DHANJI J: DC has made a release application pursuant to s 49 of the Bail Act 2013 (NSW) ("the Act").
On 4 October 2023, the applicant was convicted following a trial in the District Court for an offence of arson and eight offences of fraud related to that arson.
On 15 December 2023, the applicant was sentenced to imprisonment for a term of five and a half years with a non-parole period of three and a half years, ordered to commence on 3 October 2023. The applicant's non-parole period expires on 2 April 2027 and his head sentence will expire on 2 April 2029.
The applicant has sought leave to appeal against his convictions. He has appeared before this Court today to argue that application. The Court has reserved its decision with respect to his appeal. Proceedings, therefore, remain pending in this Court. This Court has jurisdiction to hear the application pursuant to s 61 of the Act.
Section 22(1) of the Act applies. That sub-section relevantly provides:
22 General limitation on court's power to release
(1) Despite anything to the contrary in this Act, a court is not to grant bail or dispense with bail for any of the following offences, unless it is established that special or exceptional circumstances exist that justify that bail decision -
(a) an offence for which an appeal is pending in the Court of Criminal Appeal against -
(i) a conviction on indictment, or
…
The result is, in the absence of the applicant demonstrating special or exceptional circumstances justifying the grant of bail, this Court must refuse bail.
In El Khouli v R [2019] NSWCCA 146 at [22], this Court observed:
"First, a distinction appears to have been drawn on the authorities, when the grounds of appeal are advanced as a factor demonstrating special or exceptional circumstances, between cases where the strength or merit of an appeal has been relied upon in isolation, and those where the applicant relied upon that factor in combination with other factors including whether the applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal."
DC v Director of Public Prosecutions [2024] NSWCCA 235 | Case summary | Zoe
In Fantakis v Director of Public Prosecutions [2021] NSWCCA 271 at [12], Beech-Jones CJ at CL said in relation to that aspect of the decision in El Khouli:
"I do not take El Khouli as specifying different thresholds about the relative strength of the proposed grounds of appeal that must be shown in order to demonstrate special or exceptional circumstances. The above passage from El Khouli identifies a particular matter that is often highly relevant to a grant of bail pending an appeal, namely, whether an "applicant would have spent a substantial part of his or her sentence in custody by the time of the hearing of the appeal". That circumstance is relevant to an assessment of whether special or exceptional circumstances have been shown in that the appeal may be rendered futile, or at least of lesser utility, if there is no grant of bail. Often, the interaction between the assessment of the relative strength of the appeal and the utility of the appeal will bear heavily upon whether or not special or exceptional circumstances exist (see United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [41])."
It should be stressed that s 22(1)(a) does not refer simply to "special or exceptional circumstances" but rather the existence of such circumstances so as to "justify" a grant of bail. The open-textured nature of that word was observed in the context of the show cause test in s 16A of the Act: see Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] 97 NSWLR 246; [2018] NSWCA 47 per Leeming JA at [85]. His Honour there noted that content can be given to the requirement in s 16A by considering how the legislature anticipated it would be applied, that is, by persons and ultimately, if bail is initially refused, by courts familiar with the basic principles of the Australian legal system. Similar considerations apply here. That is, the context in which the word "justified" is used is important. The circumstances must be special or exceptional so as to justify a grant of bail in circumstances where the applicant has been convicted after trial. While the applicant in the present matter was not found guilty by a jury, his convictions on indictment after trial by a judge alone have the same status as jury verdicts. For this reason, the test in s 22(1)(a) has been said to create a "significant" hurdle to an applicant for bail: see HT v Director of Public Prosecutions (NSW) [2019] NSWCCA 141 at [24].
The present applicant relies on a combination of the merits of his appeal and his need to be at liberty as a result of matters personal to him. The present case is somewhat unusual in that the application for leave to appeal has been heard and judgment reserved. The decisions I have referred to were given in a context where the appeal was yet to be heard. In circumstances where an appeal is yet to be heard, a court is necessarily limited in its capacity to judge the merits of the appeal. This Court, having heard full argument, is not limited to the same extent.
Consideration of this application immediately following argument on the application for leave to appeal should not be regarded as suggesting that this is a course which might be routinely taken. This Court, when hearing applications or appeals by persons in custody, is inevitably acutely aware of that fact. It can be expected that if an appeal appears to the Court to be certain to succeed, orders will be made on the day. If it appears to the Court that there is a real chance of orders being made that will see a person released from custody, my experience is that every effort is made to reduce delay. The applicant in the present matter was unrepresented and perhaps unaware of the Court's general approach in this regard.
While, as I have acknowledged, this Court has heard full argument on the application for leave to appeal, no decision has yet been made. To delay the decision on bail until the application is determined would obviously defeat the application. For the application to have utility, it is necessary that it be decided as quickly as possible. The result is that the application falls to be determined at a time at which the applicant remains convicted of the offences with which he has been charged. He is serving a sentence of imprisonment which is to be regarded as properly imposed by the trial court unless and until such time as those convictions are quashed. While the appeal remains on foot, that remains a prospect. Whilst argument has been heard, the determination of this application is not the time to resolve those arguments. The best that can be said is that arguments have been presented by both sides. The applicant has sought to rely on new evidence before this Court. That application has not been resolved. The arguments will need to be carefully evaluated. Contrary to the applicant's submission I am unable to say at this stage that there is a high chance of success. The result is that until such time as the various arguments are determined in the applicant's favour, the prospect of the applicant's convictions being quashed remains no more than that.
With respect to the applicant's custodial situation, it must be accepted that the applicant has now been in custody for in excess of one year. His non-parole period is not, however, due to expire until April 2027. That is well over two years away. While there will necessarily be some delay before the applicant's application for leave to appeal is finally determined, it is not anticipated that that delay will be such that the applicant will have served the entirety or even the half of his non-parole period before resolution of the appeal.
I would accept that, given the length of the non‑parole period, the applicant will have served a substantial part of his non‑parole period before any appeal is determined. However, that said, any additional period as a result of the refusal of bail today is not expected to be substantial having regard to my estimation of when the Court will be in a position to give judgment and the length of the applicant's non‑parole period.
In addition to the applicant's prospects on appeal and the length of his sentence it is necessary to have regard to his personal circumstances. The applicant relied on two affidavits sworn by him and an affidavit of his adult daughter, together with various annexures.
It is apparent that the applicant, prior to his incarceration, was residing on a farm, the home on which was the subject of the arson charge. He ran various businesses, including farming, a tourism business operated from the farm and his own electrical business. He has a number of adult children, but in addition has a son, who has recently turned 17, and a daughter, who has recently turned 16. Significant on this application are the circumstances of the applicant's 17 year old son. He resided with the applicant on the property prior to the applicant's incarceration. It seems he had lived with the applicant for the past two to three years. That situation arose following care proceedings, leading to the child being placed with the applicant.
Prior to those proceedings, the child had lived in foster care for a number of years. It is apparent from the material before this Court that that has been a significantly difficult experience for the child. He continues to have counselling as a result of his experience of abuse whilst in foster care. He provided a letter to the sentencing judge, which has been again tendered on this application. The sentencing judge accepted in passing sentence that the applicant's son's life had improved, and indeed on my reading of the evidence, significantly, as a result of his residing with the applicant.
The sentencing judge did not find that imprisonment would amount to exceptional hardship to third parties. That test does not have, of course, direct application to the present circumstances, they being concerned with bail. Significant for present purposes is his Honour's acceptance of the impact of the applicant's incarceration on his son.
In addition, on the present application, there is evidence indicating the manifestation of hardship arising since the applicant has gone into custody. Included amongst that evidence is evidence from the child's treating psychologist in the form of a letter and notes of attendances on the child. Additionally before the Court is a four-page document apparently written by the applicant's son, entitled "Autobiography". The notes of the psychologist from November this year, in particular, raise a real concern with respect to the child's welfare. I do not, given the sensitive nature of what is disclosed in that material, propose to go into any detail. Suffice to say I have given the matter serious consideration.
The affidavit of the applicant's adult daughter indicates that the 17 year old son is residing with her. It is apparent from that material that the applicant's absence is causing significant stress beyond that caused to the 17 year old son. Those stresses include managing the farm and, in addition, concerns with respect to the applicant's 16 year old daughter. It is apparent from the material on the application that this daughter has recently been abandoned by her mother and, as a consequence, has been placed into care.
It is not suggested that the applicant's daughter had been living with the applicant in recent times, rather it appears that the applicant had some contact with that child while she was young but had not had contact with her for some years. Despite that lack of contact in recent times, I would accept that the applicant would potentially be able to assist that child now, given her current circumstances. Were the applicant to be released to bail, he would be in a position to resume his support of family and assist with the management of the property. In referring to the particular concerns with respect to the applicant's children, I have not overlooked his role in assisting with his disabled grandson. That child suffered severe injuries in an accident in October 2021 and I accept that the applicant has had an important role in supporting that child and indeed the child's mother.
The applicant also relies on his own health issues. He has suffered a number of health problems. In addition to being hospitalised in April 2023, we have been informed that the applicant has been assaulted on two occasions whilst in custody. The details of any injury arising from those incidents is not clear.
In assessing whether special or exceptional circumstances are made out, no single matter is to be considered in a vacuum. It is necessary to have regard to, and balance, all relevant matters. That is, it is necessary to have regard to the convictions, the sentence imposed with respect to those convictions, and various matters personal to the applicant. Only by having regard to all of those matters can it be determined whether in satisfaction of s 22(1)(a) the circumstances are special or exceptional so as to justify a decision to grant bail.
While it is difficult not to be sympathetic to the applicant's personal circumstances, particularly the circumstances of the children to whom I have referred, those matters must be, as I have said, weighed against all other matters. In undertaking that process I am ultimately not satisfied that the circumstances are sufficiently special or exceptional so as to justify bail being granted. In those circumstances bail must be refused.
SWEENEY J: I agree with Dhanji J.
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Decision last updated: 13 December 2024