Zle v The State of Western Australia
[2024] WASCA 40
•18 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZLE -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 40
CORAM: HALL JA
HEARD: 12 APRIL 2024
DELIVERED : 12 APRIL 2024
PUBLISHED : 18 APRIL 2024
FILE NO/S: CACR 22 of 2024
BETWEEN: ZLE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EGAN DCJ
File Number : IND 2076 of 2021
Catchwords:
Criminal law - Bail pending appeal - Whether exceptional circumstances - Whether grounds of appeal have strong prospects of success
Legislation:
Nil
Result:
Application for bail refused
Category: B
Representation:
Counsel:
| Appellant | : | H Sklarz |
| Respondent | : | M L Wong |
Solicitors:
| Appellant | : | Sklarz Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Fermanis v The State of Western Australia [2005] WASCA 212
Lardi v The State of Western Australia [2020] WASCA 218
Serukai v The State of Western Australia [2020] WASCA 127
The State of Western Australia v Shephard [2018] WASCA 140
HALL JA:
This is an application for bail pending the determination of an appeal against sentence.
On 16 January 2024, the appellant was convicted after trial of four counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA).
On 14 February 2024, the appellant was sentenced to 12 months' imprisonment on the first count, 4 months' imprisonment on the second count and 3 months' imprisonment on the each of the third and fourth counts. The sentences on counts 1, 3 and 4 were made cumulative, producing a total effective sentence of 18 months' imprisonment. The appellant was made eligible for parole.
On 6 March 2024, the appellant filed a notice of appeal seeking leave to appeal against his sentence.
On 21 March 2024, an application for bail pending the hearing and determination of the appeal was filed. In essence, the appellant submits that a grant of bail pending appeal is justified due to the strength of his grounds of appeal, he also relies on the fact that it is likely that a significant portion of his sentence will be served before the appeal is heard.
As the appellant's case has not yet been filed, the appellant was ordered to file a minute of draft grounds and draft submissions in support of those grounds. That order has been complied with. The draft grounds are as follows:
1.The sentencing judge erred in law and fact by not ordering a suspended sentence due to:
a.the ineffective assistance of defence counsel; and
b.not being properly appraised of the offender's personal antecedents, rehabilitation and the unlikely risk of reoffending.
2.The sentence on count 1 of 12 months and the total sentence of 18 months are manifestly excessive.
3.The total sentence offended the principle of totality.
Relevant law
The principles applicable to bail pending appeal are well established.[1] In summary, bail can only be granted if the court is satisfied that there are exceptional reasons for doing so and it would otherwise be proper to grant bail having regard to the considerations in cl 4A of pt C sch 1 of the Bail Act 1982 (WA). What constitutes exceptional reasons may vary according to the circumstances of the case. The word 'exceptional' implies that the reasons for granting bail must be unusual or out of the ordinary.
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] - [14].
If the appellant asserts that the exceptional reasons are, or include, the merits of the grounds of appeal, something more than a reasonably arguable case must be shown. It must be established that the appeal is strongly arguable or that the prospects are such that there is a reasonable concern that the appellant would suffer an injustice by being kept in custody. In the case of an appeal against sentence, there must be a strongly arguable case that a different sentence should have been imposed.[2]
[2] Lardi v The State of Western Australia [2020] WASCA 218 [17] - [19].
On a bail application, the opportunity to conduct a comprehensive consideration of the materials is relatively limited and an assessment of the grounds can only be preliminary. Thus, if it is suggested that the grounds have strong prospects of success, that will generally need to be readily apparent without the benefit of detailed argument or analysis.[3]
[3] Fermanis v The State of Western Australia [2005] WASCA 212 [14].
The factual background
The sentencing judge's factual findings are not challenged on the appeal. Those findings can be summarised as follows.
In April 2021 the appellant was living at a house in a suburb of Perth with his wife and 8‑year‑old step‑daughter, who I will refer to as M. On 3 April 2021, between the hours of 8.30 am and approximately 5.15 pm, the appellant was at home with M and was responsible for her care. During the course of the morning, the appellant entered M's bedroom whilst she was lying on her bed in her pyjamas. He proceeded to lie on top of M and touched her vagina over her pyjamas. The touching continued for two or three seconds, during which time the appellant moved his hand around on top of M's vagina. That conduct is the subject of count 1 on the indictment.[4]
[4] ts 594.
When the appellant left M's bedroom, she locked the door because she was scared. She unlocked the door a short time later because she was feeling more relaxed. Later in the morning, the appellant entered M's bedroom again. On this occasion, M was in a makeshift tent in the corner of her bedroom, which she had constructed using blankets. The appellant proceeded to lie on M's bed and then lent into the tent and kissed her on the lips. When he did this, he sucked either her lips or her tongue. That conduct constitutes count 2 on the indictment.[5]
[5] ts 594.
