Ambury v R

Court of Criminal Appeal (NSW)|2017-05-29|Before: Hoeben CJ, Garling J, Bellew J

Judgment

THE COURT: On 8 May 2017, Michael Ambury, the applicant, filed a release application seeking a grant of bail.
The applicant is presently serving a sentence of imprisonment imposed for three convictions after a jury trial in the District Court. The total overall effective sentence which the applicant is presently serving is one of 2 years and 6 months commencing on 2 March 2016 and expiring on 1 September 2018. The non-parole period of that sentence is 1 year and 6 months, commencing on 2 March 2016 and expiring on 1 September 2017.
The convictions in respect of which the applicant was sentenced, related to three charges. The first charge was for an offence contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW) of participating with a child under the age of 18 years in an act of prostitution. The other two offences were contrary to s 91D(1)(a) and s 344A of the Crimes Act, of attempting to cause a child under the age of 18 years to participate in an act of child prostitution. The three charges related to a juvenile, TB.
A jury returned verdicts of guilty in respect of each count on 17 March 2016. The applicant was sentenced on 17 June 2016.
On 9 December 2016, the applicant lodged a Notice of Application for Leave to Appeal against his convictions and the sentence which was imposed upon him. That Notice contained a number of specified grounds. During the hearing of this application, the applicant indicated that he intended to expand the number of these grounds. The Court was not provided with those proposed grounds.
That appeal is listed for hearing before this Court on 12 July 2017.

Relevant Background

In 2015, after a judge alone trial in the District Court of NSW, the applicant was found guilty of three offences contrary to s 91D(1)(b) of the Crimes Act in relation to two juveniles, EH and OK. He was acquitted on one charge. He was sentenced in respect of those offences to a total term of imprisonment of 18 months commencing on 3 November 2015 and expiring on 2 May 2017, with a non-parole period of 4 months commencing on 3 November 2015 and expiring on 2 March 2016. As is apparent, the applicant has served the entirety of his sentence with respect to these offences.
An Application for Leave to Appeal against that conviction setting out detailed grounds was first lodged by the applicant on 1 May 2017. A Notice of Intention to Appeal was lodged at an earlier time. That appeal is also due to be heard on 12 July 2017 at the same time as his other appeal. I note that bail does not need to be granted in respect of these offences because the term of imprisonment has expired.
On 31 January 2017, the applicant applied for bail pending the hearing of his appeal to a Judge of the Common Law Division. At the time that bail application was heard and determined, the hearing of the applicant's appeal was fixed for 9 March 2017.
Latham J, for the reasons which she gave, refused to grant the applicant bail. In so doing, her Honour was not satisfied that the applicant had established special or exceptional circumstances. She did not consider the application of the unacceptable risk test.
A further application for bail was made in the Common Law Division. On 4 April 2017, Wilson J refused to hear that release application because her Honour was not satisfied, as required by s 74 of the Bail Act, that there had been any grounds established for the hearing of a further release application. In short, her Honour was not persuaded that there had been any relevant change in circumstances.
The applicant's appeal was first listed to be heard on 9 March 2017, in this Court. On that day, senior and junior counsel appeared for the applicant and informed the Court that their retainer had been terminated by the applicant. They sought leave of the Court to withdraw. That leave was granted.
The applicant made an application for an adjournment of the hearing fixed for that day in order that he might properly prepare and present his appeal. Prior to the Court considering that application, the presiding Judge warned the applicant of the consequences of that application in the following terms: "… whether you continue with your application for an adjournment, I can inform you that if the matter is not heard today, it is unlikely that it can be heard before May or perhaps even June this year, and given the pressure of work on the Court, there is no guarantee that there will be a judgment in your matter before the expiry of your non-parole period on 1 September."
After an adjournment to enable the applicant to consider his position, the applicant returned to court and pursued his application for an adjournment. That application was granted. The presiding Judge was at pains to remind the applicant that if the adjournment was granted it might take some time for the matter to come on for hearing. In response to such reminder, the applicant said: "I've done 90% of my time in jail already your Honour. What difference is it going to make now?"
Following the adjournment of the appeal, and after he lodged the Notice of Appeal and Application for Leave to Appeal in respect of his earlier convictions involving EH and OK, that the applicant lodged the present release application.

Applicant's Submissions

The applicant puts forward in writing five principal reasons why this Court should grant bail. They are that: 1. the Crown has conceded in its written submissions that leave to appeal should be granted in respect of Ground 5 of the applicant's principal appeal alleging that the trial Judge erred in admitting evidence relating to the search of the applicant's home and his arrest on 6 July 2012 because such evidence was irrelevant; 2. given that concession by the Court, the applicant had very strong grounds for submitting that it was likely, if not inevitable, that his appeal against conviction would be upheld; 3. the applicant only has 4 months remaining on his non-parole period, and further incarceration is not justified; 4. in the two previous bail applications in the Common Law Division there were significant errors of law made by each of the two judges; and 5. the applicant cannot complete the submissions for his two appeals due to be heard in July because of his onerous custody restrictions.
In his oral submissions, the applicant also asserted that his sister and her husband needed his help in their domestic affairs and circumstances. The applicant placed emphasis on this need in the context that his late father had passed away relatively recently, since he had been in custody, and shortly after his first bail application was determined adversely to him.
It is also to be recalled that the applicant seeks leave to appeal against his sentence on grounds that the sentence imposed was manifestly excessive. The applicant submitted that it was obvious that the sentence was manifestly excessive.
The applicant's oral and written submissions go on to identify the following matters as constituting special or exceptional circumstances. He submits that: 1. he has a legitimate appeal against his conviction and the sentence which was imposed; and that on that appeal he has reasonably arguable prospects of success; 2. he has served the majority of his sentence, and has a limited non-parole period remaining which is likely to, or else may, expire before his appeal is decided; 3. he has significant difficulties in preparing his two appeals because of limited access to computers for the preparation of grounds of appeal and written submissions in support of those grounds; and 4. the needs of his sister and her husband.
In the course of his oral submissions, the applicant informed the Court that in March 2007, his capacity to use computer facilities in jail was limited to 1 hour a week, use was suspended for a period, and then, when it resumed, he was limited to 1½ hours per week. He said that he needed to obtain external assistance to have typing done for him to enable him to properly prepare his appeals.

