SOMA -v- WA POLICE [2026] WASC 208
[2026] WASC 208
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION : SOMA -v- WA POLICE [2026] WASC 208
CORAM : LUNDBERG J
HEARD : 29 MAY 2026
DELIVERED : 2 JUNE 2026
FILE NO/S : SJA 1037 of 2026
BETWEEN : NICHOLAS KYLE SOMA
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No : SJA 1037 of 2026
Jurisdiction : MAGISTRATES COURT OF WESTERN
AUSTRALIA
Coram : MAGISTRATE E SHACKLETON
File Number : JO 2346/2026 & JO 2347/2026
Catchwords:
Criminal law - Bail - Application for bail pending appeal against sentence -
Offence of careless driving occasioning bodily harm contrary to s 59BA(1) of
the Road Traffic Act 1974 (WA) - Offence of driving without authorisation
contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA) - Appellant tested
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positive for amphetamines - Appellant sentenced to effective total sentence of
7 months and 14 days - Appellant has numerous prior convictions for driving
motor vehicles whilst unauthorised - Whether substantive appeal can be listed
expeditiously - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 7F, s 13, sch 1
Criminal Appeals Act 2004 (WA), pt 2
Criminal Procedure Rules 2005 (WA), r 69(1)
Road Traffic (Authorisation to Drive) Act 2008 (WA)
Road Traffic Act 1974 (WA), s 49, s 59AB, s 60, s 61
Road Traffic Legislation Amendment Act 2016 (WA)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA
Result:
Bail refused.
Orders made to expedite appeal.
Category: B
Representation:
Counsel:
Appellant : H W Glenister
Respondent : J E Buller
Solicitors:
Appellant : William Gerard Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42
WAR 99
Phillips v Wroe [2022] WASC 9
Rasaubale v Commonwealth Director of Public Prosecutions [2019] WASC 142
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Van Oyen v Kosovich [2025] WASC 364
YSN v The State of Western Australia [2017] WASCA 155
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Table of Contents
Introduction ................................................................................................................................ 5
The circumstances of the offences.............................................................................................. 5
The charges and sentences .......................................................................................................... 7
The appeal................................................................................................................................... 8
First ground of appeal ............................................................................................................ 8
Second ground of appeal ........................................................................................................ 8
Proposed third ground ........................................................................................................... 8
The appellant's criminal record .................................................................................................. 9
Legislative framework and relevant principles ........................................................................ 10
The application for bail............................................................................................................. 14
Disposition - whether bail should be granted? ......................................................................... 16
The question posed by cl 1(a) ............................................................................................... 17
The question posed by cl 1(c) ............................................................................................... 19
The question posed by cl 1(e) ............................................................................................... 20
The question posed by cl 1(g) ............................................................................................... 21
Other relevant matters .......................................................................................................... 21
Conclusion ................................................................................................................................ 22
ATTACHMENT A Appellant's relevant criminal record ........................................................ 24
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LUNDBERG J:
Introduction
1 On 15 May 2026, the appellant pleaded guilty in the Magistrates
Court to three offences arising from the same driving event, which
occurred on 3 February 2026 whilst he was disqualified from driving.
The driving event occurred after the appellant had been disqualified
from driving by orders made by two courts in June and July 2025
respectively.
2 In short, the appellant, whilst being unauthorised to drive, fell
asleep while driving a motor vehicle. He was driving at 100 kilometres
per hour. The vehicle veered to the wrong side of the road and collided
head-on with another vehicle containing three persons, travelling in the
opposite direction. The appellant subsequently tested positive for
amphetamines.
3 An effective total sentence of 7 months and 14 days was imposed
by the Magistrate in respect of two of the offences, together with
driving disqualification orders. The appellant has been in custody since
15 May 2026. He is presently being held at the Wooroloo Prison Farm.
4 The appellant has appealed his sentence and has applied, pursuant
to s 7F(1)(b) of the Bail Act 1982 (WA) (the Bail Act), for a grant of
bail pending the determination of his application for leave to appeal
against his sentence. The appellant's application for leave is brought
pursuant to pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
5 The application for bail is opposed by the respondent.
6 The bail application was listed for an urgent hearing on 29 May
2026 and, at the conclusion of the hearing, I reserved my decision.
These are my reasons for refusing bail and ordering that the appeal be
listed for final hearing on an expedited basis.
The circumstances of the offences
7 The statement of facts pertaining to the first two offences as read
to the court at first instance, and which were accepted by the appellant,
can be summarised as follows.1
8 The appellant is 36 years of age.
1 ts 3 - 5 (15 May 2026).
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9 At 4.00 pm on 3 February 2026, the appellant drove a motor
vehicle in the south direction of Indian Ocean Drive near Military
Road, Wilbinga, which lies about half way between Lancelin and Perth.
The appellant had a head-on collision with another vehicle travelling in
the opposite direction. Police attended the crash scene, where the
appellant identified himself as a driver.
10 At the time of the collision, the appellant was an unauthorised
driver in that the appellant's driver's licence had been suspended by
force of two court orders. Namely, by order made in the Esperance
Magistrates Court on 13 June 2025 and by order made in the Joondalup
Magistrates Court on 15 July 2025, suspending the appellant's driver's
licence respectively until 28 August 2026 and 28 May 2027.
