Hay v Director of Public Prosecutions

Supreme Court of NSW|2020-03-10|Before: Johnson J, Mr AJ

Judgment

JOHNSON J: This is an application for bail by Gary Henry Hay who has proceedings listed for hearing before the Court of Appeal on 17 April 2020, in which he seeks judicial review arising from a decision of the District Court on a sentence appeal.

Background to Bail Application

The Applicant was sentenced for six offences of stalk or intimidate intending to cause fear of physical or mental harm, contrary to s.13(1) Crimes (Domestic and Personal Violence) Act 2007. The offences were committed in an 18-month period between 4 January 2017 and 24 July 2018. The Applicant had been charged with the offences on 27 September 2018.

The Offences

The Applicant is 56 years of age. The matters for which he was sentenced involved six separate incidents over an 18-month period between January 2017 and July 2018, in which the Applicant sent five anonymous letters and one Facebook message to an employee of Housing New South Wales who was involved in the management of public housing in the Parkes/Forbes region. The premises at which the Applicant resided in Forbes at the time were managed by the Department of Housing.
Each communication sent by the Applicant to the employee was of a threatening nature. It is not necessary to recite the precise terms of the communications. It is sufficient to note that the Applicant threatened physical and sexual violence against the female employee and that the content of the threats escalated as the offending continued.
The employee was not able to identify the sender of the anonymous threats. The material before the Local Court and the District Court confirmed that this produced a significant level of anxiety and concern on the part of that employee.
In due course, after a police investigation of some thoroughness, the Applicant's DNA was matched to samples taken from two of the letters. When spoken to by police, the Applicant denied any knowledge of the letters. He admitted owning the Facebook profile, in a different name, but denied sending the Facebook message.
As I have noted, the matter proceeded to a defended hearing in the Local Court for one day before the Applicant changed his pleas to guilty on the scheduled second hearing day.
When the matter came before the District Court on appeal, a letter of apology was tendered for the first time and the Applicant gave short evidence upon which he was cross-examined.

Does the Bail Act 2013 Apply to these Proceedings?

There is an open question as to the power of the Court to grant bail in circumstances such as this.
In Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261 ("Liristis (CA)"), R A Hulme J (at [9]) was prepared to accept, for the purpose of that application, that judicial review proceedings fell within the concept of "proceedings on an appeal against conviction or sentence" in s.5(1)(d) Bail Act 2013. His Honour noted that the Director did not challenge that proposition, at least for the purpose of that case.
As is apparent from his Honour's subsequent bail decision, the bail application by Mr Liristis related to two sets of proceedings: Liristis v Director of Public Prosecutions (NSW) [2015] NSWSC 1258 ("Liristis (SC)". The first proceedings involved a series of sexual assault charges and the second concerned judicial review proceedings pending in the Court of Appeal arising from an offence of larceny as a bailee.
In refusing bail, R A Hulme J referred, in particular, to the sexual assault offences with some short comments towards the end of the judgment with respect to the judicial review proceedings: Liristis (SC) at [62]-[65]. His Honour said in that respect that an argument had been advanced in the judicial review proceedings as to whether the District Court Judge had disregarded an element of the offence. Thus, there was a challenge in that case to conviction and not just sentence.
R A Hulme J observed (at [63]) that, because of the limited material placed before the Court, it was difficult to reach a definitive view about Mr Liristis' prospects of success in the judicial review proceedings. However, his Honour noted there was force in the Director's submission that there had been two judicial determinations against the applicant in relation to the issue. His Honour considered that a fair reading of the District Court Judge's judgment may not effectively disclose an arguable basis for judicial review.
In any event, R A Hulme J observed (at [64]) that the non-parole period of the sentence in that case was to expire a month later and the applicant was to be in custody in relation to the sexual assault matters, so there was no utility in further considering the bail application concerning the judicial review proceedings.
I mention the two decisions of R A Hulme J in Liristis (CA) and Liristis (SC) to provide context for his Honour's comment in Liristis (CA) at [9]. Clearly, his Honour was not making a finding that judicial review proceedings fall within the terms of s.5(1)(b) Bail Act 2013. His Honour was prepared to assume that matter for the purpose of hearing and determining the bail application in that case.
There is some tension in the concept of judicial review proceedings in the Court of Appeal falling within the s.5(1)(d) definition of "proceedings on an appeal against conviction or sentence". For example, s.22 Bail Act 2013 provides for a limitation on granting bail when a person is appealing to the Court of Criminal Appeal with respect to offences dealt with on indictment. There is a need for special or exceptional circumstances to be demonstrated. That provision reflects the fact that there has been a hearing and determination on the merits by a trial Court, which is sought to be subject to appeal.
In the present case, there have been two determinations on sentence - one in the Local Court and one in the District Court. The idea that such an application may proceed without the type of limitation applicable to appeals to the Court of Criminal Appeal seems problematic.
That said, s.69C(3) Supreme Court Act 1970 refers expressly, in the context of judicial review proceedings concerning a District Court decision on appeal from the Local Court, to a person being entitled to be released on bail under the Bail Act 2013, or for bail to be dispensed with. If a bail determination is made, or if bail is dispensed with, then a claimant in judicial review proceedings may obtain a stay of the sentence pending the determination of the judicial review proceedings. If the judicial review proceedings are dismissed, then the stay is lifted and the sentence would recommence: s.69A(3) Supreme Court Act 1970 (cf Whan v McConaghy (1984) 153 CLR 631; [1984] HCA 22 referred to by R A Hulme J in Liritsis (CA) at [9]).
It may be seen then that within the Bail Act 2013 and the Supreme Court Act 1970, there are provisions which indicate that bail under the Bail Act 2013 is available to a person seeking judicial review before the Court of Appeal.
In making these observations, I am not expressing a concluded view on this matter. There are unresolved aspects in the reasoning which could lead to such a conclusion. However, like R A Hulme J in Liristis (CA) at [9], I am prepared to assume that the Bail Act 2013 does apply to the present application.
I will proceed upon that assumption and consider the application on its merits.

Determining the Application for Bail

The offences before the Court are not show cause offences within ss.16A and 16B Bail Act 2013. In considering the application for bail, it is necessary to have regard to ss.17 and 18 Bail Act 2013.
Of particular concern to the present application is s.18(1)(j) which requires the Court to consider, if the accused person has been convicted of an offence and proceedings on an appeal against conviction or sentence are pending before a Court, the question "whether the appeal has a reasonably arguable prospect of success".
As noted earlier, I am prepared to assume, for present purposes, that "court" includes the Court of Appeal and that this provision has application by operation of s.5(1)(d) of the Act.
This then leads to an assessment of the prospects of success of the judicial review proceedings.
Mr Blaker, who appears for the Applicant, submits that the grounds relied upon are sufficiently arguable as to warrant a grant of bail. He submits that if the Court accepted that submission, there are other documents in evidence with respect to a bail regime, including conditions and surety. He seeks to rely as well on a report of Tim Watson-Munro, consultant psychologist, dated 6 March 2020. It would be obvious that this report, which is only days old, was not before the Local Court or the District Court. It has been admitted on the present application upon the basis that it has relevance only to the bail application.
Mr Poulos for the Director opposes a grant of bail. The principal Crown submission is that there are minimal prospects of success in the proceedings before the Court of Appeal and that this is, in effect, the decisive aspect on this application. He submits as well that the hearing in the Court of Appeal is only five weeks away and that is a fact which is also relevant on the question of bail.
It is the case that the length of time which the Applicant is likely to spend in custody, if bail is refused, is a relevant factor under s.18(1)(h) Bail Act 2013.

Do the Judicial Review Proceedings Have Reasonably Arguable Prospects of Success?

I turn then to the merits of the judicial review proceedings. I make clear that I am not purporting to decide that claim for relief. That is a task for the Court of Appeal on 17 April 2020. However, the Bail Act 2013 requires the Court to consider whether the Applicant has reasonably arguable prospects of success in the judicial review proceedings.
The Summons contains three grounds. The first ground seeks relief in the nature of certiorari asserting an error of law on the face of the record. There is a clear and fatal defect in that assertion. Relief by way of judicial review concerning a District Court appeal in criminal matters is available only if jurisdictional error is demonstrated: s.176 District Court Act 1973; Lazarus v Independent Commission Against Corruption (2019) 367 ALR 274; [2019] NSWCA 100 at [3]-[4].
Grounds 2 and 3 in the Summons assert jurisdictional error.
Ground 2 asserts that her Honour unreasonably took into account specific deterrence when resentencing the Applicant to imprisonment.
Ground 3 asserts that her Honour fell into jurisdictional error by failing to consider possible alternatives to full-time custody and failing to consider and exercise the jurisdiction of the Court with respect to the manner in which the sentence of imprisonment was to be served for the purpose of s.5 Crimes (Sentencing Procedure) Act 1999.
The Court has the benefit of written submissions which have been prepared for the hearing in the Court of Appeal. Mr Wendler, of counsel, has prepared written submissions dated 16 December 2019 for the Applicant. Mr Kell SC, the Crown Advocate of New South Wales, and Ms Jones of counsel, have prepared written submissions dated 13 February 2020, for the Director.
The argument in support of Ground 2 asserts that there has been jurisdictional error in the sentencing Judge's approach to specific deterrence. As I understand the submission, it is not contended that specific deterrence played no part in the sentencing process, but that error of some type has crept into the process so as to constitute jurisdictional error. It is submitted that there was an unreasonable exercise of the Court's sentencing jurisdiction in treating specific deterrence in the manner adopted by the sentencing Judge.
With respect to Ground 3, it was submitted that her Honour failed to consider alternatives to full-time custody, including an intensive correction order and community correction order, and that her Honour accepted a Crown submission that a full-time sentence of imprisonment was appropriate in the case without further elaboration.
The submissions for the Director contend that it is necessary to consider, in context, what occurred in the District Court. It is submitted that her Honour's reference to specific deterrence was open and that there is no arguable basis that it constituted Wednesbury unreasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [47].
It was submitted that it was a matter for the sentencing Judge to determine what weight to give to specific deterrence and that, in this case, having regard to the history of the offences, it warranted weight being given to it, arising from the Applicant's pattern of offending over an 18-month period.
With respect to the alleged failure to consider alternatives to full-time imprisonment, the Director submitted that her Honour had regard to that matter. It was submitted that, in the way in which argument proceeded in the District Court, it is clear that this aspect was considered, but that the objective gravity of the offences was such that it was open to the sentencing Judge to proceed in the way that she did. The Director submits that jurisdictional error has not been demonstrated.

