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[2015] ACTCA 37
Court of Appeal (ACT)
2015-05-15
Penfold, Burns and Wigney JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Quzag v The Queen (No 3) Citation: [2015] ACTCA 37 Hearing Date: 15 May 2015 Decision Date: 15 May 2015 Before: Penfold, Burns and Wigney JJ Decision: 1. The sentence appealed against is stayed. 2. Bail is granted to the applicant on terms and conditions identical to those specified by Refshauge J in Quzag v The Queen [2015] ACTCA 9 Category: Interlocutory application Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail pending sentence appeal to Court of Appeal – sentence stayed – bail granted. Cases Cited: Quzag v The Queen [2015] ACTCA 9 The Queen v Quzag [2015] ACTCA 36 Parties: Mohanad Quzag (Applicant) The Queen (Respondent) Representation: Counsel Mr M Kukulies-Smith (Applicant) Mr J White SC (Respondent) Solicitors Kamy Saeedi Law (Applicant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 12 of 2015 Decision under appeal: Court: ACT Supreme Court Before: Chief Justice Murrell Date of Decision: 12 February 2015 Case Title: R v Quzag Citation: [2015] ACTSC 52
BURNS J:
On 12 February 2015, Mohanad Quzag was convicted on a plea of guilty of an offence of cultivating, on 10 November 2012, a trafficable quantity of cannabis plants with the intention of selling them, and sentenced to a term of imprisonment of 28 months, with the first 6 months to be served by way of full-time custody, the next 8 months by periodic detention, and the remaining 14 months to be a suspended sentence, and a good behaviour order was then made.
On 6 March this year, Mr Quzag appealed against the sentence on two grounds: (a) firstly, that the sentence was manifestly excessive; and (b) secondly, that it failed to accord adequate parity with the sentences imposed on his co-offenders.
On 18 March this year, Refshauge J admitted Mr Quzag to bail with respect to his appeal. In doing so, his Honour granted bail without staying the sentences imposed by the primary judge on 12 February this year.
The Crown appealed from the orders made by Refshauge J granting Mr Quzag bail with respect to his appeal. The appeal was with leave which was granted by myself on 15 April this year. This Court has already made orders that the orders made by Refshauge J admitting Mr Quzag to bail be set aside (The Queen v Quzag [2015] ACTCA 36) and accordingly it now falls to this Court to determine whether a stay should be granted and whether Mr Quzag should be granted or admitted to bail with respect to his appeal.
There was some discussion during the course of the hearing of the Crown appeal whether the criteria for granting a stay of sentence was less stringent than the criteria relating to the granting of bail to a person who has been sentenced in this court and is subject to an appeal. However, it is unnecessary in the present proceedings to resolve that issue because it was accepted by Mr White SC, who appears on behalf of the Crown, that the criteria for granting a stay are at least no more stringent than the criteria for granting bail in the circumstances which are present in the present case.
I am satisfied that there are special or exceptional circumstances which warrant the granting of bail in the current proceedings, and they are the circumstances as identified by Refshauge J in his decision on bail, which I will not repeat here.
In my opinion, a stay should be granted and Mr Quzag should be granted bail in the same terms as imposed by Refshauge J (Quzag v The Queen [2015] ACTCA 9). WIGNEY J:
I agree. PENFOLD J:
I also agree, and accordingly I will make the following orders: (a) that the sentence imposed at first instance by the Chief Justice is stayed; and (b) that, noting the finding of special or exceptional circumstances, bail is granted to Mr Quzag on terms and conditions identical to those specified by Refshauge J in Quzag v The Queen [2015] ACTCA 9.
I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Kate Harris Date: 21 August 2015 *****************
Amendments
21 August 2015 The bracketed number in the case title changed from ‘No 2’ to ‘No 3’. Front page 21 August 2015 The word ‘appellant’ in paragraph 2 of the ‘Decision’ changed to Front page ‘applicant’. 21 August 2015 The titles of the parties changed as follows: Front page (a) Mohanad Quzag – from ‘Respondent’ to ‘Applicant’; Front page (b) The Queen – from ‘Appellant’ to ‘Respondent’. Front page 21 August 2015 Those changes to titles were also replicated in the ‘Parties’ and Front page Representation’ details. 21 August 2015 ‘The respondent’ changed to either ‘Mohanad Quzag’ or ‘Mr Quzag’. Paragraphs: [1]–[4], [7], [9] 21 August 2015 ‘The appellant’ changed to ‘the Crown’. Paragraph: [4] 21 August 2015 ‘Present application’ changed to ‘Crown appeal’. Paragraph: [5]
Quzag
The Queen