Leslie Charles Lane v The Queen - [2017] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0119

LESLIE CHARLES LANE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and FERGUSON JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 June 2017
DATE OF JUDGMENT:	23 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 170
JUDGMENT APPEALED FROM:	[2017] VCC 555 (Judge Mullaly)

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CRIMINAL LAW – Appeal – Bail pending appeal against sentence – Whether exceptional circumstances shown – Significant proportion of custodial sentence unlikely to expire before appeal determined – No evidence of real risk of injustice – Third party hardship not exceptional – Bail refused – R v Zoudi (2005) 14 VR 580 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F H Todd	Ellinghaus & Lindner
For the Respondent	Mr J Lewis	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
FERGUSON JA:

On 10 May 2017, the applicant was sentenced by Judge Mullaly in the County Court to a term of imprisonment of three years, with 18 months of that term suspended for three years. The sentence was imposed for sexual offending which occurred in 1980 and 1981. The applicant is now aged 70.

On 7 June 2017, the applicant filed an application for leave to appeal against sentence. A written case was filed on his behalf and the respondent has also filed its written case. The applicant now applies for bail pending the hearing and determination of his application for leave to appeal.

We have had the benefit of excellent submissions on both sides, in writing and orally. Assistance of that quality enables the Court to be well prepared for the hearing and then, having had the further benefit of oral argument, to dispose of the application promptly, which we now do.

In our view, the application for bail must be refused. Our reasons are as follows.

The relevant principles governing a grant of bail pending appeal are to be found in the judgment of the five-member Bench of this Court in Re Zoudi, as follows:

Bail pending appeal will only be granted where exceptional circumstances are shown. It has long been accepted in this court that, in determining whether exceptional circumstances exist, it is relevant to consider the likely expiry, before the appeal is heard, of the whole or a substantial portion of:
(a)the non-suspended portion of a partly suspended sentence; or
(b)the period after which the applicant is to be released on recognisance. [1]

In that case, the Court held that it was equally relevant to consider the expiry of the whole or a substantial portion of a non-parole period.

[1](2006) 14 VR 580, 581 [2] (citations omitted) (‘Zoudi’).

As is made clear by the judgment in Zoudi, and by subsequent judgments of this Court, what enlivens the jurisdiction to grant bail pending appeal is the need to prevent injustice. Plainly, there will be injustice if an applicant serves time in custody which the appeal court subsequently concludes he or she should not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 170
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the matter of Leslie Charles Lane, the appellant, versus The Queen, the respondent, the Court of Appeal was tasked with considering an appeal against the refusal of bail pending an appeal against sentence. The appellant, Lane, had been sentenced to imprisonment and sought bail to be released pending the outcome of his appeal. The Court of Appeal had to determine whether the trial judge had erred in concluding that exceptional circumstances were not shown to justify the granting of bail. The central issue before the court was whether the appellant had demonstrated exceptional circumstances warranting bail pending his appeal against sentence, particularly considering the significant proportion of his custodial sentence that was unlikely to expire before the appeal was determined. The court had to examine if there was a real risk of injustice if bail were not granted and whether the hardship to third parties was exceptional.

The Court of Appeal, in dismissing the appeal, held that the trial judge was correct in finding that no exceptional circumstances existed. The court noted that a substantial part of the appellant's sentence would likely remain unserved before the appeal was resolved, which was a relevant factor in the bail decision. Furthermore, the court found that there was no evidence of a real risk of injustice if bail were not granted and that the hardship to third parties did not reach the level of exceptional circumstances. The court applied the principles established in R v Zoudi, confirming that the trial judge's decision was consistent with the law regarding bail pending appeal against sentence. The appeal was dismissed, and the decision to deny bail was upheld.

In conclusion, the Court of Appeal affirmed the trial judge's decision to deny bail to the appellant. The court found that the trial judge had correctly applied the relevant legal principles and that the appellant had not demonstrated the exceptional circumstances necessary to warrant the granting of bail. The appeal against the refusal of bail was dismissed, and the appellant remained in custody pending the determination of his appeal against sentence.

Orders