Criminal law and procedure - Bail - Application for bail pending appeal against sentence - Second breach of Intensive Supervision Order - Original offence of attempted robbery - 14 months' immediate imprisonment - Whether sentence manifestly excessive - Prospect of success - Delay before hearing of appeal - Whether exceptional reasons appellant should not be kept in custody pending appeal

Bail Act 1982 (WA), cl 4(b), Pt C, Sch 1

Duong v The State of Western Australia [2005] WASCA 148

Fermanis & Mitchell v The State of Western Australia [2005] WASCA 212

R v Tieleman [2004] WASCA 285; (2004) 149 A Crim R 303

R v Wroblewski (1999) 105 A Crim R 129

Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stalker v The Queen [2002] WASCA 364

Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

1 ROBERTS-SMITH JA: This is an application for bail pending appeal. The applicant was sentenced by Miller J on 1 November 2005, on his plea of guilty to a breach of an intensive supervision order, to a term of 14 months' immediate imprisonment. The sentence was imposed in respect of an original offence of attempted robbery.

2 By appeal notice filed 18 November 2005 the applicant sought leave to appeal against that sentence. The applicant's case was filed on 16 December 2005. On 5 January 2006 I granted leave to appeal on the papers. The applicant's bail application was filed on 16 December 2005, supported by an affidavit of the applicant also sworn and filed that day.

3 The affidavit is brief. The applicant deposes in substance that he acknowledges that under the relevant provisions of the Bail Act 1982 (WA), namely cl 4(b), (c) and (d) of Pt C of Sch 1, it is clear that the onus is upon him to show exceptional reasons why he should be granted bail and he says that the exceptional reasons upon which he relies are these: first, that his appeal has a real prospect of success; secondly, that should his appeal be successful it is sought by way of orders that either a lesser immediate sentence of imprisonment than 14 months be imposed or a suspended term of imprisonment be imposed in relation to the 14-month term or a lesser term; thirdly, that if a lesser term of immediate imprisonment is imposed then it is likely that he will serve beyond the non-parole period of the term imposed before his appeal is finally determined, whether that is release on parole pursuant to s 93(1)(a) of the Sentencing Act 1995 (WA) or CEO parole, Pt 3 Div 4 of the Sentence Administration Act WA 2004 (WA); fourthly, he says that if a suspended term of imprisonment is imposed in relation to the 14-month sentence or a lesser term, the practical effect of having spent time in custody from the date of sentence to the final determination of the appeal may result in double punishment and additionally render the appeal futile.

4 Finally, he deposes that if released to bail he would live at 5 Shapwick Approach, Brighton, in Western Australia which is his mother's residence, that he is able to provide a surety in the sum of $5000, and that he intends to return to full-time employment as a deckhand. I note in passing that that is a mere statement of intention. There is no indication given by the applicant of what opportunities in fact are available to him in that regard.

5 The applicant's case sets out one ground of appeal which is that the sentence imposed was manifestly excessive. There are five particulars to that ground. They are that his Honour:

(1) Failed to apply the transitional provisions in relation to the immediate sentence;

(2) Did not fully appreciate the combined sentencing effect of the periods the appellant had previously spent in custody on remand in relation to the offence and the imposition of the immediate sentence;

(3) Imposed a sentence for the offence which was not commensurate with the seriousness of the offence;

(4) Placed too much weight on the fact that the appellant had twice breached community orders imposed for the offence as an aggravating factor; and

(5) Placed insufficient weight on matters raised both in mitigation and on behalf of the appellant by his counsel and subjective matters raised by the author of the written pre-sentence report.

6 As I have already noted and as the applicant acknowledges, cl 4 of Pt C of Sch 1 to the Bail Act stipulates that in deciding whether or not to grant bail to an offender awaiting the disposal of appeal proceedings a Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody, and even if there are, then shall grant bail only if satisfied bail may properly be granted having regard to the provisions of cl 1 and cl 3 of that part. These are the provisions which set out the general considerations relevant to any application for bail.

7 It is, I think, clear enough that where the prospect of success of an appeal is one of the matters relied upon as establishing exceptional reasons the law is that something more than an arguable case must be shown. Indeed, something more than the fact, if it be so, that the appeal has a reasonable prospect of success must be shown, that being the test which applies to appeals under s 27 of the Criminal Appeals Act 2004 (WA).

