(These reasons were delivered extemporaneously and have been edited from the transcript.)
[2]
The appellant was charged on indictment with two counts.
Count 1 alleged that on 2 February 2019 at Northbridge, the appellant, Cody McDonald and Daniel Birdsall unlawfully assaulted James Robert Holgate and thereby did him bodily harm, contrary to s 317 of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place, the appellant stole a mobile telephone the property of Mr Holgate, contrary to s 378 of the Code.
The appellant, Mr McDonald and Mr Birdsall pleaded guilty to count 1. The appellant also pleaded guilty to count 2.
On 15 December 2020, Troy DCJ sentenced each of the appellant, Mr McDonald and Mr Birdsall to 11 months' immediate imprisonment on count 1. His Honour sentenced the appellant to 3 months' immediate imprisonment on count 2. His Honour ordered that the sentences imposed on the appellant be served concurrently. Accordingly, the total effective sentence imposed on the appellant was 11 months' immediate imprisonment. A parole eligibility order was made in relation to each of the appellant, Mr McDonald and Mr Birdsall.
The appellant has appealed against sentence to this court. He has yet to file his appellant's case. However, the appellant has indicated that he proposes to rely upon three grounds of appeal. First, the sentencing judge erred in his characterisation of the seriousness of the harm caused to the victim. Secondly, the sentences of immediate imprisonment were manifestly excessive as to type. Thirdly, the sentences infringed the parity principle.
The appellant has made an application in his appeal for an order that he be granted bail pending the determination of his appeal.
The State opposed the application for bail. The State submitted, in essence, that his Honour did not make any of the errors alleged in the proposed grounds of appeal.
The facts and circumstances of the offending were, in summary, as follows.
At about 1.40 am on 2 February 2019, Mr Holgate left the Brass Monkey Hotel in Northbridge to go home. The appellant, Mr McDonald and Mr Birdsall had been in a Mercedes sedan. An unknown male had sat on the bonnet of the sedan and had snapped the badge from the vehicle. The appellant, who had been driving the Mercedes sedan, alighted from the vehicle and confronted the unknown male. The appellant then returned to the sedan, and drove it for a short distance before stopping. The appellant again alighted from the vehicle. Shortly afterwards, Mr McDonald and Mr Birdsall also alighted. They punched the unknown male who had snapped the badge from the vehicle. The altercation then broadened to include a group of women. At that stage the appellant discovered that he had lost a gold chain which was of sentimental value. The appellant accused one or more of the women of taking the chain. He grabbed a handbag from one of the women and refused to return it. The confrontation escalated.
None of the events or circumstances which occurred prior to the offenders' interaction with Mr Holgate were the subject of any charges.
Mr Holgate saw the confrontation developing. He used his mobile telephone to take a photograph or make a video clip of the scene. Shortly afterwards, he began following the offenders' Mercedes sedan. Mr Holgate used his mobile telephone to take or attempt to take a photograph of the sedan. At that stage the appellant, Mr McDonald and Mr Birdsall were in the sedan and were traveling along the street. The Mercedes sedan then stopped. The offenders emerged from the vehicle. They had seen Mr Holgate using his mobile telephone to make a video of them and to take or attempt to take a photograph of their vehicle. The offenders confronted Mr Holgate. They were angry. Mr McDonald punched Mr Holgate to the face and wrestled with him. Mr Holgate's mobile telephone fell to the ground. Mr Birdsall also punched Mr Holgate and called him a snitch. The appellant picked up Mr Holgate's telephone. The appellant refused to return the telephone to Mr Holgate even though Mr Holgate promised he would delete the photograph he had taken of the Mercedes sedan. Shortly afterwards, police officers arrived. The appellant and Mr Birdsall were arrested. Mr McDonald had already departed.
Mr Holgate was taken to hospital by ambulance. He suffered a fracture to the left maxillary bone of his face. This injury was treated conservatively. He also suffered a swollen and bruised left eye and scratches and bruising to his arms and body. His Honour expressed the view that the injuries suffered by Mr Holgate were 'towards the higher end of the range that one might see as bodily harm as opposed to grievous bodily harm' (ts 46).
The sentencing judge found that the offending was not premeditated. It was, however, unprovoked. Mr Holgate was vulnerable because he was attacked by three people. His injuries were very unpleasant and they would have been very painful.
