Garlick v DPP

[2006] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 349 of 2006

IN THE MATTER OF AN APPLICATION FOR BAIL 

by

DARRYN GARLICK

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JUDGE:	MAXWELL, P. and NETTLE, J.A.
WHERE HELD:	MELBOURNE
DATE OF APPLICATION:	24 November 2006
DATE OF ORDER:	24 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 275

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CRIMINAL LAW – Bail pending appeal – Partially-suspended sentence – Custodial portion of sentence will have expired before appeal heard – Exceptional circumstances – Bail granted.

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Nickolls Windisch & Associates

MAXWELL, P.:

1. I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

1. This is an application for bail pending appeal against a conviction of one count of cultivating cannabis in not less than a commercial quantity of 25 kilograms and one count of theft of electricity (with which it was cultivated), for which the applicant was sentenced to a total effective sentence of 18 months' imprisonment, of which 15 months were suspended for three years.  There is also an appeal against the sentence.

1. The principal ground of the application for bail is that the period of immediate incarceration will expire in January 2007 before the appeal can be heard and determined.  It is contended that the expiration of the period of immediate incarceration would constitute exceptional circumstances in this case. 

1. Significantly, the Crown does not oppose that contention, although of course that cannot be determinative of the matter.

1. Unfortunately, we do not have the notice of appeal or the transcript of the trial judge's charge, but it seems that the principal ground of appeal is that the applicant did not know that his cannabis crop weighed as much as 25 kilograms.  He gave evidence at the trial that before he grew the subject crop he had grown another, larger, crop which failed, and that when he carried that failed crop out to his back lawn to dispose of it, he had estimated its weight as being only one or two kilograms.  He said, therefore, that he was surprised to learn that when the police weighed the subject crop they found that it exceeded 25 kilograms. 

1. Presumably the jury rejected that evidence and were satisfied that the applicant knew or believed that it was likely that the subject crop weighed at least 25 kilograms.  One may suppose, too, that they might have been assisted in reaching that conclusion by the police photographs of the applicant's cannabis plantation -

indeed, a cannabis forest, as the prosecutor described it at the trial - and by the fact that the applicant admitted to outlaying some $1,000 in the purchase of the hydroponic equipment with which to grow the plantation.  But, as against that, it is said that the judge misdirected the jury on the issue of wilful blindness; and, significantly, very experienced criminal counsel has expressed the opinion that there is a real chance of the appeal succeeding.

1. I take the law which governs applications of this kind to be as stated by Callaway, J.A. in Re Crawley.[1]  That is to say:

“Bail pending appeal is granted only in very exceptional circumstances.  See, for example, Re Culari,[2] Re Jackson[3] and Re Pennant,[4] to which the learned Chief Justice has already referred at p.87.  Courts have sometimes spoken simply of exceptional circumstances, but I do not understand the judges who have used that expression to have tended to identify a different test.  Their Honours have simply omitted the emphasis that the word "very" connotes.  I do not overlook the decision of Birchett, J. in Eastman v. The Queen.”[5] 

[1]Unreported, Supreme Court of Victoria, Court of Appeal, Phillips, C.J., Callaway and Batt, JJ.A., 5 August 1998.

[2][1978] 1 V.R. 276.

[3][1997] 2 V.R. 1.

[4][1997] 2 V.R. 85.

[5](1997) 72 F.C.R. 190.

1. But, as Callaway, J.A. went on in that case to point out:

“It will often be found that very exceptional circumstances are made out by a congeries of factors, which include the fact that the applicant will have served an unacceptable portion of the sentence before the application for leave to appeal can be heard and determined.  Re Pennant establishes that, in the case of a partially suspended sentence, it is the period of immediate incarceration to which regard is to be had.  The same logic applies to releases on recognisance under the Crimes Act 1914. Those cases are to be distinguished from eligibility for parole.”

1. All things considered, including the expiration of the period of immediate incarceration, counsel's opinion as to the chances of success of the appeal, and the Crown's lack of opposition to the grant of bail, I am persuaded that in this case the

circumstances are exceptional in the Crawley sense.  I would therefore grant the bail which is sought.

MAXWELL, P.: 

1. I also am of the opinion that bail should be granted, and I take in this case a view essentially the same as that expressed in the reasons for judgment in the matter of Schaefer[6] decided recently.  As the decision in Pennant[7] demonstrates, the circumstance that the whole of the non-suspended portion of a partially-suspended sentence will have expired before the appeal is heard can by itself constitute exceptional circumstances for this purpose.  It can, but of course need not, constitute exceptional circumstances.  There may very well be countervailing circumstances – including, for example, issues of unacceptable risk – which may mean that bail is not granted despite the existence of that factor. 

   [6]Re Schaefer [2006] VSCA 268.

   [7][1997] 2 VR 85.

1. As the Court also said in Schaefer, the consideration of prospects of success on an application like this is always a matter of difficulty and is frequently impossible.  Significantly, counsel for the Director does not suggest that this case is in the “absolutely hopeless” category, where the absence of prospects of success may be sufficient to outweigh the consideration based on the expiry of the non-suspended part of the sentence. 

1. As Nettle, J.A. has said, it is obviously very significant that the Crown does not oppose the application for bail.  As stated in previous decisions of the Court, the jurisdiction to grant bail in circumstances such as these is exercised in order to prevent an injustice occurring.  As Ms Cannon for the Director properly conceded, it would be a travesty of justice if the appeal were to succeed when the applicant had already spent the whole of the custodial portion of his sentence in custody.

1. For those reasons, bail should be granted.  There having been conditions set

out in a draft order, and Mr Croucher having indicated that the conditions there set out are acceptable to his client, we will order that there be a grant of bail on those conditions.  I will sign a form of the order now.

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