8 On a bail application where one is concerned with the prospect of success as a proposed exceptional reason for granting bail it must be shown without detailed argument that the appeal is "most likely to succeed"; see Stalker v The Queen [2002] WASCA 364 at [19] to [40]. The principle was again explained in R v Tieleman [2004] WASCA 285; (2004) 149 A Crim R 303, where Murray J (with whom Steytler and Templeman JJ agreed) said that bail would be granted ordinarily only if the applicant could demonstrate there were "strong grounds" for concluding the appeal would succeed and that the sentence - or at least the custodial part of it - was likely to have been substantially served before determination of the appeal.

9 I deal first with the prospects of success. It is apparent from what I have already said that the fact that leave to appeal has been granted in respect of the sole ground of appeal does not mean that the appeal necessarily has such a high prospect of success either of itself or in combination with other factors to constitute an exceptional reason why the applicant should not be kept in custody pending the hearing of his appeal.

10 As I have mentioned, s 27(2) of the Criminal Appeals Act stipulates that the Court of Appeal must not give leave to appeal on a ground of appeal unless satisfied the ground has a reasonable prospect of success. The application of this test was explained by the Court of Appeal in Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [56] to [59]. To constitute exceptional reasons for the purposes of an application for bail pending appeal the prospects of success must cross a higher threshold in the way I have explained.

11 I explained the distinction and the reasons for it in Fermanis & Mitchell v The State of Western Australia [2005] WASCA 212 at [13] to [17]. I said there that there is in my view no particular distinction between expressions such as "most likely to succeed" and "strong grounds for concluding the appeal would be allowed." Neither purports to set some specific threshold of potential success. In context each is predicated upon the notion that the prospect of success must be sufficiently likely as to give rise to a real concern that the applicant would suffer an injustice by having been kept in custody on an unsound conviction or sentence.

12 Particular 1 is that his Honour failed to apply the transitional provisions in relation to the immediate sentence. There can be no dispute that his Honour was obliged to apply cl 2(1) of Sch 1 of the Sentencing Legislation (Amendment and Repeal) Act 2003 (WA) ("the Amending Act") which required that the fixed term imposed must be two-thirds of the fixed term that would have been imposed for that offence prior to 31 August 2003.

13 It is apparent from a reading of the transcript that Miller J, in imposing the immediate term of 14 months' imprisonment, made no express reference to the application of the transitional provisions in cl 2(1) of the Amending Act. However, as Mr Dempster for the respondent submits, there is no requirement that a sentencing Judge state expressly that he or she is applying cl 2(1). The statutory obligation is simply to apply it; (Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 per Steytler P at [28] and Pullin JA at [56] and [80] - [81]).

14 The question here then is the extent to which, if at all, the appeal is likely to succeed on the basis of the contention that his Honour failed to do so. I do not consider there is any appreciable prospect this argument would succeed.

15 At t/s 19, his Honour specifically refers to what he describes as "the current regime" of sentencing, observing that the 61/2 months approximately which the applicant had spent in custody in relation to the matter had to be taken into account and that period equated to just one year and one month in terms of sentencing under the current regime.

16 That was an appropriate reference to the statutory sentencing position since 31 August 2003. His Honour therefore clearly had it in mind, and this particular is not likely to succeed. It follows from the foregoing, however, that the sentence his Honour imposed was equivalent to one of 21 months imposed prior to 31 August 2003.

17 Particular 2 is that his Honour did not fully appreciate the combined sentencing effect of the periods the applicant had previously spent in custody on remand in relation to the offence and the imposition of the immediate sentence.

18 As I have just noted, his Honour expressly referred to the time the applicant had spent in custody. He correctly observed that the 61/2 months was approximately equivalent to a term of 13 months under the current sentencing legislation.

19 This particular asserts that he failed to appreciate that a 7 month prison sentence, as the applicant claims - the State Prosecutor before Miller J said on her calculations it was closer to 6 months - is equivalent to a pre-August 2003 sentence of 21 months' imprisonment. This is a claim of specific error in the exercise of the sentencing discretion.

20 I do not consider this argument to have any significant prospect of success on appeal. His Honour was not obliged to constantly translate periods of imprisonment to or from pre or post-August 2003 terms.

21 Particular 3 seeks to build on the applicant's previous argument. Particular 3 is that his Honour imposed a sentence for the offence which was not commensurate with the seriousness of it. The starting point of this submission is that his Honour effectively sentenced the applicant to a term of 28 months - 2 years 4 months - with parole, under the present sentencing regime or one equivalent to an effective term of 42 months - 3 years 6 months - with parole, under the pre-August 2003 regime.

22 It can be accepted that the overall term of imprisonment to which the applicant was sentenced was 14 months plus 13 months (or one month more as the applicant contends). For present purposes I will proceed on the assumption that the figure of 28 months advanced by the applicant is correct and, as the applicant submits, that combination would be equivalent to a sentence of 42 months, or 3 years 6 months, prior to 31 August 2003.

