HIS HONOUR: This is an application for bail pending the hearing of an application for leave to appeal to the Court of Criminal Appeal from a sentence passed on Mr Thomas by Blanch J, CJ DC on 7 April 2014.
I do not have his Honour's remarks on sentence. However, it seems that the total effective sentence for the two offences to which Mr Thomas pleaded guilty was two years and the non-parole period is an effective period is effectively six months. So that the first day on which he is eligible for release on parole is 6 October 2014. I assume that Blanch J would have ordered Mr Thomas's release on that date in accordance with the provisions of s 50 of the Crimes (Sentencing Procedure) Act 1999.
The offence for which he was sentenced was supplying methylamphetamine, a prohibited drug under s 25 of the Drug Misuse and Trafficking Act 1985. The amount involved was 8.7% having a purity of 15%. He was also dealt with for knowingly dealing with the proceeds of crime in the sum of about $1000.
He has lodged a notice of intention to apply for leave to appeal, which was received in the registry of the Court of Criminal Appeal on 24 April 2014. I am satisfied that by lodging that document he has commenced appeal proceedings and by virtue of s 5 of the Bail Act 2013 there are proceedings for an offence, i.e. an appeal against sentence, pending.
Accordingly, I can deal with an application for bail and make a decision about it under s 8 of the Bail Act.
It is not for me to make any comment upon the prospects of success of the appealbut I have been informed by Ms Rodger, solicitor of the Legal Aid Commission, who appears amicus, that before a decision can be made about whether Mr Thomas will be granted Legal Aid for his appeal the opinion of counsel needs to be obtained as to the merits of the proposed appeal and that advice is yet to be received. Mr Thomas is not applying for appeals bail on the basis of the obvious strength or merit of the proposed appeal.
I direct myself that by dint of the provision of s 22 of the Bail Act 2013 I am not to grant bail for an offence for which an appeal is pending in the Court of Criminal Appeal against a sentence imposed on a conviction on indictment unless Mr Thomas persuades me on the balance of probabilities that special or exceptional circumstances exist that justify the grant of bail.
S 22 mirrors the provisions of the former Bail Act in regards to appeals and likewise overcomes the anomaly identified previously by the decision of the Court of Criminal Appeal in R v Hilton (1987) NSWLR 745.
I discussed the previous law concerning satisfaction of that stringent test in R v Martin [2012] NSWSC 801. It is not necessary for me to recite what I there wrote but it seems to me that the considerations which informed the exercise of the Court's discretion under s 30AA will continue to inform it under s 22 of the new Act.
There are a wide variety of circumstances which may constitute special or exceptional circumstances. In Re Jackson [1997] 2 VR 1 Callaway JA at p 2 said the following:
"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."
At [22] of my decision in Martin I refer to other authorities on the same point. I also note the following at [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 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 applicant's 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." (citation omitted).
Here the applicant will have served in my judgment the only custodial portion of his sentence well before his case could be heard in the Court of Criminal Appeal and obviously after it is heard the Judges may take time for consideration.
It is necessary for me to consider the totality of the circumstances and it is very important to bear in mind that the reason underpinning the special rule in relation to appeals bail is that when a person has been sentenced after a conviction normal legal process has been followed.
The granting of appeals bail may give rise to the impression that the conviction based upon the person's plea of guilty and the sentence imposed by the sentencing court is somehow provisional until the applicant has exhausted all of his rights to appeal offered by the legal system.
One must be careful not to give that impression. As I observed in para 27 of Martin the High Court of Australia has indicated that a very strong case needs to be made for a grant of bail in the High Court because ordinarily such an application is made after trial and an intermediate appeal.
The approach required here 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.
In this case I have also borne in mind the evidence the applicant has led in relation to his personal circumstances. In particular his fiancée has given birth prematurely to their child. The child is - as often happens - sick and there are post natal complications for his fiancée.
Moreover, the applicant's family are living in accommodation made specially available to persons of Aboriginal heritage, which heritage the applicant shares but his fiancée does not. That accommodation will not be available to the applicant's fiancée after about the middle of this month.
Of course hardship to a person's family is a natural consequence of offending which results in the imposition of punishment. Normally the court does not take into account hardship to an offender's family for any purpose except in exceptional circumstances.
It seems to me however that the totality of the circumstances in this case, including those considerations which would not of themselves entitle the applicant to bail, do amount to the necessary special or exceptional circumstances that justify me considering a grant of bail.
Once I have come to that conclusion it is still incumbent upon me to consider the questions raised for determination by the provisions of ss 17 and 20 of the Bail Act 2013. It seems to me that, notwithstanding Mr Thomas's apparent sincerity, given that he has been sentenced to prison, and has tasted the harshness of imprisonment in New South Wales, there must be a risk that he will fail to appear at the hearing of his appeal especially if counsel advises against the appeal and Legal Aid is not forthcoming.
Considering the matters in s 17(3), which I will not detail, in the circumstances of the case I am satisfied that that risk is unacceptable. It seems to me that there is no unacceptable risk of him committing a serious offence or causing danger to the safety of the community or interfering with witnesses or evidence pending the appeal because he has pleaded guilty at an early opportunity and he has been dealt with by the courts. There will be no opportunity for any of those things in my judgment.
I need then to consider whether I am satisfied on the balance of probabilities that the unacceptable risk of him failing to appear cannot be sufficiently mitigated by the imposition of bail conditions. He was on fairly strict bail for a period of nine months before he was sentenced and he complied with those conditions.
I have noticed from the letter from the arresting police officer that the police have no strenuous opposition to me granting appeal bail and indeed Senior Constable Trowbridge very fairly says that he can find little ground to object to bail being granted on the basis of unacceptable risk as there would be minimal risk in his opinion of the applicant committing a serious offence or interfering with witnesses or evidence. He was a bit worried about the danger to the community if Mr Thomas fell back into his previous offending ways but I am satisfied that the risk of that is very slight and not unacceptable in this case.
Accordingly, provided strict conditions are imposed, I am not satisfied that the risk of non appearance cannot be mitigated. As the appeal is at an early stage no call over date has yet been fixed. I propose to impose a condition that he appear before the Court of Criminal Appeal on the date fixed by that court. Lest that take longer than expected I will, if you like, as a default position bring it back before me on 4 September 2014 unless it has previously been dealt with by the Court of Criminal Appeal.
My decision is that conditional bail should be granted and I impose the following conduct requirements.
FOR BAIL CONDITIONS SEE COURT FILE
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Decision last updated: 05 December 2016