R v Khoo

Judgment 1JOHNSON J: This is an application for bail by John Kay Jin Khoo. 2The Applicant was sentenced by his Honour Judge Marien SC in the Sydney District Court on 8 August 2013, following his pleas of guilty to four offences of communicating inside information contrary to ss.1043A(2) and 1311(1) Corporations Act 2001 (Cth). These offences are colloquially described as "tipping" offences. 3With respect to Counts 1 and 2 (committed in September-October 2010 and October-November 2010), the maximum penalty was five years' imprisonment. With respect to Counts 3 and 4 (both committed in June-July 2011), the maximum penalty for this crime had been increased by the Commonwealth Parliament to imprisonment for 10 years. 4On Counts 1 and 2, the Applicant was sentenced to concurrent terms of imprisonment of nine months, commencing on 8 August 2013 and expiring on 7 May 2014. On Counts 3 and 4, the Applicant was sentenced to concurrent terms of imprisonment of one year and eight months, commencing on 8 November 2013 and expiring on 7 July 2015. 5As against a total effective head sentence of one year and 11 months, his Honour directed the release of the Applicant after 14 months on 8 October 2014, conditional upon the Applicant entering a recognisance in the sum of $500.00 to be of good behaviour for the balance of the sentence. 6On 8 August 2013, the Applicant filed a Notice of Intention to Apply for Leave to Appeal against sentence to the Court of Criminal Appeal. On the same day, a bail application was lodged in this Court. 7On 8 October 2013, the Applicant filed in the Court of Criminal Appeal a Notice of Application for Leave to Appeal against sentence, together with grounds of appeal and submissions in support of the grounds. 8The appeal is listed in the call-over list of the Registrar of the Court of Criminal Appeal on 24 October 2013. 9The Applicant's bail application proceeded to hearing in the Bails List before me yesterday. I reserved my decision until today. At yesterday's hearing, Mr Thangaraj SC appeared for the Applicant, and Mr Michael McHugh SC appeared for the Crown. 10As the Applicant seeks bail for the purpose of an appeal to the Court of Criminal Appeal, s.30AA Bail Act 1978 applies. The Applicant is not to be granted bail unless special or exceptional circumstances are established. 11The application for leave to appeal in this case relates to sentence only. 12The proper construction and application of s.30AA has been considered in a number of decisions in this State. They are summarised helpfully in the decisions of Basten JA in Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWSC 1103 ("Cassaniti") at [16]ff, and of Hall J in Lee v R [2012] NSWSC 1168 at [61]ff. 13Special or exceptional circumstances may be found in a combination of factors. Here, reliance is placed upon a combination of factors, being what are said to be very strong grounds of appeal and the passage of time before any hearing is likely to come on in the Court of Criminal Appeal, viewed against the Applicant's earliest release date of 8 October 2014. 14It has been said, where reliance is placed upon grounds of appeal, that an Applicant must demonstrate that grounds of appeal are more than arguable. The Applicant must demonstrate that the appeal is most likely to succeed: R v Wilson (1994) 34 NSWLR 1 at 6 (Kirby P, Sheller JA agreeing). 15In determining whether to stay an order of imprisonment and give bail to an Applicant pending an appeal, the Court must keep in mind that to stay a sentence of imprisonment, before deciding the appeal, is a serious interference with the due administration of criminal justice: Cassaniti at [25] (and the cases referred to therein). 16Authorities referred to by Basten JA in Cassaniti at [25] have stated that, to grant bail pending a hearing of an appeal after sentence: