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[2016] ACTCA 48
Court of Appeal (ACT)
2016-09-12
Refshauge ACJ
Original judgment source is linked above.
APPEAL - CRIMINAL LAW - Manifestly excessive sentence - guilty plea - no prior convictions - general deterrence relevant factor - consideration of sentencing options - intensive correction order - requirements for a stay and bail - prospects of success of appeal - special or exceptional circumstances - expedited hearing - sentence stayed - bail granted
Bail Act 1992 (ACT), s 9E
Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)
Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT)
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Attorney-General (Qld) v Farden [2011] QCA 111
Bell v Lowe (Unreported, Supreme Court of Tasmania, Nettleford J, 2 March 1988)
Boulton v The Queen [2014] VSCA 342; 46 VR 308
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681
Napper v Samuels (1972) 4 SASR 63
Polyukhovich v The Commonwealth [1990] HCA 40; (1990) 64 ALJR 589
Quzag v The Queen [2015] ACTCA 36; 298 FLR 330
Quzag v The Queen (No 3) [2015] ACTCA 37
R v Ciccone (1974) 7 SASR 110
R v Creighton [2011] ACTCA 13
R v EL [2016] ACTSC 241
R v O'Connor [1987] VicRp 45; [1987] VR 496
R v Nevermann (1989) 43 A Crim R 347
R v Richardson [2016] ACTSC 133
R v Samani [2016] ACTSC 257
Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290
Valentini [1980] FCA 133; (1980) 2 A Crim R 170
Weston v Arley [2012] ACTSC 138
Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 30 October 2014
Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 November 2015
Citation: [2016] ACTSC 257
1. On 9 August 2016, the applicant, Daryoush Zargari Samani, was sentenced for six offences to which he had pleaded guilty. They were offences of dishonesty, namely, an offence of dishonestly obtaining a financial advantage by deception, an offence of attempting to commit such an offence, two offences of being knowingly concerned in committing such an offence, an offence of knowingly producing a false or misleading document, and obstructing or hindering an investigation by a law enforcement officer.
2. He was sentenced to an aggregate term of two years and four months imprisonment, to be served as to six months by full-time imprisonment and the balance suspended with a Good Behaviour Order for two years from the date of the suspension of the sentence. See R v Samani [2016] ACTSC 257.
3. Mr Samani has now appealed against the sentence of imprisonment on grounds that the sentence was manifestly excessive and that the sentencing judge did not consider an intensive correction order as a sentencing option. See s 11 of the Crimes (Sentencing) Act 2005 (ACT).
4. Mr Samani has now applied for bail and for an order expediting the hearing of the appeal.
5. There is no doubt that the Court of Appeal can grant bail to an appellant. See Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290; Quzag v The Queen (No 3) [2015] ACTCA 37.
6. It was made clear in Quzag v The Queen [2015] ACTCA 36; 298 FLR 330, however, that, before bail could be granted, the sentence of imprisonment imposed by the sentencing court had first to be stayed.
7. The Court did not establish any criteria by which to determine whether a stay should be granted, but in Quzag v The Queen (No 3) at [5], the Crown conceded that the criteria for granting bail "are at least no more stringent than the criteria for granting bail in the circumstances which are present in the present case."
8. The principles generally for a stay pending appeal were set out in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 683, where Brennan J explained:
The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises.
9. It is not necessary to determine whether this constitutes all of the relevant criteria. It is suggested not, for the principles have been set out in civil cases in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 at 693-5, which are well established. They include the following:
(1) Special or exceptional circumstances are not required to be established to justify a stay pending appeal;
(2) The onus is on the applicant to demonstrate a proper basis for the stay;
(3) The power of the Court to grant a stay as a matter of discretion;
(4) The Court will weigh the balance of convenience and the competing rights of the parties;
(6) Where there is a risk that the appeal will prove abortive, if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of a stay; and
(7) Where the appeal has been lodged simply to gain time, no granting of a stay arises.
10. These principles are said to be generally applicable to criminal appeals. See, for example, Attorney-General (Qld) v Farden [2011] QCA 111 at [15]- [18]. The High Court also appears to have accepted that. See Polyukhovich v The Commonwealth [1990] HCA 40; (1990) 64 ALJR 589 at 591.
