HD v The Queen

[2015] ACTCA 49

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

HD v The Queen

Citation:

[2015] ACTCA 49

Hearing Date:

9 September 2015

DecisionDate:

9 September 2015

Before:

Refshauge J

Decision:

The application for bail is dismissed.

Catchwords:

CRIMINAL LAW – Jurisdiction, Practice and Procedure – application for bail – appeal pending – appeal against sentence – receiving stolen property – riding in a motor vehicle without consent – aggravated robbery – breach of Good Behaviour Order – re-sentencing – whether a stay should be granted – whether bail should be granted – special and exceptional circumstances – portion of custodial sentence served before the appeal is heard – appeal expedited

Cases Cited:

The Queen v Quzag [2015] ACTCA 36

Parties:

HD (Appellant)

The Crown (Respondent)

Representation:

Counsel

Mr D Ager (Appellant)

Ms E Beljic (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 34 of 2015

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:   Penfold J

Date of Decision:         5 August 2015          

Case Title:                    R v HD

Citation: [2015] ACTSC 246

Refshauge J:

1. This is an application for bail by HD against sentences imposed by Penfold J on 5 August 2015.  He has, as required in the TheQueen v Quzag [2015] ACTCA 36, also sought a stay of the sentence imposed. The grant of a stay is, of course, an incident of the court's inherent jurisdiction to preserve the subject matter of the appeal.

1. The application relates to an appeal commenced on 18 August 2015 against the sentences imposed on him for receiving stolen property, riding in a motor vehicle without consent and, following the breach of a Good Behaviour Order constituted by those offences, re-sentencing for attempting to commit an aggravated robbery, the sentence for which offence included the Good Behaviour Order made when the sentence of imprisonment was suspended.

1. The sentence imposed for these offences was a total of 32 months imprisonment, with a 12 month non-parole period.  Of that, the recent offences constituted 18 months imprisonment, part of which was accumulated on the re-sentencing for the attempted aggravated robbery, which was originally 20 months imprisonment, 18 months of which was suspended. 

1. There are two grounds of the appeal. One is that the sentence imposed was manifestly excessive in all the circumstances.  The second was that the learned sentencing Magistrate erred in describing the facts of the offence, namely the characterisation of the applicant's role as the driver of the motor vehicle involved in the attempted aggravated robbery.

1. My attention was also drawn to the age of the offender. He was 18 years at the time of the original offence and was 21 years old at the time of the subsequent offences. 

1. It is, on a bail application, difficult to assess the strength of the appellant’s case on appeal and, ordinarily, unless the case is hopeless, the fact that all or most of the custodial portion of a sentence will have been served by the time the appeal is heard would likely amount to special or exceptional circumstances, justifying the grant of a stay and associated bail.  See Sherd v The Queen (2011) 5 ACTLR 290 at 299; [47], [51]. In this case, however, it is possible for the appeal to be heard on 2 November 2015 which means that only 10 months of the 12 month non-parole period would have been served.

1. The appeal on the sentence is principally an appeal in relation to the sentence for the attempted aggravated robbery, which leaves the 18 month period of imprisonment for the recent offences remaining relatively undisturbed.  Although the applicant did not disavow an attack in the appeal on that sentence, it seems to me that that attack, in the circumstances of the history of the offending behaviour of the applicant, and the fact that those more recent offences were constituted by receiving stolen property and riding in a motor vehicle without consent is not insignificant, and as these were committed while on conditional liberty, namely under the Good Behaviour Order, any challenge is not so strong as to suggest that the sentence is well out of range.

1. In that event, even if the sentence on the aggravated robbery were to be altered on appeal, it seems to me that it is unlikely that the other sentences would be altered, which would mean that the non-parole period would be 10 months or 12 months for an 18 month sentence;  this would not necessarily be out of range. 

1. In all those circumstances, it does not seem to me that the case has been made out for special and exceptional circumstances to justify the grant of a stay, and therefore bail, in these matters, particularly as the appeal can now be listed in the November sittings and dealt with, no doubt, promptly thereafter.

1. I have made directions for the expedition of the appeal and in those circumstances, the application is dismissed.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 22 September 2015