Sometime later that day the appellant left the house to conduct some errands. On returning to the house he called M to come to the kitchen from her bedroom. When M came into the kitchen, the appellant kissed her on the lips and, again, sucked her lips or her tongue. This episode of kissing lasted approximately five seconds. This conduct constitutes count 3 on the indictment.[6]
[6] ts 594.
At the same time as count 3, and immediately after the kissing, the appellant took M's hand and placed it on his penis on the outside of his clothing. This lasted for 'much longer than a couple of seconds'. At the time the appellant did this, he said words to the effect 'Mum would love to do it'. That conduct constitutes count 4 on the indictment.[7]
[7] ts 594.
At this point, M began to cry. In response, the appellant said 'sorry' and gave her a game card or two that he had purchased for her when he was out doing errands. M ran to her room and locked the door behind her. She did so because she was scared.[8]
[8] ts 595.
The sentencing judge noted that the appellant had purchased game cards after he had committed the offences the subjects of count 1 and 2. His Honour also noted that the appellant had previously agreed with M's mother that M would receive game cards once a year on her birthday. Despite that agreement, and unknown to M's mother, the appellant had been purchasing game cards for M and giving them to her. He told M that this was their secret, and that M should not tell her mother or otherwise she would get into trouble and the appellant would have to stop buying the cards for her.[9]
[9] ts 595.
The sentencing judge found that the purchasing of the game cards and the giving of them to M in secret was controlling behaviour on the appellant's part and constituted a form of grooming. This grooming culminated in the appellant giving cards to M immediately following the conduct the subject of count 4 in an attempt, the sentencing judge found, to stop her from telling her mother what the appellant had done.[10]
[10] ts 595.
Sentencing remarks
The learned sentencing judge noted that he had not been provided with any reports or written submissions on behalf of the appellant. He noted that defence counsel had submitted that he should rely on what the appellant had said during his evidence regarding his personal circumstances. On that basis, his Honour made the following findings.[11]
[11] ts 595.
The appellant was born on 25 August 1969, was 54 years old at the time of sentencing. He was aged 51 years old at the time of the offending. He was born in Long An province in Vietnam and is one of eight children. His Honour had no information concerning the appellant's upbringing or schooling, and said that he would assume that they were 'unremarkable'. The appellant arrived in Australia on 29 July 1993, when he was 23 years old. He has three children from a former relationship and all of those children are now grown up.[12]
[12] ts 595.
The appellant met M and her mother in June 2017. He met them in Vietnam after he had been communicating with M's mother for some time. He formed a relationship with M's mother, and they eventually married. That marriage took place in Australia in 2017.[13]
[13] ts 596.
In April 2021, the appellant was living at an address in suburban Perth with M and her mother. At that time, M was 8 years old. Following the offending, the appellant's relationship with M's mother came to an end and he is now either separated or divorced from her. He no longer has contact with either M or her mother.[14]
[14] ts 596.
His Honour noted that the appellant is a painter by trade and that he operated his own business, though he had no details in that regard.[15]
[15] ts 596.
His Honour said that there was no information before him concerning the appellant's physical or mental health. As such, he had no reason to consider that the appellant was not in good physical or mental health nor was there any information to suggest that the appellant had engaged in any sort of rehabilitation since the date of the offending.[16]
[16] ts 596.
There was no victim impact statement from M. However, his Honour noted that M was both scared and upset as a result of what the appellant did to her. He said that that much was clear from the evidence that M gave at the trial.[17]
[17] ts 596.
As to the seriousness of the offending, his Honour referred to the following factors:[18]
1.The appellant was M's stepfather at the time and as such, occupied a position of trust and authority in regard to her within the family unit. He was occupying that position on the day of the offending. He breached that position of trust.
2.The offending was persistent in that it occurred at three different times during the course of the day.
3.There was an element of grooming in the offending.
4.There was a significant age disparity between the appellant and M.
5.M was vulnerable having regard to her age and the fact that she was home alone with the appellant at the time the offences occurred.
6.The offending occurred in the family home where M was entitled to feel safe.
7.The offending caused fear to M, to the point where she locked her bedroom door on two occasions. The offending the subject of counts 3 and 4 also caused M to cry and run to her bedroom.
8.The conduct was sexual in nature and driven by some form of sexual attraction towards the child victim, which his Honour described as 'perverted'.
[18] ts 597 - 598.
As against those factors, his Honour noted that the touching the subject of counts 1 and 4 occurred over the clothes and was fleeting in nature. There was no physical force, verbal abuse or threats. His Honour said that had the offending contained any of those elements, it would have been far more serious. His Honour said that he considered the offending was within the low range of seriousness for offences of this type, however, it was nonetheless serious of the reasons he had remarked on.[19]
[19] ts 598.
As to mitigating factors, the sentencing judge said that there was little by way of mitigation. The appellant did not have the benefit of youth. He could not be said to be remorseful. Nor had he engaged in any form of rehabilitation. His Honour said that, in the absence of reports, he was unable to make any finding regarding the level of risk of reoffending.[20]
[20] ts 598 - 599.
Submissions
The appellant submits that there are two exceptional reasons why he should be granted bail pending the hearing of the appeal. The first is that the appeal is 'almost certain to succeed' in persuading the court to either order a suspension of the whole sentence or reducing the term of count 1. The second is that the current sentence and eligibility for parole is so short that it is unlikely that the appeal will be heard before the expiration of the parole period. The appellant will have spent a considerable time in custody before the appeal is heard.[21]
[21] Appellant's submissions in support of application for bail, pars 7 - 8.
The appellant submits that the sentencing judge was hindered and frustrated in considering the appropriateness of ordering a suspension of the sentence because he received inadequate assistance from defence counsel. The appellant says that for this reason, his Honour was not properly appraised of the appellant's personal antecedents and the unlikely risk of reoffending.[22]
[22] Appellant's submissions in support of application for bail, pars 9 - 11.
The respondent submits that a sentence of immediate imprisonment is the ordinary result in a case of sexual offending against a child. The appellant's offending cannot be described as being at such a low level as to warrant a departure from the ordinary sentencing response to this type of conduct. The respondent submits that this is not a case involving an unusual or exceptional combination of mitigating factors. To the contrary, there are remarkably few mitigating features. In any event, factors personal to the appellant must carry less mitigatory weight given the nature of the offending.[23]
[23] Respondent's submissions in relation to bail, pars 11 - 12.
The appellant has sought to adduce new evidence in support of his appeal by way of affidavit evidence. In his affidavit, the appellant sets out his personal circumstances with a focus on his upbringing and work history. The appellant seeks to rely on this information on the basis that it should have been put forward by the appellant's trial counsel and that it has the potential to justify the imposition of a different sentence, namely a suspended sentence.[24]
[24] Affidavit of ZLE, 20 March 2024, pages 1 - 3.
The respondent submits that the application to adduce new evidence should be refused because some information regarding the appellant's personal background and work history was before the sentencing judge and the additional information does not materially add to the picture. The respondent submits that had this information been before the sentencing judge, there is no rational basis for thinking that a different sentence would have been imposed.[25]
[25] Respondent's submissions in relation to bail, pars 13 - 16, 24.
Merits of the application
The application for bail essentially relies on a contention that the sentencing judge was not provided with adequate information regarding the appellant's personal circumstances. This submission must contend with the fact that personal circumstances are usually accorded less weight in sentencing for sexual offences of this nature. In any event, it would not be sufficient for the appellant to show that there is additional information that could have been provided to the sentencing judge. For ground 1 to have strong prospects of success, it would need to be established that in light of the additional information, a different sentence should have been imposed.
The additional material contained in an affidavit of the appellant sets out more details of his personal history, including his education and work history. He provides information regarding his painting business, including financial records. As to his risk of re‑offending the appellant asserts that he no longer has contact with M and her mother and that there is a violence restraining order in place, which he states that he will adhere to. He states that he has become devout and regularly prays and attends church. He states that he has been an exemplary prisoner.
Whilst the additional material provides details that were not available to the judge, it is not apparent to me that any of it significantly changes the picture that was formed by the sentencing judge. His Honour accepted that the appellant had a good work history and that he no longer had contact with M and her mother. The other matters referred to in regard to risk, such as religion and prison conduct, may relate to events that have largely occurred since the sentencing. In any event there is no independent evidence of rehabilitation other than the appellant's assertions. Even assuming that the additional material is admissible there is no strongly arguable basis for suggesting that this material would have made a difference to the sentencing outcome.
As regards grounds 2 and 3, when custodial sentences have been imposed for offences of this type, it was said in The State of Western Australia v Shephard[26] that they have ranged from 9 months ‑ 18 months (pre‑transitional) with sentences at the higher end of the range involving the fondling of the genitalia. It is not apparent that a challenge to the sentence on count 1 or to the total effective sentence has a strong prospect of success.
[26] The State of Western Australia v Shephard [2018] WASCA 140 [42].
As to the submission that the appellant will serve a large portion of his sentence before the appeal is heard, it cannot be assumed that the appellant would necessarily be granted parole in November 2024 or that the appeal would not be heard before that date. In any event, the appropriate way to deal with this issue is to make an urgent appeal order.
Conclusion
For the reasons given, I am not persuaded that any of the grounds of appeal is so plainly assured of success as to justify a grant of bail pending appeal. The application for bail is refused. I would, however, make an urgent appeal order.
I make the following orders:
1.The application for bail pending appeal is refused.
2.An urgent appeal order is made.
3.The application to adduce additional evidence is referred to the hearing of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
18 APRIL 2024
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