Fares v Director of Public Prosecutions
[2024] ACTCA 14
•16 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Fares v DPP |
Citation: | [2024] ACTCA 14 |
Hearing Date: | 16 April 2024 |
Decision Date: | 16 April 2024 |
Before: | McWilliam J |
Decision: | (1) The application for bail filed 10 April 2024 is dismissed. (2) The application for a stay of the sentence filed 10 April 2024 is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – application for bail pending appeal against sentence – application for stay of sentence pending appeal – whether family hardship constitutes special or exceptional circumstances – applications dismissed |
Legislation Cited: | Bail Act 1992 (ACT) s 9E Crimes (Sentencing) Act 2005 (ACT) s 78(6) Criminal Code 2002 (ACT) ss 44, 45, 332 Supreme Court Act 1933 (ACT) s 37Q |
Cases Cited: | Cvetanovski v The Queen [2020] VSCA 126 Day v R [2023] ACTCA 39 Kelly v The Queen [2015] ACTCA 35; 11 ACTLR 1 Nchouki v The Queen [2023] ACTCA 8 Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 Warne v The Queen [2022] ACTCA 35 |
Parties: | Rabea Fares (Applicant) Director of Public Prosecutions (Respondent) |
Representation: | Counsel J Nottle (Applicant) K McCann (Respondent) |
| Solicitors Kanzi Lawyers (Applicant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 6 of 2024 |
Decision under appeal: | ACT Supreme Court Before: Berman AJ Date of Decision: 26 February 2024 Case Title: DPP v Faris; DPP v Fares File Numbers: SCC 125 of 2022 SCC 126 of 2022 SCC 127 of 2022 Charge Numbers: CAN 10575/2021 CAN 10576/2021 CAN 10577/2021 |
McWILLIAM J:
1․Before the Court are two applications brought by Mr Rabea Fares, who was sentenced by Berman AJ (primary judge) on 22 March 2024, following being found guilty by a jury of the 3 offences of attempting to dishonestly obtain financial advantage by deception, contrary to s 332 of the Criminal Code 2002 (ACT) (Code), by virtue of s 44 of the Code and additionally in respect of one count under s 45 of the Code.
2․The sentence imposed by the primary judge was a total term of imprisonment of 2 years, backdated to commence on 22 March 2024 and conclude on 21 March 2026. A non-parole period of 12 months was set, to commence on 22 March 2024 and expire on 21 March 2025.
3․By a notice of appeal filed on 8 April 2024, the applicant has appealed the sentence on the ground of severity, asserting a number of grounds relating to the primary judge’s decision not to order that the sentence imposed be served by way of an intensive correction order, despite an assessment reporting that he was suitable for such a sentence.
Present applications
4․The present applications seek a grant of bail pending the determination of the appeal, and a stay of the sentence imposed in the meantime. The success of the stay application will rise or fall with the success of the bail application. It is therefore appropriate to deal with the application for bail first.
Evidence on the applications
5․The Court had before it three affidavits on the applications. The first was prepared by the solicitor for the appellant and contained, among other documents, the transcript of the sentencing reasons of the primary judge which are under appeal.
6․The other two affidavits were prepared by the adult daughters of the appellant, each of whom are full-time university students and deposed to the severe emotional and financial hardship that the family unit is now suffering. None of the deponents were required for cross-examination and I accept the contents of their affidavits.
7․Given the financial circumstances detailed in the affidavits, it may readily be inferred that the daughters may be required to put their university studies on hold in order to seek employment to support the family, or sell assets such as a car gifted to them by their now-incarcerated father in order to meet basic living expenses due to the fact that their father was the main earner in the family unit. Their evidence constitutes confirmation that the ramifications of criminal conduct are far reaching.
Applicable principles
8․The ACT Supreme Court has the power to grant bail to an applicant pending an appeal, provided that the applicant’s sentence has been stayed beforehand: Kelly v The Queen [2015] ACTCA 35; 11 ACTLR 1 at [7], [15].
9․The principles applying to such an application have been recently and helpfully set out by Baker J in Nchouki v The Queen [2023] ACTCA 8 (Nchouki) at [16]-[22]. I gratefully adopt them without repeating them in full here.
10․The overriding question for the Court is prescribed by s 9E of the Bail Act 1992 (ACT) (Bail Act), which prohibits the Court from granting bail to a person who has been convicted and sentenced to a period of imprisonment unless the Court is satisfied that “special or exceptional circumstances” exist.
11․As explained during the hearing, and consistently with Cvetanovski v The Queen [2020] VSCA 126 at [2], cited in Nchouki at [17], part of the reason why there is such a high threshold hurdle provided in the legislation is not only because the sentence is taken to be valid unless and until set aside, but because if a person is granted bail and then is unsuccessful on their appeal, that will result in the convicted person having to return to prison. Not only that, but any time spent while released on bail pending the decision on appeal does not count as part of the term of imprisonment: s 37Q of the Supreme Court Act 1933 (ACT). Such a result would plainly be harder to face than for a person who, while ultimately unsuccessful on appeal, had continued to serve a period of the sentence in the meantime.
The circumstances here
12․Applying the principles in Nchouki, there are three key considerations for the Court on the application. The first is whether the appeal can be dealt with by the appellate court in within the current custodial portion of the applicant’s sentence. That factor fell away at the hearing, as the Court was in a position to list the matter for hearing in August 2024, which is well before the non-parole period of the current sentence expires.
13․The second consideration is the prospects of the appeal. There are five grounds of appeal. They are as follows:
(a)The sentence was manifestly excessive;
(b)The disparity in the sentences between the appellant and the co-accused was one giving rise to a justifiable sense of grievance;
(c)Failure to give adequate reasons for the sentence;
(d)Failure to have regard to the applicant’s assessment for suitability for an intensive corrections order (ICO); and
(e)Failure to place sufficient weight on the appellant’s contribution to his family and the consequential hardship on his family resulting from his full-time imprisonment.
14․Having regard to what was said in Nchouki at [22] about it being undesirable for the Court to try the appeal in the course of hearing an application for bail, I have assessed the grounds by reference to the principles articulated in cases such as Warne v The Queen [2022] ACTCA 35 and Samani v The Queen [2017] ACTCA 23 (Samani), each of which was discussed with the parties during the hearing.
15․I have also given consideration to the case of Day v R [2023] ACTCA 39, where the Court stated at [30]:
It is to be recalled that although it is incumbent upon a sentencing judge to explain their findings, it does not follow that a failure to refer to a fact or topic permits an inference that the matter has not been taken into account amounting to a finding of error on appeal. What, if any inference can be drawn will depend on the facts of the particular case.
16․Further, the mere fact that a particular option such as an ICO is not expressly referred to in a judgment does not of itself establish a failure to consider that alternative: Samani at [43]-[45].
17․Mr Nottle, who appeared for the applicant, drew the Court’s attention to s 78(6) of the Crimes (Sentencing) Act 2005 (ACT), and the requirement for the Court to record reasons for declining to make an ICO in circumstances where the offender was assessed as suitable. He argues that the reasons did not meet such a requirement. In that regard, there is a passage in the transcript of the reasons of the primary judge that states (emphasis added):
In the case of Ms Faris, whilst a sentence of full-time imprisonment is deserved, the hardship which would be occasioned to her children should she be sent to jail is such that I accept Mr Ager’s submission as to how her sentence of imprisonment should be served. I have reached a contrary conclusion regarding Mr Fares. A sentence of other than full-time imprisonment would not be appropriate in the circumstances of this case. The effect of his imprisonment upon his children, whilst significant, is not such that I should impose upon him a sentence which fails to reflect the objective gravity of this offending.
18․Ms McCann, who appeared for the respondent, argued that the reasons must be read in their context and drew attention to an earlier part of the reasons as follows:
Neither offender should have a justifiable sense of grievance when the sentences I will impose upon them are compared. That said there is little to distinguish between them apart from the issue of hardship to their children which explains the difference in the sentencing outcomes for the two offenders.
19․I accept that there is a reasonable argument to be made. I will not go further on this bail application to discuss the strengths or weaknesses of the grounds to be argued on appeal.
20․The real matter that is driving this bail application is the question of hardship, which as I have said, is to be accepted.
21․However, as was fairly accepted by counsel for the applicant, in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290, Refshauge J stated at [67]-[68]:
67.It has to be said at once that, ordinarily, family hardship will rarely amount to a special or exceptional circumstance justifying the grant of bail pending appeal: Re Pennant[1997] 2 VR 85; Robinson v R. Personal hardships can amount to such special or exceptional circumstances, but they must be very special or unusual: R v Southgate (1960) 78 WN (NSW) 44 (at 46). Such hardships are a regrettable but inevitable concomitant of the custodial sentence and, if it is the proper sentence, then it has to be endured, no matter how much sympathy the judge has for those suffering the hardships.
68.It may be that, were the other matters finely balanced, such a consideration may, in combination with the other matters, tip the balance to justify the grant of bail. As the court said in United Mexican States v Cabal (at 185–6; [52]), though in the context of the extradition cases:
It is therefore accepted that special circumstances “need to be extraordinary and not factors applicable to all defendants facing extradition”. It is not necessary that any particular circumstance should be regarded as special. Several factors in combination can constitute special circumstances justifying bail. (Footnotes omitted).
22․In the present case, I accept the submission of the respondent as to the emphasis on hardship being part of a combination of factors. In this case, the circumstances are not ones of extreme hardship or particularly special or unusual hardship. In those circumstances, I am not satisfied that the applicant’s circumstances meet the statutory threshold.
23․Other submissions were made in terms of the risk of the appellant to the community and the fact that he is no flight risk at all. However, those matters can only be considered if the Court is satisfied there are special and/or exceptional circumstances.
24․The result is that, however sympathetic the Court may be to the circumstances in which the appellant and in particular his family now find themselves, the Court has no discretion but to dismiss the application for bail in the absence of the threshold set out in s 9E of the Bail Act being satisfied.
25․As a consequence, the stay application must also be dismissed and I so order.
Orders
26․For the above reasons, the Court makes the following orders:
(1)The application for bail filed 10 April 2024 is dismissed.
(2)The application for a stay of the sentence filed 10 April 2024 is dismissed.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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