BI v The Queen
[2017] ACTCA 53
•10 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | BI v The Queen |
Citation: | [2017] ACTCA 53 |
Hearing Date: | 9 November 2017 |
DecisionDate: | 10 November 2017 |
Before: | Robinson AJ |
Decision: | See [28] – [30] |
Catchwords: | APPEAL – PRACTICE AND PROCEDURE – Application for a stay of sentence pending the finalisation of an appeal – application for bail – special or exceptional circumstances. |
Legislation Cited: | Bail Act 1992 (ACT) s 9E Supreme Court Act 1933 (ACT) s 37J(1)(d) |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 344 ALR 187 MFA v The Queen [2002] HCA 53; 213 CLR 606 |
Parties: | BI (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr M Kukulies-Smith (Applicant) Mr A Williamson (Respondent) |
| Solicitors Kamy Saeedi Law (Applicant) Office of the ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 5 of 2017 |
Decision under appeal: | Court: ACT Supreme Court Before: Refshauge J Date of Decision: 16 December 2016 Case Title: R v BI Court File Number: SCC 64 of 2016 |
ROBINSON AJ:
BI has applied for a stay of his sentence, and for bail, pending the determination of his appeal against conviction in respect of six counts on an indictment presented against him.
BI did not appeal against the sentences imposed on him.
A short chronology of events is as follows:
(a)On 16 September 2015, BI was arrested by police.
(b)On 28 November 2016, BI proceeded to trial before Refshauge J on an indictment containing 21 counts in respect of four complainants. The offences can be characterised, for present purposes, as sexual offences against children.
(c)On 16 December 2016, BI was found guilty by a jury of six offences. He was acquitted of 15 offences, which included one verdict by direction.
(d)On 21 March 2017, Refshauge J sentenced BI to an overall period of imprisonment of four years with a non-parole period of two years. The sentence commenced on 16 September 2015.
(e)BI appealed against conviction. The hearing of the appeal came on before Elkaim J, Bromwich J and myself on 31 October 2017. The Court reserved its decision.
In this application, I am exercising the powers of the Court of Appeal pursuant to s 37J (1)(d) of the Supreme Court Act 1933 (ACT).
It will not have gone unnoticed that BI has served his minimum term and has been eligible for possible release since 16 September 2017. In the Australian Capital Territory, the body given the task of determining whether to release a prisoner to parole is the Sentence Administration Board.
By 14 August 2017, no doubt because the 15 September date was looming, a Pre-Release Report came into existence. Two issues were raised in respect of any release. The first was that BI had not engaged in any appropriate treatment programs whilst in custody. The second was that the proposed post-release accommodation in the family home was unsuitable.
There has been an ability to substitute alternative post-release accommodation and this matter appears to have dropped off as an impediment to release.
The issue regarding a failure to engage in a treatment program is more complicated. It appears that until a detainee becomes a sentenced prisoner (21 March 2017) he is not eligible to participate in any treatment programs, including the Adult Sex Offenders Program for “Deniers”. Further, when the offender filed a notice of appeal (13 January 2017) he also became ineligible to participate in treatment programs, such as the Adult Sex Offenders Program for “Deniers”.
The Board has taken notice of the above matters in a series of meetings. The next such meeting is scheduled for 14 November 2017. However, it is unlikely that on 14 November 2017 the Board’s position will have altered: Mr BI “remains an untreated sex offender”.
The appeal
There were two major grounds argued at the hearing of the appeal on 31 October 2017. The first was that the verdicts of guilty on the six counts were unreasonable, on the basis that they could not be reconciled when regard was had to the facts of the case. The second was that tendency evidence had been wrongfully admitted.
It is not necessary to recount the arguments presented at the appeal. Speaking only for myself, the first issue necessarily presents a need to consider, at some level of detail, the six verdicts on which the jury convicted, against the 14 verdicts on which they acquitted, in light of the fact that there were four complainants and the possibility that factors such as those referred to in R v Kirkman (1987) 44 SASR 591, 593 and MFA v The Queen [2002] HCA 53; 213 CLR 606, 617 were in play. The second issue necessarily requires an application of the principles in Hughes v The Queen [2017] HCA 20; 344 ALR 187 and other cases to the asserted tendencies. Again, this question is not without difficulties where the tendencies asserted are of a relatively high level of generality.
I set out the above matters only to show that I have not, and I believe the appeal bench as a whole has not, determined the outcome of the appeal to the extent that orders could be published with reasons given at a later date.
Parole orders
Section 120 of the Crimes (Sentence Administration) Act 2005 (ACT) sets out the criteria by which the Sentencing Board may make parole orders:
120 Criteria for making parole orders
(1)The board may make a parole order for an offender only if it considers that parole is appropriate for the offender, having regard to the principle that the public interest is of primary importance.
Note: Subsection (1) does not apply in relation to special parole applications (see s 126 and s 129).
(2)In deciding whether to make a parole order for an offender, the board must consider the following matters:
(a) any relevant recommendation, observation and comment made by the sentencing court;
(b) the offender’s antecedents;
(c) any submission made, and concern expressed, to the board by a victim of the offender;
(d) the likely effect of the offender being parolled on any victim of the offender, and on the victim’s family, and, in particular, any concern, of which the board is aware, expressed by or for the victim, or the victim’s family, about the need for protection from violence or harassment by the offender;
(e) any report required by regulation in relation to the granting of parole to the offender;
(f) any other report prepared by or for the Territory in relation to the granting of parole to the offender;
(g) the offender’s conduct while serving the offender’s sentence of imprisonment;
(h) the offender’s participation in activities while serving the sentence of imprisonment;
(i) the likelihood that, if released on parole, the offender will commit further offences;
(j) the likelihood that, if released on parole, the offender will comply with any condition to which the parole order would be subject;
(k) whether parole is likely to assist the offender to adjust to lawful community life;
(l) any special circumstance in relation to the application;
(m) anything else prescribed by regulation.
(3)Subsection (2) does not limit the matters the board may consider.
It is possible to feel sympathy for BI, who has been willing to engage in the Adult Sex Offenders Program. No doubt the unavailability of the program to an offender, in the position of BI, is merely a rational choice in allocating scarce resources available in sentence administration. It also appears that there are further reasons for this approach. A note to the Sentence Administration Board from the Manager of the Corrections Program Unit records:
In order for a detainee to be referred to and engage in targeted criminogenic interventions, all legal matters pertaining to the legal index need to be finalised. This is to ensure detainees are able to freely discuss their offending behaviours in a group setting and appropriate time frames can be developed in accordance with sentence length.
Therefore while detainees are appealing their conviction, they are unable to engage in offence specific intervention. It is my understanding that this is the case for [BI].
The decision whether to release a prisoner to parole is a matter which the legislature has given to the Sentencing Board. The criteria for release is also given to the Board. It is certainly not the function of the Court of Appeal to effectively circumvent this process.
I have set out above a short account of the workings of the Sentencing Board, so as to show the field through which a prospective appellant must navigate where they are required to “engage in offence specific intervention”.
Bail Act 1992 (ACT)
Section 9E of the Bail Act 1992 (ACT) contains a source of power to grant bail in the circumstances of this case. It relevantly provides:
9E Bail for person sentenced to imprisonment
(1)This section applies if –
(a) a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and
(b) an appeal is pending in relation to the conviction or sentence.
(2)A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
The expression “special or exceptional circumstances” has been the subject of judicial consideration as has the jurisdiction on appeal to grant bail (see, for example, Sherd v The Queen [2011] ACTCA 17; 212 A Crim R 226; Quzag v The Queen (No 2) [2015] ACTCA 37 and Sharma v The Queen [2016] ACTCA 60).
I am satisfied that the situation in which BI finds himself involves special or exceptional circumstances. BI has pursued his statutory right of appeal promptly. He has not been penalised for doing so, but circumstances have combined against him.
I am satisfied that, on the balance of probabilities, it is likely that the Sentencing Board will not depart from compliance with the undertaking by BI of an appropriate treatment program before releasing BI to parole. This program could not start until the appeal is determined.