The District Court Proceedings

It is necessary, at this point, to say something about the proceedings at the Parkes District Court on 27 September 2019. The Applicant was represented. This, of course, was a hearing proceeding two months after the sentencing hearing in the Local Court, at which the Applicant had also been represented.
The Crown tendered material in a manner typical of a District Court sentence appeal. The Applicant gave short evidence and was cross-examined. He was asked questions about the letter of apology which had been produced to the Court on 27 September 2019.
The hearing then proceeded to submissions. The Applicant's legal representative made submissions inviting the Court to consider an intensive correction order. Her Honour heard submissions on that aspect (T 7- 8, 27 September 2019). The legal representative for the Applicant in the District Court stated that, having regard to the nature of the offences (including threats of physical harm), she did not cavil with the proposition that the threshold under s.5 Crimes (Sentencing Procedure) Act 1999 had been crossed, meaning that imprisonment was appropriate. It was submitted that her Honour should consider a form of order short of full-time imprisonment.
It was then submitted that, if the Court was of the view that nothing other than a full-time sentence of imprisonment was appropriate, then a further finding of special circumstances should be made to reduce the non-parole period.
The Crown pointed to the considerable gravity of the offences and submitted that they were clearly matters that called for "substantial general deterrence and substantial specific deterrence" and that the Applicant's late apology went close to traversing his pleas of guilty. The Crown submitted that the Applicant, even then, did not appear to appreciate the gravity of what he had done and there was a lack of insight.
Submissions were completed and her Honour moved to deliver a relatively short sentencing judgment. These, of course, were ex tempore sentencing remarks. They were delivered in what was undoubtedly a busy List at a country District Court dealing with short matters, including appeals from the Local Court.
I bear in mind what the Court of Criminal Appeal has said on many occasions with respect to reading fairly ex tempore sentencing remarks. They have the advantage of providing an immediate sentencing response, stated in the presence of those who are at the hearing. It may be that sentencing remarks delivered ex tempore are not as robustly structured as they might otherwise have been and may lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression and polishing: R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at paragraphs [34]-[35].
Her Honour outlined the nature of the offences and referred to aspects of the Applicant's subjective case. Her Honour said at one point: "He is now fifty five years of age, having been born on 10 February 1964. He was on a disability support pension. His relatives require his assistance. Balanced against that is the requirement for specific and general deterrence."
It is that reference to specific deterrence which attracts the second ground of appeal.
Her Honour continued: "The sentence imposed by the Magistrate was an aggregate sentence of two and a half years with a non-parole period of twenty months. This, effectively, is his first full-time custodial sentence and he is certainly no longer young. The allowance that the magistrate made to modify the statutory ratio was 2.5 months. In my view the Crown is correct, nothing other than a full-time custodial sentence is appropriate. However, in my view there can be some small moderation of the allowance for special circumstances given his age, the period of good character and the requirement of reintergrating him back into the community. But the moderation, because of the need to reflect the objective seriousness of the offence, within the non-parole period, will be moderate."
Her Honour then proceeded to allow the appeal in part and make the sentencing orders I mentioned earlier (at [6]).
It is the reference (in [55]) to her Honour's acceptance of the Crown submission with respect to a full-time custodial sentence that gives rise to the third ground of appeal.
In my view, what her Honour was doing was largely responsive to the way in which the case had been conducted in the District Court. There was consideration of alternatives to full-time imprisonment. Her Honour expressed her conclusion quite clearly, accepting the Crown submission that the gravity of the sustained period of serious offending was such that nothing short of a full-time custodial sentence was appropriate.
Nothing that has been said in this area of the law in cases such as R v Fangaloka [2019] NSWCCA 173 and R v Karout [2019] NSWCCA 253 would indicate that there is error in this respect, let alone jurisdictional error.
Her Honour then moved to the question of special circumstances. This was the second aspect of the submissions advanced for the Applicant in the District Court. Her Honour made an allowance favourable to the Applicant in that respect.
Insofar as arguments advanced in this Court have urged that there is jurisdictional error because her Honour should have done more, and ought to have taken steps to order reports to further investigate the matter, I am simply not persuaded that this gives rise to any error, let alone jurisdictional error.
Her Honour was dealing with a sentence appeal for a represented litigant. The matter was dealt with succinctly in a typical way seen in sentence appeals from the Local Court to the District Court.
With respect to the submissions for the Applicant that more should have been said (or less should have been made of specific deterrence), I emphasise that the task upon which her Honour had embarked was one of instinctive synthesis. The nature of this process has been emphasised in many cases, most importantly in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37]-[38], [51] and [66].
Specific deterrence was clearly a factor to be taken into account in this case. There had been a sustained period of offending involving threatening conduct directed to the victim. These were not isolated offences, but a sustained course of conduct. The Applicant demonstrated no real level of insight about these matters. He proceeded by way of a defended hearing in the Local Court, which (of course) was his right. However, that approach was not indicative of insight or remorse. When the pleas of guilty finally came, they were made against the background of what the Magistrate described as "an overwhelming prosecution case" based, as it was, largely on DNA evidence.
The first sign of an apology was in the District Court and, at that point, there were significant issues as to what weight should be given to it.
In making these observations I am not, of course, embarking on some resentencing exercise. I am assessing whether the grounds of appeal in the Court of Appeal are reasonably arguable. In my view, there is no reasonably arguable ground of appeal in support of the claims of jurisdictional error.

Conclusion on the Bail Application

I return then to the question of bail. For the purpose of s.18(1)(j) Bail Act 2013, the proceedings in the Court of Appeal do not have reasonably arguable prospects of success. In my view, they are effectively doomed to fail.
In some cases, a view may even be formed that an application for bail, in circumstances such as this, could be regarded as being frivolous or vexatious for the purpose of s.73(1)(a) Bail Act 2013. I do not rely upon that provision because I am otherwise well satisfied that the bail application should fail.
I note that the hearing of the Summons in the Court of Appeal is five weeks away. If the Judges who comprise the Court of Appeal reach a different view concerning the merits to that which I have provisionally expressed for the purpose of this application, it would, of course, be open to that Court after the hearing to consider the question of bail, if the Court was not going to move to a decision on that day.
That hearing is not far away: s.18(1)(h) Bail Act 2013. It will be for the Court of Appeal to make the operative decision with respect to the Applicant's Summons.
For the purpose of the bail application before me today, however, I am satisfied that the appropriate order is that bail is refused and that is the order which I make.

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: 12 March 2020

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