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[2025] ACTCA 42
procedural. The sentence imposed on 29 September 2025 was stayed pending the hearing of the appeal under s 37J(1)(d) of the Supreme Court Act 1933 (ACT). Whittaker was granted bail subject to the seven...
McCallum CJ paused Whittaker's sentence and granted him bail while his appeal is waiting to be heard. The Court considered that the appeal might not be heard before the custodial part of the sentence expired. It also considered there was a realistic argument that the sentencing process should have allowed Whittaker to provide further personal and family information if full-time imprisonment was being considered. This was an interim decision only: the Court did not decide whether the sentence appeal would succeed.
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2,510 words · generated 06/10/2026
In Whittaker v DPP [2025] ACTCA 42, McCallum CJ considered Shane Whittaker's application for a stay of sentence and bail pending his appeal against sentence. The sentence had been imposed by McWilliam J on 29 September 2025. The Court of Appeal proceeding was not the hearing of the sentence appeal itself. It was an interlocutory application asking whether the sentence should be held in abeyance and Whittaker released on bail while that appeal was pending.
3 cited instruments linked from this judgment.
The sentencing task involved multiple matters in two broad groups: offences committed in early 2024 and breaches of good behaviour orders, including a breach of a breach: [8]. Whittaker had initially been considered for a Drug and Alcohol Treatment Order, but the material before McCallum CJ indicated he was assessed as unsuitable because he did not have an addiction of the seriousness required for that programme. The judge understood that Whittaker had instead taken substantial steps towards rehabilitation: [9]. An assessment for an intensive corrections order followed, and the prosecutor did not oppose such an order at the sentencing hearing: [10].
The sentencing judge ultimately imposed a custodial outcome. One important feature was the statutory choice available in response to a breach of a good behaviour order. As McCallum CJ explained, s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) provided a choice between resentencing and imposing the suspended sentence: [11]. Imposition was therefore available, even though an intensive corrections order had been assessed and was not opposed by the prosecution.
Whittaker's proposed appeal included an argument about procedural fairness. His counsel contended that the sentencing hearing had given an indication that an intensive corrections order was likely. The argument was that if the sentencing judge was instead considering a full-time custodial sentence, Whittaker should have had an opportunity to respond and put forward further evidence: [12]–[14]. McCallum CJ did not treat the judge's final remarks, by themselves, as establishing a denial of procedural fairness. Having considered the hearing as a whole, however, he found the issue reasonably arguable: [13]–[14].
The application included an affidavit from Whittaker's partner. McCallum CJ considered it more cogent material about the subjective case against a full-time custodial sentence, and said part of it was sensitive and could not be inspected without leave: [16]. He considered it reasonably possible that, if warned of the alternative being considered, counsel would have taken instructions and sought to put that material before the sentencing judge. It might have affected the outcome, including in light of s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT), which requires consideration of the probable effects of a sentence on the offender's family or dependants: [17].
A separate practical consideration was timing. The custodial part of the sentence was due to expire on 26 December 2025. McCallum CJ considered there was a real likelihood that an appeal court could not convene and determine the appeal before that date: [6]. He granted a stay and bail, but did not decide whether Whittaker's sentence appeal would succeed: [22]–[24].
The first question was the legal source of power to grant bail pending appeal. McCallum CJ said he might otherwise have thought s 9E of the Bail Act 1992 (ACT) supplied that power. But he was referred to R v Quzag [2015] ACTCA 36, in which the Court of Appeal had accepted that no statute expressly conferred appeal-bail jurisdiction and that neither s 9E nor s 37Q of the Supreme Court Act 1933 (ACT) conferred it: [2]–[3]. Quzag had instead located the power as incidental to the Court's authority under s 37J(1)(d) of the Supreme Court Act to stay a sentencing order. Bail could be necessary to make a stay effective rather than futile: [3].
McCallum CJ treated Quzag as binding, noting that the parties had not identified any later decision overturning or qualifying it: [3]. He also addressed Nchouki v The Queen [2023] ACTCA 8. In that case, Baker J had referred to Quzag but applied a “special or exceptional circumstances” test associated with s 9E: [4]. McCallum CJ did not resolve the apparent tension about the source or precise legal basis of the test. Instead, he proceeded on the assumption that a stay would not ordinarily be granted without special or exceptional circumstances, and said the circumstances before him plainly met that threshold: [5].
