Regina v Magrin

LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Ellis DCJ JUDICIAL OFFICER :

• 8 - IN THE COURT OF CRIMINAL APPEAL CA 40777/04

MASON P SANTOW JA WOOD CJ at CL

Thursday 23 September 2004 Regina v Gregory Magrin Judgment

1 WOOD CJ at CL: The Respondent in this Court appeared for trial before his Honour Judge Ellis and a jury in the District Court at Parramatta on a charge of having sexual intercourse with a child under ten years contrary to s 66A of the Crimes Act 1900 (NSW). On 25 August 2004 he was found guilty of that office. 2 Following the trial and over the objections of the Crown, Ellis DCJ granted the Respondent bail by reason of his assessment that:

a) It would be more difficult to obtain a pre-sentence report if he was in custody; and

b) He had thus far complied with his conditions of bail and if he were planning to abscond he would have done so by now. 3 His Honour however informed the Respondent that: "the grant of bail [was] not an indication that he was minded to impose a non-custodial sentence…rather it was likely that he would be sentenced to a period of full time custody". 4 The Crown thereafter lodged an application for a review of the bail decision. It was listed on 13 September 2004 before Newman AJ who remitted it to the Court of Appeal, consistently with the practice which was recognised in Regina v Roberts and Lardner (1977) 97 A Crim R 456. 5 Although the Respondent did appear before Newman AJ he was not present when the matter was called today and his absence is unexplained. In that regard it is the case that he has received letters advising of the time and place of the fixture before this Court. 6 It is the Crown submission that the discretion of Ellis DCJ miscarried in that his Honour failed to have regard to s 9D(1) of the Bail Act 1978 which provides: An authorised officer or court is not to grant bail to a person in respect of a serious personal violence offence if the person is a repeat offender unless the authorised officer or court is satisfied that exceptional circumstances justify the grant of bail.

7 It appears that the section was not brought to his Honour's notice, even though it became operational on 23 August 2003: See the Bail Amendment Act 2003 and the Proclamation of 20 August 2003. 8 It is the Crown contention that s 9D(1) of the Bail Act 1978 applies to the determination of whether or not bail should be granted in this matter because the Respondent stands convicted of a "serious personal violence offence", and because he is a "repeat offender". 9 Dealing with the first limb of this submission, the term "serious personal violence offence" is defined in s 9D(4) of the Bail Act to include an offence under s 66A of the Crimes Act 1900 and accordingly that part of the Crown submission is made good. 10 The expression "repeat offender" is defined in s 9D(2) of the Bail Act as follows: For the purposes of this section, a person is a "repeat offender" if the authorised officer or court is satisfied that the person has a previous conviction for a serious personal violence offence (other than the serious personal violence office in connection with which bail is sought). 11 The "previous conviction", upon which the Crown relies, relates to an offence of "assault with intent to rape" which was an offence proscribed by s 65 of the Crimes Act, a section which has since been repealed. The Respondent was dealt with for that offence on 2 June 1972 pursuant to s 83 of the Child Welfare Act 1939. Although the full record of the Court is not before us it does appear, from the nature of the order, particularly the fact of committal, that the matter was dealt with under s 83(2) of the Act following a finding that the offence had been proved. 12 It may be observed, additionally that a s 65 offence is included in the s 9D(4) definition of a "serious personal violence offence". 13 The Crown seeks to rely upon the broad definition of the term "conviction" contained in s 4 of the Bail Act 1978. This section, as found in the Bail Act 1978 as it was originally worded, defined the term "conviction" to include a "finding of guilt and without limiting the generality of the foregoing provisions of this definition the making of an order under s 556A of the Crimes Act 1900 or s 83(3) of the Child Welfare Act 1939." 14 The definition has since been amended to substitute, for these provisions, s 10 of the Crimes (Sentencing Procedure) Act 1999 and s 31A of the Children (Criminal Procedure) Act 1987 which are the current comparable provisions applicable to the dismissal of charges, and conditional discharges, where a finding of guilt is made without proceeding to a conviction. 15 In the light of the date of the Respondent's s 65 offence, an issue arises as to whether the entry of 2 June 1972 is a "spent conviction" within the meaning of that term in the Criminal Records Act 1991 and the Criminal Records Regulations 2004. Section 12 of the Criminal Records Act provides inter alia that if a conviction of a person is spent then: (a) the person is not required to disclose to any other person for any purpose information concerning that spent conviction, and (b) a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent, and (c) in the application to the person of a provision of an Act or statutory instrument: (i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and (ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions. 16 Section 7 of the Criminal Records Act 1991 provides that: "convictions for sexual offences" are not capable of becoming spent for the purposes of this Act. 17 The term "sexual offences" is defined by subs 7(4) relevantly, to mean the following offences:

(a) the offences under sections 61B-61F, 65A-66D, 66F, 73, 74, 78A, 78B, 78H, 78I, 78K, 78L, 78N, 78O, 78Q, 79, 80, 91A, 91B and 91D-91G of the Crimes Act 1900, (b) from the date of commencement of Schedule 1 (3) to the Crimes (Amendment) Act 1989 , the offences under sections 61I-61P of the Crimes Act 1900 , … (g) an offence committed: (i) before the date of commencement of this section against a law of New South Wales or a law of a place outside New South Wales, or (ii) after the date of commencement of this section against a law of a place outside New South Wales, which constituted or constitutes an offence of a similar nature to an offence referred to in paragraph (a), (b), … 18 An offence proscribed by s 65 of the Crimes Act 1900 is, in my view, "of a similar nature to an offence" proscribed by s 61I of the Crimes Act 1900, namely an attempt to have sexual intercourse without consent. 19 In any event, as a result of the application of Regulation 12 of the Criminal Records Regulations 2004 a conviction which would otherwise be considered spent cannot be so treated for the purposes of applying s 9D of the Bail Act, where the conviction is in respect of a "serious personal violence offence" as defined in subs 9D(4) of the Bail Act. Although this Regulation did not commence until 1 September 2004 it is obvious that it was intended to apply to offences committed prior to its commencement. 20 Whether in 1972 the Respondent was dealt with under s 83(2) or 83(3) of the Child Welfare Act 1939 by way of a formal conviction, or after a finding that the offence was proven or otherwise, without proceeding to a conviction does not seem to me to matter. The various provisions which I have outlined lead me to the conclusion that the entry of 2 June 1972 cannot be treated as a "spent conviction", and that it is one that is properly to be taken into account as involving a prior "serious personal violence offence". It follows that the Respondent was properly to be considered as a repeat offender within the meaning of s 9D of the Bail Act. 21 In these circumstances, in accordance with s 9D(1) bail should not have been granted by his Honour "unless the Court was satisfied that exceptional circumstances justify the grant of bail". 22 This was not a question which was specifically addressed by his Honour in the terms of the section, possibly because it was not drawn to his attention. The two matters which he identified as justifying the grant of bail however could not qualify, in any event, as exceptional circumstances. 23 First there is ample precedent for pre-sentence reports to be obtained in respect of persons in custody and it is difficult to understand what difficulty his Honour saw in the way of this being achieved in the present case. Secondly, the fact that the Respondent had answered bail before and during the trial was of little, if any, relevance once he was convicted and remanded for sentence in respect of a serious offence carrying an available maximum penalty of imprisonment for 25 years. That was an offence for which, almost inevitably, a sentence of full time custody would be expected. 24 Nor do I consider that the additional argument that was addressed this morning to the effect that the 1972 offence is of some antiquity could constitute an "exceptional circumstance" sufficient to justify a grant of bail in relation to an offence as serious as that before the Court. 25 In further support of its submission that his Honour erred in relation to the exercise of a discretion, the Crown points to the fact that by reason of s 9(1)(c) of the Bail Act, a s 66A offence is excluded as an offence for which there is a presumption of bail. Had the offence been one for which a presumption in favour of bail existed, which it was not, then by reason of s 9(2)(b) of the Act, that presumption would have ceased once he was convicted. Further s 9B(3) was applicable insofar as the Respondent had two prior convictions, in adult courts, for an indictable offence. 26 It was necessary for his Honour to have had appropriate regard to the provisions of s 9(1)(c), and to the legislative intention in relation to bail in the case of a convicted offender awaiting sentence, insofar as that is evidenced by s 9(2)(b) of the Bail Act. 27 To what extent his Honour took into account the bad criminal record of the Respondent, which included convictions upon indictment for harbouring an escapee and for accessory before the fact to the infliction of malicious grievous bodily harm, as well as a number of serious motoring offences, and nuisance type offences, is not clear. 28 It is also not clear whether his Honour paid regard to the provisions of s 32(1)(a)(iii) or to the provisions of s 32(1)(c)(i) and (iv) of the Act, in coming to a decision to allow bail, although they clearly would have had a significant relevance in the case of a person who had been convicted of a s 66A offence and who had a poor record. 29 In view of the fact that I am otherwise satisfied that error has been shown that would vitiate the exercise of the discretion that was vested in his Honour, in the manner and to the extent that permits a discretionary judgment to be set aside (see Micallef v ICI Australia Operations Pty Limited & Anor [2001] NSWCA 274, and Design & Survey Neon Pty Limited v Davies [2004] NSWCA 274), it is not necessary to consider these aspects of the case any further. 30 Accordingly I propose the following orders:

1. Allow the Crown application. 2. Revoke the order for bail. 3. Remand the Respondent in custody to appear before his Honour Judge Ellis for sentencing upon the date to which he is currently remanded, or upon such other date as the District Court may set. 31 I should note that although I have indicated that the Respondent did not appear in person this morning when the matter was first called on for hearing, Mr Rumore did appear pro bono on his behalf and advanced some submissions in opposition to the Crown application. During the course of delivering these reasons the Respondent has in fact arrived, but so far as I can see, there is nothing which could be put forward on his behalf which would alter the view which I have reached. 32 MASON P: I agree with the reasons of Justice Wood and with the orders that he proposes. 33 SANTOW JA: I also agree. 34 MASON P: Accordingly the Court makes the following orders:

1. Allow the Crown application. 2. Revoke the order for bail. 3. Remand the Respondent in custody to appear before his Honour Judge Ellis for sentencing upon the date to which he is currently remanded or upon such other date as the District Court may set.

35 The Court will now adjourn. **********

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