DOWNES -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 58

[2026] WASCA 58 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOWNES -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2026] WASCA 58 CORAM : SEAWARD JA HEARD : 16 APRIL 2026 DELIVERED : 16 APRIL 2026 PUBLISHED : 24 APRIL 2026 FILE NO/S : CACR 149 of 2025 BETWEEN : MATTHEW GREGORY DOWNES Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent FILE NO/S : CACR 153 of 2025 BETWEEN : MATTHEW DOWNES Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent -- 1 of 18 -- [2026] WASCA 58 Page 2 ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : GILLAN DCJ File Number : IND 1527 of 2022 Catchwords: Criminal law - Application for bail pending appeal against conviction - Application for bail pending appeal against sentence - Whether exceptional circumstances exist - Turns on own facts Legislation: Bail Act 1982 (WA) Result: Applications dismissed Category: B Representation: CACR 149 of 2025 Counsel: Appellant : In person Respondent : R P Arndt Solicitors: Appellant : In person Respondent : Director of Public Prosecutions (WA) -- 2 of 18 -- [2026] WASCA 58 Page 3 CACR 153 of 2025 Counsel: Appellant : In person Respondent : R P Arndt Solicitors: Appellant : In person Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Downes v The State of Western Australia [2025] WASCA 194 Downes v The State of Western Australia [2025] WASCA 50 Fermanis v The State of Western Australia [2005] WASCA 212 Foale v The State of Western Australia [2019] WASCA 122 Serukai v The State of Western Australia [2020] WASCA 127 The State of Western Australia v Downes [2025] WADC 96 The State of Western Australia v Pye [No 3] [2025] WASC 442 -- 3 of 18 -- [2026] WASCA 58 SEAWARD JA Page 4 SEAWARD JA: (This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations.) Introduction 1 On 2 February 2024, in the District Court, Mr Downes was convicted on his pleas of guilty of the following two offences charged in the same indictment: 1. That between 13 February 2022 and 16 August 2022 at Orelia, he cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). 2. That between the same dates and at the same place as in count 1, he fraudulently diverted to his own use electrical power derived from an apparatus, the property of Western Power Corporation, contrary to s 390 of the Criminal Code (WA). 2 Mr Downes was committed to the District Court following earlier pleas of guilty in the Perth Magistrates Court on 15 September 2022. Mr Downes was also further arraigned in the District Court on 19 July 2024, and again entered pleas of guilty. 3 Mr Downes was legally represented on all occasions when he entered a plea of guilty. 4 Mr Downes was not sentenced for those offences until 17 December 2025 when he was sentenced by Gillan DCJ. 5 On count 1, Gillan DCJ sentenced Mr Downes to 3 years' immediate imprisonment. On count 2, Mr Downes was sentenced to 3 months' immediate imprisonment, reduced from 9 months for totality. The sentences were ordered to be served cumulatively. Thus, the total effective sentence was 3 years 3 months' imprisonment. Mr Downes was made eligible for parole. Mr Downes had not spent any time in prison prior to his sentencing, and therefore the sentence commenced on 17 December 2025. 6 There is a significant period of time between Mr Downes's conviction and his sentence. In the period between the pleas of guilty -- 4 of 18 -- [2026] WASCA 58 SEAWARD JA Page 5 and the sentencing, there were a large number of appearances in the District Court. Most significant of those were: 1. An application for a conditional stay of the proceedings, until such time as the prosecution amended the statement of material facts to state that the number of cannabis plants for the purposes of count 1, was six plants, as opposed to 269 plants. This application was dismissed by Sweeney DCJ (as her Honour then was) on 27 February 2025. 2. A second application for a stay, this time a permanent stay, which was dismissed by Sweeney DCJ on 21 July 2025. 3. An application to withdraw the plea of guilty for count 1, which was dismissed by Petrusa DCJ on 25 September 2025. 4. A trial of the issues before Gillan DCJ, heard on 10 and 11 November 2025. Her Honour delivered her findings in relation to the contested matters of fact on 4 December 2025, with written reasons delivered on 17 December 2025: The State of Western Australia v Downes [2025] WADC 96. At the trial of the issues, expert evidence was called by both the State and the defence regarding the identification of the plants under cultivation. In broad terms, her Honour found that the plants were cannabis sativa, and the total number of plants under cultivation for the purposes of count 1 was 269 cannabis plants. 7 Whilst Mr Downes raised various matters in these hearings, some of the matters concerned the identification of the plants; the procedure for both the storage and destruction of the plants; and whether the WA Police followed the relevant regulations and correctly completed various forms associated with the identification and the destruction of the plants, and the keeping of samples. 