Wroth v The State of Western Australia

[2018] WASCA 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WROTH -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 128

CORAM:   MAZZA JA

HEARD:   15 JUNE 2018

DELIVERED          :   15 JUNE 2018

PUBLISHED           :   30 JULY 2018

FILE NO/S:   CACR 97 of 2018

CACR 98 of 2018

BETWEEN:   ROBERT HAROLD WROTH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   O'NEAL DCJ

File Number            :   IND 1268 of 2017

Catchwords:

Criminal law - Application for bail pending appeal - Exceptional circumstances - Turns on own facts

Legislation:

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

Result:

Application granted

Category:    B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC & Ms M R Barone
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	The Director of Public Prosecutions (WA)

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

Nil

MAZZA JA:

(This judgment was delivered extemporaneously and has been edited from the transcript)

1. On 29 March 2018, the appellant was convicted after trial of one count of indecent dealing with a lineal relative under the age of 16 years.  On 9 May 2018 he was sentenced to 16 months' immediate imprisonment with parole eligibility, to commence from that date.  His earlier eligibility date will be, from my calculations, 9 January 2019. 

2. I am not going to canvass the facts of the offending or the appellant's antecedents.  They are set out in the sentencing judge's remarks and, while I appreciate that there is some issue taken with some of the things said, it seems to me that I do not need to say anything more about the facts of the offending or the appellant's antecedents. 

3. The appellant has appealed to this court against his conviction and sentence. Before me are his applications for bail pending appeal pursuant to sch 1, pt C, cl 4A of the Bail Act 1982 (WA).

4. Clause 4A, in substance, provides a rebuttable presumption against the granting of bail pending appeal. Bail can only be granted if the appellant demonstrates exceptional reasons and it is otherwise appropriate to grant bail.

5. The test of what is exceptional will turn on the facts of each case.  Here the appellant asserts that the grounds of appeal in both appeals are strongly arguable and, given the relatively short sentence that was imposed, there is a danger that if one or both appeals succeed, the result will be nugatory or substantially nugatory even if an urgent appeal order is made. 

6. The appellant submits that, if exceptional circumstances are established, there is no reason why bail should not otherwise be granted. 

7. The State submits that the appellant's grounds of appeal against conviction are not strongly arguable.  However, insofar as the appeal against sentence is concerned, it is accepted that:  (a) the grounds alleging implied error are seriously arguable; (b) that the appellant's antecedents are favourable; and (c) that if bail is not granted or if an urgent appeal order is not made, it is likely that the appellant will serve most of the non‑parole period. 

8. I have concluded, based on the material filed so far in the appeal, that in relation to the appeal against sentence exceptional reasons have been established. 

9. Although any view about the merits of the appeal are necessarily a preliminary view, the grounds which allege implied error are sufficiently strong to justify a grant of bail, combined with the fact that the sentence is relatively short, a significant part of the non‑parole period will be served even if an urgent appeal order is made and the respondent does not suggest bail would not otherwise be appropriate.  In that regard, I note that the appellant was always on bail awaiting his trial and was on bail during his trial. 

10. In light of my conclusion with respect to the application for bail pending appeal on the sentence appeal, it is unnecessary for me to deal with the application filed in the conviction appeal. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA

30 JULY 2018