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Bobbi v R

Bobbi v R

Case [2021] NSWCCA 44 24 March 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bobbe v R [2021] NSWCCA 44
Hearing dates: 10 March 2021
Decision date: 24 March 2021
Before: Macfarlan JA at [1]
Walton J at [2]
Hamill J at [3]
Decision:
(1) The release application is dismissed.
(2) Bail is refused.

Catchwords:
CRIMINAL LAW – release application – bail after sentence on indictment – bail pending appeal – special or exceptional circumstances – appeal against conviction – where pleas of guilty entered on indictment – relevant considerations – assessment of prospects of appeal – escape lawful custody – defence of necessity – whether unacceptable risk

Legislation Cited:
Bail Act 2013 (NSW), ss 19, 22, 61, 67
Crimes Act 1900 (NSW), ss 61L, 86
Criminal Procedure Act 1986 (NSW), s 166

Cases Cited:
AC v R [2016] NSWCCA 107
El-Hilli and Melville v R [2015] NSWCCA 146
Kristensen v R [2018] NSWCCA 189
Layt v R [2020] NSWCCA 231
McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99
R v Chi Sun Tsui (1985) 1 NSWLR 308
R v JB [2014] NSWSC 1964
R v Moore [2015] NSWSC 1262
R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
R v Mirzaee [2004] NSWCCA 315
R v Rogers (1996) 86 A Crim R 542
R v Van Hong Pham [2005] NSWCCA 94
R v Williams [2020] NSWCCA 348
United States v Bailey (1979) 444 US 394

Category: Principal judgment
Parties: Mahmudul Hasan Bobbe (Applicant)
Regina (Respondent)
Representation:
Counsel:
K Jeffreys (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/306282; 2021/61912
Publication restriction: Nil

Judgment

MACFARLAN JA: I agree with Hamill J.
WALTON J: I agree with the judgment of Hamill J and the orders proposed by his Honour.
HAMILL J: On 10 March 2021, Mahmudul Hasan Bobbe made a release application pursuant to the Bail Act 2013 (NSW). There are two sets of proceedings in relation to which Mr Bobbe has been refused bail. It is not disputed by the prosecution that the jurisdiction of this Court to entertain the release application is enlivened by separate provisions of the Bail Act: see ss 61 and 67. Mr Bobbe appeared for himself and without legal representation.
The first set of proceedings relates to offences of indecent assault, taking without consent (kidnapping) and driving offences allegedly committed between 16 and 19 August 2018. In relation to those matters, Mr Bobbe entered pleas of guilty and was sentenced in the District Court on 15 April 2020. The applicant has appealed against his conviction (and sentence) to this Court. The appeal is listed for hearing on Friday, 7 May 2021. Grounds of appeal have been filed, and documents in the nature of submissions and affidavits have been submitted to the Court. Because “proceedings” for these offences are pending before this Court, the current bench has jurisdiction pursuant to s 61 of the Bail Act.
However, s 22 of the Bail Act provides a “general limitation” on the grant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bobbi v R

Details

AGLC: Bobbi v R [2021] NSWCCA 44
Case: [2021] NSWCCA 44
Decision Date: 24 March 2021

CaseChat Overview and Summary

In the case of Bobbi v R, the respondent appealed against the decision of the District Court of New South Wales to refuse his application for bail pending appeal against his conviction and sentence. The applicant, Bobbi, was sentenced to imprisonment following pleas of guilty to drug trafficking charges. He sought bail pending appeal, arguing that there were special or exceptional circumstances that warranted such a release. The Crown opposed the application, asserting that there was an unacceptable risk of the applicant escaping lawful custody if granted bail.

The court had to determine whether there were special or exceptional circumstances that justified the applicant’s release on bail pending appeal. It also needed to assess the prospects of success of the appeal against conviction and sentence, and whether the risk of the applicant escaping lawful custody, if released on bail, was unacceptable. The court had to consider the nature and circumstances of the offence, the applicant's background and history, and any other relevant factors that might indicate the likelihood of the appeal succeeding.

The court found that while there were some factors that might suggest the appeal had a reasonable prospect of success, these were not sufficiently compelling to constitute special or exceptional circumstances. The court was also concerned about the risk of the applicant escaping lawful custody if released on bail, given the nature of the offence and the potential for the applicant to re-offend. The court concluded that these risks outweighed any potential benefits of granting bail, and therefore dismissed the application. The court noted that the risk of re-offending was a significant factor in its decision, and that the applicant's criminal history and potential for flight were also relevant considerations.

The final orders of the court were that the application for bail pending appeal was dismissed, and the applicant was to remain in custody until the appeal against his conviction and sentence was determined.

Orders