Crown Submissions

The Crown opposes the applicant's release application. It submits that special or exceptional circumstances to justify the grant of bail have not been established.
The Crown submits that there are no reasonably arguable prospects of success in respect of the applicant's conviction or sentence appeals.
In particular, the Crown notes that it has not conceded that leave to appeal ought be granted in respect of Ground 5. The Crown accepts that the contents of paragraph 113 of its written submissions on the appeal would suggest that such a concession has been made. But the Crown submits that there has been a clear typographical error, and the word "not" has been omitted. It submits that consistent with the totality of the submissions under that ground, it is obvious that such a typographical error has occurred.
The Crown submits that the other matters pointed to by the applicant, in particular that his non-parole period may expire prior to the hearing and determination of the appeal in the circumstances where the applicant sought to adjourn his appeal from a date when the Court was available to hear and determine it, did not constitute special or exceptional circumstances.
With respect to the proposition that the applicant was having difficulty in preparing extensive submissions whilst in custody, the Crown pointed to the absence of any evidence about his custodial conditions, the absence of any evidence of whether he did or did not have adequate access to his papers and resources, and it observed that in the past six weeks or so, despite being in custody, the applicant had been able to prepare extensive written submissions in support of his bail application and was able to complete the submissions in support of 20 grounds of appeal that he had lodged in the conviction appeal in respect of the earlier trial before the District Court. As well, the Crown pointed to the fact that extensive written submissions had already been filed by counsel for the applicant in the appeal in respect of the two TB convictions.
The Crown submitted that it was irrelevant for this Court to determine whether either of the two previous bail applications involved errors of law, because this Court was not sitting on an appeal from such applications or to review those applications, but was rather hearing the application afresh: R v Kugor [2015] NSWCCA 14; Obeid v R (No.2) [2016] NSWCCA 321.

Discernment

Two points can be addressed and disposed of promptly.
The first is that we are satisfied that the Crown has not made any concession that leave to appeal ought be granted in respect of Ground 5. The Crown's submissions in substance and effect oppose the grant of leave to appeal. There is a typographical error in paragraph 113 of the Crown's submissions on the appeal. It is not open to the applicant to rely upon this typographical error as constituting of itself and without more, an admission by the Crown of the strength of his appeal and likely prospects of success.
Secondly, whether errors exist in the decisions of the two judges of the Common Law Division in declining to grant the applicant bail is not at all relevant to this Court's determination of bail. This bail application is one which is to be heard and determined afresh and, accordingly, there is no need for this Court to be persuaded of any such error: Obeid v R (No.2) at [6].
In dealing with the application, it seems to the Court to be clear that if the applicant does not make good his contention that he has a high likelihood of success on appeal, the remainder of the matters would not of themselves and without more, establish special or exceptional circumstances as is required by s 22 of the Bail Act.
The delay in hearing of the appeal, and the effluxion of the non-parole period of the applicant's sentence, are matters which largely lie at the applicant's feet.
A period of a little under 6 months elapsed between his sentence being imposed in the District Court on 17 June 2016, and the lodgement of his Notice of Intention to Appeal and the Notice of Appeal against this application's conviction regarding TB. The appeal was listed to be heard promptly in March 2017, but the applicant sought, and was granted, an adjournment at that time conscious of the fact that the delay might mean that he served the balance of his non-parole period prior to his appeal being heard and determined.
On the question of whether the applicant has reasonable prospects of success, it is inappropriate, having regard to the short period of time which will elapse between the hearing of this application and the listed date for the hearing of both of the appeals, for this Court to give extensive reasons about the view which it has formed. The Court has received significant submissions on the question of the likelihood of success on the appeal involving the "convictions on the charges with respect to TB" including the full submissions that were made on the appeal to the Court when the matter was previously listed. That has enabled the Court to achieve a good understanding of the issues likely to arise. The applicant foreshadowed further grounds of appeal, but did not provide those grounds to the Court or to the Crown. We are unable to assess their merit.
However, on the hearing of this release application, such argument as does take place dealing with the prospects of a successful appeal is necessarily confined. The Court does not hear a fully developed argument as it would on the appeal. The task upon which the Court is engaged is not one of determining the appeal but, rather, forming a broad overall view at this point in time of the apparent prospects of this applicant on his appeal.
It is sufficient for the Court to conclude that on the materials provided to it, and at this stage of the proceedings it has not been persuaded that the applicant's case on appeal is sufficiently strong to meet the threshold requirements of s 22 of the Bail Act. We are not satisfied that the applicant's prospects of success taken alone or in combination with the other matters to which the applicant points, are sufficient in the circumstances here to constitute special or exceptional circumstances as required by s 22 of the Bail Act.
For these reasons, the release application must be refused.

Amendments 01 June 2017 - Typographical error [1] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2017

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