Degioannis v David

[2015] ACTSC 166

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Degioannis v David

Citation:

[2015] ACTSC 166

Hearing Date:

17, 18 June 2015

DecisionDate:

18 June 2015

Before:

Penfold J

Decision:

Bail is refused

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail pending hearing of appeal from decision of Magistrates Court – significant portion of immediate custodial time to be served before appeal could be heard – prospects of success not apparently good – special or exceptional circumstances not established – bail refused.

Legislation Cited:

Bail Act 1992 (ACT), s 9E

Magistrates Court Act 1930 (ACT), s 216

Cases Cited:

House v The King (1936) 55 CLR 499

In the matter of an application for bail by Fakatounaulupe Ngata [2015] ACTSC 139

R v Ang [2014] ACTCA 17

R v Bao [2013] ACTSC, Penfold J (16 September 2013)
R v Leach [2011] ACTSC, Penfold J (1 February 2011)
R v Thompson [2011] ACTSC, Higgins CJ (10 June 2011)
R v Wagle (No. 2) [2014] ACTSC 160

Re Application for Bail by Zoudi (2006) 168 A Crim R 444

Sherd v The Queen (2011) 5 ACTLR 290

The Queen v Williams [2014] ACTCA 30

Parties:

Shannon David Degioannis (Appellant)

Joshua David (Respondent)

Representation:

Counsel

Ms H Hayunga (Appellant)

Ms S Gul (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Numbers:

SCA 18 of 2015; SCA 42 of 2015

Introduction

1. Shannon Degioannis has applied for what is often referred to as appeal bail.  He was found guilty in the Magistrates Court on 13 February this year of an offence of intentional wounding and was immediately remanded in custody.  He was then sentenced in April this year to 15 months imprisonment to be suspended after nine months. 

1. He has appealed both his conviction and his sentence. 

1. Under s 216 of the Magistrates Court Act 1930 (ACT), the appeal operates to stay the conviction and sentence, and under that section he is entitled to apply for bail.

1. The applicant’s appeal is currently listed for hearing on 27 August this year, but I was told yesterday that it may be able to be heard on 28 July this year when a half-day is available. 

The bail application

1. Under s 9E of the Bail Act 1992 (ACT), there is a presumption against bail being granted when a sentence is stayed by an appeal. This is effected by a legislative requirement that bail must not be granted unless the court is satisfied that special or exceptional circumstances exist favouring the granting of bail. The applicant points to the following matters as special or exceptional circumstances.

Special or exceptional circumstances

1. First, the applicant says that by the time his appeal is heard on 27 August, he will have served nearly seven months of his current nine months immediate custodial time, or nearly six months if the appeal can be brought forward as mentioned. 

1. Secondly, while conceding that neither of these matters would constitute special or exceptional circumstances of themselves, he mentions two other matters.

1. The first is that on 13 July there will be a hearing in the Childrens [sic] Court relating to Care and Protection’s wish to retain responsibility for the applicant’s young daughter jointly with the child’s mother. 

1. The applicant is keen to appear at the hearing, at which I understand he will be legally represented, to ensure that his wish to maintain a relationship and regular contact with the child is protected. It is not clear to me, however, that the question of shared responsibility between the mother and Care and Protection will have any direct or immediate impact on the applicant’s claims to have contact with his child. 

10.  The second of those matters is that yesterday morning, before I began hearing this bail application, the applicant was assaulted by another inmate of the prison while waiting to be brought to court. There was a suggestion that the applicant was being refused appropriate medical care by prison authorities. 

11.  This morning I have been told that the prison authorities do seem to be making arrangements for the applicant’s injuries to be addressed. 

12.  Both counsel referred me to several authorities in relation to appeal bail (Sherd v The Queen (2011) 5 ACTLR 290 at [47] to [63]; Re Application for Bail by Zoudi (2006) 168 A Crim R 444; In the matter of an application for bail by Fakatounaulupe Ngata [2015] ACTSC 139) which indicate the following:

(a)That the likelihood of a prisoner serving the bulk of his sentence before an appeal can be heard may well provide special or exceptional circumstances for a bail application. 

