Charles v Davies [2026] ACTSC 86

Mr Charles appeared before a Magistrate on 13 February 2026 for submissions and sentencing in connection with two groups of charges/offences to which he had entered guilty pleas.

Attached to these reasons and marked ‘A’ is an aide memoire prepared by the Director of Public Prosecutions which sets out the charges brought against Mr Charles, a description of the relevant offence under the headings of family violence offences and driving offences committed on 26 August 2025 and 27 September 2025 respectively, the maximum penalties for those offences and the sentence imposed upon Mr Charles. It also contains a chronology which is self-explanatory. The court record discloses that the period of sentence imposed under count three (damage property under $5,000) was four months’ imprisonment reduced from five months, and the period of the sentence was 13 December 2025 to 12 June 2026. There is an obvious arithmetic error in this latter date, and I have made an order for a correction under the slip rule to adjust that date to 13 March 2026.

Mr Charles was initially charged with the following offences: contravene family violence order; use unregistered/suspended vehicle; unlicensed driver – license never held; drive behind other vehicle too close to stop safely; red light-enter intersection; destroy/damage property not exceeding $1,000; and assault occasioning actual bodily harm.

On 13 February 2026, the learned Magistrate heard sentencing submissions and was informed that Mr Charles appeared for sentencing in relation to contravening a family violence order, using unregistered or suspended vehicle, unlicensed driver, drive other vehicle to close to stop safely, aggravated common assault in a family violence context and destroy/damage property. Her Honour was informed that Mr Charles had entered guilty pleas following representations being made about the assault charge. A plea of guilty was not recorded for the charge of assault occasioning actual bodily harm. Instead, the plea of guilty was limited to the alternative charge of aggravated common assault in a family violence context. That is the way the matter proceeded.

Following the hearing of submissions, the learned Magistrate proceeded to sentence Mr Charles to a total aggregate period of imprisonment of eight months to be served in full-time custody. Her Honour made orders for sentencing on the other counts, the effect of which was that the sentences were to be served concurrently with the eight-month sentence imposed for contravention of a family violence order.

Mr Charles appeals from these orders and seeks leave to place further evidence before the appeal court in the form of a copy of a signed agreement between himself and the DPP. The alleged agreement has not been disclosed to this Court. The grounds of appeal are that the agreement made with the DPP was not honoured and that he was wrongfully, unlawfully and maliciously sentenced. Doing the best I can with the information before me, it appears that Mr Charles asserts that an agreement was made with the DPP for him to be sentenced on a particular basis that was never put to the Magistrate and that, in relation to all offences charged, he had an understanding (the source of which is not stated) that he would be released forthwith at sentencing. Implicitly, Mr Charles was suggesting that the agreed approach to both the assault charge and to the damage property charges would be to minimise the seriousness of those charges.

Mr Charles first appeared in court in answer to the charges on 29 September 2025 and was refused bail. He was granted bail a few days later and one condition was that he leave the ACT to reside in Sydney. In December 2025, his bail was revoked following several proven breaches of bail, including that he had returned to the ACT. Mr Charles remained in custody until the sentencing hearing. At that hearing he was represented by a solicitor, Mr SC, who had been acting for him for a period of time and who had been in communication with the DPP about the charges he was facing.

Section 216 of the Magistrates Court Act 1930 (ACT) provides: (1) If a person (the appellant) appeals under this division— (a) the enforcement or execution of the decision, conviction, order, sentence or penalty that is the subject of the appeal is stayed until the appeal is decided or is abandoned or discontinued; and (b) if the appellant is in custody—the appellant may, if not detained for another reason, apply for bail under the Bail Act 1992. (2) Unless the appellant is detained for another reason, the appellant remains in the custody of the person who had custody of the appellant immediately before the enforcement or execution of the conviction or sentence was stayed until— (a) the appellant is granted bail under the Bail Act 1992; or (b) the appellant is remanded in custody.

Mr Charles brings an appeal against his sentence, and, under s 216(1)(a), the enforcement or execution of the sentence is stayed until his appeal is decided. Under s 216(2)(a), Mr Charles remains in custody until he is granted bail, the determination of which is governed by s 9E of the Bail Act, the content of which I have set out above. There are several decisions of appellate courts at state level and in the High Court which have considered the meaning of the expression: “special or exceptional circumstances”. They are thoroughly summarised in the decision of Refshauge J in Sherd v The Queen [2011] ACTCA 17 at [33]-[63]. One consideration is whether the sentence will have been fully or substantially served before the appeal is heard. A second issue is the prospects of appeal. An appeal with little or no prospects of success or which is frivolous is unlikely to attract the favourable exercise of discretion on a bail application, irrespective of the time served and the proximity of the appeal. Even a prima facie arguable ground of appeal that a sentence imposed is too severe is of very little weight when determining whether special or exceptional circumstances are proven. There are also practical reasons why courts should exercise extreme caution about the grant of bail pending an appeal where the grant of bail may well require the appellate court to be placed in the invidious position of effectively returning an appellant to prison. There is a serious risk of the availability of bail leading to a proliferation of unmeritorious appeals, particularly by those who are in custody seizing any opportunity to secure release and launching appeals irrespective of merit: see generally the decision of King CJ in R v Giordano (1982) 31 SASR 241 at 242).

