Wadeson v The State of Western Australia
[2018] WASCA 122
•18 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WADESON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 122
CORAM: BUSS P
HEARD: 18 JULY 2018
DELIVERED : 18 JULY 2018
FILE NO/S: CACR 123 of 2018
BETWEEN: DALE JORDAN WADESON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 1979 of 2017
Catchwords:
Criminal law - Appeal - Application for bail pending the hearing of the appeal - Exceptional circumstances - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Nigam |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | The Director of Public Prosecutions for the State of Western Australia |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Timbrell v The State of Western Australia [2013] WASCA 74
BUSS P:
By an application in the appeal dated 4 July 2018, the appellant has applied for bail pending the hearing of his appeal against sentence. The application is supported by an affidavit sworn 4 July 2018 by his solicitor, Mr Nigam.
On 1 March 2018, the appellant was convicted in the District Court, on his pleas of guilty, of two counts in an indictment. One count alleged that on 8 February 2017, at Aveley, the appellant supplied a prohibited drug, namely 25C‑NBOMe, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). The other count alleged that on 10 February 2017, at Aveley, the appellant was in possession of a thing capable of being stolen, namely $325 in Australian currency, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).
On 15 June 2018, Burrows DCJ sentenced the appellant to 2 years' immediate imprisonment on the count of supplying the prohibited drug and to 6 months' immediate imprisonment on the count of possession of the thing reasonably suspected to be unlawfully obtained. Her Honour ordered that the sentences be served concurrently. The sentences were backdated by one day to 14 June 2018. A parole eligibility order was made.
The appellant will become eligible for release on parole on 14 June 2019. He will complete the sentences on 14 June 2020.
The offence of supplying a prohibited drug, for which the appellant was sentenced to 2 years' immediate imprisonment, related to the sale by the appellant to a friend of about 0.05 of a gram of the prohibited drug 25C‑NBOMe. The drug in question is a designer drug similar to LSD. The purchaser of the drug, who was aged 19 years, consumed the drug that night. He was found by the police in a nearby park the following morning. He had died. A post‑mortem examination established that the cause of death was combined drug toxicity, namely the 25C-NBOMe he had purchased from the appellant in combination with another drug, 4-Fluoroamphetamine.
The principles relating to the granting of bail pending the hearing of an appeal against sentence are well-established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99; Timbrell v The State of Western Australia [2013] WASCA 74.
On 29 June 2018, the appellant filed his appeal notice together with his proposed grounds of appeal. There are two grounds. Ground 1 alleges, in essence, that the total effective sentence of 2 years' immediate imprisonment infringed the first limb of the totality principle having regard to the appellant's youth, his pleas of guilty and the circumstances of the offences. Ground 2 alleges, in essence, that her Honour erred by failing to suspend the sentences of imprisonment that were imposed.
The appellant has not yet filed his appellant's case.
I have read and considered the material relied on by the appellant in support of his application for bail, including his written submissions and his solicitor's affidavit. I have also taken into account the oral submissions made by the appellant's counsel today and also an affidavit of Sonia Turner affirmed 17 July 2018, which I have received today and given the appellant leave to file.
Counsel for the appellant emphasised the appellant's youth. He was aged 18 years at the time of the offending and was 20 when sentenced. He had not previously spent any time in custody. He was a drug user. The appellant had also consumed some of the same drug on the night his friend died. The appellant was remorseful and had made attempts at rehabilitation.
Counsel for the State submitted that the sentencing judge found that the appellant's occupation at the time of the offending was that of a low level dealer in various drugs. He dealt to survive and to feed his own drug habit. Her Honour noted that the appellant was aware that 25C-NBOMe is a very dangerous drug. He had used it himself and had seen its effect on other people. That knowledge significantly aggravated the drug supply offence.
Counsel for the State also submitted that the appellant's offending on both counts was aggravated because the offences were committed while the appellant was on bail for other drug offences.
I am not satisfied, at this stage, that the merits of the appellant's proposed grounds of appeal, and the merits of his proposed submissions in the appeal, are of sufficient strength to justify a grant of bail.
In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the hearing of his appeal against sentence.
I am therefore of the opinion that the appellant's application for bail should be dismissed.
I am, however, willing to expedite the hearing of the appeal.
The orders I now make are as follows:
(1)The appellant's application in the appeal dated 4 July 2018 for bail is dismissed.
(2)An urgent appeal order is made.
(3)By 4.00 pm on 3 August 2018, the appellant is to file and serve his appellant's case.
(4)By 4.00 pm on 24 August 2018, the respondent is to file and serve its respondent's answer.
(5)The appeal, including the appellant's application for leave to appeal, is to be heard at 10.30 am on 10 September 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS18 JULY 2018
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