His Honour allowed each of the offenders a discount of 12.5% on the head sentence his Honour would otherwise have imposed for each offence, pursuant to s 9AA of the Sentencing Act 1995 (WA).
After noting the personal circumstances and antecedents of each of the offenders, his Honour imposed the sentences which I have mentioned.
The principles relating to the granting of bail pending the determination of an appeal are well-established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act; Milenkovski v The State of Western Australia;[1] Timbrell v The State of Western Australia.[2]
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.
In Peters v The State of Western Australia,[3] McLure P observed, in the context of an appeal against conviction:
[3]
It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
[4]
In the present case, I will deal with the appellant's application for bail by considering whether he has a strongly arguable case that a different sentence should have been imposed. See s 31(3) read with s 31(4) of the Criminal Appeals Act 2004 (WA).
I am satisfied at this stage (based on the information before me and having regard to the submissions made on behalf of the appellant and the State) that the appellant has a strongly arguable case, on the basis of the proposed parity ground, that a different sentence (including a different type of sentence) should have been imposed. Also, I am satisfied at this stage that the appellant has a reasonable prospect of success based on the proposed manifest excess ground.
As to the proposed parity ground:
[5]
(a) At the time of the offending, the appellant was aged 19 years. He did not have a prior criminal record as an adult. The appellant committed some relatively minor offences as a juvenile. He did not offend while he was on bail for 22 months prior to sentencing. His Honour found that the appellant had assisted his mother in the upbringing of his siblings 'in a way that has no doubt been helpful and responsible' (ts 49). The appellant has no drug or alcohol issues. He has been employed from time to time since leaving school in year 9. The appellant did not punch or assault Mr Holgate. His criminal responsibility for the offence of unlawfully assaulting Mr Holgate, and thereby doing him bodily harm, arose by operation of s 7 of the Code in that the appellant's presence at the scene of the assault constituted encouragement and thereby aiding of Mr McDonald and Mr Birdsall. The appellant stole Mr Holgate's mobile telephone, but the telephone was recovered by the police after a short period. The appellant participated in an electronically recorded interview with the police and made some admissions.
[6]
(b) Mr McDonald was aged 21 at the time of the offending. He had a prior criminal record. Mr McDonald was convicted of the offence of disorderly conduct while he was on bail for the offending in question. Mr McDonald was employed and has one child. Mr McDonald initiated the violence towards Mr Holgate by punching him to the face and then wrestling with him. Mr McDonald made no comment when he was interviewed by the police.
[7]
(c) Mr Birdsall was aged 28 years at the time of the offending. He had a prior criminal record. Mr Birdsall was convicted of the offence of disorderly conduct while he was on bail for the offending in question. Mr Birdsall has a very difficult background. He was involved in the violence towards Mr Holgate by punching him. Mr Birdsall made no comment when he was interviewed by the police.
[8]
Counsel for the State emphasised that the appellant was the driver of the Mercedes sedan and stopped the vehicle immediately before the offenders' interaction with Mr Holgate. However, I observe that all of the offenders alighted from the vehicle at that stage, and there was no finding by his Honour and no evidence to the effect that the appellant had instigated the assault upon Mr Holgate. The appellant was sentenced on the basis that he was an aider.
Counsel for the State also emphasised that the appellant had stolen Mr Holgate's mobile telephone for the purpose of deleting evidence (namely a photograph that Mr Holgate had apparently taken of the Mercedes sedan). No doubt, any photograph of the vehicle would have facilitated the identification of the appellant, Mr McDonald and Mr Birdsall. However, as I have mentioned, none of the events or circumstances which occurred prior to the offenders' interaction with Mr Holgate were the subject of any charges. Also, I observe that the theft of the mobile telephone was the subject of count 2 and the appellant was punished separately from count 1 in relation to the theft.
I consider that the merits of the appellant's appeal, including whether a different sentence should have been imposed, are of sufficient strength to justify a grant of bail. Also, I consider that the strength of the appellant's proposed parity ground, combined with his personal circumstances and antecedents, constitute exceptional reasons why he should not be kept in custody pending the determination of his appeal.
The appellant's application for bail should be granted.
[9]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.