DEBONO -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 109 (1 August 2019)

(2) burglary in company and an associated stealing of watches from a Prouds Jewellers store at the same place and date;

(3) burglary in company and an associated stealing of watches from a Shiels Jewellers store on 1 May 2017; and

(4) attempting to pervert the course of justice between 7 and 24 May 2017 at Canning Vale.

1. On 13 June 2019, the appellant appeared before his Honour Judge Staude in the District Court. He pleaded guilty to all of the charges and was sentenced as follows:

No sentence, pursuant to s 11 of the Sentencing Act 1995 (WA)

No sentence, pursuant to s 11 of the Sentencing Act 1995 (WA)

1. His Honour ordered that the sentences on counts 2, 3 and 7 be served cumulatively and the other sentences be served concurrently. Thus, the total effective sentence imposed upon the appellant was 3 years' immediate imprisonment.[2]
2. His Honour ordered that the sentences commence on 23 December 2018 and that the appellant be made eligible for parole.[3] By my calculation, the appellant will be eligible for release on parole in mid2020.
3. On 24 June 2019, the appellant filed in person a notice of appeal against sentence. The appellant has not yet filed his appellant's case.
4. However, from his oral and written submissions in support of this application, his complaints may be distilled into the following prospective grounds of appeal:

(1) the term of imprisonment imposed for the offence of attempting to pervert the course of justice was manifestly excessive;

(2) his Honour failed to have regard to a relevant sentencing consideration, namely the time the appellant had spent in custody on other matters and, in particular, terms of imprisonment imposed in the District Court on 22 March 2018 and in the Magistrates Court on 27 March 2018 and 6 February 2019;

(3) the learned sentencing judge had been misinformed as to the appellant's length of time in the community after his release from prison in 2013;

(4) the appellant's counsel at the sentencing hearing failed to inform the court of a relevant sentencing consideration, namely that after the recent death of a friend, the appellant had not resorted to illicit drug use;

(5) the learned sentencing judge erred by not making a presentence order to allow the appellant to continue his rehabilitation at the Wandalgu residential support program;

(6) the learned sentencing judge erred in imposing terms of imprisonment having regard to the fact that he had been granted bail pending sentence from 24 January 2019 to the date of his sentencing and had during that time successfully engaged in rehabilitation at the Wandalgu residential support program; and

(7) the learned sentencing judge erred in his assessment of the time the appellant had spent in custody, such that the total effective sentence should have been backdated to commence earlier than 23 December 2018.

1. There was no dispute before the primary court as to the facts of the appellant's offending. They may be summarised as follows.
2. With respect to counts 1 and 2, on 28 April 2017, the appellant, in company with another, used a brick to smash the window of a KFC restaurant in Mirrabooka. The appellant and the cooffender then entered the premises and rummaged around an office.[4]
3. In relation to counts 3 and 4, on the same night, the appellant went to the premises of Prouds Jewellers in Mirrabooka in company with another. There, he and his cooffender smashed a window and entered the store. While in the store, 159 watches worth about $47,000 were stolen.[5]
4. With respect to counts 5 and 6, on 1 May 2017, the appellant broke into a shopping centre at Mirrabooka and smashed the window of Shiels Jewellers. Once inside the store, the appellant stole 52 watches valued at $17,089.[6]
5. Count 7 occurred while the appellant was on remand at Hakea Prison. During recorded telephone conversations with his mother, the appellant spoke to the cooffender with whom he committed counts 1 and 2. In one conversation with the cooffender, the appellant asked him to tell the police that the appellant had nothing to do with the offences and that the appellant would pay him money if he did so. In another recorded conversation, the appellant proposed that the cooffender make an affidavit saying that the appellant was not present when the offences described in counts 3, 4, 5 and 6 were committed.[7]
6. It is clear that the offences committed by the appellant were particularly serious. The burglaries were calculated, committed at night and involved the theft of a substantial amount of property, in respect of the jewellery stores. The attempt to pervert the course of justice involved a degree of persistence.
7. At the time he was sentenced, the appellant was 35 years of age. He has what his Honour described as a long and significant history of prior offending, including other burglary offences.[8]
8. His Honour observed that the appellant's offending behaviour related to his illicit substance use, negative peer associations, unstable mental health, poor problem solving, poor impulse control, poor emotional regulation, poor coping and poor consequential thinking skills.[9]
9. It is clear from the sentencing remarks that the learned sentencing judge was well aware of the appellant's most recent attempts at rehabilitation and accepted that he had successfully engaged in residential rehabilitation at the Wandalgu residential support program.[10] The learned sentencing judge gave the appellant credit for his pleas of guilty,[11] and for the steps that he had taken towards his rehabilitation.[12] It is evident that his Honour extended leniency towards the appellant, having regard to this latter point.
10. His Honour said he considered whether it was appropriate to make a pre-sentence order. However, having regard to, in particular, the seriousness of the offences, the need for public protection and the requirement to impose sentences which reflected both personal and general deterrence, his Honour considered that the only appropriate penalties for counts 1, 2, 3, 5 and 7 were terms of immediate imprisonment.[13]
11. The appellant, who was selfrepresented before me, submitted that bail pending appeal should be granted, because he should be permitted, at least, to complete the rehabilitation program he had embarked upon before he was sentenced and, further, that his prospective grounds of appeal have merit.
12. The principles relating to bail pending appeal are wellknown. Clause 4A of pt C of sch 1 of the Bail Act creates a rebuttable statutory presumption against the grant of bail.
13. Bail can only be granted if the court is satisfied of two matters. First, it must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Second, bail must be appropriate, having regard to the provisions of cls 1 and 3 of pt C of sch 1 of the Bail Act.
14. The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some ways special, or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case.
15. In this case, because the context of the application for bail is an appeal, the focal point must be on the merits of the appeal. Of course, other matters may be considered. So far as the merits of the appeal are concerned, I consider that it is necessary for the appellant to show, without detailed argument, that the appeal has strong, arguable grounds. The many cases in this area reveal various formulations, although I do not regard them as being materially different to the one I have just stated.
16. Whatever the formulation, each one is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction or sentence. See KWLD v The State of Western Australia [No 2].[14]
17. Let me turn to the appellant's submissions.
18. As to the desire of the appellant to complete the residential rehabilitation program in which he participated prior to his sentencing, while understandable, it is an insufficient basis to justify a grant of bail pending appeal.
19. Although the appellant appears to have done well in his residential rehabilitation program, his rehabilitation is but one of a number of relevant sentencing considerations, including the serious nature of the offences, and the need to provide a proper level of personal and general deterrence.
20. On a preliminary basis, it appears that it was well open to the sentencing judge to conclude that, notwithstanding the appellant's rehabilitative efforts, the only appropriate penalty to be imposed upon the appellant were terms of immediate imprisonment.
21. As to the appellant's prospective grounds of appeal, as I have already noted, the appellant has not yet filed an appellant's case. Based on his written and oral submissions in support of this application, none of the prospective grounds appear to be sufficiently strong, save for the ground relating to backdating. As to this, the State acknowledges that his Honour was not provided with complete or accurate information, and that the total effective sentence should have been backdated by an additional 25 days or so.[15]
22. On the assumption that this ground succeeds, it would not automatically result in the imposition of a lower total effective sentence. It may be that this court would impose no different sentence other than to change the date on which the total effective sentence commenced.
23. For these reasons I am not satisfied that the appellant has established that exceptional reasons for a grant of bail pending appeal exist. Accordingly, the application for bail pending appeal must be refused.
24. This leaves the appellant's application for an urgent appeal order. In my opinion, this application should be granted. I do so primarily because the date on which the total effective sentence was ordered to commence appears to be erroneous, and that error should be corrected as soon as possible.
25. Further, the information that I have indicates that the appellant's place at Wandalgu is not open indefinitely.
26. I dismiss the application for bail pending appeal, but I grant the application for an urgent appeal.

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

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] Debono v The State of Western Australia [2018] WASCA 208.

[14] KWLD v The State of Western Australia [No 2] [2013] WASCA 129 [23] [25].