(b)That in making such a calculation, the relevant part of the sentence is that which is initially to be served in full-time custody, which may include a non-parole period as well as a pre-suspension period, rather than the total or head sentence. 

(c)That the other significant issue on such an application is the appeal’s prospect of success. 

Timing of appeal

13.  I accept that a significant part of the full-time custodial part of the applicant’s sentence will be served before the appeal is heard. 

Prospects of success on appeal

14.  There is, however, a question about the appeal’s prospects of success. 

15.  Counsel for the applicant chose not to address me on the prospects of success of the conviction appeal.  As to the sentence appeal, the grounds specified are in summary:

(a)manifest excess;

(b)error constituted by a failure to take adequate or any account of the pre-sentence report’s recommendations about the availability of community-based sentences in this case; and

(c)that the sentencing was conducted on a mistaken view of the facts (which I understand raises the same issue as one of the issues on the conviction appeal).

First appeal ground – manifest excess

16.  As to the prospects of success of the sentence appeal, counsel for the applicant said that the basis for the manifest excess submission would be comparable sentences identified having regard to the objective seriousness of the offence in question.  She referred to four sentences imposed for what were said to be offences at least as serious, or more serious, than the applicant’s offence (R v Bao [2013] ACTSC, Penfold J (16 September 2013); R v Thompson [2011] ACTSC, Higgins CJ (10 June 2011); R v Leach [2011] ACTSC, Penfold J (1 February 2011); R v Wagle (No. 2) [2014] ACTSC 160).

17.  Counsel’s assessment of the objective seriousness of those other offences may be  correct; two of those other sentences involved considerably longer prison terms than that imposed on the applicant in this case, while the other two sentences were the same as the current sentence, except that one of those offenders received a plea of guilty discount not available to the applicant in this case, and not available to the other of those two offenders, in the absence of pleas of guilty. 

18.  The notable difference was that the immediate custodial time in those other cases was either non-existent or shorter than the nine months imposed on the applicant.  However, the other notable difference between those sentences and that in the current case was that three of the four other offenders were first offenders; they had no prior convictions of any sort. 

19.  The applicant, in contrast, but like the fourth of the other offenders, has a long criminal record.  Much of it consists of traffic offences, minor dishonesty offences and drug offences, but since 2006 the applicant has also been convicted of:

(a)two common assaults;

(b)two counts of possessing a knife without reasonable excuse;

(c)one assault occasioning actual bodily harm;

(d)one aggravated robbery;

(e)one offence of sexual intercourse with a person over the age of 10 but under the age of 16, for which he served some time in prison; and

(f)finally, making a demand with a threat to cause harm.

Second appeal ground – failure to take adequate account of pre-sentence report

20.  The second appeal ground, at least as framed, does not seem to identify an error of the kind identified in House v The King (1936) 55 CLR 499 (see R v Ang [2014] ACTCA 17 at [13], [20] to [22]; The Queen v Williams [2014] ACTCA 30 at [9] to [19]).

Third appeal ground – Magistrate’s mistaken findings of fact

21.  The third appeal ground appears to raise not a mistake of fact in relation to any particular evidence before the Magistrate, but a challenge to the Magistrate’s ultimate conclusions of fact in finding the applicant guilty.  As such, this ground does not seem to provide a ground of appeal against sentence.  If the applicant’s conviction appeal is upheld by reference to this challenge, then the sentence appeal will be irrelevant but, in the meantime, a challenge to the Magistrate’s finding of guilt does not seem to go to sentence. 

Conclusions – prospects of success

22.  Of course, I have not actually heard the appeal at this stage, and it may be that on the appeal hearing proper more information will be provided and further arguments will be advanced, but I cannot say at this stage that the applicant’s prospects of success on the sentencing appeal seem good.  Nor can I reach any favourable conclusion on the conviction appeal. 

Conclusion – special or exceptional circumstances

23.  For these reasons, I find that the applicant has not established special or exceptional circumstances favouring the grant of bail, and accordingly the bail application must be refused. 

Timing of sentence appeal

24.  I am, however, able to confirm the sentencing appeal for 2.15 pm on 28 July 2015. 

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate:       Kate Harris

Date:            2 July 2015