Wheeler v The Queen
[2010] WASCA 2
•15 JANUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WHEELER -v- THE QUEEN [2010] WASCA 2
CORAM: WHEELER JA
HEARD: 22 DECEMBER 2009
DELIVERED : 15 JANUARY 2010
FILE NO/S: CACR 134 of 2009
BETWEEN: CARL WILLIAM WHEELER
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 1197 of 2008
Catchwords:
Urgent appeal order - Principles to be applied
Legislation:
Nil
Result:
Application for urgent appeal order refused
Category: A
Representation:
Counsel:
Appellant: Mr P S Ash
Respondent: Mr M N Blandford
Solicitors:
Appellant: Peter Ash & Associates
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Urbano v The State of Western Australia [2006] WASCA 147
WHEELER JA: These reasons concern the appellant's application for an urgent appeal order. The application is made on the basis that the appellant's earliest date for release is 1 June 2010. His appeal is currently listed for the week commencing 22 March 2010. An urgent appeal order would have permitted the appeal to have been heard at some time during January or February. Taking a mid‑point, by 2 February, the appellant would have served 17 months of his 21‑month non‑parole term, while by 22 March, he will have served a little under 19 months of it.
At the hearing of the application on 22 December 2009, I refused the application for an urgent appeal order. I said I would publish reasons for doing so. These are those reasons.
The appellant was convicted on his own plea of guilty on 2 September 2008 of four counts of defrauding the Commonwealth and eight of dishonestly obtaining a financial advantage by deception. Those matters related to income tax returns lodged on behalf of the appellant and on behalf of the corporation of which he was the sole director and shareholder. In summary, the conduct consisted of the appellant failing to declare income in some of the company's returns, falsely claiming personal expenses as business expenses of the company, and failing to declare personal income in his returns for the years 1999 to 2004. In relation to some of the offences, the appellant directed the staff of the company to pay certain of his personal expenses with the company's funds and to have them falsely recorded as the company's business expenses in its general ledger. Many of those related to renovations conducted at the appellant's home. The conduct covered a period of some six years and the financial advantage obtained by the appellant personally was a little over $280,000, and the financial advantage to the company was of the order of $200,000.
The appellant was 50 years of age at the time of sentencing, had a prior conviction for an earlier and relatively minor tax offence, and had otherwise lived a blameless life. He was married with two young children, with another adult daughter from a previous marriage. He had been involved in the meat industry since childhood. The company which he founded in 1991 ran into significant financial difficulties from 1999 onwards, because of a variety of circumstances, including the impact of mad cow disease, foot and mouth disease, drought, fluctuations in the Australian dollar, and the appellant's involvement in litigation with suppliers of product. In addition, he became involved, unsuccessfully, in overseas currency transactions which resulted in a loss. As a consequence of his convictions, he had lost control of his business and was ineligible to be involved in the management of the business for a period of some five years. He had paid amended tax assessments, penalty tax, and interest, relating to the company and to his personal affairs, of the order of $750,000.
The sole ground of appeal is that since he was sentenced, new evidence has been discovered that tends to show the true significance of facts in existence at the time of sentence which, had they been known to the learned sentencing judge, would have resulted in a different sentence. That new material is the appellant's diagnosis by a psychiatrist as suffering from a generalised anxiety disorder.
It seems to me there are a number of principles relevant to the making of an order of this kind. It is plainly very important in the administration of justice that no‑one should remain in custody who is entitled to be released, whether that custody flows from a conviction which should be set aside or from a sentence which is excessive. Recognition of that principle has led the Court of Appeal consistently to give priority to its criminal work. At the present time, the court is able to list criminal appeals very promptly. That is demonstrated by the fact that this appeal was able to be listed for a hearing date just over four months from the filing of the appellant's case.
However, there are other interests which must also be considered. It is necessary to ensure that respondents have adequate time to respond to appeals in a way which would be of real assistance to the court hearing the appeal. It is necessary for the court's business to be conducted in an orderly way, so that reserved decisions can generally be delivered with reasonable promptness. Directly or indirectly, the making of an urgent appeal order for one criminal appellant will tend to delay the disposition of another's appeal.
There are a number of factors which will often be relevant in relation to applications of this kind. Plainly, one such factor is that pointed to by the appellant in the present case; that is, the question of whether a significant period of a sentence will have been served by the time an appeal comes to be heard, if an urgent order is not made. Where a successful appeal would have no practical effect if an urgent order is not made, that will frequently be a factor of very great significance. Where, as here, the appellant will still have some portion of his non‑parole term to serve, even by the date at which the appeal would be heard in the normal course, that factor is of somewhat less significance. In that case, the difference in time between any possible urgent hearing, and a hearing in the usual course, will be relevant. Here, as I noted earlier, that difference is around two months.