The Crown did not contend that there was no jurisdiction to grant bail in the circumstances. It agreed that cases where the prospects of success were either very minimal or extremely good could easily be disposed of one way or the other. Here that is not the position.
The Crown contended that relief should not be granted, having regard to the risks on a grant of bail. The Crown outlined the facts on the occasion of the arrest of BI for the current charges and drew attention to an outstanding warrant in New South Wales for the arrest of the applicant on a 1995 sex offence charge concerning a complainant who had also been a complainant in the trial before the jury.
The question that I must determine is whether a grant of bail is justified in the circumstances and, if justified, upon what conditions.
The arrest of BI was attended by the fact that BI had possession of a gas cylinder and matches and appeared to be intent on causing an explosion in what might have been a suicide attempt. This matter is referred to in the Pre-Release Report, dated 15 August 2017. It states:
Summary
[BI] was born in Lebanon and migrated to Australia at the age of 24. His first marriage produced three children, one of whom is a victim of the current offences. [BI] has two children with his current wife, and reported regular contact with them and his eldest son from his previous marriage whilst in custody.
[BI] advised of a stable employment history and was operating his own cleaning business prior to his incarceration. He advised of his intention to return to that employment when in the community. [BI] reported no use of alcohol or illicit substances and no physical health issues. He advised of no ongoing mental health issues, although this may need to be monitored due to a history of suicide attempts.
[BI] has not engaged in education or employment while in custody, although his custodial behaviour has been positive.
I have taken this matter into account. It was not seen as an impediment for the granting of parole and there is no suggestion that BI has attempted to cause harm to others. It is not a case of keeping BI in protective custody for his own safety. It is his choice to apply for a stay of execution of his sentence and a grant of bail. I will, however, include in the conditions of bail that BI undergo a mental health assessment.
The outstanding warrant presents a well-recognised flight risk. This risk can be ameliorated to some degree by appropriate conditions.
Notwithstanding the Crown’s opposition to bail, I was furnished by it with some suggested draft conditions as to any grant of bail. Some further refinement in the document would be necessary in the event of bail being granted.
Orders
At the hearing of this matter, I came to the conclusion that an order should be made staying the execution of the sentence and BI should be admitted to bail upon conditions, to be settled.
Following the hearing of this matter, the parties agreed on the following conditions.
Bail is granted on the following conditions:
(a)BI report to [redacted] police station daily between 8.00 am and 8.00 pm.
(b)BI reside at [redacted], or as otherwise directed by ACT Corrective Services.
(c)BI accept the supervision of ACT Corrective Services and obey all of their reasonable directions.
(d)BI attend any courses, programs, counselling or training as directed by ACT Corrective Services, including but not limited to, programs for treating sexual offending.
(e)BI comply with all reasonable requests from ACT Correctives for the completion of a mental health assessment.
(f)BI is not to be within 100 metres of:
(i)[redacted];
(ii)[redacted];
(iii)[redacted].
(g)BI is not contact directly or indirectly: [redacted].
(h)BI is not to assault, threaten, harass or intimidate: [redacted].
(i)BI is not to be within 100 metres of: [redacted].
(j)BI must not contact, by any means, either directly or indirectly, or be in the company of any person/s under the age of 16 years, at any time or place, unless in the company of an adult approved (prior to the event or otherwise) by ACT Corrective Services.
(k)BI must not, by any means, disseminate or publish, nor cause another person to disseminate or publish, personal information or any other information that might identify the victims of his offences, including, but not limited to, photographs or other pictorial representations of [redacted].
(l)BI must provide details of any social media networking sites or telephone chat services that he might utilise to ACT Corrective Services and, upon the request of ACT Corrective Services, make available to them any device, whether used for personal or employment purposes, that could be utilised to access those services.
(m)BI must authorise access to any device used for communication, information sharing or information storage, including the dissemination or storage of photographs or other pictorial representations, to ACT Corrective Services upon request.
(n)BI must surrender all passports held in his name to the Registry immediately.
(o)BI must not apply for a further passport or any other form of international travel document.
(p)BI must not be within 100 metres of any point of international departure out of Australia.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 10 November 2017 |
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