Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional reasons - Turns on own facts

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

Caratti v The Queen [1999] WASCA 91

Shrivastava v The State of Western Australia [2010] WASCA 96

(These reasons were delivered ex temporaneously and have been edited from the transcript.)

1 This is an application for bail pending an appeal against sentence and, in the alternative, an urgent appeal order. The appellant pleaded guilty on 8 February 2013 to one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The maximum penalties for these offences are 10 years' imprisonment and 7 years' imprisonment respectively.

2 The appellant was sentenced on that day by Sweeney DCJ to a total effective sentence of 12 months' imprisonment with eligibility for parole. On 12 February 2013, the appellant filed his appeal. The draft grounds allege, in effect, that the total sentence was manifestly excessive in that the wrong type of sentence was imposed. It is said that her Honour should have imposed a suspended sentence.

3 The application is supported by an affidavit sworn by the appellant's solicitor, Trevor Mark Andrews. In essence, it claims that bail should be granted because the grounds of appeal are strongly arguable and, given the relatively short length of the sentence, the appellant will have served a significant portion of the sentence before the appeal is heard and determined. In other words, it is said that even if the appeal succeeds, if he is not granted bail the effect of the successful appeal will be nugatory or substantially nugatory.

4 The respondent opposes the application for bail but not the application for an urgent appeal order. It is said that the grounds of appeal are not strongly arguable.

5 Pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA), bail pending appeal can only be granted if the court is satisfied that there exists exceptional reasons why the appellant should not be kept in custody, and a grant of bail is otherwise appropriate having regard to cls 1 and 3 of pt C of sch 1.

6 It is not suggested that if exceptional reasons exist, it would be inappropriate to grant bail having regard to sch 1 and 3.

7 The bare facts of the offences are these. At about 9.12 pm on 15 July 2012, the appellant went through a red light at the intersection of Vahland Avenue and Leach Highway, Shelley. His vehicle, a Toyota Prado, collided with another vehicle. As a result of that collision, the driver of the other vehicle was killed and his sister, a passenger, suffered serious injuries, constituting grievous bodily harm. The learned sentencing judge in very thorough and careful sentencing remarks found that the appellant did not deliberately drive through the red light. Her Honour also found that he was not speeding, nor in any way affected by alcohol, nor was he fatigued. Her Honour said that the precise reason why the appellant drove through the red light would never be known, but the collision demonstrated an obvious lack of care and attention in driving.

8 The appellant is young and has excellent antecedents. He pleaded guilty at the first available opportunity and is very remorseful. He has no prior convictions of any kind.

9 The decisive issue is whether exceptional reasons exist for the grant of bail. A very significant factor is the prospects of success of the appeal. The appeal must be demonstrated at this early stage to have strong prospects of success: Caratti v The Queen [1999] WASCA 91 [11]; Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. Any view that I express as to the merits may change and it does not bind me or the court in the future.

10 Both parties have cited a number of sentencing cases concerning the offences of dangerous driving occasioning death or occasioning grievous bodily harm. It is clear to me that there is no tariff for these offences and that the cases are very fact sensitive.

11 On the material presently before the Court, I am persuaded that the grounds are such as to justify a grant of bail pending appeal. An additional relevant consideration to this decision is the relatively short nature of the sentence. It seems to me that unless bail is granted, the effect of a successful appeal might well be rendered nugatory or substantially nugatory.

12 The order that I make then is that the application for bail is allowed. There is no need for me to consider the alternative application for an urgent appeal order.