Criminal law - Appeal - Application for bail pending the hearing of the appeal - Exceptional circumstances - Turns on own facts

Bail Act 1982 (WA), sch 1, pt C, cl 1, cl 3, cl 4A

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99

Timbrell v The State of Western Australia [2013] WASCA 74

1. By an application in the appeal dated 3 July 2018, the appellant has applied for bail pending the determination of her appeal against sentence. The application is supported by an affidavit sworn by the appellant on 3 July 2018.
2. On 28 April 2016, the appellant was sentenced by O'Neal DCJ on one count of possessing a prohibited drug (namely methylamphetamine) with intent to sell or supply it to another. His Honour sentenced the appellant to a term of 10 months' imprisonment, suspended for 14 months, with supervision and programme requirements. The date of expiry of the order was 27 June 2017.
3. During the period of suspension, the appellant breached the order by reoffending and by failing to comply with the conditions of the order.
4. On 8 June 2018, the appellant was brought before Gething DCJ as a consequence of her breaches of the order. His Honour ordered that the appellant serve the suspended term of 10 months' imprisonment. The term was backdated to 3 June 2018. A parole eligibility order was made.
5. The appellant will become eligible for release on parole on 3 November 2018. She will complete the sentence on 3 April 2019.
6. The principles relating to the granting of bail pending the determination of an appeal against sentence 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 [2011] WASCA 99; (2011) 42 WAR 99; Timbrell v The State of Western Australia [2013] WASCA 74.
7. On 4 July 2018, the appellant filed her appeal notice dated 3 July 2018. The last date for filing the appeal notice was 29 June 2018. The appellant therefore requires an extension of time. The appellant has not yet filed her appellant's case. However, in an affidavit sworn 11 July 2018 the appellant states that she relies on two proposed grounds of appeal. Ground 1 alleges that Gething DCJ erred in determining that it was not unjust to order that she serve the period of imprisonment previously suspended. Ground 2 alleges that there was a miscarriage of justice in that information material to sentencing was not provided to Gething DCJ.
8. As to proposed ground 2, the appellant raises two primary matters. First, in relation to her medical condition; in particular, her eyesight. Secondly, her living situation during the period between about June 2016 and about August or September 2016. The appellant claims that information as to these two primary matters was not before Gething DCJ.
9. My preliminary view is that the appellant's contention in relation to ground 2 does not appear to be correct.
10. Gething DCJ observed at the sentencing hearing on 8 June 2018 that he had received three pre-sentence reports. The reports in question were dated 9 June 2017, 15 August 2017 and 2 November 2017. In the reports, it is said that:

(a) During the period of the conditional suspended imprisonment order, the appellant was granted authorised absences after reporting medical problems (notably, optical neuritis which can result in partial blindness) following the birth of her son, although she did not provide medical records to verify her claim.

(b) At some point after the conditional suspended imprisonment order was made, the appellant suffered inflammation of her optical nerve and required medication and ongoing treatment. She was almost blind in the eye and unable to drive.

1. It is true that Gething DCJ did not, in his sentencing remarks, recount the details set out in the reports. However, it appears that his Honour was aware that the appellant suffered from the eye condition during the period of suspension. It also appears that his Honour accepted that the appellant had a continuing loss of eyesight.
2. The difficulties with the appellant's living situation during the relevant period were outlined in the pre-sentence reports. In the reports, it is said that:

(a) In November 2016, the appellant had re-established contact with Community Corrections. She had moved to a women's refuge as a result of violence towards her by her partner.

(b) On 30 December 2016, the appellant's Community Corrections officer contacted a representative of Byanda Women's Refuge, who confirmed that the appellant had resided there between 10 November 2016 and 2 December 2016. She had left the refuge as a result of poor eyesight and having been encouraged by her medical practitioner to remain in a darkened room.

(c) After the conditional suspended imprisonment order was imposed, the appellant reunited with her former partner for support. The appellant said that neither she nor her former partner was using drugs anymore. However, the former partner relapsed and was violent towards her. Consequently, she terminated the relationship for a second time.

1. As to proposed ground 1, Gething DCJ was obliged to order that the whole of the period of imprisonment previously suspended be served unless it was unjust to do so in view of all the circumstances that had arisen, or become known, since the order was imposed. See s 84F(3) of the Sentencing Act 1995 (WA).
2. In addition to the information in the pre-sentence reports to which I have already referred, the reports and further material before Gething DCJ at the sentencing hearing included evidence to the following effect:

(a) Between 28 June 2016 and 26 July 2016 the appellant failed to contact her Community Corrections officer. That was the period the subject of the failure to comply with the conditions of the order. Indeed, the appellant did not re-establish contact with Community Corrections until 28 November 2016.

(b) The appellant's engagement with Community Corrections was sporadic. She did not engage in any meaningful supervision or any counselling or programmatic intervention during the period of suspension.

(c) During December 2016 (that is, during the subsistence of the conditional suspended imprisonment order), the appellant was in possession of a small quantity of methylamphetamine for her personal use. Her conviction for that offence constituted a breach of the order.

(d) Between 18 April 2017 and the expiry of the order, the appellant did not make any contact with Community Corrections.

(e) Subsequently, the appellant failed to attend a number of appointments for the preparation of a pre-sentence report.

(f) Until September 2017, the appellant had continued to use methylamphetamine. Thereafter, urinalysis indicated that she had ceased using illicit drugs.

(g) The appellant has been engaged with the Department of Child Protection and Family Services and with a case worker from 'Partners in Recovery'.

(h) The appellant's son is in the care of the Department and is living with his paternal grandmother.

1. I have considered the material relied on by the appellant in support of her application for bail, including her written submissions and her affidavit I have also taken into account the oral submissions she has made today. The appellant has alleged today that there are some errors in a Departmental report dated 3 July 2017.
2. I am not satisfied, at this stage, that the merits of the appellant's proposed grounds of appeal, and the merits of her proposed submissions in the appeal, are of sufficient strength to justify a grant of bail. Also, the hardship suffered by the appellant and her child is insufficient to justify her release on bail.
3. In all the circumstances, I am not satisfied that there are exceptional reasons why the appellant should not be kept in custody pending the determination of her appeal against sentence.
4. The appellant's application for bail should be dismissed.
5. I am conscious, however, that the appellant's earliest parole eligibility date is 3 November 2018. In those circumstances, I propose to order that the appellant file and serve her appellant's case by 4.00 pm on 8 August 2018 and that her application for an extension of time to appeal and for leave to appeal be heard, without the State being required to attend, at 9.30 am on 13 August 2018.
6. The orders I now make are as follows:

(1) The appellant's application in the appeal dated 3 July 2018 for bail is dismissed.

(2) By 4.00 pm on 8 August 2018, the appellant is to file and serve her appellant's case.

(3) The appellant's application for an extension of time to appeal and for leave to appeal against sentence is to be heard, without the State being required to attend, at 9.30 am on 13 August 2018.

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