23 The applicant's submissions then are that following the applicant's plea of guilty to attempted robbery, contrary to s 392 and s 552 of the Criminal Code, on which he faced a maximum term of imprisonment of seven years, the effective sentence imposed by his Honour was half the statutory maximum.

24 The applicant's counsel, Mr Rebbeck, then refers in his outline of submissions to the following circumstances. The offence occurred on 28 April 2004. Miller J restated the facts of the offence at t/s 18 in the following terms:

"That offence occurred at the Breakwater Tavern on West Coast Drive, Hillarys, where you had been consuming alcohol in the evening with a male acquaintance. The complainant, a lady named Donna Hodson, was at the tavern and she went to the automatic teller machine to withdraw some money. You stood behind her and as she left the ATM you said to her, 'Give me your cash or I'll slit your throat.' There was no-one else within hearing distance but she was shocked and turned around, saw you standing behind her and she was scared because she thought you meant what you said. Her husband came along and you then walked away."

25 Counsel submits that by the very nature of the offence the applicant did not obtain any property, that he did not use actual violence; it was the accompanying threat which involved the element of violence, that he was not armed so as to make good his threat and there was no action or suggestion by the applicant that he had any intention or actual or present ability to carry out his threat.

26 Furthermore, it is submitted that following the making of the threat the applicant walked off, did not continue to threaten the victim or anyone else and did not make any attempt beyond his demand that she give him her cash, to obtain her property. The impact on the victim was that she felt shocked and scared although her husband and other persons were nearby at the time. Finally, the applicant was extremely intoxicated at the time of the offence.

27 There is, in my view, a strong prospect that the ground of appeal would be upheld in this particular but whether, if it were to succeed, it would result in the substitution of a sentence of suspended imprisonment or a reduced immediate term is a different question.

28 I come to particular 4. That is that the sentencing Judge placed too much weight on the fact that the applicant had twice breached community orders imposed for the offence, as an aggravating factor.

29 The history of the matter was outlined by Miller J on 1 November 2005. At the outset of his sentencing remarks his Honour said that the applicant had pleaded guilty to breaching an intensive supervision order which had been imposed by Murray J on 10 February 2005.

30 That order had been imposed after the applicant's previous breach of a previous intensive supervision order which had been imposed by me and hence, as his Honour said, the applicant had been given two opportunities to comply with intensive supervision orders for the offence of armed robbery which occurred on 28 April 2004. His Honour then recounted the facts as I have described them.

31 His Honour then noted that the applicant had breached the two intensive supervision orders by failing to comply with each of the three requirements of supervision, the program requirement and the community service requirement. He noted that when Murray J dealt with the applicant on 10 February 2005, he said, after imposing the intensive supervision order on that occasion (t/s 9):

"So this time I tell you that you are now looking directly at the prison door and I can promise you that if you come back before this court again it will open and shut with a clang and you will be on the other side. You understand me now, I hope."

32 Miller J noted that the applicant then said, yes, he did understand, and Murray J then ordered his release on the intensive supervision order. Miller J then went on to say that in those circumstances he felt that his hands were tied. He could of course, he said, give the applicant another intensive supervision order, but the pre-sentence report which he had received rather suggested that he had had every chance he could really be given in that respect.

33 His Honour went on to say that he knew that the applicant had problems but the fact of the matter was, according to the pre-sentence report, he had exhibited a reticence to accept responsibility for his choices. He had given the impression that his provision of daily needs was the responsibility of others. His Honour then quoted from the pre-sentence report the following passage (t/s 19):

"He exhibited little interest in taking advantage of the resources offered. In fact, he displayed minimal interest in accessing extensive support and guidance from this department. It is the writer's assessment that the risk he poses to the community remains very high."

34 His Honour noted the recommendation that the applicant should be released on parole were he to be imprisoned and his Honour expressed agreement with that recommendation. He then said that taking all of those factors into account, he had come to the conclusion that he had no option other than to sentence the applicant to imprisonment.

35 He noted that he had been asked to suspend that, but said he took the view the original offence was a serious one and that having been given two opportunities, there was only one disposition which was open and that was to impose a sentence of imprisonment to be served immediately.

36 The applicant first submits that there is nothing in the Sentencing Act which mandates that if an offender breaches a community order twice, they must be imprisoned. Furthermore, it is submitted that the Act does provide in s 7(2)(c) that an offence is not aggravated by the fact that a previous sentence has not achieved the purpose for which it was imposed.

37 It is true that the Sentencing Act does not compel a court to imprison an offender who has breached a community based order twice.