8 In addition, there was an appeal from the first decision of Sweeney DCJ, where the appeal was dismissed as being incompetent by the Court of Appeal on 7 April 2025, in Downes v The State of Western Australia [2025] WASCA 50. 9 Mr Downes has filed two separate appeals in this court. The notice of appeal in matter CACR 149 of 2025 was filed on 16 December 2025, and is an appeal against his convictions. The notice of appeal in matter CACR 153 of 2025 was filed on 23 December 2025, and is an appeal against his sentence. -- 5 of 18 -- [2026] WASCA 58 SEAWARD JA Page 6 10 Mr Downes is representing himself in relation to his appeals and his applications for bail. 11 Mr Downes has filed two applications for bail, which I am considering today. The first application, being in the conviction appeal dated 11 March 2026. The second application, being in the sentence appeal, dated 11 March 2026. 12 Mr Downes has filed an affidavit in support of each of his applications for bail, each dated 12 March 2026. Mr Downes has also filed submissions in relation to each application for bail, both dated 10 April 2026. 13 The applications for bail are opposed by the respondent. The respondent has filed submissions in opposition to each application, dated 14 April 2026. 14 The applications came before me on 16 April 2026. At that hearing, both parties made oral submissions; Mr Downes handed up additional documents; and arrangements were made with the respondent to provide the court with a copy of the transcripts from the first decision of Sweeney DCJ and the decision of Petrusa DCJ. I then adjourned the applications to today, to review the additional documentation, and consider the matters raised in oral submissions. 15 I observe that Mr Downes has made several other applications in his appeals, in addition to his applications for bail. However, pursuant to the orders of Thomson P made on 30 March 2026, I am only considering the applications for bail. 16 To date Mr Downes has not filed his appellant's case in either of his appeals. However, he has received extensions of time in relation to this requirement, and pursuant to orders made by Hall JA on 8 April 2026, Mr Downes has until 11 May 2026 to file his appellant's case in each appeal. 17 To round out my summary of the procedural history of this matter, I observe Mr Downes has made one previous application for bail, in relation to the conviction appeal. That application was made on 16 December 2025, and was heard and dismissed by Mazza JA on 23 December 2025, with written reasons delivered on 31 December 2025: Downes v The State of Western Australia [2025] WASCA 194. -- 6 of 18 -- [2026] WASCA 58 SEAWARD JA Page 7 Factual background 18 The circumstances of the offending were outlined by Mazza JA in the previous bail decision as follows: 19 On the afternoon of 14 August 2022, officers from the Department of Fire and Emergency Services attended at an address in Orelia in response to reports of a house fire. Upon their arrival, the officers found an active fire engulfing the roof space of the house. Police were notified of suspicions that the house was being used for the cultivation of cannabis. 20 On 15 August 2022, police officers executed a search warrant at the house. Upon entering the house, the police officers located a hydroponic cannabis growing operation in the laundry and three bedrooms, which had each been converted for the purpose of cultivation of cannabis. In the room designated as 'bedroom 1', there were 179 plants at various stages of growth. In the room designated as 'bedroom 2', there were 54 plants at various stages of growth. In the room designated as 'bedroom 3', there were 36 plants at various stages of growth. In all, there were 269 plants under cultivation. A subsequent examination revealed that the plants were cannabis sativa. 21 The hydroponic system involved grow lights, transformers, extractor fans, and a carbon air filter. 22 Workers from Western Power attended the scene. They established that the electrical power system to the house had been tampered with to bypass the power meter, without recording any charge for the electricity that was used. Legal principles 23 The legal principles regarding the grant of bail are not in dispute and have been outlined by this court on numerous occasions. 24 The Bail Act 1982 (WA) (Bail Act) confers power on the Court of Appeal to grant bail after conviction and sentencing for an accused awaiting the disposal of an appeal. Clause 4A of sch 1 pt C of the Bail Act creates a rebuttable presumption against a grant of bail to an accused who is in custody waiting for the disposal of appeal proceedings. The court may only grant bail if satisfied that there are exceptional reasons why an appellant should not be kept in custody, and it is otherwise proper to do so having regard to the provisions of cl 1 and cl 3 of sch 1 pt C. -- 7 of 18 -- [2026] WASCA 58 SEAWARD JA Page 8 25 The use of the word 'exceptional' in cl 4A denotes something which is unusual or out of the ordinary, in some way special, or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the circumstances of each particular case. Exceptional reasons can, of course, be constituted by a combination of factors. 