11 The appellant was driving at approximately 100 kilometres per
hour. The appellant had been working on a freight boat since the early
hours and was extremely tired. The section of road in question is a
straight single carriageway with one lane in each direction. The posted
speed limit is 100 kilometres an hour.
12 The victim was driving north on Indian Ocean Drive, also at
approximately 100 kilometres per hour, in a Ford Ranger utility. The
victim was in company with two passengers, a 19 year old daughter and
a four year old son.
13 The appellant fell asleep and veered onto the incorrect side of the
road. The victim attempted to take evasive action to avoid a collision,
but without success. The vehicles collided head-on. Both vehicles left
the carriageway, coming to a stop about 50 metres apart in the bushland
on the west side of the carriageway. Both vehicles sustained severe
front and driver's side structural damage. Indeed, impact forces caused
complete separation of the driver's side wheel and associated
suspension components on both vehicles, meaning that both vehicles
were a total loss.
14 All occupants of the Ford Ranger utility received medical
treatment at the scene and were later conveyed to the hospital by
ambulance. The innocent driver suffered bruising to the right hip, neck
soreness, and pain in the lower back.
15 The appellant had no visible injuries and declined any medical
treatment. The appellant stated that he was extremely tired and had
fallen asleep while driving, which caused the vehicle to crash. The
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appellant admitted to taking amphetamines and was subject to a
preliminary oral fluid test, which returned a positive test.
The charges and sentences
16 The first charge arising from the incident was of driving a motor
vehicle whilst not being authorised by pt 2 of the Road Traffic
(Authorisation to Drive) Act 2008 (WA) and while his authority to
drive was suspended, contrary to s 49(1)(a) and (3)(c) of the Road
Traffic Act 1974 (WA) (RTA).2 The sentence imposed by the
Magistrate for this offence was 3 months imprisonment, to be served
concurrently.
17 The second offence was driving a motor vehicle which was
involved in an incident occasioning bodily harm and at the time of the
incident driving the vehicle without due care and attention, contrary to
s 59BA(1) of the RTA.3 The sentence imposed for this offence was
7 months and 14 days imprisonment. This is the head sentence.
18 I note that the offence of careless driving in s 59BA was inserted
with effect from 21 September 2016, by s 25 of the Road Traffic
Legislation Amendment Act 2016 (WA). The background to this
legislative amendment was addressed by Palmer J in
Van Oyen v Kosovich.4
19 The magistrate also made orders disqualifying the appellant from
holding or obtaining a driver's licence for 9 months cumulative (in
respect of charge JO 2346/26) and for 3 months concurrent (in respect
of charge JO 2347/2026).
20 The third offence was of driving a motor vehicle with a prescribed
illicit drug present in the driver's oral fluid, contrary to s 64AC(1) of the
RTA.5 The appellant was fined $1,500 in respect of this offence.
21 An effective total sentence of 7 months and 14 days was thus
imposed on the appellant by the Magistrate at first instance, in respect
of the first two offences. The sentence of imprisonment imposed by the
Magistrate was, I understand, the first occasion on which the appellant,
who has a relatively extensive criminal record, has received a custodial
sentence.
2 JO 2346/2026.
3 JO 2347/2026.
4 Van Oyen v Kosovich [2025] WASC 364.
5 JO 3250/2026.
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The appeal
22 The appellant filed a notice of appeal on 18 May 2026.
First ground of appeal
23 The notice of appeal indicates the appellant will contend on appeal
that the Magistrate erred in law by imposing a sentence for the second
offence, being the offence contrary to s 59BA(1) of the RTA, which
was manifestly excessive (ground 1).
Second ground of appeal
24 Further, the appellant will contend that the Magistrate erred in law
by imposing a total effective sentence which infringed the first limb of
the totality principle (ground 2). As to this second ground, I understand
the appellant will in effect submit that the aggregate sentence does not
bear a proper relationship to the overall criminality of the appellant's
conduct, having regard to all the relevant circumstances.
Proposed third ground
25 On the present application, the appellant foreshadowed a further
ground of appeal, being an express error by the Magistrate in treating
the presence of illicit drugs in the appellant's oral fluid as an
aggravating factor in relation to the charge of careless driving
occasioning bodily harm.
26 I understand counsel for the appellant will contend on appeal that
'this was not an aggravating factor in circumstances where [the
appellant] was sentenced on the agreed basis that there was no
influence or nexus between the illicit drugs detected in [the appellant's]
oral fluid and the careless driving'.6
27 At first instance, counsel for the appellant clarified with the
Magistrate that, although it was accepted the appellant had
methylamphetamine and cannabis in his oral fluid, it was not accepted
that he was intoxicated at the time of the incident.7 Counsel for the
appellant explained the issue as follows:
GLENISTER, MR: … his explanation for that is that he had been
working since the early hours of the morning on a fishing boat and it
was about 14 hours later he was then driving home. In terms of his
methylamphetamine and cannabis use, Mr Soma worked sort of – at
6 Appellant's submissions dated 28 May 2026 [2].
7 ts 4 (15 May 2026).
