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Parties: Alexander Douglas Jeremy Warne (Appellant) The Queen (Respondent)

Representation: Counsel C O’Neill (Appellant) K McCann (Respondent)

Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 11 of 2022

Decision under appeal: Court/Tribunal: Supreme Court Before: Walmsley AJ Date of Decision: 1 June 2020 Case Title: R v Warne Court File Number: SCC 246 of 2020

Elkaim J:

1. On 21 February 2022 the applicant came to trial before a judge (Walmsley AJ) and a jury facing three charges: one count of aggravated burglary by joint commission, one count of property damage by joint commission and one count of theft by joint commission. He was found guilty on the first two charges and not guilty on the third.

2. Following the findings of guilt, the presiding judge revoked the applicant’s bail. The applicant had been on bail since 20 November 2020.

3. On 5 April 2022 the applicant filed a notice of appeal challenging his conviction.

4. On 1 June 2022 the applicant was sentenced to a total period of two years and six months imprisonment with a non-parole period of 15 months commencing on 16 December 2021.

5. On 9 June 2022 an amended notice of appeal was filed to include an appeal against sentence.

6. On 4 July 2022 the applicant filed an application in proceeding seeking a stay of his sentence. On the same date he filed an application for bail pending his Court of Appeal hearing. The applications are supported by an affidavit of his solicitor, Mr Thomas Xavier Taylor, affirmed on 30 June 2022.

7. The principles for an application for bail in these circumstances were set out by Refshauge J in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290:

