AARON TROY MEADOWS Applicant and DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Respondent

[2017] VSCA 294

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0113

Between:

AARON TROY MEADOWS	Applicant
and
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGE:	CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 June 2017
DATE OF JUDGMENT:	8 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 294

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CRIMINAL LAW – Application for bail pending application for leave to appeal against sentence – Applicant pleaded guilty to offences of using a carriage service to groom a person under 16 and possessing child pornography – Sentence of 12 months’ imprisonment with release, after three months, on recognizance to be of good behaviour, plus community correction order – Substantial proportion, or all, of three-month immediate prison sentence likely to be served before hearing and determination of sentence application – Respectable arguments as to error and substitution of reduced sentence – Substantial delay in prosecution of grooming offence – Director conceded immediate release on recognizance open – Very low risk of reoffending or breaching bail – Bail granted – Re Pennant [1997] 2 VR 85; Re Zoudi (2006) 14 VR 580.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R. de Vietri	Victoria Legal Aid
For the Respondent	Ms K. Breckweg	Solicitor to Commonwealth Director of Public Prosecutions

CROUCHER AJA:

Overview

1. On 8 June 2017, I heard and granted an application for bail by Aaron Troy Meadows pending his application for leave to appeal against sentence.  I gave ex tempore reasons for my decision but indicated I would publish settled reasons at a later date.  These are those reasons.

Charges and sentences

1. On 1 May 2017, Mr Meadows faced two charges in the County Court – one of using a carriage service to groom a person under 16 years of age, contrary to s 474.27(1) of the Criminal Code (Cth) (Charge 1), and one of knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958 (Vic) (Charge 2). He pleaded guilty to both charges.

1. Following a plea in mitigation, on the grooming offence, the judge imposed a sentence of 12 months’ imprisonment, but also ordered that Mr Meadows be released, after service of three months of that term, on a recognizance to be of good behaviour.  On the child pornography offence, his Honour imposed a community correction order of 15 months’ duration to commence upon Mr Meadows’ release from prison.

1. The period of the recognizance ordered on the first charge is, in some respects, uncertain.  That uncertainty has given rise to a ground of appeal.  When announcing sentence, the judge said that the period was nine months.  In the recognizance release order he later signed and in the Record of Orders of the County Court, the period is recorded as 12 months.

Submissions

1. This morning, I heard very helpful submissions from Mr de Vietri, who appeared for Mr Meadows, and Ms Breckweg, who appeared on behalf of the Commonwealth Director of Public Prosecutions.

1. In short, Mr de Vietri submitted that a combination of factors demonstrated the necessary level of exceptional circumstances to justify a grant of bail.  He relied on the likely expiry of the whole, or a substantial proportion, of the three-month term of immediate imprisonment before the determination of the application for leave to appeal; the proposed grounds of appeal, including the uncertainty surrounding the recognizance release order; and the absence of any concerns that the applicant would be an unacceptable risk of complying with bail conditions.

1. Ms Breckweg submitted that exceptional circumstances were not made out and that bail should be refused in consequence.  She emphasized, correctly, that a conviction and sentence are not to be treated as if they are provisional until confirmed on appeal.[1]

Analysis

[1]See, e.g., Re Zoudi (2006) 14 VR 580 at 588-589[28] and the authorities there cited.

1. However, for reasons that follow, I am persuaded that bail should be granted.

1. First, by the time Mr Meadows’ application for leave to appeal against sentence has been heard and determined, it is likely that he will have served a substantial proportion – or perhaps the entirety – of the three months’ imprisonment that he has been ordered to serve immediately.[2]  In particular, by the date of the hearing, which will be 23 June 2017, he will have served 54 days, or roughly 60 per cent of that term.  If the Court takes a week or two to deliver its decision, which is a distinct possibility, that proportion will rise to as much as 75 per cent of that term.  If the Court takes a month longer, Mr Meadows will have been released.

   [2]See, e.g., Re Pennant [1997] 2 VR 85 at 86; and Re Zoudi (2006) 14 VR 580 at 581[2].

1. Secondly, having heard rather detailed submissions from both counsel this morning, and without determining whether leave to appeal should be granted on any ground or proposed ground of appeal, I am satisfied that there are at least respectable arguments to be had that sentencing error has been demonstrated and that a reduced sentence could be imposed upon a re-sentencing.[3]  It is not without significance that Ms Breckweg, very fairly in my view, conceded that at least one of the arguments, if established, would lead to a re-opening of the sentencing discretion and that, on the appeal, the Director would maintain the submission made in the County Court – namely, that, while a prison sentence was necessary on the grooming offence, it was open to release Mr Meadows forthwith on a recognizance release order.

   [3]See, e.g., Re Zoudi (2006) 14 VR 580 at 588[27].

1. I should also note an unusual feature of this case.  The grooming offence occurred over the internet in November 2014.  The person with whom Mr Meadows was conversing was not a 12-year-old girl, as he had thought, but an adult police officer from Western Australia.  Mr Meadows desisted in his offence of his own volition.  It was not until 15 months later, in February of 2016, that police had any contact with Mr Meadows.  On that day, police executed a search warrant on his premises and found what turned out to be some child pornography on his computer (which gave rise to Charge 2).  That child pornography is accepted on both sides to be at a comparatively low level of gravity, albeit such offences are, of course, serious by definition.  Accordingly, it seems that, while it took some time for Western Australian police to transfer the matter to Victorian police, nevertheless, there was no great rush to arrest and charge Mr Meadows over the grooming incident (Charge 1).  It might be said that, while all instances of grooming involve a degree of gravity, the police and prosecuting authorities’ approach to this particular instance of grooming rather suggests a view that the level of seriousness is incommensurate with a prison sentence, or at least one to be immediately served.  Again, Ms Breckweg advised that a significant factor in the Director’s submission in the County Court – namely, that an immediate gaol sentence was not required – reflected the Director’s view of the delay in prosecuting the grooming offence.

1. A third consideration that adds to the mix of matters that combine to show exceptional circumstances is the evidence, which is accepted by the Director, that Mr Meadows is a very low risk of reoffending and a very low risk of breaching bail, whether by flight or otherwise.[4]

   [4]See, e.g., Re Zoudi (2006) 14 VR 580 at 588[27].

1. For those reasons, and having regard to the conditions of bail I intend to fix, I am satisfied that it is appropriate to grant bail.

Orders

1. In particular, I order that:

1)the applicant be released on bail upon his own undertaking, on the following conditions:

a)the applicant must reside at [address redacted] (“his address”);

b)the applicant must notify the informant or his nominee within 24 hours of any proposed change of his address;

c)the applicant must report to the officer-in-charge of the Knox Police Station, 414 Burwood Highway, Wantirna South, Victoria, each Monday and Friday between the hours of 7:00 a.m. and 7:00 p.m.;

d)the applicant is to surrender any valid passport or other travel document to the informant within 24 hours of his release on bail and is not apply for any other passport or travel document;

e)the applicant is not to leave Victoria or attend any points of international departure;

f)the applicant is not to use the internet, email or any form of social media, except: (1) for the purposes of contacting police, emergency services or medical services in the case of an emergency or (2) for the purposes of contacting his parents or his sister; and

2)the applicant must appear before the Court of Appeal on 23 June 2017, at a time to be advised by the Registry, and thereafter as directed by the Court.

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