would not have been persuaded that there is in the circumstances of the case any exceptional reason shown why the applicant should not be kept in custody pending the appeal.
18 For these reasons the application for bail pending appeal is refused.
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