8. There is no doubt that, in all Australian jurisdictions, special or exceptional circumstances must be shown to justify a grant of bail pending an appeal. This is uniform both by statutory prescription and judicial authority: s 9E of the Bail Act; s 30AA of the Bail Act 1978 (NSW); s 23A of the Bail Act (NT); Schedule 1, Pt C, cl 4A of the Bail Act 1982 (WA); Ex parte Maher; R v Collins (1986) 41 SASR 208; Brown v The Queen [1979] Tas R 304; Re Zoudi (2006) 14 VR 580; United Mexican States v Cabal and Ors; Eastman v The Queen. 47. The courts have clearly identified as a special or exceptional circumstance justifying the grant of bail pending appeal that the sentence will have been fully or substantially served before the appeal is heard. 48. There is some difference of views in the courts, however, as to what this means. In Chew v The Queen, McHugh J made it clear that it is the whole of the sentence, not merely the custodial portion that is relevant. His Honour said (at 210): ... even if the applicant is released on parole before the decision is given in his appeal, there will be a substantial amount of his sentence to be served while on parole. 49. As Toohey J commented (at 222) in Chew v The Queen (No 2) (1991) 66 ALJR 221, “any non-custodial period is still a part of the sentence.” See also Robinson v The Queen (1991) 65 ALJR 519 (at 520); Parsons v The Queen (1998) 72 ALJR 1325 (at 1326); Re Jackson [1997] 2 VR 1 (at 3). 50. There is, however, a number of cases which have approached the question as if the relevant period is only the custodial portion. See, for example, Bulejcik v The Queen (1995) 70 ALJR 144; Kostikidis & Anor v The Queen (1996) 71 ALJR 79 (at 80); Peters v The Queen (1996) 71 ALJR 309 (at 310); Marotta v The Queen (at 267; [18]4): United Mexican States v Cabal & Ors (at 182); R v Antoun [2005] NSWCCA 270 (at [16]); and Re Zoudi (at 587-8). 51. In my view, having regard to those cases, in particular what has been said in them by a Full Court of the High Court and by two intermediate courts of appeal, one constituted by five judges for the purposes of deciding this issue, the relevant period is the custodial position of the sentence. 52. A second issue, which Mr Sherd actually agitated, “is the prospects of success of the appeal”. It is always a factor to which regard must be had on such an application: Re Pinkstone’s Applications (2003) 77 ALJR 1561 (at 1563; [17]). Indeed, following United Mexican States v Cabal & Ors, it is one of the two essential matters that must be considered, the other being the expiry of the sentence: Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241 (at 244; [7]). 53. This is clearly a difficult issue, for it is inappropriate to try the appeal on a bail application; indeed it is neither possible nor desirable to do so: The Queen v Giordano (1982) 31 SASR 241 (at 243). 54. Clearly, where the appeal has no or little prospects of success, as in a frivolous appeal, that will tell strongly against the grant of bail, even where a substantial portion of the sentence will have been served prior to the hearing of the appeal: R v Ryan [1930] SASR 125 (at 130); R v Waters (1990) 9 Petty Sessions Review 4016 (at 4018). 55. In the High Court, before special leave to appeal has been granted, the applicant must show he or she has a very strong case: Re v Pinkstone’s Applications (at 1563; [17]). 56. There are exceptional cases where, for example, a recent ruling of the High Court has clear and direct application to the case such that the appeal then is almost certain or inevitably to be upheld: Sinanovic v The Queen (No 1) (2001) 122 A Crim R 524 (at 527; [11]). Such a strong case would justify bail. 57. In between these cases are those where the grounds of the appeal are arguable, but the prospects cannot be said to be strong. It is clear that this cannot, by itself, justify a grant of bail. As the Full Court of the Supreme Court of Victoria said in Re Clarkson [1986] VR 583 (at 586): It should be clearly understood that the fact that there is a fairly arguable ground of appeal cannot, standing alone, be regarded as constituting exceptional circumstances so as to justify the grant of bail pending appeal. 58. See also R v Wilson (1994) 34 NSWLR 1 (at 6). 59. This is not inconsistent with what Dawson J decided in Peters v The Queen (at 310-1) even though his Honour considered that the point to be raised was merely “not hopeless” and that there were reasonable prospects that it would succeed. There was, however, in that case a real expectation that were bail not to be granted, the appeal “would in all practical respects be futile”. It was that circumstance which required there to be at least arguable prospects of success on appeal. That is the converse to the situation referred to above (at [53]). 60. It is also worth noting that if the prospects of success of the appeal is the only basis for applying for bail, then the applicant is required to show that the appeal is “most likely to succeed” which would be required to meet the test of exceptional circumstances: Tieleman v The Queen (2004) 149 A Crim R 303. Very strong grounds must be shown, sometimes referred to as “virtually certain of success” (R v Waters (at 4018)) or “extraordinarily high prospects of success” (R v Wilson (at 7)). 61. I also have regard to what fell from Young CJ in Re Kulari [1978] VR 276 (at 277-8): It is not possible or desirable to attempt to describe what might be regarded as very exceptional circumstances but the fact that there is a prima facie arguable ground of appeal is, I think, of very little weight where the ground of appeal is that the sentence imposed is too severe. 62. That special or exceptional circumstances are required and bail should not readily be granted pending appeal is supported by the practical aspects referred to by King CJ in The Queen v Giordano (at 242): There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison. 63. This was well expressed by Edmund Davies LJ in the case of Gruffyd v The Queen (1972) 56 Cr App Rep 585 (at 589): [O]nce bail is granted pending an appeal, judges who later hear it are presented with an additionally heavy problem. Bail inevitably raises hopes, and to wreck them by ordering a return to custody is a painful duty for any judge. Nevertheless, there are times when such a duty is unavoidable.

9. The result of the above authorities is that bail should not be granted in the absence of exceptional circumstances, but that exceptional circumstances may be established by showing that a successful appeal would render the success as nugatory because of the time that had passed pending the appeal.

10. It was pointed out that by 7 November 2022 the applicant would have spent about 75 per cent of the non-parole period in custody.

11. Clearly therefore the outcome of the application should be dictated by the strength of the appeal. If it has no prospects then that attribute should be shared with the application. But if there is an arguable case on appeal, and the stronger the better, then the chances of success on the application will be increased.

12. The grounds of appeal on conviction assert that the verdicts were unreasonable and that the presiding judge had failed to appropriately direct the jury about the evidence of an identification witness.

13. In respect of sentence, the grounds of appeal complain that the sentences imposed lacked parity with those of a co-offender and that his Honour did not appropriately consider the imposition of an intensive corrections order.

14. The appeal against sentence is said to have strong prospects of success and was the focus of the oral submissions.

15. The non-parole period will expire on 15 March 2022. I have been informed that the appeal has been listed in the week commencing 7 November 2022.

16. Ms O’Neill, on behalf of the applicant, in oral submissions, concentrated on the appeal against sentence. She emphasised two points: (a) There was a significant argument arising from the lack of parity with the sentencing of a co-offender, Mr Damien Andy. Mr Andy was sentenced by Murrell CJ on 23 March 2022: see R v Andy [2022] ACTSC 54. The sentence was two years and six months’ imprisonment with a non-parole period of 15 months. However, the sentence was suspended with immediate effect, noting that by then Mr Andy had spent about five months in custody.

(b) The sentencing judge had failed to consider the mandatory requirements for an Intensive Corrections Order (an ICO) dictated by s 11(3) of the Crimes (Sentencing) Act 2005 (ACT).

16. The lack of parity point arose from the differences in the subjective circumstances of the two offenders. Four differences were pointed out:

(i) The applicant had a significantly smaller involvement in the offending than Mr Andy.

(ii) Mr Andy was on conditional liberty when the offending occurred.

(iii) Mr Andy was also being sentenced for an extra offence relating to the common offending. This was the theft charge on which the applicant had been acquitted.

(iv) The applicant had a much lesser criminal record than Mr Andy, who in addition had committed further offences after the offending. It was pointed out that the sentencing judge had specifically, at page 587.42 of the reasons, made allowance for “some, though not much, leniency.”

17. The point made by the applicant is that if Mr Andy’s sentencing was able to be suspended then a non-custodial option, like an ICO, should have been equally appropriate for the applicant.

18. On the above analysis there is clearly a disparity in the sentencing between the two co-offenders. Mr Andy receives two years and six months’ imprisonment, suspended after five months. The applicant receives the same term of imprisonment but with a non-parole period of 15 months.

19. The Crown responded to this apparent disparity by pointing out a very significant distinction to be made with Mr Andy’s case. Firstly Mr Andy, albeit only three weeks before his trial was due to commence, pleaded guilty. Secondly, and much more importantly, he provided assistance to the authorities which included giving evidence at the applicant’s trial. Murrell CJ described the assistance in this way:

20. In February 2022, the offender offered to provide assistance to the authorities. He subsequently did so, providing a statement in connection with the two co-accused with whom he committed the subject offences, and gave extensive evidence at their trial. 62. The Crown stated that, but for his assistance, convictions would not have been secured. This valuable assistance needs to be recognised in a significant way in the sentences that are imposed. Such recognition can be given in different ways, one of which is in the way in which a sentence is directed to be served.

21. The applicant’s answer to these points of distinction was twofold:

(a) The plea of guilty was substantially offset by the differences in the subjective features of the two cases, as outlined above. (b) The discount, or leniency, to be attributed to the assistance to the authorities came after her Honour had indicated that there would be a non-custodial part in Mr Andy’s sentence.

21. An examination of the sentencing remarks for Mr Andy gave credence to the applicant’s submissions. Prior to the assistance being given to the authorities, her Honour had given an indicative sentence. She said, from [53]:

22. On Count 3 (theft), I convict the offender and sentence him to one month’s imprisonment, from 24 August 2021 to 23 September 2021. 54. In relation to the offences of property damage (Count 2) and aggravated burglary (Count 1), I will adjourn the sentence date to 4 February 2022. Bail is refused. 55. If I was sentencing the offender today, I would of course have imposed the one-month sentence for theft (Count 3) from 24 August 2021 to 23 September 2021. 56. For the property damage offence (Count 2), from a starting point of 15 months’ imprisonment, I would reduce the sentence for the plea of guilty to a sentence of 12 months' imprisonment, which would run from 24 August 2021 to 23 August 2022. 57. For the offence of aggravated burglary (Count 1), from a starting point of 33 months' imprisonment, I would reduce the sentence for the plea of guilty to a sentence of 28 months' imprisonment, which would run from 24 October 2021 to 23 February 2024. 58. The total sentence would then be two years and six months’ imprisonment. I would impose a nonparole period of one year and three months’ imprisonment, from 24 August 2021 to 23 November 2022. 59. In the event that the offender returns in February and still wants to proceed to be sentenced in the ordinary way, that is what I will impose. 60. On 10 September 2021, I gave an indicative sentence in relation to Counts 1 and 2. At that stage, the question was whether the offender should be placed on a drug and alcohol treatment order.

23. Then at [63], after noting that she had been informed of the assistance to the authorities, her Honour said:

Prior to being advised of the assistance that was provided, invoking the application of s 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I was minded, although certainly not committed, to directing that the offender serve his sentence by way of a drug and alcohol treatment order

23. I think it is very arguable that but for being informed of the assistance to the authorities her Honour would have incorporated a drug and alcohol treatment order, to be served in the community, within the sentence that she imposed.

24. It is apparent that the change to a partially suspended sentence arose as a result of the assistance to the authorities.

25. Returning then to the question of parity, I think it a strongly arguable case that on the sentence that would have been imposed on Mr Andy but for his assistance to the authorities, there is a distinct divergence from the sentence imposed on the applicant. He would then be understandably aggrieved. Obviously once the assistance discount is factored in, the issue of parity is no longer relevant. Further, and again obviously, the sentence given to Mr Andy should not be regarded as appropriate in the absence of his assistance to the authorities.

26. I think the parity point is enough to establish the arguable grounds of appeal necessary to ground a finding of special or exceptional circumstances. I therefore intend to grant the stay and bail.

27. In relation to bail I note that in the lengthy period during which the applicant was on bail before his trial, there were no breaches of his bail conditions. I intend to impose the conditions set out in the affidavit of Mr Taylor but amended to include some changes requested by the Crown.

28. There is no need now for me to examine the point arising from s 11(3) in relation to an ICO. I will however make the following comments. The applicant’s submission was that once a reasonable request was made for an ICO it was incumbent upon the sentencing judge to consider the factors set out in s 11(3).

29. The Crown submitted that these factors need only be considered after the sentencing judge had formed a conclusion that an ICO might be appropriate. In other words, the factors are essentially a checklist to be completed before an ICO could be granted. It is not necessary for the factors to be considered unless the judge is minded to consider proceeding by way of an ICO.

30. My preliminary view is that the Crown is correct. I think the structure of s 11(3) is such that if the sentencing judge, for example because of the judge’s assessment of the objective seriousness of the offence, does not consider an ICO would be appropriate then there is no need to consider the factors set out in s 11(3). It is only after a conclusion that an ICO is an appropriate sentencing option that it is mandatory to consider the factors.

31. I make the following orders:

(i) The sentence imposed on the applicant on 1 June 2022 is stayed pending the hearing of his appeal.

(ii) The applicant is granted bail on the following conditions:

(a) To reside at [redacted];

(b) Not to go within 100 metres of [redacted];

(c) Not to contact, directly or indirectly, [redacted];

(d) Not to threaten, harass, menace, intimidate or offend against [redacted];

(e) Not to go within 100 metres of [redacted];

(f) Not to go within 100 metres of any international point of departure;

(g) Not to leave the Australian Capital Territory;

(h) To report to Woden Police Station every Monday, Thursday and Saturday;

(i) To accept the supervision of the ACT Corrective Services. I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: