Solicitors:
McGirr Lawyers (Applicant)
Department of Public Prosecutions (Respondent)
File Number(s): 2017/00381700
[2]
EX TEMPORE Judgment
The applicant for bail is a fourteen-year-old child. He cannot be identified. He was referred to by a pseudonym in the District Court and I will adopt that pseudonym.
On 14 December 2017, following his pleas of guilty in relation to sexual offences against two of his younger second cousins, the applicant was sentenced in the District Court to a head sentence of sixteen months with a non-parole period of eight months. The sentencing judge ordered that the offender is to be released to parole on 13 August 2018.
Because the applicant was sentenced on conviction on indictment and an appeal to the Court of Criminal Appeal is pending, s 22 of the Bail Act requires him to establish that there are "special or exceptional circumstances" justifying the grant of bail. The operation of this "special and exceptional circumstances" test was considered by the Court of Criminal Appeal in El Hili & Melville v R [2015] NSWCCA 146. I will not repeat the analysis of applicable principles undertaken in that case but those are the principles that I apply in considering the present application.
The applicant pleaded guilty to three offences and admitted four further offences which he asked to be taken into account in sentencing. He pleaded guilty to two counts of sexual intercourse with a person under the age of ten years. Those offences were very serious and involved the applicant getting a six year old child to perform fellatio on him and then performing cunnilingus on the same child. The four offences to be taken into account involved exposing himself to the same child, licking her breast, digital penetration and rubbing his penis on the younger child's groin; those offences being aggravated indecent assaults. He also admitted digitally penetrating the child; that being another offence of having sexual intercourse with a child aged less than ten years
R v Paul Campbell [2017] NSWSC 1844 | Case summary | Zoe
There was also a second victim, the older sister of the first complainant, who was aged seven years and nine months. The applicant pleaded guilty to aggravated indecent assault and this involved the applicant pulling down the child's pants and then touching her in the area of the anus. The act did not go further because it was interrupted when other children arrived nearby.
Putting to one side the motivation of the child offender, and his understanding of the sexual abuse involved, these were extremely serious offences.
By his pleas of guilty the applicant eschewed any suggestion that he did not know that what he had done, or what he was doing, was seriously wrong: see RP v R [2016] HCA 53. Nevertheless, he stood to be sentenced by reference to the principles applicable to the sentencing of children both at common law and under the provisions of s 6 of the Children's (Criminal Proceedings) Act 1987.
Very soon after the sentence was imposed, the applicant indicated his intention to appeal against the sentence. A notice of intention to appeal was filed on 14 December 2017, which is to say the same day that sentence was imposed. Grounds of appeal have already been drawn and senior counsel for the applicant has prepared written submissions dated 18 December 2017, that is to say just four days after sentence was imposed. The grounds as set out are as follows:
1. The sentencing judge erred in finding that the Crown's concession that a sentence other than one of full-time custody was within range was wrong in sentencing principle.
2. The sentencing judge erred in failing to consider an alternative of full-time custody.
3. The sentencing judge erred in assessing the seriousness of the offence.
4. The sentencing judge erred in finding that the applicant used his position as a trusted family member to commit the offences.
The first ground of appeal arises from submissions made by the learned Crown Prosecutor at the sentencing hearing. The Crown submitted that it would be open to the sentencing judge to impose a sentence other than one that involved full-time custody. This encompassed, as I understand it (and I do not have the transcript), a submission that any custodial sentence might be suspended or that there may be options other than a custodial sentence. The sentencing judge, in reasonably strident language, rejected that submission and asserted that it was contrary to sentencing principles and inconsistent with a number of authorities involving comparable cases that had been provided by the Crown.
The written submissions on appeal provided by senior counsel for the applicant analyse those cases carefully and demonstrate that, in at least some of the cases, a non-full-time custodial sentence was imposed.
The second and third grounds of appeal are related. They assert that the sentencing judge erred in his assessment of the objective criminality by failing to take into account the reduced moral culpability resulting from the applicant's youth. In turn, it is submitted that the sentencing judge failed to consider alternatives to full-time imprisonment.
The fourth ground of appeal arises from an observation made by the sentencing judge that "the offender used his position as a trusted member of the family to do what he did despite knowing what he was doing was seriously wrong". The applicant will assert on appeal that the sentencing judge fell into error by deciding that the applicant was in a position of trust when consideration is given to the circumstances prevailing at the time of the offences. The applicant relies on the judgment of the Court of Criminal Appeal in the case of RP v R [2015] NSWCCA 215 particularly I think at [84]-[86] and [168]. Whilst that decision was reversed in the High Court, the High Court's decision related to the convictions and not to the approach the Court of Criminal Appeal took to the question of sentence.
It is a notoriously difficult thing for a judge sitting in the bail court to make a determination as to the merit of a proposed appeal. For example, in the present case, I do not have the benefit of submissions that will be made on behalf of the Director of Public Prosecutions. In respect of each of the grounds of appeal identified, I am able to perceive a number of arguments that might be made against the propositions urged by senior counsel for the applicant.
In helpful written submissions provided by the Director of Public Prosecutions in the present application, a number of those contentions are advanced and, in particular, where the words of the sentencing judge are relied upon in assertion of error, it is submitted (and it must be correct) that those words must be considered in the context of the judgment as a whole.
Even taking into account that the arguments that I perceived might be made against the contentions of senior counsel for the applicant, and those referred to in the submissions made on a bail application by the Director, and on the imperfect material currently available to me: I am satisfied that each of the proposed grounds of appeal is at least arguable. Perhaps, some more than others. It can properly be said that the applicant's appeal against sentence has some prospects of success.
In El Hili & Melville, I said (with the concurrence of Simpson J, as her Honour then was, and Davies J) that an assessment of the prospects of appeal was one of the frequently occurring factors to be considered by a bail court in determining an application for bail pending an appeal to the Court of Criminal Appeal and in considering whether "special or exceptional circumstances" exist.
The second frequently occurring consideration identified in El Hili & Melville was the question of whether the custodial component of the sentence under review may have expired, or substantially been served, by the time the appeal is heard. The applicant submits in the present case that he is unlikely to receive a hearing date before March or April 2018. That proposition is supported to a degree by information that I have received from the Registrar of the Court of Criminal Appeal who has nominated a number of possible hearing dates in March 2018. Mr Borosh, who appears for the Director, also agrees that the most likely hearing date for this young person's appeal is March of next year.
The applicant has done everything in his power to expedite the hearing of the matter and his legal team should be commended for their efforts. The notice of intention to appeal was lodged on the day that sentence was imposed and senior counsel signed off on written submissions just four days later. However, at this stage, the full transcript of the proceedings has not been received although the judgment on sentence is available and, I take it, has been revised by the sentencing judge.
While it might reasonably be said that the applicant will only have served half or, perhaps, one third of the custodial component of the sentence by the time the appeal is heard, it is of great significance in considering this aspect of the matter that the total non-parole period to which the applicant is subjected is just eight months.
If any of the grounds of appeal asserted by the applicant are upheld and the applicant is to be resentenced in accordance with the principles described by the High Court in Kentwell v The Queen [1] , it seems unlikely that the Court would be considering simply reducing the length of the sentence to be served in a juvenile institution. Rather, it seems to me that the Court would be considering whether the sentence should be served in an institution at all, or whether it should be suspended upon the applicant entering into a bond. The Court might even consider the imposition of a non-custodial sentence although, given the seriousness of the offences, that may appear to be an unlikely result.
In those circumstances, the fact that a fourteen-year-old child would be imprisoned in a juvenile institution for three or four months is a significant matter to be weighed in the balance in determining whether special or exceptional circumstances justifying the grant of bail have been established.
In addition to those two frequently occurring matters, it must also be remembered - on the most basic level - that the Court is here dealing with a fourteen year old child. The general policy of the criminal law, and the proper application of international instruments concerning the rights of children, militates against incarceration even where, as here, the child has pleaded guilty to serious offences.
In making those observations, I am very conscious of the remarks of the Court in R v Khoo [2013] NSWSC 1518 and Cassiniti [2006] NSWSC 1103. That is to say: nothing I say or decide in this case should be seen to suggest that the sentence imposed in the District Court is somehow contingent until confirmed and, in my experience at least, the Court of Criminal Appeal does not shirk from the responsibility of returning people to custody when bail has been granted pending an appeal. Nevertheless, I take seriously those observations, which were relied on by Mr Borosh, and weigh them in the balance.
The material provided on the application establishes that the child has no previous criminal convictions and there does not appear to be any serious suggestion that he represents a danger either to other family members or to the community at large. He was taken out of the school that he attended with the victims and has engaged in counselling services. Indeed, his psychologist is present in court today on the hearing of the application sitting with the applicant's parents. The evidence before the sentencing judge satisfied his Honour that the applicant had good prospects of rehabilitation. Indeed, the material suggested that he has gone a long way towards rehabilitation already.
There is also evidence before me that the applicant has been accepted into and will, at the beginning of 2018, be able to commence studies at a well-regarded high school in the city of Sydney. If he remains in custody he will not be able to commence high school as planned. Again such an outcome is contrary to general principles, both domestic and international, regarding the way in which the institutions of government, including the criminal courts, should deal with children.
Having said that, it has to be said that if the applicant is released on bail pending his appeal and if his appeal is unsuccessful he will be returned to custody whereupon the disruption to his life and to his schooling will be even greater than if he is simply in a position where his commencement of schooling at the new school is delayed. In either event, it is a matter I take into account.
In El Hili & Melville, it was observed that the special and exceptional circumstances test might be satisfied by a combination of factors. I am satisfied that this is such a case. The prospects of success on appeal, so far as they can be considered at this distance, and the relatively short sentence imposed, along with the applicant's age, lack of criminal convictions, good efforts at rehabilitation and the undesirability of delaying his commencement at the new school, satisfy me that the applicant has established that there are special and exceptional circumstances justifying the grant of bail.
In reaching that conclusion I have taken into account, in accordance with s 22(3), the facts relevant to the unacceptable risk test and, in particular, the relevant matters in s 18 of the Bail Act. That includes in this case:
1. The seriousness of the offences.
2. The fact that the applicant has pleaded guilty and been sentenced.
3. The prospects of success on appeal.
4. The applicant's lack of criminal record and in particular the lack of offences of violence.
5. The lack of any history of non-compliance with court orders.
6. The fact that the applicant was on bail for fourteen months before sentence.
7. The need for the applicant to be at liberty for a lawful purpose, namely, to commence at a new school.
I have also taken into account both in considering the matter generally in terms of risk, and also the prospects of appeal, the fact that the applicant was sentenced by a most experienced judge of the District Court with vast knowledge of the criminal law.
I am satisfied that the applicant has established that there are special and exceptional circumstances justifying the grant of bail. I am not satisfied that there are any unacceptable risks of the kind identified in ss 17 and 19 of the Bail Act.
I think there must always be "bail concerns" in a case of this kind but those concerns are ameliorated by the stringent conditions proposed by the applicant's legal representatives.
The applicant's parents have agreed to provide surety in the sum of $1 million, presumably secured by a mortgage over their home. However s 26(5) of the Bail Act provides that security requirements such as these can only be imposed where there is a bail concern that the applicant will not appear. The Crown submitted that such a concern does exist although Mr Borosh, with admirable fairness, did not press the matter too hard. Having considered the applicant's community ties, his satisfactory compliance with bail over fourteen months, the fact that he turned up before the District Court knowing full well that a custodial sentence was a likely outcome, I am not satisfied that there is a bail concern that he will fail to appear. Therefore, I am not lawfully able to impose a condition requiring secured surety.
I have considered the conditions suggested in the affidavit of the applicant's solicitor. In my assessment, some of those conditions are unnecessary, or unnecessarily restrictive or onerous to achieve the purposes of the Bail Act. Some of the conditions such as those purporting to bind the applicant's parents are probably unenforceable anyway. It may be that the proposed conditions echo the conditions of bail that existed up until the time of sentence. In any event, and for all the reasons I have identified, the bail application is granted on the following conditions:
FOR BAIL CONDITIONS SEE COURT FILE
[3]
Endnote
(2014) 252 CLR 601; [2014] HCA 37.
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Decision last updated: 13 March 2018