38 There are separate statutory provisions, albeit in essentially the same terms, for breach of a community based order by reason of the commission of a subsequent offence or for breach by way of non-compliance with conditions. The former is s 130 and the latter is s 133 of the Sentencing Act, but in neither case is there any statutory limitation on the number of times a court may confirm or amend such an order following breach of it. Nor indeed is there any restriction on the imposition of other sentencing dispositions which would otherwise have been available.

39 I think the second aspect of the applicant's submission here, that s 7(2)(c) of the Sentencing Act operated to preclude his Honour taking into account as an aggravating factor the fact that the previous intensive supervision orders had not achieved the purpose for which they were imposed, is not likely to be sustained. That subsection I think is there talking about previous sentences for different offences.

40 It cannot be correct to say that an offender's unsatisfactory conduct on an intensive supervision order cannot be taken into account when a subsequent court is dealing with him for breach of it. Indeed, there is no doubt the law is otherwise.

41 In R v Wroblewski (1999) 105 A Crim R 129 the Court of Criminal Appeal of this State held that in circumstances in which an offender, who has previously been placed upon a community based order, is required to be re-sentenced because of a breach of the order, then his or her conduct since the original sentence was imposed is relevant as such conduct forms part of his or her antecedents at the time of recontending. Of course, while conduct subsequent to the commission of an offence is relevant to recontending, the court cannot seek to punish the offender for subsequent activities which have not themselves resulted in any conviction as a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime committed in the light of its objective circumstances.

42 In recontending, the sentencing Judge in that case was entitled to look at matters personal to the applicant as they appeared at the time at which she had to re-sentence him, giving credit for matters of mitigation that may have arisen between the first sentence and re-sentence and determining whether it was still appropriate to extend to the applicant full credit for what were prima facie reasons to mitigate the sentence on the earlier occasion. If an offender's conduct since the original sentence shows that he was not in fact remorseful or intent on rehabilitation or determined to "turn over a new leaf", the sentence to be passed on recontending should reflect those matters.

43 In his written submissions the applicant's counsel concedes that the fact that the applicant did breach two intensive supervision orders for the same offence would suggest that for practical purposes that is perhaps no longer an appropriate sentencing option, but contends that it does not follow from the deletion of a further intensive supervision order as an option that immediate imprisonment is the only sentence. The submission is that to do so ignores the existence of a suspended sentence of imprisonment as a sentencing option.

44 It is further submitted that the approach taken by his Honour effectively concentrated on punishing the applicant for his non-compliance rather than the original offence and that punishment for non-compliance is distinct from punishment for the offence. That submission, I think, is dealt with by what I have already stated in relation to Wroblewski. As a statement of principle though, what the applicant's counsel says about the continuing availability of other sentencing options must be correct, but the question is whether or not his Honour did punish the applicant for non-compliance as distinct from the original offence.

45 His Honour clearly had regard to the submissions then advanced on behalf of the applicant, that any sentence of imprisonment should be suspended. At 19 of the transcript he expressly refers to that submission having been made to him, as I have already noted, but then expressed the view that the original sentence was serious and that having been given two opportunities there was only one disposition which was open to his Honour, namely, that which Murray J had foreshadowed.

46 The circumstances of the offence of attempted robbery were serious and when sentencing initially I considered an intensive supervision order appropriate because of the applicant's antecedents and personal factors going to mitigation. Miller J took the view, with the benefit of knowledge of the applicant's conduct on both the intensive supervision orders, that the promise of rehabilitation held out on behalf of him originally had been shown to lack substance. The Court of Appeal might be difficult to persuade that his Honour erred in that respect, or that a disposition other than immediate imprisonment would have been appropriate once that underpinning mitigating feature was removed by the applicant's own subsequent conduct.

47 That brings me to particular 5 which is that his Honour placed insufficient weight on matters raised both in mitigation on behalf of the applicant by his counsel and subjective matters raised by the author of the pre-sentence report. The pre-sentence report was dated 15 September 2005. It is not necessary for me to refer to it in any particular detail save that in relation to the applicant's explanation for failing to comply with the terms of the intensive supervision orders, he is reported as stating that he had been unable to comply given that his accommodation situation was unstable and he lived in the bush for a few months, saying that as he was homeless he was therefore unable to claim Centrelink benefits. The author of the report notes that notwithstanding the two "generous opportunities" extended by the court for the applicant to address the issues in his life, he had not utilised the extensive resources offered.

