R v. Alexandra Jane Martin [2012] NSWSC 801

Power of disposition 10.Although an appeal is pending in the Court of Criminal Appeal against the sentence passed on conviction or indictment, in my judgment I am empowered to deal with the application. Section 28 of the Bail Act 1978 (NSW) ("Bail Act") is in the following terms: The Supreme Court may grant bail in accordance with this Act to any person accused of any offence, whether or not the person has appeared before the Supreme Court in connection with the offence. 11.The construct a person accused of an offence extends to a person convicted of an offence, and a person in respect of whom an appeal relating to an offence is pending (s.4(2) Bail Act). That the Court of Criminal Appeal is empowered by s. 30 Bail Act to grant bail in such a case does not diminish the powers of the Supreme Court, as such: R. v. Hilton (1987) 7 NSWLR 745 at 746B; 747E per Street CJ, with whom Hunt and Rogers JJ agreed; R. v. Antoun [2005] NSWCCA 270 at [3] - [4] per the Court. 12.Moreover, the central provision establishing the condition upon which appeal bail may be granted, s.30AA Bail Act, makes clear that the jurisdiction of the Court of Criminal Appeal is not exclusive.

The statutory requirement 13.Section 30AA Bail Act is in the following terms: Notwithstanding anything in this Act, if: (a) an appeal is pending in the Court of Criminal Appeal against: (i) a conviction on indictment, or (ii) a sentence passed on conviction on indictment, or (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to an appeal referred to in paragraph (a), bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail (my emphasis). 14.As the learned authors of Criminal Practice and Procedure NSW, Howie and Johnson, point out at p.187,751 [9 - 730.1], s.30AA was enacted in response to the recommendation made in that regard by the Court of Criminal Appeal in Hilton at 751C per Street CJ, 753 per Hunt J. In that decision, the Court held that the Bail Act is a comprehensive and exclusive code (at 751A) which excludes the continued application of the previous common law principle applied in New South Wales in respect of bail pending an appeal that a person who seeks bail pending his appeal from conviction or sentence must establish special or exceptional circumstances: Hilton at 746D per Street CJ; R. v. Southgate (1960) 78 WN (NSW) 44; R v Giordano (1982) 31 SASR 241 at 241 per King CJ. By necessary implication, that principle was abrogated by the enactment of the Bail Act: Hilton (751A). And in my judgment it may be accepted that s.30AA not only re-establishes the common law test but also the relevance of the considerations previously taken to have enlivened it. 15.Associate Professor John Willis has reviewed the case law in various Australian jurisdictions in his article, Bail Pending Appeal After Conviction and Sentence on Indictment (2005) 29(5) Crim LJ 296. He has demonstrated that the considerations are similar whether s.30AA, or an interstate equivalent, on the one hand, or the common law, on the other, applies (pp 297). 16.It is important to bear in mind just how high the bar has been set. In Re. Clarkson [1986] VR 583 at 584 the Full Court of the Supreme Court of Victoria wrote of the difficulty of persuading the court that the circumstances put forward as special or exceptional are strong enough to overcome the powerful considerations of a general character which militate against the grant of bail pending appeal.

The submissions of the parties 17.In Giordano, King CJ pointed out that the totality of the circumstances must be looked at (at 243). I draw attention to this statement now because it makes clear that the grant of bail pending appeal does not depend upon the establishment of fixed or closed categories of case. Indeed, the Crown's written submissions accepted as much. Mr. D. Curran, solicitor, who appeared for the Crown said in written argument: Examples of special circumstances could be that a sentence is likely to expire prior to the appeal being determined. It is not sufficient for an applicant to establish an arguable case on appeal. What must be established is a ground of appeal which "can be seen without detailed argument to be certain to succeed" per Hunt CJ at common law in R. v. Wilson (1994) 34 NSWLR 1 at 7 cited with approval in R. v. Charbel Rahme [2003] NSWCA 135. 18.Ms. A. Francis of Counsel laid some emphasis upon the strength of the case on appeal. In oral argument she referred to it as "powerful", and supported this contention by handing up a copy of the written submissions that had been filed. I certainly did not however understand her to rely upon this ground alone. By reference to the mandatory requirements of s.32 of the Bail Act, she argued that the applicant is an "exceptional candidate for bail". She argued that a very significant aspect of the application is that, as has been noted above, the applicant would by the time of the hearing on 26th October 2012 have served just short of five months of the non-parole period, and it could not be predicted when judgment might be handed down. By reference to Antoun at [14] - [15], Ms. Francis argued that s.30AA is not limited to a consideration of the prospect of success on appeal and there are potentially other circumstances that might merit the grant of bail.

Disposition 19.Implicit in the decision of the Court of Appeal in Wilson is the idea that there are a variety of circumstances that may constitute special or exceptional circumstances. Only where the sole ground advanced to satisfy the statutory test is the strength of the argument on appeal, does the test require something more than an arguable point in the Court of Criminal Appeal (applying R. v. Waters (1990) 9 Petty SR 4016 per Badgery-Parker J). Kirby P, with whom Sheller JA agreed, (at 6) expressed the test as follows: The applicant must be most likely to succeed. This is because of the obstacle which the legislature has put in the way of the grant of bail by requiring the demonstration of special or exceptional circumstances. It is not clear to me that Hunt CJ at CL was proposing, in substance, a more stringent test when he said at [7]: Where the prospects of success on the appeal are put forward as a special circumstance ... what must be established is a ground of appeal which is certain to succeed - and one which can be seen without detailed argument to be certain to succeed. I make this observation bearing in mind that (at 6B) Kirby P said: It is important that, in this application, this Court should not pre-judge the arguments which the applicant intends to advance before the Court of Criminal Appeal. 20.A bail application must be addressed in a more or less summary fashion in the vast majority of cases. For that obvious reason, unless there is an air of certainty of outcome about the pending appeal, the primary decision maker would need to second guess the Court of Criminal Appeal without the opportunity to undertake the detailed consideration available on a full hearing of the appeal. To the extent to which it may be relevant, the grounds advanced on behalf of the applicant seem arguable, perhaps better than arguable, and this may be a relevant factor in considering the totality of the circumstances. 21.That the applicant may be otherwise an exceptional candidate for bail does not of itself suffice, although this consideration must have some relevance. As King CJ said in Giordano at 242: Before and during trial, the primary, although not the only, consideration is whether the applicant will appear when required to do so. This consideration has only a minor bearing on the grant of bail after conviction. Obviously bail after conviction would not be granted unless the circumstances were such as would have indicated bail before and during trial. After conviction, however, other cogent factors also come into consideration. 22.As the Crown submissions themselves acknowledge, the likelihood that the whole or a major part of a custodial sentence will have been served before the hearing of the appeal is itself capable of rising to special or exceptional circumstances. Indeed, as Assoc. Professor Willis points out (at p. 297) this is the ground on which most successful bail applications have been based. 23.In Re. Jackson [1997] 2 VR 1 at 2 Callaway JA, who gave the judgment of the Court said: The likelihood that an applicant will have served the whole or a very substantial part of the sentence before his application for leave to appeal and appeal, if the application is granted, are heard is often regarded as sufficient to satisfy the requirement of very exceptional circumstances to which I shall refer later in this judgment, always depending on the nature of the offences and the grounds of appeal and the other attendant factors. See also Ex Parte Maher [1986] 1 Qd R 303 at 312 per Thomas J; Chew v. the Queen (No. 2) (1991) 66 ALJR 221 per Toohey J; Doggett v. The Queen (unreported), High Court of Australia, Callinan J, 2nd November 2000; Marotta v. the Queen (1999) 73 ALJR 265 at 267 per Callinan J. 24.There is some debate about whether the focus should be only on the custodial portion of the term of imprisonment or whether one must have regard to the whole sentence. In Re. Jackson itself the Court suggested that one should look at the whole term. However, in Chew, Doggett and Re. Pennant [1997] 2 VR 85 it is said that the custodial part of the sentence is the relevant consideration. It is not necessary for me to resolve any tension between the different approaches here. As stated at paragraph 8, the primary judge has ordered the applicants release at the expiration of the non-parole period in compliance with s.50 of the Crimes (Sentencing Procedure) Act and there can be no suggestion that the applicant will serve longer. 25.That by the date of the hearing of the appeal most of the applicant's custodial sentence will have been served, and that by the date of judgment that sentence may well have been fully served, is a powerful factor favouring the grant of bail in the present case. This has been tacitly acknowledged by the Crown in as much as it refers to the alternative possibility that an expedited hearing may be available. However, I was informed from the bar table that the matter had only recently been fixed for hearing and that the first available date had been sought. I do not understand this to mean that expedition is unavailable. However, Ms Francis informed me that the transcript of this sentencing hearing is not yet available. Nor have the submissions on behalf of the Crown in relation to the leave application and appeal yet been prepared. Assuming that an expedited hearing may be available, one is still left with the position that a large proportion of the applicant's sentence will already have been served when the appeal is heard, even if the hearing date is brought forward markedly. In my judgment the potential for the hearing to be expedited is not, in the circumstances of this case, a reason to deny bail. 26.I need to remind myself, however, that the totality of the circumstances are not exhausted by reference to the position of the applicant alone. In United Mexican States v. Cabal (2001) 209 CLR 165 at 181 [39] - [40] the Court said: In determining whether to stay an order of imprisonment and give bail to the applicant or appellant, the court must consider not only the position of the applicant or appellant, but also the position of the Crown. To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice. As Thomas J pointed out in Ex Parte Maher [at 310], to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned: makes the conviction appeal contingent until confirmed; places the court in the invidious position of having to return to prison a person who circumstances may have changed dramatically during the period at liberty on bail; encourages unmeritorious appeals; undermines respect for the judicial system in having a "recently sentenced man walking free"; undermines the public interest in having convicted persons serve their sentence as soon as practicable. Consequently, the doctrine of this Court is that in a criminal case an order granting bail will only be made if there are exceptional circumstances. 27.Their Honours went on to demonstrate that in the High Court a very strong case needs to be made for a grant of bail because ordinarily such an application is made to it after trial and an intermediate appeal. The approach required in this case is not so stringent because no appellate court has considered the case and dismissed an appeal: Peters v. The Queen (1996) 71 ALJR 309 at 310 per Dawson J; see also Cabal at [43]. 28.Reference should be made to the fundamental significance of the verdict of a jury in the administration of criminal justice: Chamberlain v. The Queen (No. 1) (1983) 153 CLR 514 at 519-520 per Brennan J. But given the applicant's early plea that aspect is not pertinent here, and, by definition, where it exists it is not a factor telling decisively against a grant of bail: Marotta per Callinan J at 266. 29.A matter that has concerned me is that the applicant will need to be returned to prison to complete the custodial portion of her sentence if her appeal is unsuccessful. Doubtless, imprisonment imposes great hardship on prisoners. The necessity to contemplate a resumption of the term upon the dismissal of the appeal may impose greater hardship still once the offender has re-experienced liberty. However, if that is so, that additional hardship is a natural consequence of the applicant herself seeking bail. With great respect, I cannot put it any better than Callinan J did in Doggett: Of course, bail may not always be in the interest of an applicant after conviction. His circumstances may change while he is on bail. A return to incarceration after an unsuccessful appeal and at a time when all or most of his actual term of imprisonment would have been served may have far worse psychological and other consequences for a prisoner than uninterrupted service of his sentence. No doubt few applicants would believe that but it is, nonetheless likely to be so in many cases.

Conditional Bail 30.In the present case I am satisfied that the applicant has established special or exceptional circumstances justifying a grant of conditional bail. Whilst I have primarily had regard to the consideration that the custodial portion of her sentence will probably have expired by the time a decision, in the ordinary course of events, might have been given by the Court of Criminal Appeal, I have also had regard to the fact that the grounds of appeal in this case seem better than arguable, and that the s.32 considerations favour the applicant. 31.In coming to the conclusion that s.32 favours the grant of bail I have borne in mind that, as a general proposition, it may be said that the risk of non-appearance may be greater in the case of bail pending appeal than otherwise given that the applicant has suffered the disappointment of being subject to a custodial sentence which he or she will not wish to resume. However, I am of the view that this particular risk can be effectively guarded against by the imposition of appropriate conditions, perhaps stricter than those suggested by Ms Francis. 32.Moreover, I have taken into account the findings of the sentencing Judge that the commission of the offence is entirely out of character for the applicant; that the author of the pre-sentence report opined that she was a suitable candidate for community service; that the material as to the applicant's personal circumstances tendered before the sentencing Judge was regarded by his Honour as impressive; and that his Honour found very little likelihood of the applicant ever re-offending. Indeed, in view of his Honour's very substantial finding of special circumstances (ROS page 9), as I understand his remarks read as a whole, he was motivated not so much by the consideration of adequate punishment as by the factor of general deterrence, the need for which he referred to a number of times. 33.The applicant has strong community ties, had full time employment and was undertaking a TAFE course to qualify her as a youth worker. She is only 20 years of age, has no prior criminal record, and, no doubt, has found the experience of the last 6 weeks salutary. 34.I have concluded that: (a)there is a very high degree of probability that the applicant will appear in the Court of Criminal Appeal on the hearing of her application for leave to appeal and appeal; (b)her interests tell in favour of the grant of bail, particularly having regard to subparagraphs (i), (iii), and (vi) of paragraph (b) of s.32(1); (c)given her previous good character, and her remorse, the need for the protection of the victim or any other person is slight, but for better precaution I will impose conditions in that regard; (d)the protection and welfare of the community will not be offended or put at risk by the release of the applicant on bail; each of the subparagraphs of s.32(1)(c) tells in favour of granting the application. 35.My order is that the applicant is granted bail pending her appearance before the Court of Criminal Appeal for the hearing of her leave application and appeal on 26th October 2012. 36.Bail is conditional as follows: (1)The applicant is to be of good behaviour in all respects. (2)The applicant is to reside at 3/60 Taylor Street, Darlinghurst New South Wales with her mother, Jacquelyn Martin. (3)The applicant is to report to the officer in charge of the Surry Hills police station within 24 hours of her release to the bail now granted and thereafter between 8 a.m. and 8 p.m. on Mondays, Thursdays and Saturdays of each week. (4)One acceptable person is to enter into an agreement to forfeit the sum of $5,000 if the applicant fails to comply with her bail undertaking, such agreement is to be secured by cash deposit. Any person acceptable to the justice to whom cash security is tendered is acceptable to the Court. (5)The applicant is to surrender any current passport held by her to the officer in charge of police at Surry Hills police station. She is to do so upon the first reporting as required by condition 3 above. (6)The applicant is not to apply for any new passport or travel documents. (7)The applicant is not to approach any point of departure from this country, whether by air or sea. (8)The applicant is not to go within 50 kilometres of the city of Dubbo. (9)The applicant is not to approach, contact or attempt to contact, directly or indirectly, Shayne Pepperell. (10)The applicant is to prosecute her appeal to the Court of Criminal Appeal with all due diligence. (11)Bail may be entered before any person authorised under the Bail Act. (12)Should the applicant be in breach of any of the conditions which I have imposed, her bail will be automatically revoked and she may be arrested by any police officer and returned to custody.

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