Thompson v The Queen
[2001] WASCA 178
•7 JUNE 2001
THOMPSON -v- THE QUEEN [2001] WASCA 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 178 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:19/2001 | 7 JUNE 2001 | |
| Coram: | ROBERTS-SMITH J | 7/06/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| PDF Version |
| Parties: | PAUL JAMES THOMPSON THE QUEEN |
Catchwords: | Criminal law Bail pending appeal Whether exceptional circumstances Prospects of success on appeal Likelihood that substantial custodial portion of sentence would be served |
Legislation: | Nil |
Case References: | Caratti v The Queen [1999] WASCA 91 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : THOMPSON -v- THE QUEEN [2001] WASCA 178 CORAM : ROBERTS-SMITH J HEARD : 7 JUNE 2001 DELIVERED : 7 JUNE 2001 FILE NO/S : CCA 19 of 2001 BETWEEN : PAUL JAMES THOMPSON
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail pending appeal - Whether exceptional circumstances - Prospects of success on appeal - Likelihood that substantial custodial portion of sentence would be served
Legislation:
Nil
Result:
Bail refused
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Representation:
Counsel:
Appellant : In person
Respondent : Ms J A Girdham
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Caratti v The Queen [1999] WASCA 91
Case(s) also cited:
Nil
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1 ROBERTS-SMITH J: This is a notice of motion for bail pending appeal to the Court of Criminal Appeal against sentences imposed in the District Court on 15 December 2000. There was one count of attempted robbery whilst armed with a syringe and in company. One count of burglary and unlawful possession were also taken into account pursuant to s 32 of the Sentencing Act 1995 (WA).
2 On 19 January the applicant was sentenced to 2 years' imprisonment on the attempted armed robbery, 12 months' imprisonment on the burglary cumulative on the first sentence and a term of 2 months' imprisonment concurrent on the charge of unlawful possession. His conviction on these matters placed him in breach of intensive supervision orders which had been imposed previously. The intensive supervision orders were discharged and the learned sentencing Judge imposed a term of 9 months' imprisonment in respect of each of the offences for which that had been imposed, they being burglary, five attempted frauds and unlawful possession of a house-breaking implement. Those terms were ordered to be concurrent with each other but cumulative upon the terms imposed in respect of the offence on the indictment and those under s 32 of the Sentencing Act. The overall sentence was a term of imprisonment of 3 years' 9 months with eligibility for parole and the sentence was backdated to 25 July 2000.
3 The notice of application for leave to appeal against sentence was filed on 7 February 2001. The application came before Miller J on 26 March and on that occasion an order was made that the hearing be expedited. It does appear from what the applicant has told me this morning that had the matter come on before today he would not in fact have been in a position to have it argued in any event. He is still awaiting final advice from Legal Aid as to whether or not legal aid will be granted for the appeal. He has had two refusals and so there is the prospect of a further decision by a review committee.
4 The relevance of this in particular is that the Unrepresented Criminal Appellants Scheme, as I understand it, would not be able to assist the applicant until such time as he was finally refused legal aid. However, once that is done, if it is, then he would be in a position to approach the Scheme for assistance.
5 The appeal books in this matter have in fact been filed. They were filed on 20 March this year and accordingly all that remains to be done for the presentation of the appeal is the preparation of the submissions to be
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- advanced at the hearing. That, I think, given the nature of the proposed appeal, could be done relatively quickly.
6 On an application of this kind it is necessary for the applicant to demonstrate that there are exceptional reasons why he should not be kept in custody pending his appeal. The reasons advanced by the applicant at present are that he has a strongly arguable case on appeal and that there is a risk or indeed a likelihood, as he would put it, that a substantial part of the non-parole period of the sentence will have been served before the appeal comes on for hearing. I am told that his earliest eligibility for release is 23 October.
7 The applicant's understanding was that the appeal could not come on at least until August this year. It is, I think, possible in some circumstances for the fact that a substantial part of the custodial term of a sentence would be completed or nearly completed before an appeal is heard to constitute exceptional circumstances. The applicant refers to the case of Caratti v The Queen [1999] WASCA 91, which is authority, as I recall it, for the proposition that the strength of an applicant's case on appeal may itself constitute exceptional circumstances.
8 In the circumstances, therefore, it is necessary for me to consider the nature of this appeal and the prospects of the applicant succeeding upon it. The burglary offence for which he was sentenced was an offence which brought him within the provisions relating to third strike offenders. It was therefore mandatory for the learned sentencing Judge to impose at least a term of 12 months' immediate imprisonment in respect of that. Given that an immediate term of imprisonment had to be imposed in respect of that offence, suspended sentences on the others could not have been imposed. Also, because the offences constituted breaches of his intensive supervision orders, further orders of that nature could not have been imposed. It seems to me in the end the question of the prospects of the applicant's success on appeal would turn upon whether or not the Court of Criminal Appeal could be persuaded that the actual terms of imprisonment could be reduced below those imposed by the learned sentencing Judge. Of course, when I say "could be reduced", it is for the applicant to demonstrate error on the part of the sentencing Judge, not merely to persuade the Court of Criminal Appeal that the members of that court might have been inclined to impose a different or lesser range of sentences.
9 The actual sentences imposed here on the face of it would not appear to be in any way outside an applicable range. In saying that, of course, I
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- am in no way purporting to determine what will happen on the hearing of this appeal, but I am, of course, constrained for the reasons I have indicated to make some sort of assessment of the applicant's likely prospects of success. It is probably sufficient for me to say that at this stage I do not regard them as being very good and it is probably inappropriate for me to say any more about that.
10 I have had regard to the personal matters, both as to his circumstances surrounding and up to the commission of the offences in respect of which these sentences were imposed and following his sentences of imprisonment. I am conscious of the seriousness of the considerations to which the applicant has referred, namely the circumstances of his family and particularly that his uncle is in hospital with brain cancer and perhaps has only a couple of months to live. I am also conscious that the applicant is only 20 years of age and has served 11 months of his sentences, and that includes, of course, the full 8 months for the 12 month sentence imposed in respect of the burglary. I am conscious of what he has put before me as to his plans should he be released on bail. None of these matters, however, it seems to me, constitute exceptional circumstances within the meaning of that term as used in the Bail Act.
11 The other consideration which I think is of great significance on this application is that I am now informed by Ms Girdham for the Crown that this appeal could be heard by the Court of Criminal Appeal on 21 June at 2.15 pm because a matter previously listed for that date and time is no longer proceeding. That being so, if this appeal were to be then heard, clearly it would be possible for the Court of Criminal Appeal to resolve it relatively quickly and that would be a final resolution of the concerns raised by the applicant on this application.
12 I see no reason from a practical point of view why if it were listed for that date and time, Legal Aid could not be persuaded to give a relatively immediate response to the applicant's request for review of the decision relating to legal aid and that if aid were to be refused at that level why Ms Farley could not make appropriate arrangements through the Scheme she administers to have the applicant assisted with his representation on 21 June. Again, I say all of that mindful of the fact that the appeal books have already been prepared and filed.
13 For all of these reasons, it seems to me that the applicant has not demonstrated exceptional circumstances and that in any event it would not
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- be appropriate at this time for there to be a grant of bail. The application is accordingly refused.
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