Wharton v The Queen
[2016] WASCA 21
•25 JANUARY 2016
WHARTON -v- THE QUEEN [2016] WASCA 21
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 21 | |
| THE COURT OF APPEAL (WA) | 25/01/2016 | ||
| Case No: | CACR:209/2015 | 18 JANUARY 2016 | |
| Coram: | MAZZA JA | 18/01/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN LYNNE WHARTON THE QUEEN |
Catchwords: | Criminal law Causing a loss to a Commonwealth entity with the intention of dishonesty Appeal against conviction Application for bail pending appeal, alternatively release on licence Turns on own facts |
Legislation: | Bail Act 1982 (WA), cl 4A pt C sch 1 Crimes Act 1914 (Cth), s 19AP, s 20(1)(b) Criminal Code (Cth), s 135.1(3) |
Case References: | Wharton v The Queen [2015] WASCA 133 Wharton v The Queen [No 2] [2015] WASCA 176 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WHARTON -v- THE QUEEN [2016] WASCA 21 CORAM : MAZZA JA HEARD : 18 JANUARY 2016 DELIVERED : 18 JANUARY 2016 PUBLISHED : 25 JANUARY 2016 FILE NO/S : CACR 209 of 2015 BETWEEN : STEPHEN LYNNE WHARTON
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 435 of 2013
Catchwords:
Criminal law - Causing a loss to a Commonwealth entity with the intention of dishonesty - Appeal against conviction - Application for bail pending appeal, alternatively release on licence - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 4A pt C sch 1
Crimes Act 1914 (Cth), s 19AP, s 20(1)(b)
Criminal Code (Cth), s 135.1(3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L A Glenn
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Wharton v The Queen [2015] WASCA 133
Wharton v The Queen [No 2] [2015] WASCA 176
- MAZZA JA:
(This judgment was delivered extemporaneously on 18 January 2016 and has been edited from the transcript.)
1 Before me is the appellant's application filed on 8 January 2016 seeking this order:
Release on bail pending hearing of the appeal or in the alternative release on licence.
2 The application is supported by an affidavit made by the appellant on 6 January 2016, which includes eight attachments.
3 The application is opposed by the respondent.
4 There is a considerable history leading up to the present application. It is unnecessary to outline it all as it is set out in Wharton v The Queen [2015] WASCA 133 and Wharton v The Queen [No 2] [2015] WASCA 176. These reasons should be read in conjunction with the reasons of the court in those cases. It is enough to say the following.
5 On 2 April 2014, the appellant was convicted after a trial before a judge and jury in the District Court of three counts of causing the preparation and lodgement with the Australian Taxation Office of trust tax returns which contained false information, with the intention of dishonestly causing a loss to the Commonwealth, contrary to s 135.1(3) of the Criminal Code (Cth). On 4 April 2014, the appellant was sentenced to 3 years' imprisonment with respect to each charge, to be served concurrently. Thus, the total effective sentence was 3 years' imprisonment. The learned sentencing judge ordered that the sentence commence on 2 April 2014 and that, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant be released after serving 2 years of the sentence upon him entering into a recognisance in the sum of $10,000 to be of good behaviour for 12 months. Thus, the appellant is liable to be released on that recognisance on or about 1 April 2016; that is, in just over two months' time.
6 On 24 April 2014, the appellant filed notices of appeal with respect to both conviction (CACR 76 of 2014) and sentence (CACR 77 of 2014). In respect of both appeals, the appellant failed to file appellant's cases. On 22 January 2015, a springing order was made in each appeal. Three extensions of time were granted to the appellant to comply with this order. The final extension was granted on 24 June 2015, extending the time for compliance to 20 July 2015. On 20 July 2015, the appellant filed a further application to extend time to comply with the springing order. On 2 September 2015, this application was dismissed. Thus, the springing orders have executed, and the appeals have been dismissed.
7 On 27 November 2015, the appellant sought to file another appeal against conviction, being CACR 209 of 2015 (the second appeal). Attached to the appeal notice are 13 proposed grounds of appeal.
8 The application now before me assumes that the second appeal against conviction is competent. The respondent submits that the appeal is, in fact, incompetent.
9 In his affidavit in support of the present application, the appellant says that on 5 January 2016, his mother passed away. She was privately cremated on 7 January 2016, and a memorial service was held on 11 January 2016. All of these events occurred in Melbourne. None of them is challenged by the respondent. In the affidavit, the appellant expresses the understandable desire to be with family members in Melbourne, to 'be part of the family at this difficult time' and to 'be there for my three children whilst they grieve their grandmother and also support my two brothers'. He goes on to explain that his children were very close to their grandmother because their mother died in April 2006.
10 The appellant says that he has strongly arguable grounds of appeal, and that, given his record of previously complying with bail orders, he does not represent a flight risk.
11 The appellant submits that, in addition to the strength of the grounds of appeal, he should be granted bail having regard to the desire to be with his family after his mother's death; the fact that he has all but served a custodial portion of his sentence; and the difficulty that he will have preparing his appeal while in custody. The appellant goes on to state in his affidavit that he is aware that a prisoner serving a federal sentence can apply to the Attorney-General for release on licence under s 19AP of the Crimes Act. He says, based on his previous experience, that any decision by the Attorney-General will unlikely be made before he is released on or about 1 April 2016. He asserts that this court must have an inherent power to grant a licence, which he says would be more appropriate than a grant of bail pending appeal.
12 Any power that this court has to grant bail pending appeal is pursuant to cl 4A of pt C of sch 1 to the Bail Act 1982 (WA). This clause creates a rebuttable statutory presumption against a grant of bail pending an appeal. A judicial officer shall only grant bail if he or she is satisfied that there is '… exceptional reasons why the appellant should not be kept in custody', and it is otherwise an appropriate case for the grant of bail. What constitutes 'exceptional reasons' in a particular case may vary according to the facts of that case, but as I have said on other occasions in other decisions, the focus of the inquiry must be on the merits of the appeal. On a preliminary basis, I have considerable doubt about the competence of this appeal in light of the dismissal of the appellant's early appeal against conviction. However, even if the second appeal is competent, I am not persuaded that any of the proposed grounds are strongly arguable. Further, none of the other matters put forward by the appellant, either by themselves or in combination, amount to 'exceptional reasons'. Accordingly, the appellant has not demonstrated exceptional reasons as to why he should be released on bail. Thus, the application, insofar as it relies upon cl 4A, must fail.
13 As to the appellant's application to be released on licence, the power to release a person on licence pursuant to s 19AP of the Crimes Act is given to the Attorney-General and not a court. This court has neither an express nor inherent power to grant the appellant's release on licence.
14 For these reasons, the appellant's application filed 8 January 2016 is dismissed and I so order.
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