Caffin v The Queen

[1995] HCATrans 199

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 2256  18.7.95
  A  21.7.95

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M10 of 1995

BETWEEN:TIMOTHY BELL CAFFIN

Applicant

- and -

THE QUEEN

Respondent

DAWSON J (In Chambers)

AT MELBOURNE, MONDAY THE 17TH DAY OF JULY 1995

HIS HONOUR:   This is an application for bail pending the hearing and determination of an application for special leave to appeal against sentence.  The application for special leave is out of time and the applicant will require an extension of time in which to make his application.  The parties have agreed that this application should be determined on the papers. 

The applicant pleaded guilty to 25 counts of obtaining property by deception and one count of obtaining a financial advantage by deception.  He was sentenced to an effective term of imprisonment of four years with a non-parole period of two years.  An application for leave to appeal against sentence was dismissed by the Victorian Court of Criminal Appeal. 

The ground upon which the applicant relies in his application for special leave to appeal is that the sentencing judge failed to apply s.10 of the Sentencing Act 1991 Victoria which required him to consider whether the sentence which he proposed (other than the sentence for obtaining a financial advantage by deception: R v Boucher (1995) 1VR 110) would result in the applicant spending more time in custody, only because of the abolition of remission entitlements, than he would have spent had he been sentenced before their abolition for a similar offence in similar circumstances. If the sentencing judge concluded that the sentence he proposed would have that result, he was required to reduce the sentence in accordance with the section which in this case, the applicant submits, would amount to a reduction of one-third.

The Court of Criminal Appeal rejected the applicant's argument that the sentencing judge failed to apply s.10. They pointed out that the section was drawn to the judge's attention during submissions and that his Honour stated in his remarks in sentencing the applicant, that "no remissions will apply to that sentence."

It has been repeatedly pointed out that bail will only be granted pending an appeal of application for special leave in an exceptional case.  See, eg Hayes v The Queen (1974) 48 ALJR 455; Re Cooper's Application for Bail (1961) ALR 584. The applicant seeks to meet this requirement by pointing to the fact that if his argument is successful his sentence would be reduced by one-third and that would mean that the non-parole period of his sentence would have expired on 21 June 1995.

However, that is not the same situation as sometimes occurs when an applicant's sentence would have expired before the hearing of an application for special leave or an appeal pursuant to special leave.  In those circumstances the appeal may be rendered futile and the circumstances may be sufficiently exceptional to warrant bail being granted.  But here the applicant must first succeed in his application for special leave and then in his appeal before the non-parole period of his sentence could be said to have expired at the earlier date.  If he were bound to succeed on his application for special leave and on appeal, there may be some force in the applicant's argument but I do not think that on the materials before me that is the case.

Nor can it be said that even if his argument were ultimately successful, any appeal would be rendered futile in the sense that he would obtain no benefit from it.  Accordingly, I do not think that the applicant has made out any exceptional circumstances which would warrant bail being granted to him and I refuse the application.

MR GARDNER:   As your Honour pleases.

AT 3.O5 PM THE MATTER WAS ADJOURNED
INDEFINITELY