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that time, about five days on, two days off on a fishing boat. It was at
the end of his last swing that he used methylamphetamine and cannabis
on, essentially, the – what would be the equivalent of a Friday night,
and this was his first day back at work following two days off. So he
had used it within about two days of the crash but at that time, all of the
intoxicating effects and any after effects would, presumably, have worn
off.
28 The Magistrate acknowledged this point and sought an indication
from the prosecutor in response:
HIS HONOUR: So, Sergeant, happy for me to sentence him on the
basis, obviously, that he was not under the influence but, also, that there
was no – that there is no nexus between the illicit drug being in his oral
fluid and the falling asleep?
GELDENHUYS, MR: Yes. No, we will accept that.
29 Notwithstanding the above interchange, the appellant says an error
in the sentencing process occurred. In this regard, counsel for the
appellant relies on the further passage towards the end of the
Magistrate's sentencing remarks which states that:
HIS HONOUR: And your culpability is aggravated by the fact that
you had a drug in your oral fluid. Not for the first time. Something that
has happened on a number of occasions.
30 Counsel for the respondent suggests the use of the word
'aggravated' in this passage was 'in more of a colloquial sense',8 but
recognised that there were some prospects of success on this proposed
further ground.
31 The appellant's appeal has not yet been listed for hearing.
Whether the appeal can be listed and determined expeditiously is a
relevant factor to consider on this application.
The appellant's criminal record
32 The appellant has an extensive criminal record, largely concerning
driving and drug-related offences.
33 The appellant's prior convictions include for offences of driving
without authority contrary to s 49(1)(a) of the RTA, excessive speeding
offences, driving whilst intoxicated, driving with a prescribed illicit
drug, various drug offences, disorderly behaviour, assault on a public
8 ts 10 (29 May 2026).
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officer, reckless driving contrary to s 60(1) of the RTA, and dangerous
driving contrary to s 61(1) of the RTA.
34 The most relevant of these offences are detailed in the table in
Attachment A to these reasons.
Legislative framework and relevant principles
35 Section 7F(1)(b) of the Bail Act vests in a judge of this court
jurisdiction to determine an application for bail made by a person who
has commenced an appeal under pt 2 of the CCA, against a decision of
a Magistrate by virtue of which they are in custody.
36 Section 13 of the Bail Act provides that the jurisdiction to grant
bail and the way in which the jurisdiction is to be exercised are as set
out in sch 1 of the Bail Act. A judicial officer exercising such
jurisdiction is obliged to do so in accordance with the terms of sch 1 of
the Bail Act.
37 Importantly, cl 5 of pt C of sch 1 of the Bail Act provides that a
person who is awaiting the disposal of appeal proceedings from the
Magistrates Court shall be deemed to be awaiting an appearance in
court before conviction for an offence. This clause operates as an
exception to cl 4A. Clauses 4A and 5 state as follows:
4A . Bail after conviction for accused awaiting disposal of appeal
In deciding whether or not to grant bail to an accused who is in
custody waiting for the disposal of appeal proceedings, the
judicial officer shall consider whether there are exceptional
reasons why the accused should not be kept in custody, and shall
only grant bail to the accused if satisfied that —
(a) exceptional reasons exist; and
(b) it is proper to do so having regard to the provisions of
clauses 1 and 3 or, in the case of a child, clauses 2 and
3.
5. Exception to cl. 4A for bail in appeal under Criminal
Appeals Act 2004 Part 2
Clause 4A does not apply to the bail of a person who is awaiting
the disposal of appeal proceedings under Part 2 of the Criminal
Appeals Act 2004; such a person shall be deemed for the
purposes of this Part to be awaiting an appearance in court
before conviction for an offence.
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38 The effect of this provision is that, when considering an
application for bail pending an appeal from the decision of a
Magistrate, this court is required by law to treat the applicant for bail as
if they had not been convicted.
39 That is, as explained by Derrick J in Phillips v Wroe,9 the court is
obliged to treat the appellant as if he is merely facing the charges
identified above, notwithstanding that he has been convicted of both
offences upon his plea of guilty. Further, there is no requirement for
an applicant to establish exceptional circumstances. Indeed, it is
common ground between the parties that the appellant is not required to
establish exceptional circumstances in order to succeed on this
application.
40 The present application must be determined by having regard to
the questions specified in cl 1 of pt C of sch 1 of the Bail Act, and to
any other matters that I consider to be relevant.
41 The matters to be considered by the court on the present
application are those detailed in cl 1 of pt C of sch 1 to the Bail Act.
Clause 1 states:
1. Bail before conviction at discretion of court or judicial
officer except for child
Subject to clauses 3A, 3C, 3D, 3E, 3F and 3G, the grant or refusal of
bail to an accused, other than a child, who is in custody awaiting an
appearance in court before conviction for an offence shall be at the
discretion of the judicial officer or authorised officer in whom
jurisdiction is vested, and that discretion shall be exercised having
regard to the following questions as well as to any others which he
considers relevant —
(a) whether, if the accused is not kept in custody, he may —
(i) fail to appear in court in accordance with his bail
undertaking; or
(ii) commit an offence; or
(iii) endanger the safety, welfare, or property of any person;
or
(iv) interfere with witnesses or otherwise obstruct the
course of justice, whether in relation to himself or any
other person;
9 Phillips v Wroe [2022] WASC 9 [26] - [28] (Derrick J).
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(b) whether the accused needs to be held in custody for his own
protection;
(c) whether the prosecutor has put forward grounds for opposing the
grant of bail;
(d) whether, as regards the period when the accused is on trial, there
are grounds for believing that, if he is not kept in custody, the
proper conduct of the trial may be prejudiced;
(e) whether there is any condition which could reasonably be
imposed under Part D which would —
(i) sufficiently remove the possibility referred to in
paragraphs (a) and (d); or
(ii) obviate the need referred to in paragraph (b); or
(iii) remove the grounds for opposition referred to in
paragraph (c);
(f) where the accused is charged with an offence that is alleged to
have been committed in respect of a child, whether a condition
should be imposed under Part D requiring the accused to reside
at a place other than the place where the child resides;
(g) whether the alleged circumstances of the offence or offences
amount to wrongdoing of such a serious nature as to make a
grant of bail inappropriate.
42 Further, cl 3 of pt C of sch 1 provides as follows:
3. Matters relevant to cl. 1(a)
In considering whether an accused may do any of the things mentioned
in clause 1(a), the judicial officer or authorised officer must have regard
to the following matters —
(a) in relation to each relevant offence — the strength of the
evidence against the accused;
(b) in relation to each pending offence —
(i) the nature and seriousness of the offence; and
(ii) the probable method of dealing with the accused for the
offence, if convicted;
(c) in relation to each pending offence and each offence of which
the accused has previously been convicted — the conduct of the
accused, after the time or alleged time of the offence, towards —
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(i) any person against whom it was, or was alleged to have
been, committed; and
(ii) any family member of such a person;
(d) the character, previous convictions, antecedents, associations,
home environment, background, place of residence, and
financial position of the accused;
(e) the history of any previous grants of bail to the accused;
(f) any other matter which the officer considers relevant.
43 The applicable statements of principle which guide the exercise of
the bail discretion were set out by the Court of Appeal in
Milenkovski v The State of Western Australia10 and YSN v The State
of Western Australia.11 From those authorities, several principles may
be stated relevantly for the purposes of the present bail application,
some of which I draw from Fiannaca J's thorough analysis in
Rasaubale v Commonwealth Director of Public Prosecutions.12
44 The Bail Act is intended to be a comprehensive code on the
subject of bail and displaces the common law.13 The Bail Act does not
in terms place any legal onus on any party to a bail application.14
45 Further, with the exception of cl 1(e), all of the mandatory
questions in clause 1 are directed to whether there are positive grounds
for refusing bail. The matters in cl 1(e) go to the question of whether it
is possible to neutralise, wholly or sufficiently, the positive grounds for
refusing bail. The court is not required to consider questions directed to
whether there are positive grounds for granting bail.15
46 If the court is satisfied of the possibility that the accused will do
any of the things referred to in cl 1(a), having regard to the matters in
cl 3, it must then consider, under cl 1(e), whether there are conditions
that could reasonably be imposed which would 'sufficiently remove the
possibility' of the accused doing those things.16
10 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [44].
11 YSN v The State of Western Australia [2017] WASCA 155 [14] ‑ [21].
12 Rasaubale v Commonwealth Director of Public Prosecutions [2019] WASC 142 [16] (Fiannaca J)
(Rasaubale).
13 Milenkosvki [31] (McLure P, Pullin JA and Hall J (as his Honour then was) agreeing).
14 Milenkosvki [41] (McLure P, Pullin JA and Hall J (as his Honour then was) agreeing).
15 Milenkosvki [40] (McLure P, Pullin JA and Hall J (as his Honour then was) agreeing).
16 Rasaubale [15] (Fiannaca J).
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47 The risk or possibility referred to in cl 1(a) must be actual or real,
as distinct from theoretical or hypothetical, and assessed having regard
to the matters set out in cl 3(a) - (d) and any other matters the judicial
officer considers relevant.17 The court must assess the nature and
extent of the risk to the integrity of the criminal justice process and
community safety, and consider whether the nature and extent of that
risk provides a proper ground for refusing to grant bail.18
48 The reference in cl 1(e) to the possibility of the accused engaging
in relevant conduct being 'sufficiently removed' is to be understood as
requiring an assessment of whether the risk of the accused engaging in
that conduct is sufficiently reduced.19 The court is not required to be
satisfied that no relevant risk would exist if bail was to be granted.
49 The possibility of an accused engaging in conduct referred to in
cl 1(a) will be sufficiently removed by conditions where the remaining
risk no longer constitutes a proper ground for refusing bail. That
construction recognises that, before bail is refused, the nature and
extent of the risk which the judicial officer assesses to remain after the
imposition of reasonable conditions must be such as to warrant the
detention of a person who has not been convicted and is presumed to be
innocent.20
The application for bail
50 The application for bail was filed on 22 May 2026. The
application is supported by a brief affidavit sworn by the appellant's
solicitor, Mr Glenister, who was also counsel for the appellant at the
sentencing hearing before the Magistrate. I received outlines of
submissions from both parties on 28 May 2026.
51 Counsel for the appellant respectfully submits that bail should be
granted. The appellant proposes that bail be granted on the basis he
would reside with his partner at her residential home in Two Rocks. It
is said the appellant has a consistent history of employment, and he has
produced a supportive letter from his most recent employer. The
appellant is engaged to be married in November 2026 and has family
coming from overseas for the occasion.
17 Rasaubale [16(2)] (Fiannaca J).
18 Rasaubale [16(2)] (Fiannaca J).
19 Rasaubale [16(3)] (Fiannaca J).
20 Rasaubale [16(4)] (Fiannaca J).
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52 The appellant proposes that bail be granted on the basis he gives a
personal undertaking, that he reside at the address I have indicated, that
he be prohibited from driving a motor vehicle and that he be required to
provide a sample of urine for analysis on request by a community
corrections officer, with any positive test for illicit substances to be
considered a breach of bail.
53 Bail was opposed by the respondent. The essential points
developed by counsel for the respondent, within the written
submissions and orally at the hearing on 29 May 2026, may be
summarised as follows.
54 The respondent submits the court can be satisfied that there is a
real risk that if the appellant is not kept in custody, he may commit an
offence, and that offence may be of a similar nature to those the subject
of this application.
55 The respondent contends the risk in question is at least moderate,
having regard to the nature and seriousness of the offences. Further,
the respondent accepts, for the purposes of the present application, that
the appellant's appeal is at least reasonably arguable but nevertheless
submits there is a real prospect of a term of imprisonment being
imposed for the offending (whether suspended or otherwise).
56 The respondent emphasises that the appellant has a long history of
convictions for similar offences and that the Magistrate correctly
sentenced the appellant on the basis that it was his sixth driving under
disqualification offence. The respondent submits that:21
While it is acknowledged that some of the offences are dated, the
appellant has demonstrated that he is willing to drive motor vehicles
regardless of whether the authorities have given him permission to do
so, and a longstanding propensity to engage in driving involving
elements of carelessness. As noted by the magistrate, it may be inferred
from the appellant's repeat offending of driving under disqualification
that the disobedience is wilful.
57 Favourably to the position of the appellant, the respondent notes
that the appellant is due to be released from custody on 28 December
2026, subject to meeting eligibility for parole (which could be as early
as 5 September 2026). Accordingly:22
21 Respondent's submissions dated 28 May 2026 [14(c)].
22 Respondent's submissions dated 28 May 2026 [16].
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… if the appellant is not granted bail pending the determination of his
appeal, and even if an order for the urgent hearing of the appeal is made
(and noting that there is currently no such application), the appellant
may serve a not insignificant portion of his sentence before his appeal is
heard and determined. Given the appellant is to be treated as though he
has not been convicted for the purposes of this application, this is a
factor that weighs in favour of a grant of bail.
58 The respondent further contends that the court cannot be satisfied
that the above risk can be sufficiently removed by any conditions that
the court may impose.23 In this regard, the respondent emphasises the
Magistrate's characterisation of the appellant's conduct as involving 'a
wilful defiance of the court disqualification'.24
59 In the event that the court was minded to grant bail, the respondent
contends that the appellant's proposed conditions do not adequately
mitigate the risk. The respondent identified the following conditions as
more appropriate:25
(a) The appellant is to provide a personal undertaking in the amount
of at least $2,000;
(b) The appellant is to reside at [the address in Two Rocks] between
7pm and 7am daily;
(c) The appellant is not to drive a motor vehicle, including sitting in
the driver's seat of any vehicle or possessing or controlling any
vehicle keys;
(d) The appellant is to report to the nearest Adult Community
Corrections Centre within 72 hours of release from custody; and
(e) The appellant is to comply with all lawful directions given by a
Community Corrections Officer, including to provide urine
sample for analysis upon request by a community corrections
officer, with any positive test for illicit substances to be
considered a breach of bail.
Disposition - whether bail should be granted?
60 I will address each of the questions specified in cl 1 of pt C of sch
1 in turn, to the extent that they are relevant. The arguments advanced
by the parties on the application focused on cl 1(a), cl 1(c), cl 1(e) and
cl 1(g). The questions posed by cl 1(b), 1(d), and 1(f) are not relevant
to the present application.
23 Respondent's submissions dated 28 May 2026 [1].
24 Respondent's submissions dated 28 May 2026 [17].
25 Respondent's submissions dated 28 May 2026 [18].
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The question posed by cl 1(a)
61 The first question specified in cl 1(a) of pt C is whether, if the
appellant is not kept in custody, he may fail to appear in court in
accordance with his bail undertaking, or commit an offence, or
endanger the safety, welfare or property of any person, or interfere with
witnesses or otherwise obstruct the course of justice whether in relation
to himself or any other person.
62 Of these matters, the focus of the present application was on the
risk of the appellant committing an offence if not held in custody. That
was the manner in which the respondent framed its opposition to the
grant of bail. By cl 3 of pt C of sch 1, I am required, in considering this
risk, to have regard to several matters as earlier set out.
63 As to the nature and seriousness of the appellant's offences, I note
that the maximum penalty for careless driving causing bodily harm is
imprisonment for 3 years or a fine of $36,000 and licence
disqualification of at least 3 months: RTA, s 59BA(1). Further, the
maximum penalty for a subsequent offence of driving under
disqualification is a fine of not less than $1,000 or more than $4,000,
and imprisonment for not more than 18 months, together with licence
disqualification of at least 9 months: RTA, s 49(1)(c)(ii).
64 As to the circumstances of the commission of the offences, it is
relevant to note that the appellant was driving when his licence had
been suspended by the Magistrates Court on two occasions, in both
June 2025 and July 2025. As the respondent emphasises, this was the
sixth offence of this nature. Further, the offence of careless driving
causing bodily harm occurred in the context that the appellant had
knowingly taken illicit drugs some days before. He was tired, returning
from work. His careless driving (that is, his inattention at the wheel)
led to a head-on collision with another vehicle with three occupants.
The occupants required medical attention. This included a four year
old boy.
65 The Magistrate assessed the offence as being at the high end of
careless driving. That is a fair assessment, at least in my provisional
view. The consequences of the collision could easily have been far
worse for the occupants of the other vehicle, and also for the appellant.
66 On appeal, the appellant challenges the custodial disposition
imposed by the Magistrate. The probable outcome of the appeal is
plainly a relevant consideration. Counsel for the appellant submitted
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that the point of imprisonment had not been reached. I understand
counsel will assert that the seriousness of the offence was not such that
a sentence of only imprisonment was justified, and such a sentence was
not justified for the protection of the community.26 As earlier noted,
the appellant points to express and implied error in the sentencing
process.
67 For my part, I consider the appellant's appeal is at least reasonably
arguable. The respondent properly concedes this, as well.27 There
remains a prospect, difficult to quantify at this stage, that even if error
is demonstrated, the appellant would be re-sentenced to a term of
imprisonment, although the appellant says that a suspended term of
imprisonment would be justified if that position was reached.
68 A detailed review of the applicable sentencing authorities will be
required at the hearing of the appeal, including the decisions analysed
by Palmer J in Van Oyen v Kosovich, which includes McGrath J's
decision in Jackman v Davidson.28 It can be said at this stage that an
immediate sentence of imprisonment (that is, not suspended) is at least
within the range of dispositions for an offence of this nature, although
naturally much turns on the culpability of the offender, the
circumstances of the offending, and the antecedents of the offender.
69 Turning to the appellant's character, previous convictions and the
other matters identified in cl 3(d) of pt C of sch 1, it is relevant that the
appellant has a lengthy criminal record of prior relevant offences. This
was his sixth driving while disqualified offence. The prior offences
stretch of a long period, although the appellant is only 36 years of age.
As can be seen from the convictions extracted in Attachment A, some
of the driving while disqualified offences occurred in circumstances
involving carelessness. I refer to the offences committed on the
following occasions:
(a) on 6 March 2025 (which involved driving at excess speed);
(b) on 2 December 2024 (driving with prescribed illicit drugs
present);
(c) on 28 February 2020 (driving with prescribed illicit drugs
present, although it is not apparent this was an occasion on
which the appellant was driving whilst disqualified); and
26 Sentencing Act 1995 (WA), s 6(4).
27 Respondent's submissions dated 28 May 2026 [14(b)].
28 Jackman v Davidson [2019] WASC 364; (2019) 90 MVR 11.
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(d) on 11 October 2008 (reckless driving with blood alcohol
content of 0.137).
70 The number, frequency and overall circumstances of the
commission of these offences indicates that the appellant's disobedience
of the disqualification orders is wilful. The Magistrate's assessment in
this regard seems apt.
71 In undertaking the assessment of the risk of the appellant
committing an offence if he is not held in custody, counsel for the
appellant submits that there is no great risk to the public in the appellant
driving a motor vehicle per-se.29 Driving a motor vehicle is not
inherently dangerous. The appellant says this risk can be managed with
appropriate bail conditions and notes the appellant has no history of
failing to comply with bail conditions.
72 On my assessment, the risk of the appellant committing a further
offence of driving whilst disqualified is a moderate to high risk, given
his history of wilful disobedience of court orders of this nature. The
appellant undeniably has a strong track record of driving whilst
disqualified.
73 But more than this, the appellant has a record of driving in such a
circumstance whilst having illicit drugs in his system and while
speeding. The appellant's record is not merely that he drives whilst
disqualified.
74 In the instance case, the appellant had taken illicit drugs in the
days before the incident, and drove whilst sleepy. It appears this was
related to his work hours.
75 These circumstances cause me to conclude that there is a moderate
risk, far from merely theoretical, that the appellant would not only drive
in breach of his disqualification whilst on bail, but do so in
circumstances of carelessness.
The question posed by cl 1(c)
76 The question specified in cl 1(c) is whether the prosecutor has put
forward grounds for opposing the grant of bail. The respondent opposes
bail, for the reasons I have outlined above and I have considered
elsewhere in these reasons.
29 ts 13 (29 May 2026).
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The question posed by cl 1(e)
77 The next question for my consideration, specified in cl 1(e) is, so
far as is relevant, whether there is any condition which could
reasonably be imposed under pt D of sch 1 which would sufficiently
remove the possibility of the appellant, if he is not kept in custody,
committing any further offences. As noted above, the court is not
required to be satisfied that no relevant risk would exist if bail was to
be granted.
78 The submission advanced for the appellant is that the proposed
conditions would sufficiently remove the possibility of the appellant
committing further offences of driving whilst disqualified and in
circumstances of carelessness. Counsel also identified the possibility of
protective bail conditions being imposed under pt D of sch 1. It seems
to me the essential question is the court's assessment, on the available
information, that the appellant will comply with the conditions,
recognising that the requirement to provide a urine sample provides a
mean of testing the appellant's use of alcohol and drugs during the bail
period. The other conditions involve, as is often the case, a high degree
of trust that the appellant will treat the conditions imposed by the court
as being immutable restrictions rather than matters he can disregard
when he chooses.
79 The evidence before the court as to the appellant's access to motor
vehicles at his proposed residence was sparse at best. There is no
evidence of how the appellant would propose to travel, including to
work, if bail was granted.
80 The available material does not provide confidence to the court
that the assessed risk of the appellant committing further offences can
be sufficiently reduced by the imposition of the conditions, including
the conditions identified by the respondent. The conditions may well
reduce the risk somewhat, but I remain concerned the risk which
remains is still too high. I am greatly influenced in this assessment by
the reality the appellant has disregarded prior court orders, not once or
twice, but on six occasions. The appellant has also shown a
preparedness to consume drugs and alcohol whilst disqualified, and
then nonetheless determine for himself that it is appropriate to drive a
motor vehicle.
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81 The Magistrate made the following remarks in sentencing to
which weight should presently be given:30
HIS HONOUR: You made a decision to drive to work when you were
under disqualification. That is a decision that you have made for the
sixth time, according to my reading of your record. Most recently,
6 March ’25, 3 May ’25, and then this offence. All of those, in my
view, show a wilful defiance of the court disqualification. It is not a
matter of simply counting them and deciding what to do. Everything
has to be taken into account, but it is serious that you are on your sixth.
82 There remains a need in this case to protect the safety of the
community on the roads of Western Australia, and that need weighs
against a conclusion that imposing conditions on the grant of bail would
sufficiently reduce the risk I have identified.
The question posed by cl 1(g)
83 The final question, which is specified in cl 1(g), is whether the
circumstances of the appellant's driving offences amount to wrongdoing
of such a serious nature as to make a grant of bail inappropriate. For
the purposes of the application, the offences must be treated as alleged
offences only, notwithstanding the unchallenged plea of guilty entered
by the appellant.
84 The two driving offence of which the appellant has been convicted
are serious. However, they are not of such a serious nature of
themselves to make a grant of bail inappropriate, in my view. No
contrary submission was advanced by the respondent.
Other relevant matters
85 The timing considerations identified by the respondent are a
relevant consideration. The appellant is subject to a sentence of
7 months and 14 days, which commenced on 15 May 2026. He would
be eligible for parole as early as 5 September 2026. If this appeal were
to be listed in the ordinary way, the hearing might not be expected to be
listed until late 2026.
86 For this reason, I raised with both counsel the possibility of the
appeal hearing being expedited.31 That possibility was embraced by the
appellant's counsel, whether or not bail was granted by the court.
30 ts 11 (15 May 2026).
31 ts 10 (29 May 2026).
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87 The present appeal, confined to a challenge to the sentence
imposed by the Magistrate, is narrow in scope and certainly capable of
being heard expeditiously. Submissions should be capable of being
prepared and filed in relatively short order. Given the timing issues
raised by the respondent, and the potential prejudice to the appellant if
the appeal were not heard for some months, I consider this is an
appropriate case to consider making urgent appeal orders. That is not a
usual step in appeals of this nature and should only be done where the
interests of justice support such an approach, having regard to the
potential prejudice to the appellant as well as the finite resources of the
court to accommodate such listings.
Conclusion
88 For the foregoing reasons, I will refuse the application for bail. I
should make it clear that, had I been comfortably satisfied at this stage
the appellant's grounds of appeal were strongly arguable and that it was
similarly strongly arguable that a custodial sentence ought not be
imposed in a re-sentencing exercise, that would plainly have weighed
heavily in favour of a grant of bail. In those circumstances, it would
have been unjust to refuse bail while the appeal was pending.
89 I am presently satisfied the appellant's appeal is reasonably
arguable but cannot be satisfied, at least at this stage, that the likely
disposition on re-sentencing, if that circumstance were to arise, would
be a sentence other than a custodial one. It is in those circumstances,
that I have exercised the discretion to refuse bail.
