Ash v The Queen

[2010] VSCA 117

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 129 of 2010

JOHN WILLIAM ASH
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and NEAVE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2010
DATE OF JUDGMENT:	24 May 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 117

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CRIMINAL LAW – Appeal – Bail pending appeal against conviction and sentence – Partially-suspended sentence – Non-suspended portion likely to have been served before appeal heard – Exceptional circumstances – Bail granted – Re Pennant [1997] 2 VR 85, R v Zoudi (2006) 14 VR 580 applied.

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr B E Stuart

MAXWELL P
NEAVE JA:

1. We have come to the conclusion that there should be a grant of bail.  Our reasons are as follows.

1. The applicant, John William Ash, seeks bail pending the determination of his appeal against conviction and sentence.  Mr Ash was presented in the County Court on six counts.  A jury acquitted him of all counts except one.  On that count he was sentenced to a term of imprisonment of 18 months with 12 months of that sentence to be suspended for two years.

1. In R v Zoudi[1] a Court of Appeal bench of five confirmed that the principles relating to an application for bail pending appeal remain as they have been understood since R v Jackson.[2]  The effect of a jury verdict should not be treated as contingent on confirmation by an appellate court.  Despite the existence of statutory provisions permitting appeal, there is a presumption in favour of the validity of a conviction and sentence and an appellant does not have a right to have a conviction or sentence suspended pending the hearing and determination of his or her appeal. 

   [1](2006) 14 VR 580 (‘Zoudi’).

   [2][1997] 2 VR 1.

1. In Zoudi it was held that bail pending appeal will only be granted in truly exception circumstances.  In that case the extraordinary circumstances in which the applicant had been presented for trial, the concessions made as to his likelihood of success on appeal, and the likelihood that he would have served the whole of the non-parole period before judgment on his appeal were regarded as sufficiently exceptional circumstances to justify the granting of bail.

1. In support of the application for bail, the applicant’s counsel relied on the fact that the applicant’s partially suspended sentence would expire on 7 November 2010 and that his appeals against conviction and sentence, even if expedited, would not be heard within that period. 

1. Counsel for the Crown conceded that the application for leave to appeal against sentence had some chance of success.  He did not oppose the bail application, on the basis that the applicant might well have served the custodial portion of his partially suspended sentence before the applications for leave to appeal against conviction and sentence were determined.

1. It is likely that the applicant will have served the whole of the period prior to his release on a suspended sentence prior to the hearing of his applications.  In Re Pennant,[3] the Court regarded the fact that the partially suspended sentence would have been fully served by the time the applications for leave to appeal against conviction and sentence were determined, as an exceptional circumstance which justified the grant of bail.

   [3][1997] 2 VR 85.

1. When these factors are weighed, we consider the circumstances of the applicant are exceptional for the same reason as in Re Pennant.  Bail pending appeal should therefore be granted in this case.  However the applicant should be aware that the success of his bail application will not necessarily prevent him from having to serve time in custody, even if his sentence appeal succeeds and he is re-sentenced.

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