11. Given that, by virtue of s 9E of the Bail Act 1992 (ACT), at least special and exceptional circumstances are required to be shown before bail can be granted pending appeal to a person subject to a sentence of imprisonment, it seems that the Court's concession in Quzag v The Queen (No 3) was rightly made.
12. The application by Mr Samani that was on the Court file did not seek a stay, but I gave leave to file a copy of an application that apparently had earlier been filed but had not found its way onto the Court file, but which did seek such an order. Given what I have said above, there was no prejudice to the Crown in this and the Crown properly acknowledged that.
13. The application was supported by an affidavit of Mr Samani's lawyer, a common practice and generally appropriate. I read the affidavit.
14. He deposed that Mr Samani had attended Court on each occasion on which he was required to attend and did not breach his bail prior to sentence. He noted that the appeal sittings in October - November are now fully allocated with appeals and that the next sittings will commence in February 2017.
15. This, of course, means that, unless either the appeal is expedited or bail is granted, Mr Samani will have served a substantial portion of the sentence and, if the Court reserves its position, probably all of it before the appeal is determined.
17. As noted above, the requirements for a stay rely heavily on whether an appeal would be rendered nugatory if a stay is not granted. In this case, that pre-condition is met.
18. The stay, however, should in this case not be granted unless bail is to be granted. There is no utility and certainly no advantage to Mr Samani, in a stay, if he is not granted bail, as he will remain in custody but will not be serving his sentence. The effect of that would be to increase the period of his custodial confinement.
19. I have addressed the issues of bail pending appeal in Sherd v The Queen. So far as the question of the requirement of a stay was concerned, the decision was overruled in Quzag v The Queen, but I do not understand that the principles otherwise applicable for the grant of bail pending an appeal were subject of any adverse finding or criticism. The decision has also been followed since so far as the issues of bail pending appeal are concerned.
20. As noted there at 299; [46], special or exceptional circumstances must be shown to justify a grant of bail. I also pointed out at 299; [47], that the fact that a sentence will have been fully or substantially served before the appeal is heard will be ordinarily a special or exceptional circumstance.
21. The second issue I identified at 300; [52], is what the prospects of success are on the appeal. As I pointed out at 300; [54], where the appeal has little or no prospects of success, such as in a frivolous appeal, this will strongly militate against the grant of bail.
22. Neither Mr K Archer, appearing for Mr Samani, nor Ms E Beljic, appearing for the Crown, contended that there were other issues to be addressed.
23. It is clear on the facts deposed about the Court of Appeal sittings referred to above (at [14]), and not controverted, that Mr Samani will have served all but at best a few days of the custodial portion of his sentence before his appeal can be heard. As I pointed out in Sherd v The Queen at 300; [50], this is the relevant portion of the sentence.
24. Accordingly, I am satisfied that there are special or exceptional circumstances.
25. It is, as I also observed in Sherd v The Queen at 300; [53], the fact that the determination of prospects of success is a difficult issue for it is inappropriate to try the appeal on a bail application.
27. As to the first ground, it may be ironic to say that it will often be difficult to assess the prospects of success of a ground that relies on manifest excess or inadequacy, despite the description suggesting obviousness and the clarity of the excess or inadequacy.
28. Part of the difficulty will be that on a bail application, the Court will not often have the full details of the relevant evidence and comparable cases required to show that the sentence is manifestly excessive or inadequate.
29. In any event, this was not the thrust of the argument in this case. It addressed the amended ground, namely that his Honour had erred in not considering an intensive correction order as a possible alternative to full-time imprisonment.
30. An intensive correction order is a relatively new sentencing option introduced in March 2016 by the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT). It replaced periodic detention, which was phased out following the passing of a Crimes (Sentencing) Amendment Act 2014 (ACT). See Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 30 October 2014, 3869-71 (Simon Corbell, Attorney-General); and Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 November 2015, 4215-19 (Simon Corbell, Attorney-General).
31. The Explanatory Statement for the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) set out the background to the sentencing order of an intensive correction order at page 2, where it was said:
The new sentence to be called an 'intensive correction order' is formulated by the bill's provisions to be a standalone way of serving a sentence of imprisonment. As such, it will sit just below a sentence of full-time imprisonment in the sentencing network. It is intended as a sentence of 'last resort' for offenders before full-time imprisonment. The sentence can fulfil more than one of the purposes of sentencing in circumstances where community safety and other sentencing considerations do not require the sentence to be served by way of full-time imprisonment.
The intensive correction order is designed to be punitive while still allowing the courts to incorporate elements of rehabilitation. It will allow offenders to remain in employment and maintain their community ties, which are important to reduce the risk of future offending. It is flexible enough to allow the courts to tailor the order to suit the circumstances of the offence and the offender, but still sufficiently structured to ensure every order places appropriate demands on an offender. (emphasis added)
32. Mr Archer submitted that such an order was a punitive order, but as an alternative to full-time custodial imprisonment should have been considered as s 10 of the Crimes (Sentencing) Act requires that the Court may sentence an offender to imprisonment but only if satisfied "having considered possible alternatives that no other penalty is appropriate." He conceded that neither counsel for the accused nor the Crown raised the issue before his Honour but did raise the matter of a suspended sentence, to which the Crown did not submit was a sentence that was beyond a permissible range.
33. He submitted that it was a sentencing option with punitive aspects, relying on Boulton v The Queen [2014] VSCA 342; 46 VR 308, where the punitive aspects of a similar though somewhat different sentencing option in Victoria, the community correction order (CCO), was considered.
34. In that decision, the Court held at 330-2; [89]-[98], that the order was punitive and compared it with imprisonment, stating at 335; [113]:
The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
35. The Court of Appeal went on to add at 335; [115]:
In short, the CCO offers the sentencing court he best opportunity to promote simultaneously the best interests of the community and the best interests of the offender and of those who are dependent on him/her.
36. The Crown relied on the failure of either party to raise the issue of an intensive correction order, but pointed out that, where an offender has, as was the case with Mr Samani, no alcohol or drug abuse issues or no mental health problems, and no gambling addiction, an intensive correction order becomes basically a suspended sentence. As his Honour expressly rejected a wholly suspended sentence, his Honour cannot be taken to have overlooked an intensive correction order, but his Honour's rejection of a suspended sentence does justify the rejection of an intensive correction order.
37. His Honour said in R v Samani at [31]-[32]:
38. The failure of Mr Samani's counsel to refer to an intensive correction order may not be fatal to the appeal. There is clearly an obligation in s 10 of the Crimes (Sentencing) Act for a court to consider appropriate options in determining that a sentence of imprisonment is a last resort, and the obligation cannot be dependent upon what counsel proposes, save at extremes.
39. Thus, for the offences for which Mr Samani was sentenced, the seriousness would not require a sentencing judge to consider a non-conviction order under s 17 of the Crimes (Sentencing) Act unless a case had been made out for it by his counsel.
40. No authority was referred to me by either counsel to suggest that this was wrong.
41. That his Honour did not refer to an intensive correction order is somewhat controversial. I have addressed this matter in Weston v Arley [2012] ACTSC 138 at [69]- [75]. I referred to authorities which had held that the failure to refer to a sentencing option is not, of itself, an indication that the option was not considered. I pointed out, further, that the appellate court had to look at the whole of the proceedings to see if the obligation had been met. A number of decisions of intermediate courts of appeal have held that it is not necessary to identify all possible sentencing options (Napper v Samuels (1972) 4 SASR 63 at 68) and failure to mention them does not require a presumption that they have not been considered (R v Ciccone (1974) 7 SASR 110 at 113). See, also R v Nevermann (1989) 43 A Crim R 347 at 350.
42. Nevertheless, the Full Court of the Supreme Court of Victoria had occasion to consider s 11 of the Penalties and Sentences Act 1958 (Vic) in R v O'Connor [1987] VicRp 45; [1987] VR 496. The section is at least very similar to s 10 of the Crimes (Sentencing) Act. The Court said at 501:
What then is the construction to be placed on section 11?
A sentencing judge is obliged to satisfy himself that no other sentence is appropriate before he imposes a sentence of imprisonment, but he is not obliged to give his reasons for rejecting non-custodial alternatives so long as it appears from all that is said that he must have satisfied himself as required.
43. An intensive correction order is a sentence of imprisonment. That is clear from the legislation which places it squarely in Pt 3.2 of the Crimes (Sentencing) Act which is headed "Sentences of Imprisonment". This accords with authority; see, for example, Valentini [1980] FCA 133; (1980) 2 A Crim R 170 at 175. It appears in s 11, whereas a suspended sentence appears in s 12 of the Crimes (Sentencing) Act. The two are discrete sentencing options. An intensive correction order is available where a sentence of imprisonment is required: R v Richardson [2016] ACTSC 133 at [51].
44. I note that the Court of Appeal held in R v Creighton [2011] ACTCA 13 at [50], that a sentence of periodic detention had deterrent effect. The intensive correction order replaces that option. I have no reason to suppose that this reasoning is any less appropriate to the sentencing option which replaced periodic detention.
45. The Explanatory Statement referred to above (at [30]), places it "just below a sentence of full-time imprisonment" so that it is to be regarded as more severe than a suspended sentence, though not as severe as full-time custody.
46. It seems accepted that it is not a sentencing option only available to those with a particular drug, alcohol, gambling, mental health or similar issues. See R v EL [2016] ACTSC 241 at [42]- [43].
47. There are strong statements about the need for a court to explore all options before imposing a sentence of imprisonment. Indeed, as the Full Court said in R v O'Connor at 499:
In recent years the sentencing policies of the courts have certainly been opposed to the imposition of prison sentences wherever a reasonable alternative was open, particularly in the case of young offenders: See Duncan R (1983) 47 ALR 746 where the Supreme Court of Western Australia, sitting as a Court of Criminal Appeal said at page 749: 'It is well nettled that custodial punishment should not be imposed on a young man until all avenues of non custodial punishment have been explored.
48. See also Bell v Lowe (Unreported, Supreme Court of Tasmania, Nettleford J, 2 March 1988).
49. A careful comparison between the Victorian community correction order and the ACT Intensive Correction Order shows that the evaluation of the former in Boulton v The Queen does seem applicable, and contrary to the Crown's submissions, shows that it has certainly punitive effect and should be considered before a sentence of imprisonment is imposed unless there are other circumstances that do not require its consideration, such as whether harm done in the offence is too great (R v Richardson) or the offence is too serious. Of course, where an offender is assessed as unsuitable, the Court may decline to make such an order.
50. There are some significant hurdles for Mr Samani to surmount on his appeal, but I cannot say that there are no prospects of success in it.
51. Given the short period of the sentence and the likely date for hearing the appeal, I am satisfied that the sentence should be stayed and that Mr Samani should be granted bail until the hearing of the appeal.
52. I shall hear counsel as to the terms of the bail. I would ordinarily have had them mirror at least the terms of the Good Behaviour Order made by the Primary Judge, but in this case, his Honour has made no conditions. Mr Samani was granted bail pending sentence but the only imposed condition was to notify the Registrar of any change of residential address. Given that the sentence has been imposed and it is a sentence of imprisonment, and that there is a possibility that it will be reactivated following the appeal, some further conditions are desirable to ensure that he does not abscond.
53. What I propose are the following conditions, subject to any submissions from counsel:
1. The sentence imposed on Daryoush Samani on 9 August 2016 be stayed pending the hearing of the appeal. This means that once the appeal hearing starts he should be back in custody, unless another application is made.
2. That Daryoush Samani be granted bail on the following conditions:
(c) that he not commit any offences punishable by imprisonment;
(d) that he reside at 2 Fairydale Street, Harrison, ACT, except when working in Sydney;
(e) that he report to the officer in charge of the Gungahlin Police Station each Sunday between the hours of 8:00am and 8:00pm; and
(f) that he surrender his passport to the Registrar of the Supreme Court of the ACT.
I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Samani
The Queen [2016] ACTCA 48
(1985) 2 NSWLR 685
(1986) 161 CLR 681
(1972) 4 SASR 63
(1990) 64 ALJR 589
(1974) 7 SASR 110
(2011) 5 ACTLR 290
(1983) 47 ALR 746