His Honour drew a distinction (which is the subject of a reserved decision of this Court in Zoudi) between a partially suspended sentence, which is the present case, and a non-parole period, which is not.
6 In our view, this application is all the stronger because this applicant has already been granted leave to appeal. It is not suggested in the early authorities that "exceptional circumstances" can only be made out where reasonable prospects of success on appeal are established. But the applicant in any case has that additional consideration in his favour; that is to say, he has persuaded a judge of this Court that he has a reasonably arguable ground of appeal and on that basis leave to appeal was granted.
7 The submission for the Crown in opposition is essentially that those two matters are not sufficient by themselves to constitute exceptional circumstances. But, as I have already indicated, the single circumstance of expiry of the non-suspended part of a sentence has for many years been regarded as sufficient by itself, in appropriate circumstances, to justify a grant of bail.
8 When asked whether there were any considerations which would weigh against a grant of bail, counsel for the Crown referred only to the undoubted fact that, if bail is granted and the appeal against sentence fails, this applicant will be returned to custody to complete the balance of the non-suspended part of his sentence. That is a well-recognised consideration. As has been made clear over the years, it is a reason why the Court should exercise caution before granting bail after conviction, precisely because the failure of the appeal will have that consequence. But it is a general consideration which serves to explain why the test is one of exceptional circumstances.[4] It adds nothing specific to the consideration of this case.
9 Mr Trapnell also argued that there were not very strong prospects of success. We would decline to entertain that argument, for two reasons. First, as has often been said, it is virtually impossible to make any realistic assessment of prospects of success of an appeal at the bail application stage.[5] Secondly, as already noted, leave to appeal has already been granted. The only relevant test of prospects of success has therefore been satisfied.
10 Accordingly, in our opinion, the applicant should be released on bail pending the hearing and determination of his appeal against sentence. We will make the grant of bail on conditions to be spelt out in the order.
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