Kember v The Queen
[2022] ACTCA 51
•6 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kember v The Queen |
Citation: | [2022] ACTCA 51 |
Hearing Date: | 6 October 2022 |
DecisionDate: | 6 October 2022 |
Before: | Mossop J |
Decision: | The application for bail is dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL – Application for bail pending appeal – custodial portion of sentence to expire prior to appeal hearing – special or exceptional circumstances demonstrated – very low prospects of success on appeal – application dismissed |
Legislation Cited: | Bail Act 1992 (ACT), ss 9E, 22 Criminal Code 1995 (Cth), ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1), 474.27A(1) |
Cases Cited: | Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 The Queen v Quzag [2015] ACTCA 36; 298 FLR 330 |
Parties: | Rhys Kember ( Appellant) The Queen ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) C Pascoe ( Respondent) |
| Solicitors Self-represented ( Appellant) Commonwealth Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 38 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McCallum CJ Date of Decision: 27 June 2022 Case Title: R v Kember Citation: [2022] ACTSC 153 |
MOSSOP J:
Introduction
On 27 June 20222, Rhys Kember was sentenced by the Chief Justice in relation to six offences. Those offences may be described as child pornography offences. They involved contraventions of ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1) and 474.27A(1) of the Criminal Code 1995 (Cth). The maximum penalty for each of those offences except one was 15 years’ imprisonment. The exception was count five (using a carriage service to transmit indecent material to a person under the age of 16 years), for which the maximum penalty was seven years' imprisonment.
The sentences imposed on the offender were 16 months, 10 months, eight months, six months, three months and six months’ imprisonment, but those sentences were imposed with a degree of concurrency that led to the total term of imprisonment being three years. The offender was required to serve eight months' imprisonment prior to being released on a recognisance release order. That period ran from 25 June 2022 and will expire on 24 February 2023.
The offender has lodged an appeal against the sentence imposed. The Notice of Appeal identifies a single ground of appeal which is that the sentence imposed was manifestly excessive. He has now brought an application for bail in the appeal proceedings. For reasons which I will explain in a moment, that application for bail must be treated as an application for a stay of the orders of the Chief Justice in addition to a grant of bail.
The grounds upon which the applicant seeks bail are summarised in his application as follows:
(1) My appeal has reasonable prospects of success.
(2) The fruits of my appeal will be lost if not granted bail.
(3) Exceptional hardship to my family.
For the reasons given in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290, there is power to grant bail to a person appealing from a sentence imposed by a judge of the Supreme Court to the Court of Appeal. For the reasons given in The Queen v Quzag [2015] ACTCA 36; 298 FLR 330, a stay must be granted prior to bail being considered. Section 9E of the Bail Act 1992 (ACT) precludes a grant of bail unless there are special or exceptional circumstances. The fact that special or exceptional circumstances may exist does not require a grant of bail. Rather, it is a threshold which is required to be met. The approach to be taken in relation to applications for bail pending appeal is described in the decision in Sherd where Refshauge J said at paragraphs [46]-[47]:
46. There is no doubt that, in all Australian jurisdictions, special or exceptional circumstances must be shown to justify a grant of bail pending an appeal. This is uniform both by statutory prescription and judicial authority: s 9E of the Bail Act; s 30AA of the Bail Act 1978 (NSW); s 23A of the Bail Act (NT); Schedule 1, Pt C, cl 4A of the Bail Act 1982 (WA); Ex parte Maher; R v Collins (1986) 41 SASR 208; Brown v The Queen [1979] Tas R 304; Re Zoudi (2006) 14 VR 580; United Mexican States v Cabal and Ors [[2001] HCA 60; 209 CLR 165]; Eastman v The Queen [(1997) 72 FCR 190].
47. The courts have clearly identified as a special or exceptional circumstance justifying the grant of bail pending appeal that the sentence will have been fully or substantially served before the appeal is heard.