The circumstances included both the appeal's practical value and its arguable merits. The sentence's custodial period could finish before an appeal could be heard, creating a real risk of a nugatory appeal: [6]. On appeal prospects, the judge treated the procedural-fairness argument as reasonably arguable, not as established. The important question was not simply whether the sentencing judge had power to impose full-time imprisonment. McCallum CJ accepted that the course was open. The arguable point concerned the opportunity to respond if the judge intended to depart from the tentative course understood by the defence: [12]–[14].
The possible significance of further evidence strengthened that assessment. McCallum CJ acknowledged that counsel had already presented a powerful case and that the prosecutor could point to material already advanced at sentence: [15]. But the partner's affidavit contained additional and more cogent subjective material. The Court considered there was a reasonable prospect that counsel, if alerted to the proposed full-time custodial outcome, would have sought instructions and tendered that material. It might have affected sentence: [16]–[17]. The statutory requirement in s 33(1)(o) to consider probable effects on family or dependants was relevant to why that evidence could matter: [17].
McCallum CJ also considered the role of repeated breaches. The sentencing judge's principal reason for imposition was that she had not appreciated during the hearing that one driving-while-disqualified offence had already been resentenced for breach: [18]. McCallum CJ accepted the sentencing exercise was complex and expressly said the judge could be forgiven for overlooking the matter. He did not find that the sentencing judge had acted wrongly. Rather, he considered whether additional subjective material and submissions might have tipped a finely balanced decision: [18]–[20].
Finally, Whittaker's acknowledged vulnerability to relapse informed the bail conditions. The Court imposed supervision, reporting, restrictions on intoxication and vehicles, residence requirements, and engagement with a GP and Arcadia House: [23]–[24]. Those conditions were part of the order granting interim release, not a determination of the sentence appeal.
The judgment describes the relevant legal position through prior ACT authorities rather than undertaking a broad review of the law. Before Whittaker, Quzag had stated that no express statutory provision conferred jurisdiction on the Court of Appeal to grant bail to an appellant appealing against conviction or sentence. It treated the power as incidental to the statutory power to stay a sentencing order under s 37J(1)(d) of the Supreme Court Act: [2]–[3]. McCallum CJ applied that account because he considered himself bound by the Court of Appeal's decision: [3].
The relationship between that jurisdictional reasoning and the applicable threshold was less settled in the material discussed. Nchouki had referred to Quzag but nevertheless applied a special or exceptional circumstances test associated with s 9E of the Bail Act: [4]. McCallum CJ recognised the complexity but did not decide whether that test applied by statute, by common law, or through an appropriate principle governing stays: [5].
Accordingly, Whittaker should not be read as resolving that doctrinal question. The judge expressly used the test in a generic sense and proceeded on an assumption that the circumstances had to be special or exceptional: [5]. The decision's practical holding is that, on the facts before the Court, the applicant met that assumed threshold because the appeal risked becoming nugatory and had realistic prospects of success: [6]–[7], [22]. It does not establish that every application for a stay or appeal bail must satisfy a particular formulation, nor does it explain how the statutory provisions interact in every case.
The judgment also applies, at the interim stage, the statutory relevance of family effects in sentencing. Section 33(1)(o) of the Crimes (Sentencing) Act was identified as requiring a sentencing judge to have regard to the probable effects of a sentence or order on an offender's family or dependants: [17]. The decision does not alter that provision. It shows why evidence relevant to family effects could potentially matter when assessing whether an arguable procedural-fairness ground had realistic prospects.
At [3], McCallum CJ explains the jurisdictional basis adopted from Quzag: “a grant of bail may be necessary to perfect the stay, or to prevent the grant of the stay being futile.” In plain English, a stay would have limited practical value if the person remained in custody despite the sentence being paused. The passage explains why the Court treated bail as connected to its stay power.
At [5], the judge says the Court would not ordinarily grant a stay unless the case was “special or exceptional”, but adds that he was using the expression generically and was not formulating a definitive principle. The qualification matters. The judgment does not settle the legal source of the threshold. It assumes a demanding threshold for the purpose of this application and finds it satisfied.
At [14], McCallum CJ says it was “reasonably arguable” that, if the sentencing judge intended to depart from the tentative course indicated, the defence should have had an opportunity to present further evidence. “Reasonably arguable” is an assessment for the interim application. It does not mean the Court decided there had been a denial of procedural fairness.
At [17], the judge explains that the extra material “may well have had an impact on the outcome of the sentence”, particularly given the statutory requirement to consider probable effects on family or dependants. In plain English, evidence not previously before the sentencing judge could matter if it helped explain how full-time custody would affect the offender's family and was relevant to the statutory sentencing task.
At [20], McCallum CJ states that “both justice and mercy are aspects of the institutional authority of the Court.” This is a broader observation in the context of the sentencing judge's reliance on the integrity of the justice system and repeated breaches. It is not a substitute for the statutory sentencing framework, nor a finding that the sentence was wrong.
At [22], the judge concludes that there were “realistic prospects of success of the appeal.” That conclusion explains the stay and bail decision. It is not a prediction of the appeal's result and does not bind the court hearing the appeal.
The judgment is most directly relevant to an ACT criminal appeal where the applicant seeks a stay of a sentence and bail pending appeal. Its jurisdictional discussion applies where the proposed source of authority is the Court's ability to stay a sentencing order under s 37J(1)(d) of the Supreme Court Act: [2]–[3].
The fact pattern here combined a finite custodial period, a genuine risk that the appeal would not be heard before that period expired, and an arguable appeal ground: [6], [14], [22]. The decision may be relevant where an appeal could lose practical utility before it is determined and where the applicant identifies a properly arguable error or unfairness in the sentencing process. The Court assessed the appeal's prospects by reference to a particular hearing transcript and affidavit evidence, not by setting a general rule for all sentencing appeals.
It may also be relevant where a sentencing hearing has included indications of a proposed outcome, the final sentence differs materially, and the appellant says they did not have a fair chance to address the alternative outcome or provide relevant evidence: [12]–[17]. The decision's application depended on the judge's assessment of the whole transcript, the sentencing complexity, the additional material, and the statutory relevance of family effects. A bare difference between an expected and actual sentence is not stated to be sufficient.
The case also concerns circumstances involving repeated breaches of orders and a statutory choice between resentencing and imposing suspended sentences: [11], [18]. It does not decide that imposition is unavailable where an intensive corrections order is supported, or that repeated breaches necessarily justify full-time custody. The judgment instead treats those matters as part of the context in which the sentence appeal was arguable.
The supplied judgment contains no decisions after Whittaker and gives no account of how later courts have treated it. It therefore does not support claims that later courts have followed, distinguished, limited or applied this decision.
The cases that McCallum CJ discusses are earlier authorities. Quzag is treated as binding on the jurisdictional point: [3]. Nchouki is considered because its use of the special or exceptional circumstances test sits alongside Quzag's jurisdictional reasoning: [4]–[5]. Thorn v Laidlaw [2005] ACTCA 49 appears in the discussion because the sentencing judge had referred to it when addressing the integrity of the justice system and breaches of orders: [19]. McCallum CJ then offered his own observation about justice and mercy: [20].
For a later-treatment account, a researcher would need to examine subsequent judgments, especially ACT decisions concerning s 37J(1)(d), bail pending appeal and the “special or exceptional circumstances” formulation. That later material is not included in the judgment supplied here, so no conclusion about subsequent treatment is drawn.
The central open question is the precise legal source and formulation of the threshold for a stay and appeal bail. McCallum CJ identified the relationship between Quzag, which located jurisdiction in the incidental stay power, and Nchouki, which applied a test associated with s 9E of the Bail Act: [2]–[5]. He did not resolve whether “special or exceptional circumstances” is a statutory test, a common-law principle, or another applicable standard.
A second question is how the arguable procedural-fairness issue would be decided on the sentence appeal. The judgment's conclusion was limited to whether the ground had realistic prospects for the purpose of interim relief: [14], [22]. The appeal court would still need to decide the proper interpretation of the sentencing transcript, whether the defence had a fair opportunity to address the relevant sentencing possibility, and whether any alleged error affected the sentence.
A third question is the significance and permissible use of the additional affidavit material on the appeal. McCallum CJ found it potentially powerful but noted that part was sensitive and subject to a restriction on inspection without leave: [16]. The judgment does not determine the evidentiary questions that might arise when the appeal is heard, or how that material should be assessed in the full sentencing context.