26 The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. However, it is usually necessary for an appellant to demonstrate that his or her ground or grounds of appeal are strongly arguable, and, without detailed argument, that the appeal is most likely to succeed. Put another way, the prospects of success must be sufficiently likely as to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction or an unjust sentence. See, by way of example, Serukai v The State of Western Australia [2020] WASCA 127 [12] - [14]. 27 In the case of an appeal against sentence there must be a strongly arguable case that a different sentence should have been imposed. See Fermanis v The State of Western Australia [2005] WASCA 212. 28 In circumstances where an application for bail has previously been refused, as is the case here in relation to the conviction appeal, the power to grant bail only arises if Mr Downes satisfied a court that, relevantly:1 (a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance; or (b) he failed to adequately present his case for bail on the previous occasion when it was considered. See sch 1 pt B cl 4 of the Bail Act. CACR 149 of 2025 - conviction appeal 29 I will first consider the application in the conviction appeal. 1 Bail Act, sch 1 pt B cl 2 and cl 4. -- 8 of 18 -- [2026] WASCA 58 SEAWARD JA Page 9 30 Mr Downes accepts that as this is his second application for bail in the conviction appeal, my jurisdiction to consider the application is conditioned on the existence of one or more of the matters referred to in Bail Act, sch 1 pt B cl 2 and cl 4. 31 Mr Downes relies on both the existence of facts or circumstances, and that he failed to adequately present his case for bail on the previous occasion when it was considered. 32 In terms of new circumstances, Mr Downes relies on the following matters: 1. Mr Downes has been moved from Hakea Prison to Acacia Prison. 2. At Acacia Prison, Mr Downes cannot access any legal documents required. 3. The network server that holds his documentation at Acacia Prison is unreliable and not accessible more often than not, and that there was a server error in March this year which resulted in Mr Downes losing documents he had prepared. 4. The lack of access to a USB storage device containing documents and materials required for the purposes of preparing his appellant's case. 5. The lack of access to legal documents on previously seized storage devices. 6. The prison conditions at Acacia prison are still untenable for a self-represented appellant. 7. The lack of provision of prescription medicinal cannabis to Mr Downes to assist with his sleep and anxiety. 33 I do not consider any of these facts to be new facts that have been discovered, or new circumstances that have arisen, or that the circumstances have changed since the previous application as required by sch 1 pt B cl 4 of the Bail Act. 34 Whilst Mr Downes has moved prisons, each of the above circumstances existed at the time of the previous bail application. That is, Mr Downes did not have access to the various seized storage devices -- 9 of 18 -- [2026] WASCA 58 SEAWARD JA Page 10 or his USB storage device. Mr Downes was also not receiving any medicinal cannabis at Hakea Prison. 35 In terms of access to library and computer facilities, Mr Downes did not have any access to a library or computer facilities at Hakea Prison. Therefore, his improved, but limited, access at Acacia Prison cannot be described as a change in circumstances of the type required. 36 In terms of the server outage at Acacia Prison, the evidence before the court is that there was a server problem in March 2026, and prisoner documents held on the server were only able to be recovered as at a date in November 2025. That is, the evidence before the court is that there was a problem, which has now been rectified as best it can. I do not consider this constitutes new circumstances of the type required. 37 In short, the circumstances described by Mr Downes are largely a continuation of his position as at the first bail application, albeit in a different prison. 38 I therefore do not consider that Mr Downes has demonstrated the requisite new facts or circumstances for the purposes of sch 1 pt B cl 4 of the Bail Act. 39 In relation to whether Mr Downes adequately presented his application for bail on the previous occasion, Mr Downes relies on his more detailed information and proposed grounds as contained in his written submissions and affidavit in support of his application for bail. Mr Downes also relies on the first application being immediately after his conviction, and his lack of resources in prison to complete and present his first bail application and him generally being in a state of duress given his conviction and pending sentencing. 40 It is certainly the case that Mr Downes has filed documents containing greater information and detail than he had for his previous bail application. This includes greater detail as to his proposed grounds of appeal, which are contained in his submissions, as well as in relation to his conditions in prison. 