48 The report sets out in some detail the applicant's antecedents and personal circumstances.

49 Initially he was living with his stepfather who was reported to be taking large amounts of medication for pain management which affected his behaviour. Consequently it is said that the applicant and his stepfather had a disparity of views and the applicant was required to leave the house. He was then living in shared accommodation until his house-mate attempted suicide and he had to leave.

50 As he had no income and no savings to secure his own accommodation, he and his brother were living in the bush for a few months. He told the author of the report that his stepfather would bring them food every few days although they were not welcome to live with him. The author says it is not known if there was another explanation for this deterioration in their relationship.

51 Under the heading "Summary" the author noted that previous reports had highlighted the tremendous fear, stress and upheaval that the applicant's family had experienced over the years, including his mother's drug abuse and her associated behaviour which had included violence and threats by intimidating people. Nonetheless, the author noted the applicant appeared to exhibit a reticence to accept responsibility for his choices and gave the impression that providing for his daily needs is the responsibility of others.

52 The author went on to say that the Court gave these matters considerable prominence and extended him two generous opportunities to address these issues. His management plan was to attend substance abuse counselling, psychological counselling, and failing that a group program facilitated by the department to address the underlying issues of his offending behaviour. However, he exhibited little interest in taking advantage of the resources offered. In fact, he displayed minimal interest in accessing extensive support and guidance from the department and it was the writer's assessment that the risk that he poses to the community remained very high.

53 Miller J did not specifically mention the matters personal to the applicant, but again he did have the pre-sentence report before him and had regard to it. He said he knew the applicant had problems but went on to advert to the comments in the report which I have mentioned. The single factor which might have been thought to carry significant mitigating weight was that the applicant's failure to comply with the conditions of his intensive supervision orders was on each occasion said to be due to him being homeless and living rough in the Gnangara pine plantation at the time.

54 However, although that explanation was advanced by the applicant's counsel it was not developed. There was nothing put to his Honour to explain how or why that impacted on the applicant's ability to comply with the conditions. The Court of Appeal may find it difficult to determine how the plain fact of the applicant being homeless without more would necessarily have had to carry substantial mitigation.

55 Overall, so far as the prospects of success on this appeal are concerned, I consider there is a reasonable prospect the ground would succeed on particulars 3, 4 and 5 in combination, which is why I granted leave to appeal, but I am not persuaded the prospect of the Court of Appeal ordering that a suspended sentence be substituted is particularly strong. There is, I think, a much more likely prospect that if the applicant were to succeed on his appeal the Court would substitute a shorter term of immediate imprisonment.

56 That then brings me to the aspect of delay. In Duong v The State of Western Australia [2005] WASCA 148, I explained the effect of delay in this context in the following way at [12] and [13]:

"12 The consideration that the custodial portion of a sentence will likely be served or largely be served before the appeal is heard may have greater weight as going to the 'exceptional reasons' requirement in a case in which the appeal is against sentence, and the ground is that some disposition other than an immediate term of imprisonment ought to have been made. That point was recognised by White J in R v Walser (1994) 73 A Crim R 154 in which his Honour referred to a number of authorities on the question of exceptional reasons, or exceptional circumstances, beginning with Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514.

13 In relation to the point to which I just referred, his Honour noted at 158 of Walser that in the context of the case before him, which was that of an effective four and a half months' imprisonment, the applicant would have served at least three months by the time his appeal was heard and possibly even more, and as the appeal was predicated upon the submission that a non-custodial penalty was an appropriate disposition, refusal to grant bail at that stage would very largely, in his Honour's opinion, render the appeal nugatory. In his opinion that fact constituted an exceptional reason at least in the case of an appeal against sentence."

57 The gravamen of the effect of delay in this context is related directly to the prospect of success. That is because delay, or more accurately the lapse of time between the date the sentence commenced and that of the hearing of his appeal, will bear upon the question whether he should be released on bail pending the hearing of his appeal only if the likelihood of his appeal succeeding and either a suspended sentence or a substantially reduced immediate term being given, is so strong as to raise a very real concern that not releasing the applicant on bail would result in an injustice.

58 The applicant was sentenced on 1 November 2005 and his term of imprisonment ran from that day. It is now 9 January 2006. I am informed by the Court of Appeal Office that his appeal is likely to be listed for 7 March 2006. By then he will have served 4 months of his term. He is required to serve 7 months before he would become eligible for parole. I do not see there being such a prospect that if his appeal were to succeed the Court of Appeal would substitute a sentence requiring him to serve an actual custodial sentence of four months or less to raise the concern I have mentioned.

59 I am accordingly not satisfied the applicant has demonstrated there are exceptional reasons he should not be kept in custody pending the hearing of his appeal. The application will accordingly be dismissed.