A fourth question concerns the relationship between repeated breaches, imposition under s 110 of the Crimes (Sentence Administration) Act, and the availability of an intensive corrections order for other offences. McCallum CJ described the statutory choice and the sentencing judge's reasoning but did not decide the sentence's correctness: [11], [18]–[22]. Those questions remained for the appeal.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Whittaker v DPP Citation: [2025] ACTCA 42 Hearing Date: 16 October 2025 Decision Date: 16 October 2025 Before: McCallum CJ Decision: (1) I stay the sentence imposed by McWilliam J on 29 September 2025 pending the hearing of this appeal pursuant to s 37J(1)(d) of the Supreme Court Act 1933 (ACT). (2) I grant bail on the following conditions: (a) Accept supervision of ACT Corrective Services (as delegated by the director-general) and comply with all reasonable directions. (b) Report to ACT Corrective Services at 249 London Circuit Canberra by 4pm Monday, 20 October 2025. (c) Not to be in a public place under the influence of alcohol or an illicit drug. (d) Not drive, be in the driver’s seat of, or physically possess traditional or remote access keys to, a motor vehicle, including motorbikes or e-bikes. (e) Reside as directed by Community Corrections. (f) I direct that the offender present to and consult with his General Practitioner within 24 hours or in such periods as is reasonably practicable. (g) I direct that the offender engage with Mr Mick Miller from Arcadia House about his rehabilitation within 24 hours or in such period as is reasonably practicable and that he is to accept the support of Arcadia House as recommended by Arcadia House. Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – application for appeal bail – test applicable to applications for appeal bail – where prosecution conceded intensive corrections order warranted – where sentencing judge imposed full-time custodial sentence after reserving decision – consideration of further evidence that could have been led had intimation been given of intention not to act on concession – consideration of prospects of success of appeal Legislation Cited: Bail Act 1992 (ACT) s 9E Crimes (Sentencing) Act 2005 (ACT) s 33(1)(o) Crimes (Sentence Administration) Act 2005 (ACT) s 110 Supreme Court Act 1933 (ACT) ss 37J(1)(d), 37Q Cases Cited: DPP v Whittaker [2025] ACTSC 441 Nchouki v The Queen [2023] ACTCA 8 R v Quzag [2015] ACTCA 36 Thorn v Laidlaw [2005] ACTCA 49 Parties: Shane Whittaker (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel P Edmonds (Applicant) M Howe (Respondent) Solicitors Paul Edmonds & Associates (Applicant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 44 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: McWilliam J Date of Decision: 29 September 2025 Case Title: DPP v Whittaker Citation: [2025] ACTSC 441 Court File Number: SCC 250 of 2024 SCC 251 of 2024 McCALLUM CJ: EX TEMPORE REASONS (REVISED):
Shane Whittaker was sentenced by McWilliam J on 29 September 2025 to sentences of imprisonment with suspension after a period of three months: DPP v Whittaker [2025] ACTSC 441. The offender has appealed against the sentences imposed and seeks a stay of the sentences and bail pending determination of the appeal.
A threshold question in determining the application is the test to be applied. Left to my own devices, I would have thought that the Court had power under s 9E of the Bail Act 1992 (ACT) to grant bail pending appeal. However, Mr Edmonds drew my attention to a decision of the Court of Appeal in R v Quzag [2015] ACTCA 36 (Penfold, Burns and Wigney JJ) in which their Honours at [16] accepted submissions of the Director of Public Prosecutions that: There is no statutory provision which expressly confers jurisdiction on the Court to grant bail to appellants who have lodged appeals to the Court against convictions and sentences.
The Court accepted a further submission that jurisdiction to grant bail is not conferred by either s 9E of the Bail Act or s 37Q of the Supreme Court Act 1933 (ACT) but that the Court has jurisdiction to grant bail as an incident of its power, reposed in a single judge of the Court under s 37J(1)(d) of the Supreme Court Act, to grant a stay of a sentencing order. The reason for that conclusion was that a grant of bail may be necessary to perfect the stay, or to prevent the grant of the stay being futile. As that is a decision of the Court of Appeal which, so far as I was informed by the parties, has not been overturned or qualified in any subsequent decision, I am bound by it.
To add to the complexity of the present task, however, in Nchouki v The Queen [2023] ACTCA 8, Baker J, while referring expressly to the decision in Quzag, nonetheless applied a test of whether the applicant had established “special or exceptional circumstances”, which is the test formulated in s 9E, the section under which the Court of Appeal in Quzag said jurisdiction is not conferred.
I would nonetheless accept that, whether by way of precedent that binds me, or appropriate common law principle, the Court would not ordinarily grant a stay of a sentencing order unless the case was special or exceptional. I use that expression in a generic sense, without purporting to formulate any such principle, indicating, as I have, that I consider myself to be bound by those earlier authorities to adopt the approach in Quzag, and also to consider, under s 9E or otherwise, whether special or exceptional circumstances are established. It is possible to proceed on that assumption in the present case without deciding the issue because, in my assessment, the applicant has plainly established special and exceptional circumstances.
The matters relied on were, first, that if the sentence is not stayed and bail is not granted, the appeal will be rendered nugatory. The custodial portion of the sentence is presently due to expire on 26 December 2025. I know from my role as the person who oversees the listings of the Court that there is a very real likelihood that an appeal court could not be convened and the matter determined before that date.
Orders
I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date:
Whittaker
DPP [2025] ACTCA 42
The sentence imposed on 29 September 2025 was stayed pending the hearing of the appeal under s 37J(1)(d) of the Supreme Court Act 1933 (ACT). Whittaker was granted bail subject to the seven conditions set out at [24], including ACT Corrective Services supervision and reporting, restrictions concerning intoxication and vehicles, residence as directed, and engagement with his GP and Arcadia House.
Secondly, the applicant contends that there are realistic prospects of success in the appeal. Thirdly, he relies on his personal circumstances and those of his family. I turn to consider each of those matters.
First, I have already acknowledged that there is a real risk the appeal will be rendered nugatory if a stay is not granted. As to the prospects of success of the appeal, it may be accepted that the sentencing proceedings presented a complex task for the sentencing judge for at least two reasons. First, the number of matters for which the offender was to be sentenced or otherwise dealt with and the fact that they fell into two discrete categories, being the offences committed in early 2024 and the breaches of good behaviour orders previously imposed. In one instance, the breach of the good behaviour order was a breach of a breach, that is to say, the offender had already been resentenced for a breach of the original order imposed.
Secondly, it must be acknowledged that McWilliam J took the sentencing task over from Christensen AJ, the former Drug and Alcohol Sentencing List judge, who had had the matter before her numerous times. As is a matter of public record, that former judge has moved to Papua New Guinea to take up an appointment as a judge of the National Court in that country. The reason the matter was in the Drug and Alcohol Sentencing List was that the offender was initially assessed for eligibility for a Drug and Alcohol Treatment Order. I do not have the report before me, but it is apparent from the material I do have that he was assessed unsuitable, not for any reason that reflects badly on him, but because he did not have a sufficient drug addiction to warrant admission to that list, which provides intensive wrap-around services to support people with serious drug addictions. Instead, the offender presented as a person who had taken substantial steps towards his own rehabilitation.
In those circumstances, shortly before leaving the jurisdiction, Christensen AJ instead ordered an assessment for an intensive corrections order. When the proceedings on sentence were heard by McWilliam J, the prosecutor did not oppose the making of such an order. That was notwithstanding the fact that, as I have already mentioned, one of the matters for which the offender was to be dealt with was a breach of a breach.
Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), the breach of a good behaviour order presented the sentencing judge with a binary choice either to resentence the offender or to impose the sentences that had been suspended, a course commonly referred to as “imposition”. It may accordingly be accepted that imposition was on the table, and ultimately that is the course McWilliam J took in sentencing the offender. That meant that he could not receive the benefit of an intensive corrections order for the early 2024 offences.
However, although imposition was clearly on the table, as the hearing unfolded, Mr Edmonds, who appears for the offender, was given to believe that the sentencing judge was likely to go down the path of imposing an intensive corrections order. I have, during the hearing this morning, debated with both counsel several passages of the transcript which give that indication. Mr Edmonds' central submission is that, in the circumstances, while it was of course open to the sentencing judge to change her mind, her Honour ought, during the hearing, or at least after reserving her decision, to have given the offender an opportunity to be heard and to adduce further evidence against the possibility that, notwithstanding the fact that the imposition of an intensive corrections order was not opposed by the prosecution, she was considering, instead, sentencing the offender in such a way as would result in his being sentenced to an immediate term of full-time imprisonment.
The first ground of appeal in the proposed notice of appeal is focused on the question of denial of procedural fairness. The particulars of the contended denial of procedural fairness focus on remarks made by the sentencing judge at the conclusion of the proceedings on sentence. Her Honour said: If I could just put your client out of his misery. I'm not likely to impose a custodial sentence, in terms of full-time. I am likely to impose sentences of imprisonment. The manner in which they are to be served is likely to be through intensive corrections.