His Honour then referred to the difference of views as to whether or not the service of the sentence refers to the custodial part of the sentence only, or the whole of the sentence. He concluded that the relevant period is the custodial part of the sentence. His Honour then continued at paragraphs [52]-[63] as follows:
52. A second issue, which Mr Sherd actually agitated, “is the prospects of success of the appeal”. It is always a factor to which regard must be had on such an application. ... Indeed, following United Mexican States v Cabal & Ors, it is one of the two essential matters that must be considered, the other being the expiry of the sentence (Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241 (at 244; [7]).
53. This is clearly a difficult issue, for it is inappropriate to try the appeal on a bail application. Indeed it is neither possible nor desirable to do so: The Queen v Giordano (1982) 31 SASR 241 (at 243).
54. Clearly, where the appeal has no or little prospects of success, as in a frivolous appeal, that will tell strongly against the grant of bail, even where a substantial portion of the sentence will have been served prior to the hearing of the appeal: R v Ryan [1930] SASR 125 (at 130); R v Waters (1990) 9 Petty Sessions Review 4016 (at 4018).
55. In the High Court, before special leave to appeal has been granted, the applicant must show he or she has a very strong case: Re v Pinkstone’s Applications [(2003) 77 ALJR 1561] (at 1563; [17]).
56. There are exceptional cases where, for example, a recent ruling of the High Court has clear and direct application to the case such that the appeal then is almost certain or inevitably to be upheld: Sinanovic v The Queen (No 1) (2001) 122 A Crim R 524 (at 527; [11]) Such a strong case would justify bail.
57. In between these cases are those where the grounds of the appeal are arguable, but the prospects cannot be said to be strong. It is clear that this cannot, by itself, justify a grant of bail. As the Full Court of the Supreme Court of Victoria said in Re Clarkson [1986] VR583 at 586:
It should be clearly understood that the fact that there is a fairly arguable ground of appeal cannot, standing alone, be regarded as constituting exceptional circumstances so as to justify the grant of bail pending appeal.
58. See also R v Wilson (1994) 34 NSWLR 1 (at 6).
59. This is not inconsistent with what Dawson J decided in Peters v The Queen [(1996) 71 ALJR 309] at (310-1) even though his Honour considered that the point to be raised was merely “not hopeless” and that there were reasonable prospects that it would succeed. There was, however, in that case a real expectation that were bail not to be granted, the appeal “would in all practical respects be futile”. It was that circumstance which required there to be at least arguable prospects of success on appeal. That is the converse to the situation referred to above (at [53]).
60. It is also worth noting that if the prospects of success of the appeal is the only basis for applying for bail, then the applicant is required to show that the appeal is “most likely to succeed” which would be required to meet the test of exceptional circumstances: Tieleman v The Queen (2004) 149 A Crim R 303. Very strong grounds must be shown, sometimes referred to as “virtually certain of success” (R v Waters (at 4018)) or “extraordinarily high prospects of success” (R v Wilson (at 7)).
61. I also have regard to what fell from Young CJ in Re Kulari [1978] VR 276 (at 277-8):
It is not possible or desirable to attempt to describe what might be regarded as very exceptional circumstances but the fact that there is a prima facie arguable ground of appeal is, I think, of very little weight where the ground of appeal is that the sentence imposed is too severe.
62. That special or exceptional circumstances are required and bail should not readily be granted pending appeal is supported by the practical aspects referred to by King CJ in The Queen v Giordano (at 242):
There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison.
63. This was well expressed by Edmund Davies LJ in the case of Gruffyd v The Queen (1972) 56 Cr App Rep 585 (at 589):
[O]nce bail is granted pending an appeal, judges who later hear it are presented with an additionally heavy problem. Bail inevitably raises hopes, and to wreck them by ordering a return to custody is a painful duty for any judge. Nevertheless, there are times when such a duty is unavoidable.
Consideration
I accept that the threshold requirement of special or exceptional circumstances is established by reason of the fact that the custodial portion of the sentence will have expired prior to the hearing of the appeal. I accept that the factors in s 22 of the Bail Act would not preclude a grant of bail. I also accept that it is very difficult for an unrepresented person who is in detention to effectively muster the evidence and arguments required to most appropriately present an application for bail. However, I must deal with the application on the basis that it is, in fact, presented.
