Ed v The Queen

[2018] ACTCA 65

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

ED v The Queen

Citation:

[2018] ACTCA 65

Hearing Date:

11 December 2018

DecisionDate:

11 December 2018

Before:

Elkaim J

Decision:

See [17]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for a stay of sentence – application for Bail

Legislation Cited:

Bail Act 1992 (ACT) s 9E

Cases Cited:

Samani v The Queen [2016] ACTCA 48

Sharma v The Queen [2016] ACTCA 60

Parties:

ED (Applicant)

The Queen (Respondent)

Representation:

Counsel

Mr D Hoitink (Applicant)

Mr P Dixon (Respondent)

Solicitors

Legal Aid ACT (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 38 of 2018

Decision under appeal: 

Court:  ACT Supreme Court  

Before:   Burns J

Date of Decision:         6 July 2018

Case Title:  R v ED

Court File Number:       SCC  314 of 2017

ELKAIM J:

1. This is an application, filed on 5 December 2018, for bail and the stay of a series of sentences imposed by Burns J.

1. On 6 July 2018, a jury returned guilty verdicts in relation to four of seven counts.

1. On 30 November 2018, Burns J sentenced the appellant.

1. The sentences were as follows:

(a)     Count 1: sexual intercourse with a person under 16: 12 months’ imprisonment from 30 November 2018 but suspended on 29 May 2019 with an attached good behaviour order for 12 months.

(b)     Count 4: attempt sexual intercourse with a person under 16: 16 months’ imprisonment to commence on 30 January 2019 but suspended on 29 May 2019 with a good behaviour order for 12 months.

(c)     Count 6: act of indecency with a person under 16: one month imprisonment to commence on 30 November 2018.

(d)     Count 7:  act of indecency with a person under 16: three months’ imprisonment to commence on 30 November 2018.

1. The effect of the above is that, subject to agreeing to the good behaviour orders, the applicant will be released on 29 May 2019.

1. The applicant has lodged an appeal against his convictions. The appeal has been listed before the Registrar on 6 February 2019 when a hearing date in the appeal sittings commencing on 6 May 2019 will be allocated.

1. The application for bail is made pursuant to s 9E of the Bail Act 1992 (ACT). A grant of bail under this section requires exceptional circumstances.

1. The exceptional circumstances here are said by the applicant to be the proximity of the hearing of his appeal to his release date. He would have served all, or close to all, of his full-time imprisonment sentence by the hearing of the appeal. If the decision is reserved he will probably have completed the whole of the full-time imprisonment sentence.

1. There is no doubt that the circumstances put forward here can be regarded as an exceptional circumstance (Samani v The Queen [2016] ACTCA 48). In addition in Sharma v The Queen [2016] ACTCA 60 the Chief Justice said that it was the full-time imprisonment section of an overall sentence that was relevant to exceptional circumstances.

10.  I have little difficulty concluding that exceptional circumstances do exist. That is not the end of the matter, however, because it is still relevant to decide, at least on a prima facie basis, if there is any merit in the appeal.

11.  The basis for the appeal is that the verdicts of guilty are inconsistent with the verdicts of not guilty. For example, it is submitted that the finding of guilt on Count 1 is inconsistent with the finding of not guilty on Count 2. Both counts alleged digital penetration of the complainant. They were said to have occurred within a short time of each other, there being only an interruption between them.

12.  It was not part of the Crown case that only one of the acts of penetration could be the subject of a guilty finding. The Crown’s position was that there should be a conviction on both counts. The defence submission was that there should be an acquittal on both counts. It will be submitted, in the appeal, that there is no logical reason for a conviction on one count and an acquittal on the other.

13.  It is difficult for me to assess the merit of the applicant’s argument but, on the information I have been provided, I think I can conclude that there is at least an arguable point.

14.  Although the applicant’s argument on the merits of the appeal did not encompass Count 4, I note that if the appeal on Count 1 was successful the necessary backdating of the sentence for Count 4, to 30 November 2018, would result in the applicant serving some 5 or more weeks more than his sentenced term of full-time imprisonment.

15.  The applicant is now 20 years of age. Besides these matters he has no criminal record. There were no difficulties with him complying with bail conditions prior to the trial. It is intended that he will live with his mother in Sydney. The complainant lives in the Australian Capital Territory.

16.  In my view, due to the exceptional circumstances set out above, there should be a grant of bail, although attendant with some conditions.

17.  I make the following orders:

(a)The sentences imposed by Burns J on 30 November 2018 are stayed pending the appeal.

(b)Bail is granted to the applicant until the hearing of his appeal.

(c)The grant of bail is conditional upon:

(i)The applicant living with his mother at 18 Saltash Street, Yagoona in New South Wales.

(ii)The applicant reporting to Bankstown Police Station once a week.

(iii)The applicant not having contact of any nature with the complainant or any other lay witness who gave evidence at his trial.

(iv)The applicant not travelling to the Australian Capital Territory other than as required for any court appearance.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 11 December 2018