Agarwal v Coutts
[2023] ACTSC 377
•11 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Agarwal v Coutts |
Citation: | [2023] ACTSC 377 |
Hearing Date: | 11 December 2023 |
Decision Date: | 11 December 2023 |
Before: | McCallum CJ |
Decision: | Bail is refused |
Catchwords: | CRIMINAL LAW – BAIL – Application for bail pending appeal from the Magistrates Court – where the appellant’s conduct warranted a period of full-time imprisonment and where that component of the sentence would not be served prior to the determination of any appeal – where Corrective Services can adequately manage the appellant’s health needs |
Legislation Cited: | Bail Act 1900 (ACT), s 9E Crimes (Sentencing) Act 2005 (ACT), ss 10, 65 |
Cases Cited: | MT v R [2021] ACTCA 26 |
Parties: | Dinesh Agarwal ( Appellant) Toby William Coutts ( Respondent) |
Representation: | Counsel J Maher ( Appellant) K McCann ( Respondent) |
| Solicitors Legal on London ( Appellant) ACT Director of Public Prosecutions | |
File Number: | SCA 63 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 24 November 2023 Case Title: DPP v Agarwal Court File Number(s): CAN 11638 of 2022 |
McCALLUM CJ:
1․Dinesh Agarwal has been sentenced in the Magistrates Court for an act of indecency. The Magistrate sentenced him to a term of imprisonment for a period of 21 months with a non-parole period of 11 months. That sentence was imposed on 24 November 2023.
2․On 29 November 2023, the offender commenced an appeal against the sentence imposed. There is no appeal against conviction, the offender having pleaded guilty to the offences during the playing of the recorded evidence of the complainant. The effect of the filing of a notice of appeal is to stay the sentence.
3․The offender now seeks bail pending the determination of the appeal. The application is governed by s 9E of the Bail Act 1900 (ACT) and it is accepted by the applicant that he must demonstrate special or exceptional circumstances. Mr Maher, who appears for the applicant, relied on a combination of circumstances to establish or meet that test.
4․First it is necessary to note that, since the appeal was commenced, the applicant has filed an amended notice of appeal dated 4 December 2023. That notice of appeal contains four grounds as follows:
(i) The learned Magistrate imposed a sentence that was harsh, unreasonable and manifestly excessive.
…
(iii) The learned Magistrate erred in determining how the sentence of imprisonment was to be served.
Particulars
The learned Magistrate determined that it was appropriate to partly suspend the sentence but instead imposed a non-parole period. In doing so the learned Magistrate misapplied s 65 of the Crimes (Sentencing) Act 2005.
(iv) The learned Magistrate erred in finding that the offending was planned.
(v) The learned Magistrate erred in finding that the offending was at the “midway point of objective seriousness”.
5․The principal focus of Mr Maher's submissions in favour of a grant of bail today was ground three. In sentencing the offender, the Magistrate said at the outset, “I will be imposing a period of imprisonment. It will be for a period of 21 months with a non-parole period of 11 months.”
6․His Honour then proceeded to give reasons, setting out the circumstances of the offences. He noted that the plea was entered during the evidence-in-chief interview but before any cross-examination. His Honour said that he had decided the appropriate discount was 10 per cent, even though that might be seen as “a bit generous”. Plainly it was generous in the circumstances, but the extent of a discount is always within the discretion of the sentencing judge and presumably no issue could be taken with that.
7․His Honour then set out the circumstances of the offences and noted that it was a serious example of the offending. He recited a number of factors contributing to that, including the fact that it was a breach of trust and authority (the age difference between the victim and the offender being a period of 34 years) and the fact that she was in circumstances where she felt trapped, vulnerable and restrained because she was working as his young employee in a business owned by him.
8․His Honour assessed the offending as falling at the midway point of objective seriousness. That assessment is the subject of ground five.
9․His Honour then referred to the subjective circumstances of the offender, including the fact that he has been diagnosed with leukaemia, albeit that it is currently in remission and treated with medication. He noted that it was implicit in a submission put by Mr Sabharwal on behalf of the offender that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) (that the power to sentence an offender to a term of imprisonment is enlivened only if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate) was crossed, as Mr Sabharwal had submitted that there should be a suspended sentence order. In the bail application before me this morning it is acknowledged that the s 10 threshold was crossed.