It will sometimes be relevant that an appellant has delayed in making an application to appeal. That is because, where an appellant has not displayed a sense of urgency about his or her own affairs, there is reason to suggest that the court should not give those affairs priority over those of others. In the present case, there has been a delay. However, that delay is explained by the appellant's affidavit, which reveals the process by which he came to see the psychiatrist and which eventually led to the diagnosis in issue in this appeal. Since the appellant's delay apparently resulted from factors attributable to his particular mental condition, I would not regard the delay as a relevant factor in this case.
Other things being equal, it is desirable that respondents should have at least the time allowed by the rules for the preparation of the respondent's case, within which to prepare for hearing. Otherwise, the respondent may be unable to provide the court with appropriate assistance. That factor may, of course, give way, at least where the respondent is the State or the Commonwealth, if there are other circumstances which point compellingly to a need for urgency. It can be assumed, in such urgent cases, that the State or the Commonwealth, as the case may be, will do its utmost to co‑operate. However, in the present case, there is no suggestion that the Commonwealth would be unable to accommodate an urgent hearing.
No doubt in other cases, there will be additional factors which may be relevant to the question of whether an urgent appeal order should be made. Simply by way of example, such orders have been made in appeals on behalf of a young child sentenced to a period of detention, or a young adult first sentenced to a period of imprisonment (where a ground of appeal contends that a sentence other than immediate imprisonment should have been imposed) and in cases where the State appeals against a disposition other than immediate imprisonment. There are no factors of that kind here.
Finally, there remains the question of the apparent merits of the appeal. That can only be assessed in a very cursory way at this stage. However, in general terms, the greater the apparent strength of a proposed ground of appeal, and the greater the possible or likely reduction in sentence, the more likely it is that an urgent appeal order will be considered appropriate. In my view, this appeal has reasonable prospects of success. That is why I made the order granting leave to appeal. However, I would not consider that it is a ground with a high likelihood of success.
There are two issues relevant to the likelihood of success of the appeal. The first is whether the new evidence should be received. The principles governing that question may be regarded as not entirely clear: see Urbano v The State of Western Australia [2006] WASCA 147, at [8] and [51]. For present purposes, I assume that the court will receive it.
The second issue, then, is the content of the new evidence, and its impact upon the sentencing process. Relevantly, Dr Mander's report says that it is "probable" that the appellant's anxiety state preceded his offending behaviour. The diagnosis is in the following terms:
Mr Wheeler developed an anxiety state beginning in 1998. Using the DSM‑IV criteria, this would best be described as a generalised anxiety disorder. He was worried, could not turn off from his worries, had marked concentration and sleep problems, had a continual sense of being on edge and was forgetful. This led to irritability and the verbal abuse of Lucy and his daughter.
High anxiety is known to impair various aspects of mental functioning, not least because of its affect [sic] on memory and concentration. This is perhaps best demonstrated by what is called the Yerkes‑Dodson Curve. This shows that with increasing anxiety, performance initially increases, which is why it is important not to abolish all anxiety, for instance by the use of medication when attempting a performance task such as sitting an exam. However with further increases in anxiety there reaches a point where there is a catastrophic reduction in functionality. That is not to say that he didn't know the difference between right and wrong as might be the case in disorders such as schizophrenia which directly affect reality testing but acknowledges impairment from his normal level of functioning
In substance, the psychiatric opinion is that as a result of a number of stressors, which are described, the appellant developed a generalised anxiety disorder which had a very significant effect in impairing the appellant's "normal level of functioning".
The learned sentencing judge was plainly aware of the significant stressors, particularly the business stressors which were operating on the appellant. His Honour was aware of the appellant's personal circumstances, and of the fact that he had led a blameless life until the age of 50, and that there were many references confirming the appellant's good character and strong ethics.
Without intending in any way to disparage the significance of the psychiatric diagnosis, it would appear to be extremely clear from those facts that the appellant would not have engaged in the conduct in which he did engage, had his judgment not been significantly impaired by the predicament in which he found himself. Whether that impairment was as a result of something which can formally be described as a psychiatric disorder, or not, does not appear to me to be likely to figure as a matter of very great significance in the sentencing process. As his Honour the learned sentencing judge pointed out, the conduct in which the appellant engaged took place over a lengthy period of time and was of a repetitive nature. Even allowing for the psychological factors personal to the appellant, it is difficult to see how a sentence other than one of immediate imprisonment could have been imposed. The sentence which his Honour, in fact, imposed was not one of great severity, having regard to the offending.
In the present case, the factors which appear to me to be of most relevance are the practical impact of the making of, or failure to make, an urgent appeal order upon the proportion of the appellant's term which remains to be served, and the apparent strength, or otherwise, of the proposed ground of appeal. It was having regard to those factors that I considered that, in the circumstances of the present case, an urgent appeal order should not be made.
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