ZP v The State of Western Australia

[2011] WASCA 12

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ZP -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 12

CORAM:   McLURE P

HEARD:   10 DECEMBER 2010 & 10 JANUARY 2011

DELIVERED          :   10 JANUARY 2011

PUBLISHED           :  14 JANUARY 2011

FILE NO/S:   CACR 146 of 2010

BETWEEN:   ZP

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram  :REYNOLDS J

File No  :CC 7247 of 2009, CC 7248 of 2009, CC 7249 of 2009, CC 995 of 2010, CC 996 of 2010, CC 997 of 2010

Catchwords:

Criminal law - Renewed application for bail pending review of decision refusing leave to appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27(3)

Result:

Bail refused

Category:    B

Representation:

Counsel:

Appellant:     Ms A Rogers

Respondent:     Mr L M Fox

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Barry v State of Western Australia [2007] WASCA 12

1. McLURE P: The appellant renews his application for bail pending the hearing of the review of Mazza J's decision refusing leave to appeal. The refusal of leave to appeal results in the dismissal of the appeal: s 27(3) of the Criminal Appeals Act 2004 (WA). The order refusing leave to appeal was made on 11 October 2010. On the same day Mazza J refused the appellant's application for bail pending appeal.

2. The sole ground of appeal originally relied on by the appellant was, in substance, a claim of manifest excess.  That is the case whether regard is had to the appeal notice or the appellant's case.  The review of the refusal of leave to appeal is confined to the ground of appeal as it stood at the time leave was refused.  Thus the appellant must be successful in the review application before he can rely on a new ground of appeal:  Barry v State of Western Australia [2007] WASCA 12.

3. After the dismissal of the appellant's appeal his co‑offenders in relation to a subset of the offences for which the appellant was convicted were sentenced by Hall J in the Supreme Court.  Whereas the appellant had received a term of immediate imprisonment for the common offences his co‑offenders received a conditional suspended sentence. 

4. The appellant will now wish to raise a parity ground of appeal which is, of course, in substance a new ground of appeal.  He cannot do so unless the review on the original ground is successful.  That is, the appellant will have to establish that Mazza J erred in refusing leave to appeal on the ground that the sentence was manifestly excessive.

5. My preliminary assessment of the merits of the original ground of appeal accords with the assessment of Mazza J in the first bail application.  That being the case, I would refuse bail for the reasons given by Mazza J on 11 October 2010.