Criminal law - Appeal - Bail granted pending the hearing of the appeal - Appellant a foreign citizen - Appellant's visa cancelled - Whether the bail order should be rescinded

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

Migration Act 1958 (Cth), s 5, s 15, s 189, s 197AB, s 501

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. The appellant was convicted on his plea of guilty in the District Court of one count of aggravated robbery, contrary to s 392 of the Criminal Code (WA).
2. On 13 September 2018, Prior DCJ sentenced the appellant to 20 months' immediate imprisonment backdated to 25 March 2018. A parole eligibility order was made.
3. The appellant has appealed against his sentence. The grounds of appeal in the appellant's case allege that the sentencing judge erred in law in imposing a sentence of imprisonment (ground 1); alternatively, his Honour erred in law in not suspending the sentence of imprisonment (ground 2); alternatively, his Honour erred in law in imposing a sentence that was manifestly excessive (ground 3).
4. By an application in the appeal dated 31 October 2018, the appellant applied for bail pending the hearing of his appeal against sentence.
5. On 23 November 2018, Mazza JA ordered that the appellant be granted bail. The grant of bail was subject to a number of conditions, including that the appellant enter into a personal undertaking in the sum of $5,000; there be a surety in the sum of $5,000; the appellant not contact directly or indirectly, or associate in any way with, two named persons; the appellant reside at a residential address in Port Kennedy; the appellant be subject to a curfew, so that (subject to one exception) he must be present and remain at the Port Kennedy address between specified hours; and the appellant report to the officer in charge of the Rockingham Police Station each Monday and Wednesday after his release from custody pursuant to the bail order.
6. The appellant is a New Zealand national. Before being sentenced to the term of 20 months' immediate imprisonment for the offence in question, the appellant resided lawfully in Australia pursuant to a visa. Section 501(6)(a) of the Migration Act 1958 (Cth) provides that, for the purposes of s 501, a person does not pass the character test if the person has a 'substantial criminal record' (as defined by s 501(7)). The effect of the sentence passed by the sentencing judge was that, for the purposes of the character test referred to in s 501 of the Act, the appellant had a 'substantial criminal record', within s 501(7)(c) of the Act, in that he had been sentenced to a term of imprisonment of 12 months or more. Consequently, s 501(3A) of the Migration Act applied to the appellant. By s 501(3A), the Minister must cancel a visa that has been granted to a person if, relevantly, the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(a) and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of a State. Pursuant to s 501(3A), the Minister cancelled the appellant's visa after the sentencing judge imposed the sentence of 20 months' immediate imprisonment and before Mazza JA made the bail order.
7. When Mazza JA heard and determined the appellant's application for bail his Honour had not been informed that the appellant's visa had been cancelled.
8. The effect of the cancellation of the appellant's visa is that, as matters currently stand, the appellant must be held in immigration detention if he is released from prison pursuant to Mazza JA's bail order. See s 189(1) read with s 15 of the Migration Act. There is no evidence before this court that the Minister has exercised his power under s 197AB of the Migration Act to determine that the appellant may reside at a place not covered by the definition of 'immigration detention' in s 5(1) of the Act. In those circumstances, the appellant is unable to be released into the community in accordance with Mazza JA's bail order.
9. The fact that:

(a) Mazza JA had not been informed that the appellant's visa had been cancelled; and

(b) as matters currently stand, the appellant is unable to be released into the community as contemplated by the bail order and in accordance with the conditions of bail,

requires that this court reconsider the appropriateness of the making of the bail order.

1. The principles relating to the granting of bail pending the hearing 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.
2. Clause 1 of pt C sch 1 of the Bail Act provides, relevantly, that the grant or refusal of bail shall be at the discretion of the judicial officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the questions enumerated in cl 1 'as well as to any others which he considers relevant'.
3. I consider that another relevant question, for the purposes of cl 1, is whether the applicant for bail is able to be released into the community in accordance with the proposed bail order and the proposed conditions of bail.
4. In my opinion, it is not appropriate to make a bail order in respect of the appellant unless and until the Minister determines in accordance with s 197AB of the Migration Act that the appellant is to reside at the Port Kennedy address or at some other address which the court may approve rather than being held in immigration detention.
5. I am satisfied that the bail order made by Mazza JA on 23 November 2018 should be rescinded.
6. However, I will, in the circumstances (in particular, having regard to the fact that the appellant will become eligible to be released on parole on 25 January 2019) order that the appeal be heard on an urgent basis. The date and time allocated for the hearing will be 19 December 2018 at 2.15 pm.

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