Waters v Wigger [No 2]

[2017] WASCA 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WATERS -v- WIGGER [No 2] [2017] WASCA 32

CORAM:   MAZZA JA

HEARD:   6 DECEMBER 2016

DELIVERED          :   6 DECEMBER 2016

PUBLISHED           :  13 MARCH 2017

FILE NO/S:   CACR 194 of 2016

BETWEEN:   CRAIG ANTHONY WATERS

Appellant

AND

FRANCIS WIGGER
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :KENNETH MARTIN J

Citation  :WATERS -v- WIGGER [2016] WASC 377

File No  :SJA 1058 of 2016

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal - Where appeal from single judge of Supreme Court

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 4A, cl 5

Result:

Application granted

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr L M Fox

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Waters v Wigger [2016] WASC 377

1. MAZZA JA:  On 6 December 2016, I granted the appellant bail pending appeal.   I also granted an urgent appeal order.  I said that I would publish my reasons for making these orders at a later date.  Here are those reasons. 

2. On 27 June 2015, the appellant was driving his vehicle on a road in the suburb of Murdoch. Police stopped the vehicle. The attending officers searched the appellant and located a small plastic container in his underwear. Inside the container were four clipseal bags, three of which contained a crystalline substance. The container and the bags were seized. The three bags containing a crystalline substance were analysed and found to contain methylamphetamine with a total weight of 3.99 g. On 6 July 2013, the appellant was charged in the Perth Magistrates Court with one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

3. On 27 October 2015 in the Perth Magistrates Court, the appellant indicated that he intended to plead guilty to this offence.  He was then remanded to the Drug Court.  On 9 November 2015, he appeared before the presiding magistrate in the Drug Court and formally entered a plea of guilty.

4. On 18 March 2016, the Drug Court magistrate made a pre‑sentence order with programming and supervision requirements.  The magistrate gave an 'indicated sentence' of 12 months' immediate imprisonment.  An 'indicated sentence' is the sentence that the magistrate would have imposed had she sentenced the appellant on 18 March 2016.

5. On 20 May 2016, the Drug Court magistrate terminated the appellant's participation in the Drug Court program.  She adjourned the appellant's sentencing to 20 June 2016 to be dealt with by another magistrate.  On 20 June 2016, the Chief Magistrate sentenced the appellant to 12 months' immediate imprisonment with eligibility for parole.  In doing so, his Honour remarked:

   I don't think there has been sufficient [involvement with the Drug Court] to divert from the appropriate indicated sentence assessed at the point when the pre‑sentence order was commenced.

6. Up until the Chief Magistrate imposed the term of immediate imprisonment, the appellant had been granted bail. 

7. Pursuant to divs 1 and 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA), the appellant appealed against the sentence that was imposed by the Chief Magistrate to a single judge of the Supreme Court sitting in its General Division. On 18 November 2016, that appeal was dismissed by Kenneth Martin J: Waters v Wigger [2016] WASC 377.

8. On 1 December 2016, pursuant to div 3 of pt 2 CAA, the appellant filed a notice of appeal in the Court of Appeal against the decision of Kenneth Martin J.

9. As indicated, appeals from a court of summary jurisdiction to a single judge of the Supreme Court and from a single judge to the Court of Appeal are governed by the provisions of pt 2 of the CAA. This is in contrast to appeals from the District or Supreme Court which are governed by pt 3 CAA. The difference is important in the present case, having regard to the provisions in the Bail Act 1982 (WA) that govern an application for bail pending appeal.

10. A judge of the Court of Appeal must exercise his or her jurisdiction to grant bail in accordance with sch 1 of the Bail Act. The general position with respect to bail pending appeal is set out in cl 4A of pt C sch 1 of the Bail Act. That clause provides that, in effect, bail pending appeal may only be granted for exceptional reasons and only if it is otherwise appropriate to grant bail. However, cl 5 of pt C sch 1 stands as an exception to cl 4A. Clause 5 reads:

    Exception to cl. 4A for bail in appeal under Criminal Appeals Act 2004 Part 2

    Clause 4A does not apply to the bail of a person who is awaiting the disposal of appeal proceedings under Part 2 of the Criminal Appeals Act 2004; such a person shall be deemed for the purposes of this Part to be awaiting an appearance in court before conviction for an offence.

11. In my opinion, cl 5 applies to an appeal from a single judge of the Supreme Court to the Court of Appeal. The words 'the disposal of appeal proceedings under Part 2 of the Criminal Appeals Act2004' are wide enough, in my view, to cover appeals under both divs 1 and 2 and div 3.  Counsel for the respondent, in argument, accepted that this was so. 

12. The effect of cl 5, in the present case, is that there is no requirement for the appellant to demonstrate exceptional reasons why he should not be kept in custody.  When considering bail pending appeal from a single judge of the Supreme Court to the Court of Appeal, I am required to treat the appellant as if he had not been convicted of the offence for which he has, in fact, pleaded guilty. 

13. There may be good reasons to question whether a person appealing from a decision of a single judge of the Supreme Court to the Court of Appeal should not be subject to cl 4A.  However, that is what cl 5 provides and I must deal with the appellant in accordance with it.

14. I have already set out the facts of the offence.  The appellant is now 34 years of age and, according to the affidavit he filed in support of the bail application, he is in employment.  He has a criminal history.  In May 2013, he was placed on an intensive supervision order in relation to charges of threats to injure, endanger or harm.  He has no prior convictions for drug‑related offences.  He was granted bail in the Magistrates Court until he was sentenced by the Chief Magistrate and he was granted bail pending the hearing of his single judge appeal from 18 August 2016 to 18 November 2016.  He has an apparently suitable place to live and a surety is available.  He is prepared to report to the police and be subject to a curfew.  The respondent did not oppose a grant of bail.  In all of the circumstances, I am satisfied that it is appropriate for me to grant the appellant bail.  As he is not required to demonstrate exceptional reasons pursuant to cl 4A and because he is deemed to be awaiting an appearance in court before conviction, I have not considered the merit of the grounds of appeal.  I make no comment in respect of them. 

15. Although the appellant was granted bail, I also consider that it is appropriate to make an urgent appeal order.  Having regard to the history of this case, in my view it is desirable for this matter to be decided as quickly as possible.