41 It is not entirely clear to me that it can be said that Mr Downes inadequately presented his bail application on the first occasion, merely because he presented more detailed information in relation to his second application for bail. However, given the expanded explanation of the proposed grounds of appeal, I will proceed on the basis that -- 10 of 18 -- [2026] WASCA 58 SEAWARD JA Page 11 Mr Downes did inadequately present his application for bail on the previous occasion. 42 It is therefore next necessary to consider whether Mr Downes has demonstrated exceptional reasons. 43 In terms of exceptional reasons, Mr Downes relies on the following matters: 1. The unfairness being applied to Mr Downes as a self-represented litigant, in terms of the unevenness of resources, time and facilities compared to the State. 2. The unlawful seizure of privileged electronic devices by the State on 25 November 2025, in relation to an unrelated matter. Mr Downes submits that this is currently the subject of proceedings in the Magistrates Court in relation to the question of legal professional privilege. 3. The inability for Mr Downes to meaningfully access a USB storage device containing electronic copies of his various documents and materials relevant to his appeals whilst in prison. 4. The inability for Mr Downes to obtain previously prescribed and necessary medication, being medicinal cannabis, for ongoing maintenance of anxiety, pain and general wellbeing. 5. The current prison conditions, including overcrowding, officer issues, limited time in the prison library, and breaches of various prison regulations. 6. The deletion of all of Mr Downes's appeal documents in March 2026 when there was a server problem. 7. Mr Downes's compliance with his bail conditions when he was on bail pending his sentencing in the District Court. 44 Mr Downes has not yet filed his appellant's case in relation to his conviction appeal. However, in his notice of appeal, Mr Downes provided draft grounds of appeal. Further, in his written submissions in support of his application for bail, Mr Downes foreshadowed his grounds of appeal and provided greater explanation in relation to each. By way of summary only, the foreshadowed grounds are: -- 11 of 18 -- [2026] WASCA 58 SEAWARD JA Page 12 1. Ground 1: the plea of guilty was not informed and was induced by fraud or the like. Mr Downes submits that Sweeney DCJ, Petrusa DCJ and Gillan DCJ erred in law by continuing to rely on certificates issued under the Misuse of Drugs Act 1981 (WA) and approved botanist identification opinion notwithstanding alleged deficiencies in the certificates. 2. Ground 2: on the admitted facts, Mr Downes could not be guilty of the offences. Again, Mr Downes submits that Sweeney DCJ, Petrusa DCJ and Gillan DCJ erred in law by admitting and continuing to rely on the various certificates for prima facie proof of identification of the cannabis plants, and relying on the botanists' identification evidence when the methodology used by the botanist did not follow world forensic standard procedures. 3. Ground 3: the guilty pleas were induced by fraud or the like, and the pleas can no longer be regarded as true admissions of guilt. Mr Downes submits that Sweeney DCJ, Petrusa DCJ and Gillan DCJ erred in law and in fact by relying upon and accepting an extract from the WA Police Manual and what Mr Downes submits are false submissions from the prosecution regarding the extent to which Mr Downes and his counsel complied with the regulations regarding testing requirements under the Misuse of Drugs Regulations 1982 (WA). 4. Ground 4: the guilty pleas were induced by materially misleading forensic and procedural representations such that the pleas were being induced by fraud. Mr Downes submits that the learned judge erred in law and fact by accepting the State's submission that destruction of the cannabis plants (aside from the samples) had occurred in compliance with the statutory requirements, when the relevant certificate had not been signed by the Commissioner's delegate, and later information revealed other alleged inaccuracies. Mr Downes submits that a miscarriage of justice occurred at the time of the plea. 5. Ground 5: the guilty pleas were entered on the materially false premise that the prosecution evidence had been lawfully preserved and that any retained subsamples would be capable of independent testing under the statutory regime. Mr Downes submits that the plants had already been destroyed without notice to him, and without compliance with the statutory -- 12 of 18 -- [2026] WASCA 58 SEAWARD JA Page 13 safeguards. Further, that the retained samples were not sufficient quantitively or qualitatively. Mr Downes submits that to the extent Sweeney DCJ concluded otherwise, this was an error of law. 6. Ground 6: the learned judge erred in law and fact by relying upon the expert opinion evidence that was deficient and incapable of supporting lawful botanical identification of the plants as cannabis sativa. 7. Ground 7: Mr Downes could not be in law be capable of being guilty to the admitted facts as his plea of guilty does not admit the facts stated on the relevant identification certificate until it is proven that the identification is of a prohibited plant, to the standard of the court. 8. Ground 8: the learned judge erred in law by not accepting the application for plea withdrawal of Mr Downes's guilty plea through s 99(5)(b) of the Criminal Procedure Act 2004 (WA). 9. Ground 9: the learned judge erred in law by refusing to permit examination of the author of the WA Police Manual and by not allowing the applicant to have the prosecutor removed from the case in order for Mr Downes to examine the prosecutor in his plea withdrawal application. 10. Ground 10: the pleas of guilty were uninformed and based on a misunderstanding of the law. Mr Downes submits that the learned judge erred in law by construing the word 'may' in s 41 of the Misuse of Drugs Act 1981 (WA). Section 41 is the regulation making power. 11. Ground 11: The learned judge erred in law by refusing to reopen the first stay decision under s 98(3) of the Criminal Procedure Act 2004 (WA) in light of material evidence revealed during the trial of the issues and by documents later disclosed by the defence by summons. 45 In his oral submissions, Mr Downes expanded upon these proposed grounds of appeal. I will not summarise all that Mr Downes said here, but I have had regard to those submissions. I will also observe that Mr Downes submitted that his pleas of guilty were pleas based on his understanding that the identification of the plants had been -- 13 of 18 -- [2026] WASCA 58 SEAWARD JA Page 14 done to a recognised forensic taxonomy standard - which he subsequently found out had not occurred. 46 In the present case, I have considered all of the filed written material, plus the additional material handed up on 16 April 2026, and the oral submissions by both parties. Having done so, I am not satisfied that Mr Downes has established exceptional reasons sufficient to grant bail. 47 In terms of the strength of Mr Downes's case on appeal, it is not appropriate to engage in a detailed assessment of the merits of the grounds of appeal at the point of considering a bail application. This is especially the case when an appellant's case has yet to be filed and there is a lack of detailed written and oral submissions on the grounds. 48 Further, as observed by Mazza JA, it cannot be overlooked that Mr Downes faces the very considerable obstacle that the convictions followed his pleas of guilty. 49 I have, however, carefully considered the reasons given by Sweeney DCJ, Petrusa DCJ and Gillan DCJ, and the various proposed grounds of appeal. Having done so, I am not satisfied, at this stage, that Mr Downes's case on appeal can be described as sufficiently strong to justify a grant of bail in the sense required under the Bail Act. 50 In so far as Mr Downes relies on the various difficulties occasioned by his stay in prison as exceptional reasons, I observe that this court has held on numerous occasions that factors common to all persons held in custody pending appeal cannot constitute 'exceptional reasons'. See for example Foale v The State of Western Australia [2019] WASCA 122 [14]. 51 The matters raised by Mr Downes in this regard are all matters that are common to all persons held in custody. In this regard, access to resources, including electronic resources, are limited for all persons in prison. The server problem also appears, on the basis of the evidence before the court, to have affected all persons held in Acacia Prison. Matters concerning the conditions at Acacia Prison, whilst not desirable, are also common to all persons held in custody. 52 The matters raised by Mr Downes regarding his difficulties in completing his appellant's case, and other relevant court documents, including the recent server problem, may certainly constitute sufficient reasons for an extension of time for Mr Downes to file, for example, his -- 14 of 18 -- [2026] WASCA 58 SEAWARD JA Page 15 appellant's case. That has occurred here with Mr Downes being given two extensions to date. 53 In relation to the seizure of Mr Downes's storage devices, I am not satisfied that there is sufficient material before me to conclude that this prevents Mr Downes from preparing his appellant's case and otherwise conducting the appeal. There is no explanation for why documents cannot be obtained from other sources, especially in so far as those documents consist of court documents or documents previously disclosed by the prosecution. I also observe that Mr Downes has been able to prepare his bail application, affidavit in support and written submissions. The affidavits annex numerous documents. 54 In terms of Mr Downes's reliance on being denied medicinal cannabis for his health, I do not consider that the decision of The State of Western Australia v Pye [No 3] [2025] WASC 442 (Pye), relied on by Mr Downes in this regard, is of assistance to him. The factual circumstances underpinning the application for bail in Pye are very different to Mr Downes's case, involving an application for bail during trial, and circumstances where previously prescribed medication had been provided to Mr Pye in prison for past court appearances, but would not be provided for the trial. Evidence was also provided as to the effect on Mr Pye, and his ability to participate in the trial, and as a consequence there was a real prospect that Mr Pye would be unable to properly engage in his trial. No such evidence is present here. 55 Finally, Mr Downes's compliance with bail conditions when on bail pending sentencing, cannot constitute exceptional reasons. 