Agostino v Director of Public Prosecutions

[2023] ACTSC 121

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Agostino v DPP

Citation:

[2023] ACTSC 121

Hearing Date:

25 May 2023

DecisionDate:

25 May 2023

Before:

Mossop J

Decision:

1.     The appellant’s application for bail dated 19 May 2023 is dismissed.

Catchwords:

CRIMINAL – BAIL – Application for bail pending appeal from Magistrates Court appeal – prospects of success appear remote – application dismissed

Legislation Cited:

Bail Act 1992 (ACT), ss 9E, 22, 23A

Cases Cited:

Moore v Perkins [2022] ACTSC 226

Nchouki v The Queen [2023] ACTCA 8

O‘Brien v The Queen [2015] ACTCA 47

Parties:

Aubrey Agostino ( Applicant)

Director of Public Prosecutions (Respondent)

Representation:

Counsel

Self-represented ( Applicant)

E Roff ( Respondent)

Solicitors

Self-represented ( Applicant)

Director of Public Prosecutions (Respondent)

File Number:

SCA 24 of 2023

MOSSOP J:

Introduction

1. Aubrey Agostino has applied for bail. He was sentenced by a magistrate on 30 March 2023. He lodged an appeal on 27 April 2023. The sole ground of appeal is “The individual sentences are manifestly excessive.”

1. Bail is only available if he establishes that special or exceptional circumstances exist favouring the grant of bail: Bail Act1992 (ACT), s 9E. In order to establish special or exceptional circumstances he relies upon the fact that the non-parole period ends on 26 May 2023. The argument is, therefore, that unless granted bail, his appeal will be rendered nugatory because he will have served the whole of the non-parole period prior to the appeal being determined.

1. It is correct to say that the service of the whole or of a substantial part of a sentence or the non-parole period of a sentence can amount to special or exceptional circumstances for the purposes of the threshold test in s 9E.

1. Given the recency of the imposition of the sentence and the fact that the sentences are backdated, it is almost inevitable that most or all of the period of full-time detention will have been served prior to any appeal being heard.

1. In the present case, it is clear that had the sentence not been stayed by operation of law following the filing of the appeal, the non-parole period would expire tomorrow. A hearing is listed before the Sentence Administration Board on 15 June 2023 and there is a prospect that a further hearing will be required in the following month if the appellant is to be granted parole. Notwithstanding his best efforts to have the hearing completed proximate to the expiry of his non-parole period, the short period between the imposition of the sentence and the expiry of the non-parole period resulted in that not being possible.

1. The information about when the appeal might be heard is limited. The prosecution pointed to information that the court may be able to list what should be quite a short appeal on a date in June.

1. It is unnecessary to further consider the extent of delay beyond the expiry of the non‑parole period because the proposition that special or exceptional circumstances may be established where all or a substantial portion of the full-time detention will be served prior to the hearing of the appeal is subject to the qualification that it will only be the case if the appeal itself has reasonable prospects of success: Moore v Perkins [2022] ACTSC 226 at [9]; Nchouki v The Queen [2023] ACTCA 8 at [20].

1. In the present case, for the reasons that follow the prospects of the appeal can be assessed for the purposes of the bail application as being negligible.

1. In order to establish that the magistrate erred by imposing individual sentences which were of a manifestly excessive length, the appellant must get over quite a high bar. The principles to be applied in relation to a claim in a sentence appeal of manifest excess are well-established. They were summarised in O’Brien v The Queen [2015] ACTCA 47 at [25] as follows:

(a)Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).

(b)The relevant test is whether the sentence is unreasonable or plainly unjust:  House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].

(c)In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85].

(d)It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

1. The offences with which the appellant was convicted and their relationship between each other and the court proceedings are outlined in a chronology which was included at page 9 of the bundle of material tendered by the prosecution on the bail application. There was also a table of the sentences for the four series of offences. Only some of those led to the imposition of custodial sentences longer than until the rising of the court. Both sentences are illustrated in a sentencing graph which was also included within the bundle of material at page 7.

1. The aggregate sentence imposed resulted from an appropriately structured set of six custodial sentences. The total period of imprisonment was one year and four months. The non-parole period was eight months, namely 50 percent of the head sentence.

1. The offences, maximum custodial penalties and sentences imposed are summarised in the following table:

Offence	Maximum custodial penalty	Sentence
Contravene personal protection order	Five years	Two months
Drive motor vehicle without consent	Five years	Six months
Damage property	Two years	Four months
Drive motor vehicle without consent	Five years	Six months
Make off without payment	Six months	One month

1. This table does not describe the extent of concurrency between sentences, which is illustrated in the table contained within the prosecution bundle. For the purposes of the present appeal, having regard to the ground of appeal, it is the length of the individual sentences which is of significance.

1. However, it is worth noting that there were seven other sentences imposed which either involved modest fines with no time to pay, or a sentence until the rising of the court. Because each of the sentences was a sentence of imprisonment or would be converted into a sentence of imprisonment, the appellant received no additional penalty beyond the substantial sentences of imprisonment for these other offences.

1. The appellant has a very substantial criminal history, including a substantial number of previous custodial sentences. He had a deprived upbringing and an early introduction to illicit drug use. The magistrate was clearly conscious of the potential for rehabilitation, having given the appellant the benefit of an adjournment prior to sentencing so that he could attempt to undertake a rehabilitation program and setting a non-parole period which was only 50 percent of the head sentence.

1. Based on the material put before me, which I accept is not necessarily all that will be put before the appeal judge, and having regard to the sentences imposed, it is not possible to reach a conclusion that the appeal has reasonable prospects of success. Rather, as I have indicated, the prospects of success appear to be negligible. The sentences imposed appear to be very modest when one has regard to the nature of the offending in the context of the offender’s criminal history. The sentences imposed appear to be of a length and structure which gives significant weight to the offender’s prospects of rehabilitation. That is consistent with the magistrate having adjourned the proceedings so as to permit the appellant to engage in a rehabilitation program. Because of these features of the sentences, the appellant has not established any reasonable prospects of success on the appeal and has not established special or exceptional circumstances in favour of the granting of bail for the purposes of s 9E. As a consequence, the court has no power to grant bail.

1. As a consequence, the further assessment of the matters referred to in ss 22 and 23A of the Bail Act is not necessary. Had it been necessary to do so, the Court would have been required to consider the material tendered by the appellant. That included documents indicating that he had been accepted into the Ngunnawal Bush Healing Farm program, had completed a course relating to working in the construction industry, had sought counselling relating to past sexual assault and prepared a relapse prevention plan addressing how he would cope in his first week out of prison. Consistent with the submissions made to the court, those documents do indicate that Mr Agostino is at an age and stage where he is more motivated to address his offending behaviour and, in particular, the drug use that underlies it. These are matters which will be able to be considered by the Sentence Administration Board in relation to a possible grant of parole.

1. This means that the appellant’s application for bail will be dismissed. It is not appropriate for me to make any direction about the listing of the appeal hearing. However, I will say that it is desirable that the appeal be listed at an early date and that so long as written submissions are filed in advance, it is a matter which should take not very long to argue.

1. The order of the Court is:

1.     The appellant’s application for bail dated 19 May 2023 is dismissed.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice

Associate:

Date: