and Desandren Pillay v The Queen , , Walter Toganivalu and the Queen

[2014] VSCA 141

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014  0130
DESANDREN PILLAY	Applicant
v
THE QUEEN	Respondent
S APCR 2014  0133
WALTER TOGANIVALU	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 June 2014
DATE OF JUDGMENT:	27 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 141

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CRIMINAL LAW – Bail ­– Bail pending appeal – Exceptional circumstances – Likelihood that terms of imprisonment will have expired before appeals determined – Re Zoudi (2006) 14 VR 580 and Ash v R [2010] VSCA 117 applied – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Desandren Pillay	Ms C M-F Randazzo SC and Mr J Taaffe	Doogue O’Brien George
For the Applicant, Walter Toganivalu	Mr P Allen	Robert Stary Lawyers
For the Respondent	Mr A Grant	Craig Hyland, Solicitor for Public Prosecutions

BEACH JA:

1. On 27 February 2014, a jury found each applicant guilty of one charge of indecent assault. On 26 May 2014, each applicant was sentenced to 15 months’ imprisonment, 10 months of which was suspended for two years. Pursuant to s 18(4) of the Sentencing Act 1991, the judge declared that each applicant had already served a period of 91 days in custody.  The applicant Pillay has filed and served an application for leave to appeal against conviction and an application for leave to appeal against sentence.  The applicant Toganivalu has filed an application for leave to appeal against conviction and intends to also seek leave to appeal against sentence.  Toganivalu’s solicitors have given an undertaking to file an application for leave to appeal against sentence within ten days.[1]

   [1]While such an application will be a few days out of time (see s 279(1) of the Criminal Procedure Act 2009), counsel for the Crown indicated that no point would be taken by the Crown in relation to this.

1. The applications for leave to appeal against conviction and sentence are likely to be heard in this Court on 17 July 2014.  On the applications for leave to appeal against sentence, the applicant’s will each contend that a sentence other than one of imprisonment should have been imposed;  alternatively, that any sentence of imprisonment should not have exceeded the time each had served as at the date of sentencing.  

1. This morning, each applicant made an application to this Court for bail pending appeal.

1. Bail pending appeal will only be granted in truly exceptional circumstances.  Despite the existence of statutory provisions permitting applications for leave to appeal, there is a presumption in favour of the validity of conviction and sentence, and an applicant for leave to appeal does not have a right to have a conviction or sentence suspended pending the hearing and the determination of his or her application and any appeal.[2]

   [2]Ash v The Queen [2010] VSCA 117 [3]–[4] (Maxwell P and Neave JA).

1. In the present case, each applicant relies upon the following circumstances as being sufficiently exceptional to justify a grant of bail:

(a)       the period of imprisonment may expire or be nearly complete by the time the applicant’s application for leave and any appeal is heard;

(b)      the applicant was on bail pending his trial for a period of nearly three years, and answered his bail at all times and presented himself for trial despite being a resident of New South Wales;

(c)       the applicant, through no fault of his own, has been detained in protective custody;

(d)      the applicant has not previously been imprisoned or held in custody;

(e)       the applicant is relatively young and resides in New South Wales with his family;

(f)       the applicant has strong family ties in New South Wales and is supported by his family;

(g)      the applicant has a strong and excellent work history;  and

(h)      the applicant has no relevant prior convictions.

1. Counsel for the Crown conceded that the applications for leave to appeal against sentence were not without prospects of success.  The Crown did not oppose bail being granted on appropriate conditions, pending the hearing and determination of the applications for leave to appeal against sentence and any appeals therefrom.[3] 

   [3]Counsel for the Crown noted, with respect correctly, that the Crown’s approach was in conformity with this Court’s decision in Re Zoudi (2006) 14 VR 580.

1. Taking the matters to which I have referred into account, I am satisfied that the circumstances in respect of each applicant are sufficiently exceptional to justify grants of bail pending the hearing of the applicant’s applications for leave to appeal.  There will be a grant of bail upon conditions which will include reporting to police, residing at a fixed address, not approaching witnesses for the Crown and the continued surrendering of any passport.

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