Mr Edmonds frankly and properly acknowledged from the outset of the hearing today that those remarks of themselves do not constitute or reveal any denial of procedural fairness. However, based on my reading of the whole of the transcript and the way the hearing unfolded, I am satisfied that it is reasonably arguable that her Honour ought, if she was intending to depart from that tentative foreshadowed course, to have given Mr Edmonds an opportunity to present further evidence.
Separately, there is a question as to whether that would have made any difference. Mr Edmonds put forward a powerful case in the first instance. It might be thought that, if afforded the opportunity to address the sentencing judge on the alternative of full-time imprisonment, there would have been little left for him to say. The Crown Prosecutor appearing today very ably argued reasons why it might be thought that, at the proceedings on sentence, Mr Edmonds was giving the argument everything he could give to it.
However, the material before me on the application includes an affidavit from the offender’s partner, Ms Dixie, which provides more cogent material about the subjective case for not sentencing this particular offender to a term of full-time imprisonment. Part of that material is sensitive and I have directed that it not be inspected without leave of the Court. It presents a powerful subjective reason for keeping the offender in the family, rather than removing him from the family and compelling him to serve a term of full-time imprisonment.
I am satisfied that there is at least a reasonable prospect that, warned of the sentencing judge’s intention to depart from the position contended for by the offender and not opposed by the prosecutor, Mr Edmonds may well have sought to take instructions and, having done so, sought to put that additional material before the sentencing judge. On my assessment of that material, it may well have had an impact on the outcome of the sentence. I say that noting, as Mr Edmonds submitted, that, under the Crimes (Sentencing) Act 2005 (ACT) s 33(1)(o), a sentencing judge is required to have regard to the probable effects that any sentence or order under consideration would have on any of the offender’s family or dependants.
Separately, I note that the sentencing judge’s principal reason for concluding that imposition was necessary in the circumstances of the present case was that, as her Honour explains at [40], she had not appreciated at the hearing, when she indicated that she was leaning towards an ICO, that one of the offences of driving whilst disqualified had already been the subject of resentence for breach on an earlier date. There is reference to that fact in the transcript. However, having regard to the complexity of the sentencing exercise, her Honour can be forgiven for overlooking it. In any event, her Honour said: There comes a point where the principled exercise of the discretion means that the Court really has no other option but to now impose that sentence.
The sentencing judge referred in that context at [45] to the decision of the Court of Appeal in Thorn v Laidlaw [2005] ACTCA 49 at [30] and recorded her view that the integrity of the justice system depends upon those who breach orders being held to account “even with the strong subjective case that I accept the offender has”.
Had her Honour had before her the even stronger subjective material that is before me, combined with further submissions from Mr Edmonds, that fine balance might well have been tipped. In making these remarks, I do not of course purport to tie the hand of the Court of Appeal in determining the present appeal. I would, however, note that, whenever there is discussion of “the integrity of the justice system”, it is apposite to bear in mind that both justice and mercy are aspects of the institutional authority of the Court.
It was acknowledged by the prosecutor at the proceedings on sentence that the offender had made “admirable progress” in his rehabilitation since the time of the fresh offences. Regrettably, and with no criticism whatsoever of those who manage the AMC, it is known to this Court (indeed within the direct experience of the Court it has been openly stated to the Court) that persons taken into custody in that institution sometimes have access to prohibited substances. Had those matters been brought to mind by the sentencing judge, I do not think the very real possibility of a different outcome can be discounted.
For those reasons, I am satisfied that there are realistic prospects of success of the appeal. In all the circumstances, I am satisfied that it is appropriate to stay the orders made by McWilliam J on 29 September 2025 and to grant bail.
By his own acknowledgement, the offender, is - and probably always will be, to a greater or lesser degree - vulnerable to relapsing into the use of prohibited substances if they are made readily available to him. For that reason, in addition to the previous conditions of his bail, I consider it prudent, and hopefully supportive of him, to impose a condition that he engage with his general practitioner within 24 hours, or such further period as may be practicable, with a view to obtaining a mental health plan and strategies for maintaining his abstinence from prohibited substances. A further condition will be that he engage with Mr Mick Miller of Arcadia House, also within 24 hours, for such further period as is reasonably practicable, and that he is to accept the support of Arcadia House as recommended by Mr Miller.