56 In those circumstances, I am not satisfied that the various matters relied on by Mr Downes, either alone or in combination, constitute exceptional reasons such as to justify a grant of bail. CACR 153 of 2025 - sentence appeal 57 As Mr Downes has not made a previous application for bail in the sentence appeal, he is not required to establish a material change of circumstances or that he inadequately presented his previous application for bail. 58 Mr Downes is, however, required to establish exceptional reasons for the grant of bail. -- 15 of 18 -- [2026] WASCA 58 SEAWARD JA Page 16 59 In this regard, Mr Downes relies on the same matters as he did in his application in the conviction appeal, in addition to the strength of his proposed grounds of appeal. 60 In terms of his grounds of appeal for his sentencing appeal, again Mr Downes has not yet filed his appellant's case. However, draft grounds of appeal are contained in the notice of appeal, and in his written submissions in support of his application for bail, Mr Downes foreshadowed his grounds of appeal. By way of summary only, the foreshadowed grounds are: 1. Ground 1: the learned judge erred in fact when determining the facts in the trial of the issues. Mr Downes raises a number of issues concerning the evidence regarding the identification of the samples as cannabis sativa. 2. Ground 2: the sentence was imposed on an unsafe factual foundation. Mr Downes submits that the learned judge erred in fact by not applying the findings from the trial of the issues correctly to the facts on issue for sentencing. 3. Ground 3: alleges a failure to draw adverse inference from the State's destruction of the cannabis plants. Further Mr Downes alleges that the trial judge imposed an improper burden of proof by effectively shifting the burden to Mr Downes to disprove aggravating factors and to prove mitigating factors, in circumstances where Mr Downes submits that the State unlawfully destroyed the cannabis plants. In particular, Mr Downes submits that appropriate inference was that the plants, if proven to be cannabis sativa, were likely 'no THC' or 'hemp' incapable of illicit commercial production and with no street value. 4. Ground 4: the learned judge erred by overstating the commerciality and objective seriousness of the offending. 5. Ground 5: alleges that the sentence was manifestly excessive. 6. Ground 6: asserts that the reduction pursuant to s 9AA of the Sentencing Act 1995 (WA) was insufficient considering the plea of guilty was at the first opportunity. In this regard, a discount of 5% was given in relation to count 1, and a discount of 25% was given in relation to count 2. -- 16 of 18 -- [2026] WASCA 58 SEAWARD JA Page 17 7. Count 7: asserts that the learned judge erred by not granting suspension of the sentence of imprisonment. Mr Downes also submits that the learned judge erred in not considering a community-based order or an intensive supervision order. 61 I have considered all of the materials lodged by Mr Downes, including those handed up on 16 April 2026. The materials include the findings made by Gillan DCJ in the trial of the issues, the written sentencing submissions in the District Court by both parties and the transcript of the sentencing, including Gillan DCJ's sentencing reasons. I have also considered the oral submissions of the parties in this court. 62 When assessing the strength of Mr Downes's case for the sentencing appeal, I observe that this appeal proceeds on the basis that the convictions are upheld. In that context, the strength of Mr Downes's case could only amount to an exceptional reason for granting bail if it were established that it not only has strong prospects of success but that, if the appeal is allowed, Mr Downes would be likely to be resentenced to a non-immediate term of imprisonment or a term of imprisonment substantially less than that originally imposed, such that Mr Downes would have served the non-parole period of the sentence by the time of any appeal hearing or a substantial portion of it. 63 Bearing in mind that the appeal is at a preliminary stage, an appellant's case has not been filed, and I do not have the benefit of full written submissions or oral argument on the future grounds, I am not satisfied, at this stage, that Mr Downes's case on appeal in relation to his sentence can be described as sufficiently strong so as to give rise to a real concern that he would suffer injustice by being kept in custody on an unjust sentence, so as to justify a grant of bail. 64 In relation to the other matters relied on to establish exceptional reasons, for the same reasons as I outlined in relation to the conviction appeal, the other matters raised by Mr Downes regarding his circumstances in prison are not sufficient, either alone or in combination, to constitute exceptional reasons for a grant of bail. Conclusion 65 For these reasons, each of Mr Downes's applications for bail must be dismissed. -- 17 of 18 -- [2026] WASCA 58 SEAWARD JA Page 18 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MA Associate to the Hon Justice Seaward 24 APRIL 2026 -- 18 of 18 --