In the present case, the prospects of success on appeal must be assessed as low. The sole ground of appeal is manifest excess. The submissions of the applicant in common with many other unrepresented persons asserting a manifestly excessive sentence appeared not to appreciate that the question was not whether, in light of the Court of Appeal's own assessment it would have imposed a different sentence of imprisonment, but rather whether the sentence imposed was so excessive that even though no specific error could be identified, the sentence was unreasonable or plainly unjust so that the appellate court could infer that there had been a failure properly to exercise the discretion of the law reposed in the court of first instance.
Before the primary judge, it was clear that there was no issue that a custodial sentence involving a period of full-time imprisonment was required (see R v Kember at [86]). As recorded at [87], it was clear that the submission made on behalf of the offender was that a recognisance release order would be appropriate “after the offender has served a salutary brief period in prison”. The primary judge accepted that position by imposing an aggregate sentence of three years' imprisonment with release upon a recognisance release order after eight months.
10. The primary judge summarised the position at [88] as:
It seems both parties would contend for some period of full-time imprisonment but I do not understand the Crown to suggest that it should be a lengthy period
11. The area of contention on any appeal must be that a period of eight months involved a period of imprisonment that was manifestly excessive. Any contention that the overall head sentence was excessive is irrelevant to the question of bail if there was not a reduction in the period required to be actually served because it is that period which will expire prior to the hearing of the appeal.
12. Having regard to the number of offences, the facts relating to those offences and the personal circumstances of the offender, it cannot be said on the material in arguments put before me that the prospects of an appeal are anything other than very low. So far as specific matters were raised in the application for bail, those referred to the availability of fresh evidence in relation to two issues. First, the offender's father's Alzheimer's condition. The second, the circumstances of the offender's partner.
13. The evidence on the first point was limited:
My dad's Alzheimer's has gotten worse. He has lost his house. I am his only family and carer. This is more significant now than at sentence.
14. In the course of submissions, reference was made to the existence of some National Disability Insurance Scheme (NDIS) funding arrangements relating to the offender's father. The evidence and information provided to the court was not sufficient to present any coherent picture of the overall circumstances of the offender's father. It is clear that the primary judge had specific regard to the circumstances of the offender's father in that at [82]-[84], her Honour referred to his father's Alzheimer's condition. At [82], there was reference to his condition deteriorating and that the offender plays an important role for his father.
15. Her Honour recognised the possibility that a lengthy period of imprisonment would carry a significant risk that his father would lose any cognitive connection with his past and may deteriorate more rapidly as a result. However, her Honour accepted that deterrence and denunciation must be the principal factors in the sentencing exercise. No error appears to be disclosed in this approach. The evidence does not establish that the circumstances are significantly worse than were contemplated by the primary judge when imposing sentence.
16. The evidence also touched upon the second issue, the circumstances of the offender's partner:
My partner is from overseas on a COVID visa and her mental health is worse since sentence due to no support.
17. During the course of submissions, the applicant said that his partner was from Russia on a bridging visa and suffered stress from being in a different country and having to deal with the NDIS issues relating to the offender's father. He indicated that she was either getting or was booked in to get treatment for her mental health. Once again, no coherent evidentiary picture of the circumstances of the offender's partner was presented. So far as the circumstances were disclosed, they are not outside the range of the kinds of impacts that would be expected when one member of a couple is detained in prison.
18. If the additional material relating to the offender's father and partner were sought to be admitted on the appeal, then it is unlikely to be such as to have any real bearing on the sentence that was imposed. It is very unlikely that the evidence would be sufficient to disclose that the sentence imposed was manifestly excessive.
19. I am not satisfied that the circumstances warrant the granting of bail pending appeal. In summary, the reasons are:
(a)The prospects of the appeal appear on the material before me to be very low.
(b)The circumstances of the offender's partner and father do not extend beyond the circumstances which were expressly taken into account by the primary judge at the time of sentencing or were within the usual range of adverse consequence that might be expected as a result of a period of imprisonment such as that imposed by the primary judge
20. Therefore, notwithstanding that the threshold for the making of a bail order is met, I am not satisfied that a stay should be granted or, as a consequence, that bail should be granted.
Orders
21. The order of the Court is: The application for bail is dismissed.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 19 October 2022 |
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