Yaqubi v The State of Western Australia
[2016] WASCA 100
•17 JUNE 2016
YAQUBI -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 100
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 100 | |
| THE COURT OF APPEAL (WA) | 17/06/2016 | ||
| Case No: | CACR:77/2016 | 10 JUNE 2016 | |
| Coram: | MAZZA JA | 10/06/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail pending appeal dismissed Application for urgent appeal order granted | ||
| B | |||
| PDF Version |
| Parties: | OMAR SHOKRAAN YAQUBI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Offence of unlawful grievous bodily harm Appeal against sentence 16 months' immediate imprisonment Application for bail pending appeal; alternatively, an urgent appeal order Turns on own facts |
Legislation: | Bail Act 1982 (WA), cl 4A pt C sch 1 Criminal Code (WA), s 297(1) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : YAQUBI -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 100 CORAM : MAZZA JA HEARD : 10 JUNE 2016 DELIVERED : 10 JUNE 2016 PUBLISHED : 17 JUNE 2016 FILE NO/S : CACR 77 of 2016 BETWEEN : OMAR SHOKRAAN YAQUBI
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 1660 of 2015
Catchwords:
Criminal law - Offence of unlawful grievous bodily harm - Appeal against sentence - 16 months' immediate imprisonment - Application for bail pending appeal; alternatively, an urgent appeal order - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 4A pt C sch 1
Criminal Code (WA), s 297(1)
Result:
Application for bail pending appeal dismissed
Application for urgent appeal order granted
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr B M Murray
Solicitors:
Appellant : D G Price & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
- MAZZA JA:
(These reasons were delivered extemporaneously on 10 June 2016 and have been edited from the transcript).
Background
1 Before me this morning is an application for bail pending appeal or, in the alternative, an urgent appeal order.
2 On 4 March 2016, the appellant was convicted in the District Court on his early plea of guilty to one count of grievous bodily harm contrary to s 297(1) of the Criminal Code (WA).
3 On 13 May 2016, the appellant was sentenced to 16 months' immediate imprisonment, with parole eligibility, to commence on that day. By my calculation, he will be eligible for release on parole on or about 12 January 2017.
Facts of the offending
4 In short terms, on 8 January 2015 the appellant, who was 18 years of age at the time, and the victim, who was of a similar age, were engaged in a verbal confrontation at a café in Cannington. The appellant punched the victim with one blow - a hard blow - to the left side of the face. The victim immediately began to bleed profusely from a laceration to the gum. The appellant and the victim were immediately separated. As the appellant was being held, he lashed out with his feet, striking the victim in the lower back. Her Honour accepted that the kick might not have been directed at the victim. As a result of the punch, the victim's jaw was fractured in two places and had to be surgically repaired by the insertion of titanium plates. Untreated, the injury was likely to cause a permanent injury to his health. As it turned out, the victim has made an uneventful recovery.
5 In addition to the appellant's obvious youth, there were a number of subjective mitigatory factors which her Honour recognised. It is unnecessary for me to particularise them now.
6 At the time of the offence, the appellant had no record of convictions, but six weeks after breaking the victim's jaw, the appellant was involved in another fight in which he punched the victim on that occasion two or three times. As a result, he was charge with assault occasioning bodily harm. Ultimately, that charge was reduced to one of common assault. On 7 December 2015, the appellant pleaded guilty to that offence in the Perth Magistrates Court. He was fined and given a spent conviction order. In the District Court, her Honour took this subsequent assault into account as being relevant to whether violence was, as claimed by defence counsel and the appellant's character referees, as being out of character.
7 Her Honour rejected the submission by defence counsel that a suspended imprisonment order should be imposed. She did so having regard to the seriousness of the offence and the need for specific and general deterrence. She said that the appellant's youth would be reflected in the length of the sentence to be imposed.
Appeal to this court
8 The appellant's case has been filed. He relies upon three grounds of appeal.
9 Proposed ground 1 alleges that her Honour was wrong to have any regard to the appellant's conviction in the Perth Magistrates Court for common assault by reason of the spent conviction order.
10 Ground 2 and proposed ground 3 allege that the sentence was manifestly excessive as to its type and length.
11 Leave to appeal has already been granted in respect of ground 2, and the question of leave with respect to the other proposed grounds has been referred to the hearing of the appeal.
Application for bail pending appeal; alternatively, an urgent appeal order
12 The appellant has submitted that bail pending appeal should be granted, having regard to the alleged strength of the grounds of appeal and the fact that, if the appeal is heard in the normal course, the non-parole period would have been served, or largely served, thus rendering any successful appeal nugatory.
13 The law with respect to bail pending appeal is well known and has been canvassed in many cases. The relevant statutory power is cl 4A of pt C of sch 1 to the Bail Act 1982 (WA). Bail pending appeal cannot be granted unless exceptional reasons exist for doing so. When, as in this case, the prospect of a successful appeal is one of the matters relied upon, it must be demonstrated that the appeal has strong, arguable grounds.
14 This formulation is predicated on the notion that the prospects of an appeal succeeding must be sufficiently high to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound sentence.
15 At this point in time, and on a preliminary basis, while ground 2 is reasonably arguable, I do not think that any of the grounds meet the test of being strongly arguable. However, the non-parole period is relatively short, and it is in the interests of justice, it seems to me, for the appeal to be heard as quickly as possible.
16 I am not satisfied that exceptional reasons exist for a grant of bail pending appeal. That part of the application will be dismissed. However, I am satisfied that an urgent appeal order should be made, and I make such an order.
Conclusion and final orders
17 The orders that I make are as follows:
1. The application for bail pending appeal is dismissed.
2. The application for an urgent appeal order is granted.
3. The respondent shall file and serve the respondent's answer by no later than 4 pm on 20 June 2016.
4. The appeal books shall be filed by no later than 4 pm on 30 June 2016. In addition to the usual documents, the appeal book shall contain within it the transcript of the proceedings in the Perth Magistrates Court on 7 December 2015 involving the appellant.
0
0
2