Fattah v The Queen [2015] VSCA 371

1 On 14 December 2015, the applicant gave notice of an application for leave to appeal against sentence. He now makes application for bail pending the hearing of his application for leave to appeal (and of the appeal, if leave is granted).

2 For reasons which follow, I would make an order granting him bail.

3 The written case filed for the applicant identifies, amongst a number of proposed grounds, a ground which draws attention to the sentencing judge's erroneous reliance on statements of fact contained in a plea opening which had been prepared in August 2015. As the written case makes clear, the applicant had taken issue with certain factual assertions contained in that plea opening. Negotiations followed, between his representatives and the prosecution, which resulted in the filing of an altered prosecution plea opening.

4 Certain of the allegations against the applicant which had been in the first plea opening were deleted from the second. It is apparent from the judge's reasons, however, that he sentenced the applicant on the basis of some of those deleted matters. It is common ground that that is so. The issue between the applicant and the respondent Director is whether the erroneous inclusion of those matters, as part of the facts on the basis of which the applicant was sentenced, materially affected the findings which his Honour made about the applicant's role and culpability. The submission for the applicant is that, because of the judge's erroneous use of the first plea opening, he was sentenced on 'a wrongly inflated understanding of his culpability'.

5 The application for bail has been brought on urgently because the applicant submits that the acknowledged factual errors in the sentencing will lead to the appeal succeeding and that the court, on hearing the appeal, will be satisfied not only that there was an error in the sentence but that a different sentence should be imposed. Critically for present purposes, senior counsel for the applicant has submitted that a non-custodial disposition would be within range for this Court on resentencing.

6 Counsel for the Director, quite properly, does not seek to contend that a non-custodial disposition is out of the question, but points to the seriousness of the offending in order to emphasise the unlikelihood of a wholly non-custodial disposition, assuming that the appeal succeeded.

7 This is, on any view, serious offending. The quantity which the applicant trafficked is at the high end of quantities for the charge of trafficking simpliciter. That being so, it might be thought that the sentence of imprisonment which the judge imposed was unremarkable. But there are a number of aspects of the case which require careful investigation, and without that investigation it is not possible to form any clear view about what might happen on resentencing.

8 First, and most importantly, the Court will need to consider the particular factual matters wrongly taken into account and - perhaps even more importantly - what counsel for the applicant says are characterisations of his role and conduct which could not have been adopted had the correct factual basis been used.

9 Secondly, there is quite a complicated set of parity considerations to be investigated. It has not been possible in the leadup to this application for me to attempt any investigation, or comparison, of the circumstances and offending of the other offenders or of the question which the respondent raises as to whether they are, in truth, cooffenders and whether and to what extent that might weaken arguments from parity.

10 Thirdly, there is the significant issue of delay. It is apparent on the material that there are periods of delay which will attract considerations both of fairness and rehabilitation of the kind discussed in R v Merrett.[1] The significance of the delay will, of course, have to be assessed once a full appreciation of the circumstances has been gained.

11 All of those matters being incapable of being resolved at this time, I propose to act on senior counsel's submission that a non-custodial sentence would be within range on resentencing.

12 That being the submission, and sentencing error having been conceded, it would be contrary to the interests of justice, in my opinion, for the applicant to remain in custody between now and when his appeal is heard and determined. I am satisfied that there is a real possibility - and I need put it no higher than that - that if the appeal were heard and decided today, and all of the applicant's foreshadowed submissions were accepted, he would be released.

13 No issue arises here of treating his conviction as in any way provisional. There is no challenge to the conviction, which was recorded on a plea of guilty. Rather, this is a sentence which is, on its face, vitiated by factual error. The significance of that mistake, of course, remains to be investigated but that agreed position means that the first element in s 281(1) of the Criminal Procedure Act is satisfied, that is, there is error in the sentence below.

14 It is wellestablished that bail pending appeal should only be granted in exceptional circumstances. In Re Zoudi,[2] this Court made clear that one such circumstance is where an applicant for leave to appeal against sentence would have served the full nonparole period before the appeal could be heard. The informing principle is one of fairness, the need to avoid the possibility that the person will spend time in custody waiting for the appeal which, if it had been heard earlier, he or she might not have served.[3]

15 By analogy, in my opinion, this most unusual case attracts the same principle. Accordingly, it is a proper exercise of the discretion to grant bail to ensure that there is no risk of this applicant serving time in custody which, on the best view of his grounds of appeal, he would not otherwise have to serve.

16 I should record that experienced counsel for the Director informs me that there are no concerns about the applicant's being an unacceptable risk in any of the ways identified in the Bail Act. Those matters are always relevant on an application for bail pending appeal, as the Court made clear in Zoudi.[4]

[1] [2007] VSCA 1; (2007) 14 VR 392.

[2] (2007) 14 VR 580.