90 I am satisfied it is appropriate to make orders to expedite the
appellant's appeal, with a hearing to be listed on 26 June, which is some
six weeks from the date on which the appellant was sentenced. I
propose to make directions as follows but I will hear further from
counsel in this regard:
1. Pursuant to rule 69(1) of the Criminal Procedure Rules 2005
(WA), it is ordered that the appeal be heard as quickly as
practicable, consistent with the proper administration of justice.
2. Within 7 days of today (that is, by 9 June 2026), the appellant
file and serve any proposed amended notice of appeal, any
further affidavits in support of the appeal, and an outline of
submissions.
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3. Within a further 7 days (16 June 2026), the respondent file and
serve any affidavits and an outline of submissions.
4. The requirement for the appellant to file a notice of entry for
hearing for the appeal be dispensed with.
5. The appeal (including the applications for leave to appeal) be
listed for hearing at 10.00am on Wednesday, 24 June 2026.
6. There be liberty to apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of
the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
2 JUNE 2026
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ATTACHMENT A
Appellant's relevant criminal record
No. Date of offence Offence Sentence
1 3 May 2025 No authority to drive – licence
suspended.
Section 49(1)(a) and (3)(c) RTA.
MDL disqualified for
9 months cumulative on
15 July 2025.
Fine $1,200.
2 6 March 2025 No authority to drive
(disqualified).
Section 49(1)(a) and (3)(b)
RTA.
MDL disqualified for
9 months cumulative on
13 June 2025.
Fine $1,800.
3 6 March 2025 Exceeding speed limit between
20 and 29 km/h.
S 11(3) Road Traffic Code.
Fine $400.
4 2 Dec 2024 No authority to drive – licence
suspended.
Section 49(1)(a) and (3)(b)
RTA.
MDL disqualified for
9 months cumulative on
28 February 2025.
Fine $1,000.
5 2 Dec 2024 Driving with prescribed illicit
drug.
Section 64AC(1) (second or
subsequent offence).
MDL disqualified for
6 months cumulative on
28 February 2025.
Fine $1,250.
6 5 May 2024 Exceeding speed limit between
10 and 19 km/h.
S 11(3) Road Traffic Code.
Fine $200.
7 5 May 2024 Driving with prescribed illicit
drug.
Section 64AC(1) (second or
subsequent offence).
MDL disqualified for
6 months concurrent on 9
August 2024.
Fine $1,250.
8 28 Feb 2020 Driving with prescribed illicit
drug.
Section 64AC(1).
Fine $200.
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No. Date of offence Offence Sentence
9 28 Feb 2020 Possess a prohibited drug
(cannabis).
Section 6(2)(b) Misuse of Drugs
Act 1981.
Fine $300.
10 25 Nov 2016 No authority to drive – licence
cancelled.
Section 49(1)(a) and (3)(b)
RTA.
MDL disqualified for
12 months cumulative on
4 January 2017.
Fine $1,500.
11 26 May 2013 No authority to drive – never
held and disqualified.
Section 49(1)(a) and (3)(b)
RTA.
MDL disqualified for
9 months cumulative on
20 June 2013.
Fine $1,000.
12 26 May 2013 Unlicensed vehicle
(owner/driver)
Section 15(3) RTA.
Fine $50.
13 7 March 2009 No authority to drive – licence
suspended.
Section 49(1)(a) and (3)(c) RTA.
MDL disqualified for
9 months cumulative on
15 April 2009.
Fine $400.
14 7 March 2009 Unlicensed vehicle
(owner/driver)
Section 15(3) RTA. No MDL.
Fine $250.
15 30 Dec 2008 No authority to drive – licence
suspended.
Section 49(1)(a) RTA. Learner's
Permit.
MDL disqualified for
3 months concurrent on
11 February 2009.
Fine $150.
16 11 Oct 2008 Assault public officer.
Section 318(1)(d) Criminal
Code.
Fine $250.
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No. Date of offence Offence Sentence
17 11 Oct 2008 Reckless driving – Dangerous to
the public or any person.
Section 60(1) RTA (Learner's
Permit).
MDL disqualified for
6 months concurrent on
17 March 2009.
Fine $850.
18 11 Oct 2008 Exceed 0.08 blood alcohol
content (reading 0.137).
Section 64(1) RTA.
MDL disqualified for
5 months concurrent on
17 March 2009.
Fine $700.
19 11 Oct 2008 No authority to drive – licence
suspended.
Section 49(1)(a) RTA. Learner's
Permit.
MDL disqualified for
3 months concurrent on
17 March 2009. Learner with
no instructor.
Fine $150.
20 11 Oct 2008 Driving motor cycle without
wearing protective helmet.
Section 244(2)(a) Road Traffic
Code.
Fine $250.
21 12 Oct 2007 Criminal damage.
Section 444(b) Criminal Code.
Fine $1,000.
22 12 Oct 2007 Drive contrary to leaner's permit.
Section 50 RTA.
MDL disqualified for
3 months concurrent on
20 November 2007.
Fine $800 (global).
23 12 Oct 2007 Dangerous driving.
Section 61(1) RTA (Learner's
Permit).
MDL disqualified for
3 months concurrent on
20 November 2007.
Fine $800 (global).
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