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The Registrar allocate a date for settlement of the appeal papers after the Draft Index has been filed and notify the date to the parties. AND THE COURT ORDERS THAT:

IN THE SUPREME COURT OF THE ) No. ACTCA 49 of 2010

) No. SCC 206 of 2010

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: EDWARD GRAHAM ALDRIDGE

Appellant

AND: THE QUEEN

Respondent

Judge: Refshauge J

Date: 22 September 2011

Place: Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

1. Every person who is sentenced by a criminal court in this Territory is entitled to appeal against the sentence and have reviewed whether it is infected by error or manifestly excessive or otherwise should be reviewed. Though such a right has been available since the establishment of this Territory (though initially only with leave), it is now supported by s 22(4) of the Human Rights Act 2004 (ACT).

2. That appeal, however, should not be taken to suggest that the sentence is in some sense contingent or provisional until confirmed. The sentence stands unless set aside or varied and, in the ordinary course, will be served pending the appeal. It is an unfortunate but inevitable consequence that all involved are to assume, as a practical and legal matter, that, until the appeal court has concluded otherwise, everyone concerned must accept that the punishment has been regularly imposed and is to be served. See Ettridge v Director of Public Prosecutions (Qld) (2003) 78 ALJR 157 per Callinan J.

3. Nevertheless, there are circumstances, rare and, of necessity and by authority, special or exceptional, where a court may permit a sentenced offender to be at large in the community on bail pending his appeal.

4. This is the situation that the appellant, Edward Graham Aldridge, seeks in his application for bail.

5. Mr Aldridge appeared for sentence on 29 October 2010 for seven counts, involving burglary on 27 January 2010 and 16 March 2010, an aggravated burglary on 12 March 2010 and theft of property from each of these premises burgled and also for taking a motorcycle on 16 March 2010 without the owner’s consent.

6. For these offences, he was sentenced to a total term of imprisonment of three years and six months to commence on 18 April 2010 to take into account pre-sentence custody. As was appropriate, the sentences for the theft of property from the houses burgled were made wholly concurrent on the sentences for the burglaries, but there was a degree of cumulation as between the sentences for the three burglaries. The sentence for the dishonest taking of the motorcycle was also made wholly concurrent on the associated burglary. A non-parole period of two years was set, to end on 17 April 2012.

7. Mr Aldridge prepared and filed his own Notice of Appeal on 23 November 2010. It contained two grounds: severity of the sentence, which I take to mean that he claims that the sentence was manifestly excessive, and that no Pre-Sentence Report “was seen”. I found it difficult to understand the latter ground, for there was a Pre-Sentence Report on the sentencing file, though it had not been marked as an exhibit; I do not know whether it was tendered or not. Certainly the Learned Sentencing Judge, Nield AJ, referred to matters in his Honour’s remarks on sentence that could have been ascertained from a reading of that Report. It may be that a copy was not shown to Mr Aldridge.

8. Mr Aldridge told me on the bail application that he was to be represented at the appeal and, indeed, had been assisted, in a very limited way to date, in the conduct of the appeal preparation by a lawyer whom he anticipates will appear for him on the appeal.

9. A preliminary point arose as to whether the Court of Appeal had jurisdiction to entertain a bail application pending appeal. The respondent, represented by the Director of Public Prosecutions, asserted that it did not have that power.

10. In Sherd v The Queen [2011] ACTCA 17, I held that the Court of Appeal did have that power. In exercising it, however, both at common law and under s 9E of the Bail Act 1992 (ACT), the court must first find special or exceptional circumstances justifying the grant of bail.

11. Two matters must be addressed. The first is that there must be strong grounds for concluding that the appeal will be allowed and the second is that the custodial part of the sentence is likely to have been substantially served before the appeal is heard.

12. Nevertheless, other matters, whether in combination or by themselves, may amount to special or exceptional circumstances which would justify the grant of bail.

13. Although Mr Aldridge lodged his Notice of Appeal on 23 November 2010, it was not filed until 20 December 2010. That may have been because it was requisitioned for some defect, not uncommon when applications are lodged by litigants in person. In any event, r 6145(4) of the Court Procedures Rules 2006 (ACT) means that once accepted it is deemed to have been filed on the day when it would have been filed if it had not been subject to a requisition.

14. Despite these dates, the appeal has not been listed for hearing. I am not able to say why that is so. The index was initially listed before the Court for settling on 10 February 2011. A warrant for Mr Aldridge’s attendance was apparently not issued and the settlement of the index adjourned to 2 March 2011. The court records are not easy to follow, but there did not appear to be any attendances for the parties on that date and the appointment was further adjourned to 7 April 2011 with an “Appeal Information pack” to be sent to Mr Aldridge.

15. At the April appointment, the respondent, represented by the Director of Public Prosecutions, was directed to provide a draft appeal index. This is common and appropriate where the appellant is not represented by a lawyer. Regrettably, no time was specified for this to be done and no draft index has been filed. I shall make appropriate directions about that.

16. The matter seems to have been then adjourned generally with liberty to restore on seven days notice. That may put an unreasonable onus on a self-represented appellant to progress the matter.

17. In any event, the matter was re-listed on 28 July 2011, though it was not clear how that was effected. The Registry undertook to provide a copy of the transcript of the sentencing proceedings and of the remarks on sentence, that is the judgment to the appellant. A copy of neither is on the file and there is no indication of whether a copy of either has been sent to Mr Aldridge.

18. Directions were made about the filing of appeal books, required to be filed by 18 September 2011, though none are on the file. No draft, much less a settled, index is yet on the file. No directions were made for the DPP to provide that urgently.

19. I mention these matters only because it is curious as to why the appeal has progressed so slowly. The appeal should have been heard well before now. The next sittings of the Court of Appeal are in November, but these sittings are fully allocated and so, even were the appeal now ready to be heard, and it clearly is not, the appeal would not be able to be heard until the February 2012 sittings. That is only about two months before the expiry of the custodial portion of Mr Aldridge’s sentence.

20. Mr Aldridge cannot be completely exonerated from responsibility for this, though I note from a letter he wrote to me that Mr Aldridge’s literary skills are not high and this is a significant limitation on his ability to navigate the procedural route to progress the appeal.

21. Nevertheless, while I cannot identify from the file who is responsible for the unacceptable delay in having this appeal heard, I am satisfied that Mr Aldridge is not primarily or substantially responsible. This appeal should have been heard in at least the May sittings and if not then certainly the August sittings. Now, it cannot be heard before February which, as noted, is about two months before the expiry of the non-parole period.

22. While this does not completely render the appeal futile, it does mean that any submission that the balance after the appeal of the custodial portion of the sentence be set aside would likely be met with the legitimate response that, in the circumstances, this would amount to tinkering. Thus, the practical effect is that the appeal would be largely rendered ineffective were bail not granted.

23. The next issue is whether there are prospects of success on the appeal and, if so, whether they meet the relevant test. In United Mexican States v Cabal and Ors (2001) 209 CLR 165 (at 181-2; [41]), the High Court referred to “strong grounds for concluding that the appeal will be allowed.” In Peters v The Queen (1996) 71 ALJR 309, however, Dawson J referred, in the context of a case where the date for hearing the special leave application meant that the application “would in all practical aspects be futile”, to the strength of the case in terms that his Honour “certainly [did] not think that the applicant’s case is unarguable.”

24. In this case, the strength of the real ground of appeal, namely manifest excess, is one that is difficult to assess. See Re Kulari [1978] VR 276 (at 277-8) per Young CJ. That does not mean that including such a ground will inevitably result in bail being granted pending appeal. That is certainly not so. Nor does it mean that a court cannot take some steps to determine whether the appeal is frivolous or having no merit, in which case, even where the custodial portion of a sentence will have been wholly or substantially served before the appeal is heard, bail would not ordinarily be granted.

25. In this case, there is little material on which could be based a sound assessment of the likely prospects of success on the appeal. The terms of imprisonment, the relevant cumulation, the discount for pleas of guilty and the relatively short non-parole period do not immediately suggest that the sentence ultimately imposed was manifestly excessive.

26. The Pre-Sentence Report, however, did express cautious support for the commitment Mr Aldridge had made to rehabilitation, especially as this was his first very serious offence and his first serious offending since he had become an adult.

27. In that context, the Pre-Sentence Report author had suggested that a Deferred Sentence Order might be appropriate to test his commitment to rehabilitation. There were no reasons for the Learned Sentencing Judge’s decision as to why such an order was not made, despite s 117(4)(a) of the Crimes (Sentencing) Act 2005 (ACT). I do not say that this was an error, considering the rather strange wording of the section, but it may have been.

28. Similarly, in view of Mr Aldridge’s commitment to the Methadone Program and his commitment to his new-born child, it may have been that an alternative way of serving the sentence may have been appropriate, but this was not addressed in the Learned Sentencing Judge’s remarks on sentence.

29. I do not say that these matters show strong prospects of success on the appeal, but they certainly show an arguable case, certainly not unarguable though not a great deal more. Of course, when the full papers are before the Court of Appeal and full argument is heard, they may be shown not to be sustainable and the appeal could well be dismissed.

30. While the test that is usually and appropriately applied is that, as well as the custodial portion of the sentence having been served or substantially served, there must be strong grounds of appeal, as enunciated in United Mexican States v Cabal and Ors, this is not necessarily required in every case, as what is special or exceptional will depend on the facts of a particular case: Tieleman v The Queen (2004) 149 A Crim R 303 (at 308). Even though strong prospects of success is not an essential criterion in every case, however, prospects of success will always be an important consideration: R v Ogawa [2009] QCA 201 (at [8]). Thus, where the appeal has no, no real or little prospects of success, it would be inappropriate to grant bail.

31. There are other matters that are relevant. Mr Aldridge’s partner recently gave birth to their second child. She is now suffering from post natal depression and I had a report from her general practitioner. Mr Aldridge considers that he needs to support her at this time.

32. By itself, this does not appear to me to amount to special or exceptional circumstances. It seems accepted that family hardship, while “provocative of sympathy ... are none the less matters that will rarely be able to be called in aid of an application for bail pending appeal”: Re Pennant [1997] 2 VR 85 (at 87).

33. Mr Aldridge’s partner, however, has been sentenced to three months periodic detention. That leaves her new born and their other child, a two-year old, without proper care over the time she must be in detention. His partner has no close family to assist.

34. The proper arrangements for care of children is a relevant factor where, as here, the Human Rights Act 2004 (ACT) in s 11(2) mandates that “every child has the right to the protection needed by the child...”. This right has been construed by the Constitutional Court of South Africa to be a relevant matter to be taken into account in sentencing. See S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18, as refined by S v The State [2011] ZACC 7.

35. It seems to me that, together all these matters amount to special or exceptional circumstances and that, accordingly, bail should be granted.

36. It must be made clear to Mr Aldridge, however, that the full terms of his non-parole period in actual time to be served in prison will have to be served if his appeal is dismissed. See Marotta v The Queen (1999) 73 ALJR 265 (at 267). I shall make this clear to Mr Aldridge when granting him bail.

37. As I have not heard submissions on the appropriate conditions for the grant of bail, I will hear the parties on the conditions that should be imposed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 22 September 2011

Counsel for the Appellant: Self-represented

Solicitor for the Appellant: Self-represented

Counsel for the Respondent: Mr T Jackson (3 August 2011)

Ms M Hunter (5 August 2011)

Mr J White (8 August 2011)

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 3, 5 and 8 August 2011

Date of judgment: 22 September 2011

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