File No : PE 65492 of 2009, PE 65493 of 2009, PE 65494 of 2009, PE 65495 of 2009, PE 65496 of 2009, PE 65497 of 2009, PE 65498 of 2009, PE 65499 of 2009, PE 65500 of 2009

Appeal - Application for leave to appeal - Appeal against sentence - Bail pending appeal - Conviction for unlawful damage - Graffiti - Sentence of 7 months immediate imprisonment

$2,000 personal undertaking with a surety of $2,000

Gherardi v Pedder [2007] WASC 242

1 EM HEENAN J: I am sitting to consider an application for leave to appeal and an application for bail pending appeal by Gareth Thomas Jones. On 4 December 2009 before his Honour, Mr Tarr, stipendiary magistrate, in the Magistrates Court at Perth, Gareth Jones pleaded guilty to activities involved in unlawful graffiti work in the Perth central business district.

2 The circumstances were that at about 8.40 pm on Thursday, 10 September 2009, Jones and a friend, Morris, were in the central business district of Perth, in the Murray Street Mall. While there, over a period of a comparatively short time, they placed graffiti marks on a variety of properties. They were arrested at the location and they were found to be in possession of graffiti equipment.

3 When he came before the Magistrates Court on 4 December 2009, Jones was sentenced to periods of seven months' imprisonment, for each of the offences, or most of them, and these sentences were ordered to be served concurrently. He has been in custody since. He was 23 years of age, employed, in a stable relationship with a girlfriend, but had a prior record which included offences for damage involving graffiti in the past.

4 At present there is no transcript available of the sentencing hearing in the Magistrates Court at Perth and it is therefore not possible to examine in any detail the reasons given by the learned magistrate for the sentences which were imposed. Despite that, the appeal notice which has been filed, and in respect of which leave to appeal is being sought, advances the following proposed grounds of appeal: (1) the learned magistrate erred in law by failing to give adequate consideration to sentencing options other than immediate imprisonment and failed to give adequate consideration to suspending the sentence of imprisonment; (2) the learned magistrate erred in law in imposing a sentence for offending of this type, the circumstances of the offences and the personal circumstances of the offender.

5 The question of bail pending appeal must be seen in the light of the prospects of the appeal itself, and in that regard I turn to the submissions which have been filed on behalf of the appellant. I have been referred to Murray v Winstone, SJA 1087 of 2008, and Murray v Wright, SJA 1088 of 2008, where a magistrate imposed a total of 11 months' imprisonment for wilful damage, trespass and unlawful damage, all relating to graffiti damage. On the ensuing appeal counsel for the Director of Public Prosecutions conceded the appeal. That offender was resentenced in October 2008 to a 12-month conditional release order.

6 In another case, Gherardi v Pedder [2007] WASC 242, a $3,000 fine for graffiti damage was reduced on appeal to a $1,500 fine, and in [54] of the reasons for decision the court indicated that undue or inordinate emphasis had been given to the general deterrence factor in that sentencing.

7 This applicant for leave to appeal and for bail has only a short record. If allowed bail, he proposes to live with his parents in the family home and, as I mentioned, he has a stable relationship with a girlfriend of two years and has recently been employed. If granted bail, he intends to live with his parents at the family home in Mount Nasura, and one of his parents is willing to be his surety.

8 Having regard to cases to which I have been referred dealing with convictions for graffiti damage, and even in the absence of the advantage of considering his Honour's reasons for the sentences which were imposed in this case, I consider that I must regard this appeal as having reasonable prospects of success and for that reason that leave to appeal should be granted.

9 Accordingly, I will grant leave to appeal in respect of the grounds of appeal specified in the appeal notice. I will direct that an appeal book is not required to be lodged. I will order that within 14 days of today the appellant is to lodge and serve an entry for hearing containing (a) an estimated time for hearing and (b) a list of unavailable dates of counsel, and I direct that the parties must comply with the consolidated practice directions published on 22 January 2009, pt 2, entitled 'Submissions Of Authorities'. These are available at the Supreme Court website on the address which is given in the minute of proposed orders which has been put to me.

10 Having satisfied myself that there is arguable grounds for appeal against the sentences, I turn to the question of bail. I have already recited the personal circumstances of this offender and the arrangements proposed if he were to be released on bail. It seems to me that this is an occasion when bail should be granted and the only question is in relation to the terms. It has been submitted on behalf of the Director of Public Prosecutions for the respondent that there should be a curfew condition imposed requiring him to remain in the family home between the hours of 10.00 pm and 6.00 am each night and that he should not associate with the co-offender Morris while on bail.

11 In relation to those proposed conditions it is pointed out on behalf of Mr Jones that he has regular employment as a disc jockey at a nightclub and that to submit to a curfew would in practical ways eliminate that as a prospect of employment. It seems to me that this condition, and indeed the other condition, are designed principally to minimise the risk of further offending or to prevent any association between Jones and Morris pending the outcome of these proceedings. In relation to that I should remark that the appeal for which leave is sought is an appeal against sentence and not conviction and that the co-offender Morris appears to have been finally dealt with by the court. So there is no danger of any trial being subverted.

12 There is no suggestion that any condition was placed on Morris that he should not consort with Jones, and although Mr Jones has no objection to the imposition of this condition, it does not appear to me to be warranted. Similarly, I do not consider that it is necessary to impose a curfew element. If he happened to commit an offence whilst on bail, well, then that would be a circumstance of aggravation leading to the probable revocation of bail and a more serious penalty to be imposed for the offence committed while on bail.

13 Accordingly, I will grant bail on a $2,000 personal undertaking with a $2,000 surety and on the condition that Jones reside at 14 Wangoola Terrace, Mount Nasura, with his parents until further order, and I will grant liberty to apply in relation to the terms of bail.