Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for bail pending an appeal against sentence - Assault occasioning bodily harm - Turns on own facts

Bail Act 1982 (WA), sch 1 pt C

Sentencing Act 1995 (WA), s 89(2)

Milenkovski v The State of Western Australia [2011] WASCA 99

1 MAZZA JA: (This judgment was delivered extemporaneously on 30 November 2012 and has been edited from the transcript).

2 This is an application for bail pending an appeal against sentence. The sentence was imposed in the District Court on 13 November 2012. The appeal is at an early stage. An appellant's case has not yet been filed. The proposed ground of appeal in the appeal notice alleges manifest excess.

3 The appellant was convicted after pleading guilty to one count of assault occasioning bodily harm. That offence, when not committed in circumstances of aggravation, has a maximum penalty of 5 years' imprisonment. Originally the appellant was charged with doing grievous bodily harm, but that charge was reduced after negotiations. The appellant was sentenced by Goetze DCJ to 9 months' immediate imprisonment. As the sentence is less than 12 months, a parole eligibility order was not made: s 89(2) of the Sentencing Act 1995 (WA). However, the appellant may be released after serving one-half of his sentence pursuant to s 23 of the Sentence Administration Act 2003 (WA). This means the appellant is eligible for release towards the end of March 2013.

4 The background to the offence is as follows. On 4 September 2011 there was a confrontation between the victim and the appellant in Northbridge. Parts of the confrontation, and indeed the assault, were captured on CCTV. As the learned sentencing Judge put it, both men were 'up for a fight' (ts 39 - 40).

5 The appellant punched the victim. The punch itself did not cause any great injury. However, it caused the victim to fall and strike his head on the ground. This impact rendered him unconscious. As a result the victim suffered a linear undisplaced skull fracture of the occipital bone. It was treated conservatively and the victim has, thankfully, made a full recovery.

6 The appellant was 21 years of age at the time of the offence. At the time of sentencing he was 22. He is in a de facto relationship and had full-time work. He has no relevant criminal history. The pre-sentence report before the learned sentencing judge was largely positive.

7 The power to grant bail pending appeal is contained in cl 4A, pt C of sch 1 to the Bail Act 1982 (WA). Clause 4A provides for a rebuttable statutory presumption against the grant of bail. Bail can only be granted if the court is satisfied of two matters. First, bail must be appropriate having regard to the provisions of cls 1 and 3 of pt C sch 1. Second, the court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody: Milenkovski v The State of Western Australia [2011] WASCA 99.

8 There is no argument that if exceptional reasons exist, a grant of bail would not otherwise be appropriate having regard to cls 1 and 3. The question then is whether exceptional reasons exist. The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case. However, because the context of the application for bail is an appeal, the focus must be on the merits of the appeal. Of course, other matters may be considered.

9 I consider it necessary for the appellant to show, without detailed argument, that the appeal has strong arguable grounds. Any view I take about the grounds of appeal is only tentative and cannot be taken as a prejudgment or prediction of the outcome of the appeal.

10 Mr Miocevich, on behalf of the appellant, submitted that the ground of manifest excess is strongly arguable. He emphasised the relatively short duration of the sentence and noted that the appellant will be eligible for release in late March. He submitted that even if an urgent appeal order was made, if the appeal succeeded it would, in large part, be rendered nugatory. In this regard, I note that even with an urgent appeal order there is little prospect that it could be heard before February or March of 2013. Ms Cleary, for the State, recognised the force of this point, but submitted that the appeal did not have strong prospects of success.

11 I am satisfied that exceptional reasons have been established. It is not appropriate to say any more, other than that the merits of the appeal, along with the short duration of the sentence and the prospect that a successful appeal may be rendered nugatory, make the grant of bail appropriate.