Debono v. The State of Western Australia - (01 Aug 2019)

Bail can only be granted, if the Court is satisfied that, there are exceptional reasons for not keeping Appellant in custody

Criminal

Application filed on 24 June 2019, for bail pending an appeal against sentence, pursuant to clause 4A of point C of schedule 1 of the Bail Act 1982. In the alternative, the appellant seeks an urgent appeal order. The application for bail pending appeal is opposed by the State.

The appellant was indicted in the District Court on seven counts which alleged the following offences: (1) criminal damage and aggravated burglary of a KFC store in Mirrabooka on 28 April 2017; (2) burglary in company and an associated stealing of watches from a Prouds Jewellers store at the same place and date; (3) burglary in company and an associated stealing of watches from a Shiels Jewellers store on 1 May 2017; and (4) attempting to pervert the course of justice. He pleaded guilty to all of the charges and was sentenced.

Bail can only be granted if the Court is satisfied of two matters. First, it must be satisfied that there are exceptional reasons why the Appellant should not be kept in custody. Second, bail must be appropriate, having regard to the provisions of clauses 1 and 3 of point C of schedule 1 of the Bail Act. The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some ways special, or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case.

Whatever the formulation, each one is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern that the Appellant would suffer injustice by being kept in custody on an unsound conviction or sentence. As to the desire of the Appellant to complete the residential rehabilitation program in which he participated prior to his sentencing, while understandable, it is an insufficient basis to justify a grant of bail pending appeal.

Present Court is not satisfied that, the Appellant has established that exceptional reasons for a grant of bail pending appeal. Accordingly, the application for bail pending appeal must be refused. This leaves the appellant's application for an urgent appeal order. This application should be granted because the date on which the total effective sentence was ordered to commence appears to be erroneous, and that error should be corrected as soon as possible.

Tags : BAIL GRANT EXCEPTIONAL REASONS