Tela v The State of Western Australia
[2014] WASCA 20
•23 JANUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TELA -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 20
CORAM: MAZZA JA
HEARD: 24 DECEMBER 2013
DELIVERED : 24 DECEMBER 2013
PUBLISHED : 23 JANUARY 2014
FILE NO/S: CACR 228 of 2013
BETWEEN: AJRI TELA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional reasons - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A P Skerritt
Respondent: Mr J A Scholz
Solicitors:
Appellant: Morris Criminal Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Shrivastava v The State of Western Australia [2010] WASCA 96
Timbrell v The State of Western Australia [2013] WASCA 74
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript. For accuracy and convenience, a table of individual sentences has been included as an annexure.)
This is an application for bail pending an appeal against sentence pursuant to cl 4A of sch 1 pt C of the Bail Act 1982 (WA). That clause provides that bail pending appeal may only be granted where exceptional reasons exist and where bail would be otherwise appropriate having regard to cl 1 and cl 3 of sch 1 pt C.
The focus of this application is whether exceptional reasons exist to grant bail. What is meant by 'exceptional reasons' has been discussed in many cases in this court. It is unnecessary for me to canvass those cases. I incorporate into these reasons what I have said about this subject in Shrivastava v The State of Western Australia [2010] WASCA 96 [26] ‑ [33] and Timbrell v The State of Western Australia [2013] WASCA 74 [9].
The background to the application is as follows. The appellant entered fast‑track pleas of guilty to two counts of aggravated burglary and one count of burglary set out in an indictment. He also pleaded guilty to a number of offences on a notice pursuant to s 32 of the Sentencing Act 1995 (WA), being one count of aggravated reckless driving, one count of failing to stop when called upon by police, one count of driving whilst disqualified and one count of assault occasioning bodily harm. The first three of these offences occurred on 14 June 2013 in one incident. The assault occasioning bodily harm was committed on 19 August 2012. On 1 November 2013, the appellant was sentenced in the District Court to a total effective sentence of 2 years 9 months' immediate imprisonment with eligibility for parole backdated to commence on 5 June 2013. In addition, the appellant was disqualified from holding or obtaining a motor driver's licence for a total of 5 years and 9 months. A table of the individual sentences is annexed to these reasons.
On 19 November 2013, the appeal notice was filed. The sole ground relied upon is that the total effective sentence is manifestly excessive. At least that is how it is expressed in the appeal notice. But to put it in its correct legal rubric, the allegation is that the total effective sentence infringed the first limb of the totality principle.
This application for bail pending appeal was filed today, that is, Christmas Eve, more than one month after the appeal was filed and about two months since the appellant was sentenced. The appellant has asked for the application to be heard urgently. In truth, the matter is not urgent. However, I will deal with this matter now.
So far as the appeal itself is concerned, no appellant's case has yet been filed and the only material upon which this court can decide the case is in Mr Skerritt's affidavit sworn 23 December 2013, which annexes a copy of his Honour's sentencing remarks.
The facts of the appellant's offending are set out in those sentencing remarks between transcript pages 42 and 46. It is unnecessary for me to set out the facts of the offending in detail. It is sufficient to say that they disclose serious offending, both individually and collectively. The burglaries which were committed on houses were purely for monetary gain. They were premeditated and resulted in the theft of a substantial amount of property.
The traffic offences occurred while the appellant was escaping a police pursuit. His reckless driving was recorded by the police helicopter using an infra‑red camera. The appellant, who was riding a motorcycle, drove in a way which, from the learned judge's sentencing remarks, demonstrates a high degree of culpability. The assault occasioning bodily harm occurred when the appellant struck the victim in the back and the face with a metal baseball bat, inflicting multiple injuries, including a broken nose.
The mitigating factors were the appellant's youth, his family support, his good employment record and his fast‑track pleas of guilty.
The appellant has a criminal history. He has offended on various occasions as a juvenile and in 2012 on four separate occasions, including the assault occasioning bodily harm. It cannot be said that he has prior good character on his side. It is clear from the sentencing remarks that his Honour had regard to the mitigating factors that I have mentioned.