10․His Honour then referred to s 10 and said it was clear that a period of imprisonment was the only available sentence in the circumstances. His Honour then noted:
There are a number of ways in which a period of imprisonment can be served. It can be served full-time. It can be served by way of a suspended sentence. It can be a bit of both.
11․He then referred to the option of making an intensive correction order, but dismissed that possibility as the offending was, in his view, too serious for that to be an option.
12․The next passage to which I will refer is the source of the ground that his Honour erred in determining how the sentence of imprisonment was to be served. His Honour said:
I turn my mind to whether or not it should be suspended, and to my mind, a part of the term of imprisonment should at least be suspended, and that is to encourage rehabilitation.
13․However, his Honour then proceeded to impose the sentence he had foreshadowed at the outset, being a sentence of imprisonment for 21 months with a non-parole period of 11 months. His Honour said at that point that because the sentence was more than 12 months, he needed to set a non-parole period.
14․The central point raised by ground three is the contention that the learned Magistrate erred in determining how the sentence of imprisonment was to be served. As the argument was developed in oral submissions, I understood it to be a contention that the Magistrate, in effect, mistook his jurisdiction. Section 65 of the Crimes (Sentencing) Act requires the court, if an offender is sentenced to a term of imprisonment for one year or longer, to set a non-parole period. However, ss (6) of that section provides that, if the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded.
15․It follows that, had the Magistrate suspended the sentence after the offender had served 11 months, it would not have been necessary to set a non-parole period. The difference is, of course, that in the case of a sentence which incorporates a non-parole period, the offender must make an application to the Sentence Administration Board to be released on parole, whereas in the case of a suspended sentence, that occurs automatically as a result of the decision of the sentencing judicial officer.
16․The impact of that difference was described in the decision of the Court of Appeal in MT v R [2021] ACTCA 26, albeit in relation to young offenders, particularly at [79] and following. In particular, the Court noted that a combination sentence removes young offenders from “the vagaries of Executive decision-making”. Mr Maher, in relying on that decision, acknowledged that the considerations might be different in the cace of adult offenders, but the principles nonetheless have some application here.
17․As I have indicated, one possibility is that his Honour mistook his jurisdiction in that way. Another possibility is that his Honour misspoke when he referred to a part of the term of imprisonment being suspended. It is not necessary or appropriate, on the present application, to express any firm view about that. It might be accepted that it is at least arguable that his Honour mistook his jurisdiction, thinking that, because he had fixed a sentence of 21 months in total, he had to set a non-parole period rather than suspending part of the period.
18․The question is whether, in combination with the other grounds relied upon in support of the present application, that is enough to establish special or exceptional circumstances. The other grounds in substance support that point, it being, as I have indicated, acknowledged that the s 10 threshold was met. The question is whether, in all the circumstances, assuming his Honour erred in the manner described, it follows that there is a real risk that the offender will be serving a period of imprisonment if not granted bail today that might end up being overturned on appeal.
19․I have had regard in that context to the circumstances of the offending. In my assessment, the Magistrate undertook a careful and cogent analysis of the offending. The concession that the s 10 threshold was crossed was plainly appropriate and it is difficult to imagine, even if the appeal is successful, that the offender would be sentenced to a different sentence that involved any shorter period of full time imprisonment than is likely to be the case between now and the determination of the appeal.
20․To put the matter another way, it seems to me that the nature of the offending plainly warranted a stern sentence, including at least a component of full-time imprisonment, and not one that would be less than the period between now and the determination of any appeal.
21․It remains to refer to a further factor relied on by the applicant in relation to the present application, which is his state of health. In short, the evidence before me establishes that there is no basis for thinking that Corrective Services cannot adequately address his health needs. In an email dated 11 December 2022, marked exhibit B, Justice Health Services wrote to the prosecutor stating that that service has the capacity to manage a range of medical conditions, including chronic and complex health conditions. The letter states:
Justice Health primary health is aware of and actively managing Mr Agarwal's health care needs in conjunction with our partner's services in CHS. There are no concerns about our capacity to do this currently. Should his needs exceed what can be provided in custody, JHS will facilitate his transfer for inpatient care.
22․In all the circumstances, although Mr Maher has ably established the possibility of patent error in the sentencing, I am not persuaded that special or exceptional circumstances have been established.
Orders
(1)Accordingly, bail is refused.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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