The communications between the DPP and the solicitors for Mr Charles (see Exhibit A and B before this Court) show that the DPP agreed to the charge of assault occasioning actual bodily harm being downgraded to the statutory alternative charge of common assault. Exhibit A before me is the transcript of the hearing before Magistrate Temby on 16 January 2026. The Court was informed that the originally charged assault count will be dealt with by the alternative of common assault. This transcript also records the entry of the guilty pleas of Mr Charles to the various charges. In his submissions before me, this was the focus of the complaints of Mr Charles on this topic. He separately complained about the sentence imposed by the Magistrate, but these two topics were interrelated because he continued to maintain that an agreement was made with the DPP that he would be released on 13th February 2026, being the hearing date before the Magistrate.

Exhibit B is an email exchange between Mr SC, the solicitor for Mr Charles, and the prosecutor, Mr LT, which confirms the amendment of the assault occasioning actual bodily harm charge to the statutory alternative charge of common assault. Mr LT provides a fresh statement of facts which deletes the former charge. Although the date of the last email exchange on Exhibit B is after the hearing before the learned Magistrate, I am satisfied from the transcript of the hearing that the sentencing hearing proceeded based on that exchange between the solicitors. For the sake of completeness, I emphasise that no criticism is made of the solicitors involved here.

I refer to the wording of s 9E set out above. To satisfy the test of special and exceptional circumstances it is necessary for Mr Charles to satisfy me first, that there are strong grounds for concluding that the appeal will be allowed and second, that the sentence or at all events the greater part of it is likely to have been substantially served before the appeal is determined. The applicable authorities satisfy me that, while the prospect of an appeal being rendered nugatory is highly relevant, it is always necessary to establish sufficient prospects of a successful appeal. If prospects of success of the appeal are not sufficiently high, then I would not grant bail on the second ground of an appeal being rendered nugatory because of the passage of time in custody before the appeal can be heard (such that the sentence will have been served). I am satisfied that this is not only a question of fairness because it is also necessary to establish reasonable or realistic prospects of success.

The first ground of appeal alleges that factually some form of agreement was made with the DPP that was not honoured. I am very circumscribed in my considerations of this ground because it appears to relate to and depend upon further evidence that may be permitted to be led before the Court of Appeal. I put to one side the significant doubts that I have about any such order being made. I have earlier referred to Exhibit B, being the transcript before the learned Magistrate, which discloses that the hearing proceeded upon the lesser charge of common assault as had been agreed between the solicitors. I am not satisfied there is any evidence of a failure to comply with any agreement. To the contrary, there has been compliance with what, objectively, appears to have been the agreement between the solicitors. I cannot conclude that this ground has any reasonable prospects of success even though I remind myself that I cannot “descend into the arena of the appeal”.

The second ground is that the Magistrate wrongfully, unlawfully and maliciously sentenced the applicant. This appears to be based upon allegations about the learned Magistrate improperly considering the criminal record under Mr Charles’ South Australian criminal history. I have reviewed that history as best I can. I have reviewed the transcript before the Magistrate, and I am satisfied that her Honour properly assessed the material before her and has excluded that which is immaterial. Her Honour considered the convictions recorded upon the criminal history, that Mr Charles did not have a significant criminal history of violence offences and the convictions related largely to dishonesty offences, driving offences and drug offences. Her Honour made specific reference in the South Australian history to the failures of Mr Charles to comply with court orders, his numerous breaches of bail and his convictions for them in South Australia (different from the ACT). Her Honour also identified those matters which she did not take into account and focused upon the failure of Mr Charles to comply with court orders for bail and intervention orders. I am unable to identify any evidence or suggestion that her Honour improperly took into account irrelevant matters, such as matters which were dismissed or for which no conviction was recorded. I have reached the conclusion that there is no prospect of success on this ground of appeal.

For the sake of completeness, I proceeded to hear submissions on the question of manifest excess. It must be established that the sentence was unreasonable and plainly unjust and that the misapplication of principle must be inferred. The maximum penalty is the yardstick for consideration of manifest excess. I have reviewed the evidence before the learned Magistrate. The breach of the family violence order is apparent from the admission by Mr Charles that he was living at the FVO-protected address, and that there was an admission before the Magistrate about the acquiescence of the victim. The factual basis of the assault concerned the victim being pinned down and Mr Charles pressing his fist into her face. The damage property offences concerned a bowl breaking after being thrown across the room and a locked door being cracked when it was shoved by Mr Charles. Therefore, even taking into account factors which reduce the moral culpability of Mr Charles, regard must be had to his criminal history, his record of being unable to comply with court orders and his likelihood of reoffending. And before the learned Magistrate, Mr Charles did not demonstrate any form of remorse and attempted to minimise his responsibility. On these and other bases, the Magistrate refused to suspend the sentence which she imposed. In my view, this was entirely within the sentencing discretion of her Honour. I have earlier referred to the structure of the sentence and the concurrency of the sentences imposed. In my view, there are no reasonable prospects that an appeal court will decide that the sentences imposed were plainly unreasonable or unjust.

For these reasons I dismissed the application for bail of Mr Charles. Orders

The orders of the Court are: (1) The application is dismissed.