Southwell v Gallagher

3. Because the circumstances were a little complex, I indicated that it was appropriate for me to give reasons for my decision. These are my reasons.

4. On 9 November 2009, Chief Magistrate Cahill imposed sentences on Mr Osman for various traffic offences. These were: one charge of Dangerous Driving, five charges of Driving whilst Disqualified and one charge of Not Obeying the Direction of a Police Officer. His Honour sentenced Mr Osman to various periods of imprisonment on each charge, some cumulative and some concurrent, totalling fifteen months with a non-parole period of ten months to expire on 8 September 2010.

5. Subsequently, Mr Osman appeared before Magistrate Doogan on 17 March 2010. He was charged with Dishonestly Taking a Motor Vehicle without Consent, Dishonestly Riding in a Motor Vehicle Without Consent, Driving Whilst Disqualified, Minor Theft and Damaging Property. Her Honour imposed sentences of imprisonment on each charge, some concurrent and some cumulative, totalling fifteen months.

6. Her Honour then proceeded to set a nonparole period. She initially appeared to set a period of six months. That appears to be referrable to the total sentence she imposed. She then referred, it appears from the limited papers I had, to a "Reset Non Parole Period" of sixteen months to end on 8 March 2011.

7. The formal notice and formal orders of the court, however, refer to a nonparole period of six months to commence from 9 September 2010, which was said to be consecutive upon the "existing sentence."

8. Her Honour was obliged in the circumstances when Mr Osman was sentenced to comply with s 66 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). That section provides:

66. Nonparole periods - setting if sentence currently being served

(1) This section applies if -

(a) the offender is serving a sentence of imprisonment (the existing sentence); and

(b) the offender is sentenced to a further term of imprisonment (the primary sentence).

Note: Pt 5.3 deals with whether the primary sentence is to be served concurrently or consecutively (or partly concurrently and partly consecutively) with the existing sentence.

(2) Section 65 (Nonparole period - court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.

(3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.

(4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.

9. As can be seen, the nonparole period for the existing sentence had automatically been cancelled by the imposition of her Honour's sentence so there was no extant nonparole period to which it could be consecutive. The obligation under the section was to apply s 65 (Nonparole periods - court to set) of that Act as if the total of the terms of the imprisonment (that is, of course, the "head" sentences) had been imposed by her Honour.

10. In any event, it would appear that the intention of her Honour was to impose a new nonparole period of sixteen months to expire on 8 March 2011.

11. On 14 April 2010, Mr Osman lodged a Notice of Appeal from her Honour's decision of 17 March 2010, that is the last day on which such an appeal could be commenced without an extension of time being allowed by this Court. It was filed that day. The respondent has not yet complied with r 5108 of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules), though, no doubt, that will shortly be done.

12. That appeal has been listed to be heard on 14 December 2010. Thus, I have to determine the nonparole period now applicable to Mr Osman's situation and in respect of which sentence. If the nonparole period applicable to the sentence imposed on 9 November 2009, which sentence has not been appealed by Mr Osman, ends on 8 March 2011, then there is no point in granting him bail for he will be detained under that earlier sentence. If, however, the effect of the appeal is to revive the earlier nonparole period which expires on 8 September 2010, then there may be a point in granting Mr Osman bail. Of course, that depends in part on whether he is granted parole in respect of that earlier sentence, for otherwise, he would be detained in custody until no later than 8 March 2011, that is after the hearing date of the appeal.

13. Under r 5100 of the Court Procedures Rules, an appeal may be "started" in the Supreme Court by filing a Notice of Appeal in the Supreme Court. Thus, this appeal was started on 14 April 2009, when the Notice of Appeal was filed.

14. Section 216 of the Magistrates Court Act provides:

Stay of execution pending appeal in certain cases

1. (1) If an appeal to which this division applies has been duly instituted, the enforcement or execution of the decision, conviction, order, sentence or penalty appealed from is stayed until the appeal is concluded or is abandoned or discontinued and if the appellant is in custody, the appellant may, if not detained for any other cause, be granted bail in accordance with the Bail Act 1992.

(2) If the appellant in custody in relation to whom the enforcement or execution of a conviction or sentence is stayed -

(a) is not granted bail under the Bail Act 1992; or

(b) is not detained for any other cause;

the court or a magistrate may order the person be remanded in custody.

15. Although s 216(1) refers to an appeal being "duly instituted", I am of the opinion that this means the same as the reference to an appeal being "started" in r 5100. See Re Vernazza [1960] 1 All ER 183 (at 187).

16. Thus, the enforcement or execution of the sentence imposed on Mr Osman is stayed until the appeal is concluded, abandoned or discontinued. The effect of this is that Mr Osman was, from that date, not serving the sentence imposed by her Honour.

17. He was, unless granted bail, to be detained in a remand centre or facility. This was made clear by Crispin J in Southwell v Gallagher [2006] ACTSC 24; (2006) 198 FLR 383 (at 387[16]). The effect of this is that, even where an appeal against a sentence of imprisonment imposed by the Magistrates Court is dismissed, adjustment is usually required to be made where the appellant has not been granted bail to take into account the time spent in custody pending the appeal.

18. This was made clear in Hadba v The Queen [2004] ACTSC 62; (2004) 182 FLR 472 (at 480-1).

19. It is a frequent occurrence in this court. For a recent example, see Ledson v Taylor, Robison and Brown [2010] ACTSC 42 (at [88]).

20. Accordingly, in order to determine how to proceed with the application for bail that Mr Osman has made, and whether bail should be granted and, if so, when, it is necessary for me to determine the applicable nonparole period.

21. The question thus is as to whether the stay created by s 216 of the Magistrates Court Act affected the automatic cancellation of the nonparole period set by Chief Magistrate Cahill by virtue of the imposition of the sentence (albeit stayed) of Magistrate Doogan. That cancellation was effected legislatively by virtue of s 66 of the Sentencing Act. As the section says, it is the imposition of the sentence that automatically cancels the nonparole period earlier set.

22. In Hadba v The Queen, Higgins CJ and Crispin J held that where a person commences an appeal and s 216 of the Magistrates Court Act applies, then s 9 of the Bail Act 1992 (ACT) (the Bail Act) (as it was at February 2004) applied so that the appellant had to show "special or exceptional circumstances" before being eligible to be granted bail, apparently because he had been "sentenced to a period of imprisonment" (s 9(1)(a)) even though, of course, the enforcement of the sentence had been stayed.

23. Gyles J, in that case, agreed with the orders proposed by the majority, but expressed reservations about whether an appellant had to show special or exceptional circumstances. He commented (at 482 [44]):

The evident intention of s 216 was to grant an automatic stay of execution whenever an appeal has been instituted, regardless of the merits or otherwise of the appeal or any other circumstance. In that respect it is as if the conviction has not occurred pending disposition of the appeal.

24. This approach would clearly result in the stay of the automatic cancellation of the nonparole period for, to paraphrase his Honour, "it is as if the sentence had not been imposed pending disposition of the appeal".

25. That approach may, however, appear inconsistent with the approach of the majority in that case and, of course, I am bound by the decision of the majority. There was, however, little or no argument in that case about the issues there decided or the reason for the approach taken by the majority.

26. It seems to me that the intention of s 216 of the Magistrates Court Act is properly identified by Gyles J, though I would not use the words his Honour used. Any effect of the imposition of the sentence should be put on hold until the appeal is ended in one of the ways mentioned in the section. Thus, other consequences of the imposition of the sentence (or, if the appeal is against conviction, of the conviction) would be stayed by virtue of the filing of the Notice of Appeal. For other such consequences, that would seem to me to be also stayed, see Travini v Starczewski [2009] ACTSC 123 (at [20]-[21]).

27. In my view, this is not inconsistent with what the majority held in Hadba v The Queen for it does not seem to me that the relevant bail provisions are, in the same way, a consequence or part of the enforcement of the sentence. The current provision, s 9E of the Bail Act, is in relevantly identical terms to s 9 as at February 2004. It provides:

9E Bail for person sentenced to imprisonment

(1) This section applies if -

• (a) a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and
• (b) an appeal is pending in relation to the conviction or sentence;

(2) A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) In this section:

appeal includes an appeal against a decision on appeal.

28. That is to say, it describes pre-conditions for a particular test for the grant of bail. It is inconceivable that, where the provision is clearly and unambiguously intended to apply where an appeal has been started from a decision of the Magistrates Court (as well, of course, as an appeal from the Supreme Court, the Court of Appeal and the Children's Court), the legislature did not intend it to apply to some appeals because of s 216 of the Magistrates Court Act.

29. Thus, I would not go so far as to say, as Gyles J did in Hadba v The Queen, that "it is as if the conviction had not occurred" in all senses. The effect for direct consequences, such as is effected by s 66 of the Sentencing Act, would be to that effect, but the starting of the appeal would not change the factual situation, namely that the offender had actually been sentenced to a term of imprisonment (albeit stayed) so that s 9E of the Bail Act would apply if an application was made for bail, as Mr Osman has done. This is consistent with the result the majority reached in Habda v The Queen.

30. Against that background, I am satisfied that the starting of the appeal to this court from the decision of the Magistrates Court of 17 March 2010 had the effect of reviving or re-instating the nonparole period set by the Magistrates Court when Mr Osman was sentenced on 9 November 2009. This was the submission of Ms K Weston-Sheuber, who appeared for the respondent, and I agree.

31. Thus, at present, Mr Osman's non-parole period ends on 8 September 2010.

32. It seems to me, then, that I cannot release Mr Osman on bail until that date at the earliest. Then, he must show that special or exceptional circumstances exist favouring the grant of bail.

33. Mr Osman told me that he had applied for parole and that the Board had listed his application for hearing on 7 September 2010.

34. It is not for me to direct the Board how to undertake that task and I do not do so. Nothing in these remarks is intended to do that. It seems to me, however, that as the nonparole period currently applicable to Mr Osman's sentence expires on 8 September 2010, the Board would to have an obligation to hear and determine Mr Osman's application. The appeal may be a matter to be taken into account in deciding the merits of the application. I do not decide that; it is a matter for the Board. It does seem to me, however, that the fact of the pending appeal is not a matter that should prevent the Board from actually hearing the application. It has the jurisdiction, it would appear, and it should discharge its statutory duty to exercise it, if properly enlivened by Mr Osman's application.

35. I adjourned the bail application until after the meeting of the Board. The decision of the Board as to whether to grant Mr Osman parole would be a very relevant factor in determining whether Mr Osman has shown special or exceptional circumstances favouring the grant of bail so as to permit a grant of bail under s 9E of the Bail Act.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions