IN RE: AN APPLICATION FOR BAIL BY RICHARD RUBINO

[2014] ACTCA 7

IN RE: AN APPLICATION FOR BAIL BY RICHARD RUBINO
[2014] ACTCA 7 (19 March 2014)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for stay of sentence – appeal to Court of Appeal from single judge awaiting hearing – application for bail not adequate basis for stay – stay and bail are separate questions ­– where, even if successful on appeal, virtually no likelihood of immediate release

CRIMINAL LAW – BAIL – bail not available without stay – attending grandmother’s funeral not an exceptional circumstance

Bail Act 1992 (ACT), ss 5(2), 9E

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 2 – 2014
No. SCC 41 of 2012

Judge: Burns J  
Court of Appeal of the Australian Capital Territory

Date: 19 March 2014  

IN THE SUPREME COURT OF THE       )          No. ACTCA 2 – 2014

)          No. SCC 41 of 2012

AUSTRALIAN CAPITAL TERRITORY)  
  )
COURT OF APPEAL  )          

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

RICHARD RUBINO
Applicant

v        

THE QUEEN

Respondent

ORDER

Judge:Burns J

Date:19 March 2014

Place:Canberra

THE COURT ORDERS THAT: 

1. The application for a stay is refused. 

2. The application for bail is refused.

1. The applicant, Richard Rubino, seeks two orders on this application.  The first is an order staying the sentences imposed by the Chief Justice on 16 December last year.  The second order is an order granting him bail for a period of some three days to enable him to attend his grandmother's funeral in North Queensland. 

2. On 16 December last year, the Chief Justice sentenced the applicant to an aggregate term of seven years and 11 months’ imprisonment with respect to a number of serious offences.  That sentence was to commence from 22 December 2012 and there was a non parole period of four years and one month commencing from the same date.

3. The appeal which has been lodged by the applicant, which was lodged pursuant to leave granted in this court, is an appeal against the sentence only.  At the present time the applicant has served approximately 15 months of the sentence imposed by the Chief Justice.

4. The first decision that the Court must make is whether there are grounds for the granting of a stay.  The applicant is not eligible for bail if he is serving a sentence (s 5(2) Bail Act 1992 (ACT)). He cannot, therefore, apply for bail unless his sentence is first stayed.

5. In my opinion, the Crown is correct to state that applying for a stay, simply for the purpose of then applying for bail is not an adequate approach to the question of whether a stay should be granted. 

6. So, in other words, the question of whether bail should or should not be granted is not to be dealt with as particularly relevant to the question of the granting of a stay.  The question of the granting of a stay should be looked at as a separate question. 

7. In this particular case, even if the applicant is successful in his appeal, there is virtually no likelihood of sentences being imposed such that he would be entitled to immediate release. 

8. In my opinion, there is simply no adequate basis for this court to grant a stay with respect to the sentences imposed by the Chief Justice. 

9. In any event, even if I were wrong in that regard I note that in order to grant bail after a stay has been granted in these circumstances, special or exceptional circumstances need to be demonstrated by the applicant (s 9E Bail Act 1992). 

10. The applicant wishes to attend his grandmother's funeral and that is understandable, however, in my opinion, that does not constitute special or exceptional circumstances which militate in favour of the granting of bail. 

11. The present applications will be refused. 

    I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

    Associate:

    Date:      28 March 2014

Counsel for the Applicant:  Ms K Bills

Solicitor for the Applicant:  Aboriginal Legal Service (NSW/ACT)

Counsel for the Respondent:  Ms S McMurray

Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of Hearing:  19 March 2014

Date of Judgment:  19 March 2014