BAIL - show cause - unacceptable risk - where applicant seeks to traverse guilty pleas - where applicant faces sentencing two days hence
Legislation Cited: Bail Act 2013 (NSW), ss 16B
17
18
Source
Original judgment source is linked above.
Catchwords
BAIL - show cause - unacceptable risk - where applicant seeks to traverse guilty pleas - where applicant faces sentencing two days hence
Legislation Cited: Bail Act 2013 (NSW), ss 16B1718
Judgment (2 paragraphs)
[1]
Judgment
HER HONOUR: This is a bail application brought by Mr Thomas Clinton who stands charged with a number of dishonesty offences. The dates of the offences range from 2008 until early 2014. Mr Clinton has been in custody since his arrest for the latest charges on 13 August 2014. On 15 September 2014, he sought bail in this Court in respect of those charges, the precise number of which is not clear from the judgment given that day. On that date, Blackmore AJ refused Mr Clinton's release application and upheld a detention application by the Crown in respect of 10 earlier charges. The result is that the applicant appears now to have been refused bail in respect of all matters although the precise position is not clear from the material before me.
The applicant faced trial for a number of the charges in the District Court. I am informed by the Crown that a trial was first fixed in September 2013 at a time when the applicant was at liberty. That trial was aborted due to the applicant's poor health. He was ultimately called for trial before Lakatos SC DCJ. An indictment dated 10 December 2014 containing two counts was presented first. During the course of the trial, Mr Clinton pleaded guilty to those two charges. Subsequently, before the same judge, he pleaded guilty to seven counts on a second indictment dated 19 December 2014 in association with which there was a Form 1 listing a further 19 fraud charges.
The proceedings were then listed for sentence before Lakatos DCJ, initially in February 2015 and on two further adjourned dates until, in July 2015, the applicant sought leave to withdraw his pleas. That application was refused by Lakatos DCJ. The applicant sought leave under s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against that decision. That application is listed before the Court of Criminal Appeal on 4 February 2016.
In the meantime, the proceedings for sentence came before Lakatos DCJ again on 20 November 2015 but could not proceed on that date because the applicant was in hospital. The sentence proceedings are now listed for hearing before Lakatos DCJ on 16 December 2015, some two days hence.
The applicant also has an appeal against conviction and sentence in respect of two matters for which he was dealt with in Gosford Local Court but has bail in respect of those matters.
Accordingly, the present application is one for bail in respect of, as it appears from the material before me, nine counts to which the applicant has entered pleas of guilty in proceedings before Lakatos DCJ and for which he is due to be sentenced on Wednesday. It is possible that he also requires bail in respect of some of the matters now on the Form 1.
The present application came before Fagan J on 1 October 2015. It was adjourned on the application of the applicant, as his Honour put it, granted "reluctantly" so as to enable the applicant to put on medical evidence and an affidavit from an associate of the applicant which it was said would be exculpatory. The application was again adjourned on 22 October 2015 by Hamill J, this time on the application of the Crown as the affidavit foreshadowed from the associate of the applicant (an accountant) had only been served that morning and the Crown was not ready to meet it.
Owing to the existence of the application for leave to appeal to the Court of Criminal Appeal, an issue arose before either Fagan J or Hamill J as to whether the application falls within s 22 of the Bail Act 2013 (NSW). On that occasion the parties agreed that, since the application for leave is against an interlocutory ruling rather than being an appeal against conviction, the application does not fall within the terms of that section. I have considered that issue independently and would respectfully agree. However, some of the charges in respect of which the applicant seeks bail are offences alleged to have been committed whilst he was on bail for earlier matters. It follows that the application carries a show cause requirement in accordance with s 16B of the Act.
Shortly after the introduction of the provisions imposing that requirement, I considered the proper construction of the Act in M v R [2015] NSWSC 138. I expressed my view that although the Act plainly contemplates a two-stage test, the practical application of that test proves its two stages to be illusory since the question whether there is any unacceptable risk posed by an applicant is one which necessarily informs the question whether the person has shown cause in the terms of the Act. The content of the show cause requirement is that a person must demonstrate why his or her detention is "not justified". I said in M v R that it was difficult to imagine circumstances in which a person who had demonstrated that there was no unacceptable risk would not also satisfy the show cause test. Conversely, the Act plainly contemplates that the detention of a person who does pose an unacceptable risk is justified.
The Court of Appeal subsequently considered my reasons in that case in an unrelated appeal in Director of Public Prosecutions v Tikomaimaleya [2015] NSWCA 83. The Court there indicated its acceptance that in many cases it may well be that matters relevant to the unacceptable risk test will also be relevant to the show cause test and that if there is nothing else that appears to the bail authority to be relevant to either test, the consideration of the show cause requirement will, if resolved in favour of the applicant, necessarily resolve the unacceptable risk test in his or her favour as well. The Court nonetheless emphasised the importance of employing the two-stage test mandated by the Act. The Court further noted that in the circumstances of that case there was a factor plainly relevant to the question whether cause could be shown which was a matter not listed in the mandatory and exhaustive list of considerations in s 18 of the Act. In that case, that was the fact that the applicant had been found guilty by a jury.
Plainly, the same reasoning applies in the present case where the applicant has entered pleas of guilty to the charges in respect of which he now seeks bail. Due regard must be had in that context to the fact that he seeks to withdraw those pleas but I do not think it is appropriate on a bail application to embark upon a consideration of the likely strength of that application. It is enough, in my view, to note that the application was refused at first instance by Lakatos DCJ with the result that strictly, from a juridical point of view, the appropriate legal context in which the present application must be determined is that the applicant is taken to be guilty of those charges.
That, of course, informs the assessment of a number of the matters identified in s 18 of the Act. The basis on which it is contended that the applicant has shown cause why his detention is not justified relates to two principal considerations which in turn inform other considerations required to be taken into account under the Act. They are first the applicant's poor state of health and secondly the evidence (to which I referred earlier) from the accountant. The applicant is undoubtedly in poor health and it is not difficult to conclude that his health might be managed more easily or more comfortably if he were not incarcerated. However, there is before the Court a letter dated 8 July 2015 from Dr Annette Bemand of Justice Health. She lists his conditions which include ischaemic heart disease, hypertension, gout, asthma and transient neurological symptoms possibly amounting to transient ischaemic attacks.
Dr Bemand states, however, that whilst in custody Mr Clinton has been appropriately managed, seeing a GP specialist very regularly. She expresses the opinion that whilst Mr Clinton's health may deteriorate over time, there is no evidence to suggest that it will deteriorate more rapidly because of a custodial sentence. The doctor does refer to the stresses of court as a factor to be taken into account in assessing the applicant's health. In the event that the Court of Criminal Appeal is persuaded to accede to the s 5F application, the prospect of a further lengthy trial in respect of the fraud matters would plainly command close attention to that consideration. A specific issue raised for Dr Bemand's consideration was Mr Clinton's history of medicinal marijuana use and whether that could exacerbate his cardiac condition. Dr Bemand indicated that she did not have appropriate expertise to respond to that question.
The second principal consideration raised as a show cause factor was the deed put into evidence by the accountant, Mr Glenn Sievier. Mr Sievier affirmed an affidavit on 22 October 2015 annexing what he said was "the deed". In fact, what it annexed is a copy of each of two deeds. Mr Sievier stated that he saw the deed being signed by "Mr and Mrs Spratt". The first deed is an acknowledgement and authority to act, evidently signed by their son. It is accordingly not entirely clear whether Mr Sievier intended to depose that he witnessed Michael Spratt, Mr and Mrs Spratt's son, sign that authority.
Since all of the deeds are dated 14 February 2015 and having regard to the content of the first deed itself, I am prepared to proceed on the assumption that the affidavit entails oversight in that respect and that the accountant intended to depose to having seen all three members of the Spratt family execute (where their names appear) the two deeds annexed to the affidavit.
The point of annexing that material appears to have been to demonstrate the existence of a defence in respect of the charges relating to the Spratts which are count 7 on the second indictment and two of the charges on the Form 1. There are two difficulties with that material. One is that the documents do not speak to the large number of other charges in respect of which pleas of guilty have been entered; the second is that, having regard to the content of the documents themselves, they do not of themselves establish the existence of a defence to those particular charges.
On their face, the documents indicate that the relevant members of the Spratt family have authorised the applicant, or at least an entity associated with him, to obtain and use credit facilities in their names. The terms of the facilities are very generous. On their face the deeds appear to authorise the applicant, or at least a corporate entity associated with him, to deduct from credit facilities obtained in their names "working capital", a term defined to include the expenditure of any amount whatsoever for any reason. Those are not the literal terms of the deed but that is its effect. "Working capital" is defined to range from out-of-pocket expenditure related to the financial and commercial dealings between the parties through to personal out-of-pocket expenditure and personal expenditure not associated with any financial or commercial dealings between the parties.
Expressed in such broad terms, it may be accepted that the Spratts appear (if they understood the terms of the document) to have authorised expenditure by the applicant or at least by the corporate entity. That, however, is not the end of the matter. The criminal proceedings relate not to fraud on the Spratts but an alleged fraud on the bank.
Mr Daoud, who appears for the applicant today, provided careful and detailed written submission helpfully expanded upon in oral submissions addressing each of the considerations relevant to the question whether cause is shown under the Bail Act. The principal considerations raised by those submissions are as follows. First, Mr Daoud accepted that the applicant's criminal history does not assist him but submit that the terse judgment published by Blackmore AJ on the earlier occasion did not fairly reflect its contents. His Honour said, "His criminal record is some 33 pages long, he is plainly a danger to the public when released from custody in that he continues to offend even when on bail". Mr Daoud noted correctly that not all of the record may fairly be described as part of the list of convictions. In fact, the copy before me is only 23 pages long and most of that is the repetition of some charges where appeals were brought, in some instances by the applicant and in some instances by the Crown.
Further, although as Blackmore AJ noted the record dates back to 1964, there was more than a 30-year gap before any further offending after that date. It must nonetheless be recognised that the applicant does have a considerable number of serious convictions for prior fraud matters. More relevantly, if (as I think must be the premise of this application) one accepts his pleas of guilty, his offending has escalated considerably in the last four or five years. Further, I note that he has in 2005 a conviction for perverting the course of justice for which a sentence of imprisonment was imposed.
Accordingly, although I would accept that the description of the record given by Blackmore AJ was not comprehensive, upon a careful analysis of the criminal history I do not think one can resile from the conclusion that the applicant presents an unacceptable risk within the meaning of s 17(2)(b); that is, a risk of committing serious offences whilst on bail. Acting Justice Blackmore referred to s 17(2)(c); perhaps his Honour had in mind financial threat to the community but I would rather regard the significant risk as being one of committing multiple, serious offences.
Secondly, it is necessary to have regard to the vulnerability of the applicant. His health is undoubtedly a concern. Upon analysis, however, for the reasons I have stated, this is ultimately to be judged as an application for bail for a period of two days until the sentence proceedings come back before Lakatos DCJ. An application for an adjournment of the sentence proceedings has been foreshadowed but it is not appropriate for me to form a judgment as to the likelihood of that succeeding. Judge Lakatos is obviously very familiar with the circumstances of the case and will be better placed to judge whether, if an adjournment is granted, bail also should be granted in the meantime. That view will undoubtedly be informed by his Honour's assessment as to the likely penalty.
Separately, Mr Daoud relied on confidential material placed before the court and made a submission about that. The material in question is plainly relevant to sentence but is a weak consideration on the issue of bail.
Finally, for the reasons I have already explained, I think those considerations which reflect the apparent strength of the Crown case (that is, ss 18(c), (e) and indirectly (h)) must count against the applicant in the context of his having entered the pleas of guilty.
In all the circumstances, I am not persuaded that the applicant has shown cause why his detention is not justified and accordingly it follows in accordance with the terms of the Act that I must refuse the application.
[2]
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: 21 December 2015