Before me, counsel for the appellant submitted that having regard to the mitigating factors the total effective sentence imposed upon the appellant is excessive. It was not argued that the learned sentencing judge imposed the wrong kind of sentence, in that he should have imposed a suspended imprisonment order. That argument was not open because, as Mr Skerritt rightly conceded, the offence of aggravated reckless driving carries a mandatory term of imprisonment: Road Traffic Act s 60(5).
It is asserted by the appellant's counsel today that the appeal is strongly arguable. Further, it is said that his appeal will not be heard until at least April 2014, by which time the appellant will have served a substantial part of his non‑parole period. Accordingly, if the appeal is successful it will be largely nugatory.
It is early days in this appeal. On the ground that has been proffered, and having regard to all of the materials that were before me ‑ and it seems that the sentencing judge had rather more information than I have ‑ I am unable to reach the conclusion that the proposed ground of appeal is strong enough to justify a grant of bail pending appeal.
Presently I am of the view that the merits of the proposed ground are not strong enough to constitute exceptional reasons for a grant of bail. Accordingly, a grant of bail cannot be made.
The application must be dismissed. The order that I make is that the application filed on 24 December 2013 for bail pending appeal is dismissed.
ANNEXURE A
Table of individual sentences
Indictment 978/2013
| Count: Indictment | Description | Act | Plea | Maximum Penalty | Final Outcome | Cumulative/ Concurrent |
| 1 | Aggravated Burglary and Commit Offence in Dwelling | Criminal Code (WA) s 401(2)(a) | Guilty | 20 years | 1 year 6 months' imprisonment Eligible for parole Compensation Order | Cumulative |
| 2 | Aggravated Burglary and Commit Offence in Dwelling | Criminal Code (WA) s 401(2)(a) | Guilty | 20 years | 1 year 6 months' imprisonment Eligible for parole Compensation Order | Concurrent |
| 3 | Burglary and Commit offence in Place | Criminal Code (WA) s 401(2)(c) | Guilty | 14 years | 1 year imprisonment Eligible for parole Compensation Order | Concurrent |
| Section 32 notice | ||||||
| 1 | Drove a motor vehicle in a manner that was inherently dangerous to escape pursuit | Road Traffic Act 1974 (WA) s 60(1) | Guilty | In circumstances of aggravation (s 49AB(1)(c)), mandatory sentence of 6 months, maximum sentence 5 years, summary conviction penalty 2 years: s 60(5). As a second offence, mandatory driver's licence disqualification for not less than 2 years: s 60(5)(c). | 1 year imprisonment Eligible for parole 3 years' cumulative motor driver's licence disqualification | Cumulative |
| 2 | Failed to stop when called upon to do so with circumstance of aggravation | Road Traffic Act 1974 (WA) s 53(2A) | Guilty | In circumstances of aggravation (s 49AB(1)(c)), maximum sentence of 2 years, minimum penalty of 100 penalty units. Mandatory driver's licence disqualification for not less than 2 years: s 53(2A)(b). | 3 months' imprisonment Eligible for parole 2 years' cumulative motor driver's licence disqualification | Concurrent |
| 3 | Drove a motor vehicle whilst not being authorised and who had held a MDL as required but ceased to hold that MDL | Road Traffic Act 1974 (WA) s 49(1)(a), s 49(3)(b) | Guilty | Section 49(1)(a): 12 penalty units for subsequent offence Section 49(3)(b): minimum of 4 penalty units, maximum of 30 penalty units, and imprisonment for not more than 12 months, and drivers' licence disqualification for not more than 3 years. | Fine $1,000 9 months' cumulative motor driver's licence disqualification | |
| 4 | Section 32 – Assault occasioning bodily harm | Criminal Code (WA) s 317(1) | Guilty | 5 years. | 3 months' imprisonment | Cumulative |
Total term: | 2 years 9 months' effective from 5 June 2013 Eligible for parole | |||||
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