Swift v The State of Western Australia - [2023] WASCA 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SWIFT -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 176
CORAM:   HALL JA
HEARD:   4 DECEMBER 2023
DELIVERED          :   7 DECEMBER 2023
FILE NO/S:   CACR 128 of 2023
BETWEEN:   ALISTER SWIFT
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BARONE DCJ
File Number            :   IND 1791 of 2020

Catchwords:

Criminal law - Bail pending appeal against sentence - Whether exceptional reasons for granting bail established - Whether grounds of appeal have strong prospects of success

Legislation:

Nil

Result:

Application for bail refused

Category: B

Representation:

Counsel:

Appellant	:	S Rafferty SC & A Owen
Respondent	:	K C Cook

Solicitors:

Appellant	:	Tindall Gask Bentley Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549
Dinh v The State of Western Australia [2019] WASCA 167
Fermanis v The State of Western Australia [2005] WASCA 212
Fogg v The State of Western Australia [2011] WASCA 11
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
HNA v The State of Western Australia [2016] WASCA 165
Lardi v The State of Western Australia [2020] WASCA 218
OAI v The State of Western Australia [2022] WASCA 110
Serukai v The State of Western Australia [2020] WASCA 127

HALL JA:

This is an application for bail pending the determination of an appeal against sentence.
On 6 April 2023, the appellant was convicted after trial of one count of unlawful assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) and one count of deprivation of liberty (or unlawful detention) contrary to s 333 of the Criminal Code.
On 2 November 2023, the appellant was sentenced to 20 months' imprisonment on the first count and 2 years' imprisonment on the second count, to be served concurrently. Accordingly, the total effective sentence was 2 years' imprisonment. The appellant was made eligible for parole.
On 9 November 2023, the appellant filed a notice of appeal seeking leave to appeal against his sentence. The appellant's case was filed on 24 November 2023.
An application for bail pending the hearing and determination of the appeal was filed on 14 November 2023. In essence, the appellant submits that a grant of bail pending appeal is justified due to the strength of his grounds of appeal.

Relevant law

The principles applicable to bail pending an appeal are well established.[1] In summary, bail can only be granted if the court is satisfied that there are exceptional reasons for doing so and it would otherwise be proper to grant bail having regard to the considerations in sch 1 pt C of the Bail Act 1982 (WA).[2] What constitutes exceptional reasons may vary according to the circumstances of the case. The word 'exceptional' implies that the reasons for granting bail must be unusual or out of the ordinary.
[1] Serukai v The State of Western Australia [2020] WASCA 127.
[2] Clause 4A pt C sch 1 Bail Act 1982 (WA).
If the appellant asserts that the exceptional reasons are, or include, the merits of the grounds of appeal, something more than a reasonably arguable case must be shown. It must be established that the appeal is strongly arguable or that the prospects are such that there is a real concern that the appellant would suffer an injustice by being kept in custody. In the case of an appeal against sentence there must be a strongly arguable case that a different sentence should have been imposed.[3]
[3] Lardi v The State of Western Australia [2020] WASCA 218.
On a bail application, the opportunity to conduct a comprehensive consideration of the materials is relatively limited and any assessment of the grounds can only be preliminary. Thus, if it is suggested that the grounds have strong prospects of success, that will generally need to be readily apparent without the benefit of detailed argument or analysis.[4]
[4] Fermanis v The State of Western Australia [2005] WASCA 212.

The factual background

The sentencing judge's factual findings are not challenged on the appeal. Those findings can be summarised as follows.
On 22 January 2020, the appellant, then a serving police officer, was on duty with Officer Chapman when they received a call to attend at the house of the victim, Ms Macdonald, and her partner, Mr Peterson. Mr Peterson had made a telephone call requesting an ambulance for his partner.[5]
[5] ts 1602.
When the appellant and Officer Chapman arrived, Mr Peterson answered the door. Mr Peterson was very quiet and provided little information as to why he had called for an ambulance. Ms Macdonald came to the door and appeared to be preoccupied. She told the appellant and Officer Chapman that she was simply having an argument with Mr Peterson and that police assistance was not needed. The officers separated Ms Macdonald and Mr Peterson to speak to each of them alone. The appellant accompanied Ms Macdonald to a bedroom.[6]
[6] ts 1602.
The offending conduct commenced whilst the appellant was alone with Ms Macdonald. He decided to issue a police order to Ms Macdonald and asked for her full name. There was some confusion regarding the spelling of her surname and Ms Macdonald was difficult and disparaging towards the appellant. There was arguing back and forth between the appellant and Ms Macdonald.[7]
[7] ts 1602 - 1603.
Whilst the arguing was continuing the appellant pushed Ms Macdonald into a doorway and said to her, 'You're under arrest'. He then pushed her to the ground in a bedroom and handcuffed her. The assault occasioning bodily harm was constituted by four applications of force. This was the first application of force relied upon by the prosecution. It was also the commencement of the period of unlawful detention, there being no lawful grounds for arresting Ms Macdonald.[8]
[8] ts 1604 - 1605, 1614.
Officer Chapman entered the bedroom and saw the appellant handcuffing Ms Macdonald with her hands behind her. At this time, Ms Macdonald was yelling and screaming that she was in pain, she became distressed and started to bang her head out of frustration. Officer Chapman asked the appellant to remove the handcuffs. The appellant declined to do so and replied to the effect that Ms Macdonald was self‑harming. Officer Chapman gave evidence that the banging of the head was light and appeared to be an act of frustration.[9]
[9] ts 1604 - 1605.
Officer Chapman decided that it was appropriate to remove the handcuffs, which she did. Ms Macdonald then calmed down and went with Officer Chapman to a bathroom. Officer Chapman assisted Ms Macdonald in washing her face and wrists under running water.[10]
[10] ts 1605 - 1606.
The appellant stood at the threshold of the bathroom and began talking to Ms Macdonald about a police order and asking for her personal details. Ms Macdonald became upset with the appellant and yelled that she had already provided details, including her name. This led to more arguing between the appellant and Ms Macdonald, during which they were both speaking in raised voices, verbally abusing each other and swearing. At one point, Ms Macdonald said, 'I don't care if you give me a police order, I'll probably breach it anyway'.[11]
[11] ts 1606.
The appellant then approached Ms Macdonald and handcuffed her again. There was a struggle and the appellant attempted to pull Ms Macdonald out of the bathroom whilst she attempted to resist by holding on to a vanity. The appellant told Ms Macdonald she was under arrest 'for breaching a police order'. In fact, no such order had been issued. The appellant pulled Ms Macdonald out of the bathroom and on to a bed that was nearby. Ms Macdonald landed on the bed on her back. She was screaming and yelling. The appellant yelled at Officer Chapman to assist in restraining Ms Macdonald, but Officer Chapman refused.[12]
[12] ts 1606 - 1607.
The appellant then pulled Ms Macdonald over the bed, over a box and on to the floor. At this stage, only one handcuff had been applied. The appellant then applied the second handcuff, with Ms Macdonald's hands cuffed at the front of her body. In her evidence, Officer Chapman said that she believed at the time that the appellant's actions were unjustified and that she did not want to be party to an offence being committed by him. These actions constitute the second application of force.[13]
[13] ts 1607.
At this point, Ms Macdonald was crouched down, seated on the floor with her legs bent in front of her and both hands cuffed. The appellant and Ms Macdonald were both still screaming and yelling at each other. The appellant told Ms Macdonald to stand up, but did not give her an opportunity to do so before he started dragging her by the handcuffs along the floor out of the master bedroom and towards the front door. Ms Macdonald's arms were over her head and the appellant was dragging her behind him with one hand on the handcuffs. These actions constitute the third application of force.[14]
[14] ts 1607 - 1608.
Officer Chapman challenged the appellant, asking him, 'What are you doing?' but could not recall if the appellant responded. Officer Chapman attempted to help Ms Macdonald to get up and then to hold Ms Macdonald's leg or bottom so she was not dragging on the ground. Officer Chapman was trying to help Ms Macdonald, whom she described as looking scared. The appellant dragged Ms Macdonald by the handcuffs out of the house into the driveway area and near to the garage.[15]
[15] ts 1608.
Officer Chapman helped Ms Macdonald to stand up. Ms Macdonald was screaming at the appellant, calling him a bully. Officer Chapman confronted the appellant saying, 'What are you doing? You are out of line' and 'You're out of line. Leave her alone. Get away from her'. The appellant yelled back, 'She's under arrest' to which Officer Chapman responded that 'An order hasn't been issued. She can't be under arrest for anything'.[16]
[16] ts 1608 - 1609.
The appellant was facing Ms Macdonald, who had her back against the car. He then pushed his forearm into Ms Macdonald's head, forcing her head against the car. Officer Chapman described this as being 'not a light push' characterising the force as being about five out of 10 on a scale of one being a light touch and 10 a heavy touch. This application of force was not relied on by the State as being one of those that constituted the assault. Nonetheless, a finding in respect of it was made and it formed part of the overall context.[17]
[17] ts 1609.
Officer Chapman then pushed the appellant away and got between him and Ms Macdonald. She yelled at the appellant to get away from Ms Macdonald, that he was out of line, that an order had not been served and that he needed to walk away. The appellant yelled back at Officer Chapman. She then told him to walk away and to get the police car, which he did. In his absence, Officer Chapman tried to calm Ms Macdonald, who was crying and saying she could not believe what had happened. She pleaded with Officer Chapman not to let the appellant come near her.[18]
[18] ts 1609.
The appellant returned with the police car and came back to where Officer Chapman was standing with Ms Macdonald. The car was fitted with a security pod. The appellant said, 'We're going' and that Ms Macdonald needed to get into the back of the car. Ms Macdonald screamed at Officer Chapman to get the appellant away from her.[19]
[19] ts 1610.
Whilst Ms Macdonald was sitting at the back of the pod with her feet on the ground, she asked for the handcuffs to be loosened as they were hurting her. Officer Chapman loosened the handcuffs. The appellant then said, 'We need to go' and tried to move Ms Macdonald into the back of the pod so he could close the door. He then kicked towards Ms Macdonald's bare feet. Officer Chapman put her feet between the appellant and Ms Macdonald to protect Ms Macdonald's feet from the appellant's kicks. The force of the kicks, of which there were about half a dozen, was such that Officer Chapman could feel them through her police work boots. This kicking constituted the fourth application of force.[20]
[20] ts 1610.
Ultimately, Ms Macdonald moved into the pod and the door was closed.[21]
[21] ts 1611.
The appellant reprimanded Officer Chapman for not assisting him and for physically involving herself by blocking violence directed by the appellant at Ms Macdonald. The appellant, who was the senior officer, told Officer Chapman that he would be 'taking it further' with a sergeant, indicating he would be complaining about her conduct.[22]
[22] ts 1611.
There was a fifth alleged application of force arising from evidence that the appellant tightened the handcuffs around Ms Macdonald's wrists when the police car stopped. However, whilst the sentencing judge noted that she did not reject the victim's evidence in this regard, she found that it was not possible to be satisfied beyond reasonable doubt that this application of force had occurred.[23]
[23] ts 1611 - 1612.
The first, second and third applications of force included handcuffing the victim and dragging her by the handcuffs. The sentencing judge found that the bodily harm inflicted upon the victim's wrists, namely redness and swelling, was caused by the combined effect of these applications of force.[24]
[24] ts 1612.
The sentencing judge found that the appellant deprived Ms Macdonald of her liberty from the point of the first application of force, being the placing of handcuffs on her and moving her to the ground for the first time. The deprivation of liberty continued up until the point that Ms Macdonald arrived at the police station. The appellant did not have a lawful basis for placing the handcuffs on Ms Macdonald or for arresting her for breaching a police order. The sentencing judge found that no police order ever existed and that the appellant could not have believed that one did exist.[25]
[25] ts 1614.
The sentencing judge found that the appellant's actions were not motivated by personal anger towards, or a desire to punish, Ms Macdonald. Rather he acted out of frustration, exasperation and irritation with Ms Macdonald and the situation, and that his actions fell far short of appropriate police conduct. The sentencing judge found that the appellant, despite being an experienced police officer, did not have the skills, nor exercise the patience, required of a police officer in what was a difficult and trying situation. Instead, he allowed his frustration, irritation and exasperation to overcome his judgement.[26]
[26] ts 1615 - 1616.
The sentencing judge also found that Ms Macdonald was vulnerable by reason of the significant power imbalance between her and the appellant. Her Honour also found that it would have been obvious to the appellant during the incident that Ms Macdonald was psychologically vulnerable.[27]
[27] ts 1617 - 1618.
The sentencing judge accepted that the appellant was a person of prior good character and that there was little to no risk of reoffending in a similar way. She also accepted that the appellant had suffered adverse publicity and that any term of imprisonment would be more difficult given his past employment as a police officer.[28]
[28] ts 1624 - 1625.

Sentencing remarks

The learned sentencing judge gave lengthy and detailed sentencing remarks. It is not necessary for present purposes to summarise those remarks. I will refer only to those parts which are directly relevant to the grounds of appeal.
As regards ground 1, the sentencing judge, after noting that she must sentence the appellant to the least severe option she considered appropriate in all the circumstances, stated that she was of the view that the need for general deterrence was high.[29] In this regard, her Honour said:[30]
Police officers are given the power to apply force and detain people that others do not have. These powers come with limits. Those limits exist for very good reasons including some which strike at the very heart of what we consider to be a civilised community. …
…
As follows from this of course, and as your counsel concedes there is a need for the denunciation of police officers and, in this case, you Mr Swift, and your conduct, to police officers who misuse the powers that they are given by the State over people and who are thereby abusing their position of trust. Inherent in that position of trust of course, you were in a trusted position as a police officer on the day and your offending constitutes a breach of that trust reposed in you by the State of Western Australia and by the members of the community, such as Ms Macdonald.
[29] ts 1626.
[30] ts 1626 - 1627.
As regards ground 2, her Honour canvassed all the relevant circumstances before concluding that a term of imprisonment was the only appropriate option. She then turned to consider whether that term could be suspended and noted that she was required to take a second look at all the circumstances, including the appellant's personal circumstances. She concluded that the need for punishment, general deterrence and the seriousness of the offending led her to conclude that to suspend any term of imprisonment whether wholly or partially would be inappropriate.[31] In this regard, her Honour said:[32]
Your breach of the trust that the community of Western Australia placed in you as a police officer combined with your offending having continued despite another officer verbally and physically intervening in an attempt to stop your offending and, of course, combined with everything I have already said about the nature and seriousness of your offending generally, lead me to a conclusion that to suspend the term in any manner would not be appropriate. You will therefore be required to serve the term immediately.
[31] ts 1629.
[32] ts 1629.

Grounds of appeal

There are two grounds of appeal. Ground 1 alleges that the sentencing judge specifically erred in determining that the need for general deterrence was high. Ground 2 alleges that the sentence imposed was manifestly excessive as to type, having regard to all the relevant factors.[33]
[33] Appellant's submissions (on the application for bail), page 2.
As to ground 1, whilst the appellant accepts that general deterrence was a relevant factor in sentencing, he submits that the sentencing judge erred by concluding that the need for general deterrence in this case was high. In this regard, the appellant places particular emphasis on the circumstances of the offending and that it was committed out of frustration in what was a challenging policing situation, rather than being a planned or premeditated abuse of power.[34]
[34] Appellant's submissions (on the application for bail), pages 8 - 10.
By pitching the need for general deterrence at a high level, the appellant submits that there was a failure on the part of the sentencing judge to place this offending in its proper place in the continuum of possible offences by police officers. The appellant submits that this error was material to the conclusion of the sentencing judge that a suspended sentence was inappropriate.[35]
[35] Appellant's submissions (on the application for bail), pages 9 - 10.
As to ground 2, the appellant accepts that the factual circumstances placed this offending in a category requiring imprisonment. However, he submits that the nature of the offences, the basis on which they were committed, the absence of the need for personal deterrence and the mitigating factors ‘were such that it was open to the sentencing judge to impose a suspended sentence of imprisonment'.[36]
[36] Appellant's submissions (on the application for bail), page 9.
The appellant again emphasises the finding that the appellant acted out of frustration and irritation rather than anger. He also points to the fact that he had no criminal record, was a person of prior good character, had committed his adult life to the service of the community as a police officer, was found to be at little to no risk or reoffending in a violent way and that time in custody would be onerous as a former police officer. The appellant also notes that the bodily harm was towards the lower end of the spectrum of such harm.[37]
[37] Appellant's submissions (on the application for bail), pages 7 - 9.

Merits of the application

It is not appropriate on an application of this type to reach a final conclusion as to whether the grounds of appeal will succeed. All that is required, and appropriate, is an assessment of whether the grounds of appeal are not merely reasonably arguable but have a strong prospect of success. It must be apparent that the prospects of success are sufficiently high as to justify a conclusion that it would be unjust to allow the appellant to remain in custody pending the determination of the appeal.
In respect of ground 1, the appellant's contention is not that general deterrence was an irrelevant consideration but that the sentencing judge accorded this factor too much weight by stating that there was a high need for general deterrence. The appellant submits that the circumstances of this case did not justify such a conclusion.
The weight to be accorded to relevant factors is generally a matter falling within the discretion of the sentencing judge. It is not usually a matter that gives rise to a claim of appellable error.[38]
[38] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81].
In any event, ground 1 could only amount to an exceptional reason for granting bail if it were established that it not only has strong prospects of success but that, if the appeal is allowed on this ground, the appellant would be likely to be resentenced to a non‑immediate term or a term of imprisonment substantially less than that originally imposed such that the appellant would have served the non‑parole period of the sentence by the time of any appeal hearing. It is not apparent that that is the case.
I am not satisfied that ground 1 has strong prospects of success or that, even if successful, that ground would result in the imposition of a substantially lower sentence in the sense referred to in the previous paragraph.
In respect of ground 2, the appellant must demonstrate that it was not reasonably open to the sentencing judge to not suspend the sentence of imprisonment. It is not sufficient to show that it was open to her Honour to suspend the sentence. Such a ground of appeal will only succeed when the assessment of the seriousness of the offence and the relevant mitigating circumstances requires, as distinct from permits, the imposition of a sentence other than immediate imprisonment.[39]
[39] Fogg v The State of Western Australia [2011] WASCA 11 [8] ‑ [10]; Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [36]; Dinh v The State of Western Australia [2019] WASCA 167 [28].
Any conclusion as to the inappropriateness of a suspended sentence will usually depend upon an assessment by the sentencing judge of the significance of the relevant sentencing factors. This will include the circumstances of the offence, the personal circumstances of the offender, any aggravating factors and any mitigating factors. There will often be room for different views as to the weight to be accorded to these factors. Considering what sentencing options are not appropriate involves an evaluative judgement which is broad, though not at large.[40] Put another way, whether suspension is appropriate involves a value judgment, which by its nature gives some latitude to the decision maker.[41] In borderline cases, different types of sentence may be reasonably open. In such cases, the decision to decline to suspend the term of imprisonment would not be unreasonable or unjust, and would reveal no implied error.[42]
[40] HNA v The State of Western Australia [2016] WASCA 165 [29].
[41] OAI v The State of Western Australia [2022] WASCA 110 [9].
[42] Cross [36].
In the present case, the appellant, in effect, submits that the significant mitigating factors of his prior good character and previous service as a police officer required the imposition of a suspended sentence. No doubt those were weighty factors. However, there were other factors that weighed against them. The sentencing judge placed particular emphasis on the circumstances of the offences, in that the offences involved a breach of police powers and the trust placed in the appellant as a police officer in circumstances where he persisted despite another officer verbally and physically intervening. Those were also significant relevant factors. Without expressing a view as to the final outcome of this appeal, it is conceivable that in weighing those factors it would be open to conclude that a suspended sentence was excluded.
Whilst this ground of appeal may well be arguable, I am not persuaded that it is so plainly assured of success as to justify a grant of bail pending appeal.

Conclusion

For the reasons given, the application for bail is refused.
The application did not refer to an urgent appeal order, though reference was made to such an order in the written submissions. Such an order may well be justified given the length of the sentence and the likelihood that a substantial portion of the non‑parole period would be served before the appeal would, in the normal course, be heard. If the appellant wishes to seek such an order, an application, together with a supporting affidavit, should be filed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
7 DECEMBER 2023