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…