Leslie Charles Lane v The Queen
[2017] VSCA 170
•23 June 2017
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 have served. Self-evidently, such an outcome offends every principle of criminal justice.
If persuaded that there is a real risk of injustice of that kind occurring, the Court will strive to eliminate that risk. There are various ways in which that can be done. One of those is by a grant of bail. Another, which this Court regularly adopts, is to accelerate the hearing of the substantive application for leave to appeal.
Zoudi itself provides a very good illustration of how particular circumstances can combine to demonstrate that there is a real risk of injustice unless bail is granted. The Court there said:
Given the extraordinary manner in which the applicant was presented for trial; the concessions made as to the applicant’s chances of success on appeal; the reasonable probability that, unless bail pending appeal was granted, the applicant would have served the whole of the non-parole period before the applications were heard and determined; and the fact that the hearing of the applications had been delayed because of the need to deal with the applicant and his co-accused at the same time, we were persuaded that the circumstances of the case were sufficiently exceptional to warrant the grant of bail.[2]
[2]Ibid 591 [40].
It will be noted that in Zoudi, unlike the present case, the Crown had made concessions as to the applicant’s chances of success on appeal. It was common ground on this application that the Court need not — indeed could not — form a view about the applicant’s prospects of success. Secondly, the Court in Zoudi considered it a ‘reasonable probability’ that, unless bail was granted, the applicant would have served the whole of the non-parole period before the leave application could be heard and determined.
As counsel for the respondent pointed out, Zoudi set out the principles which underpin the ‘exceptional circumstances’ test, as follows:
(1) First, to reiterate the words of Brennan J in Chamberlain v R, the central feature in the administration of criminal justice is the jury and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court. In Markovina v R, Hayne J doubted that there was any reason to distinguish these remarks in the case of an appeal against sentence. In Re Pinkstone’s Applications Kirby J stated that in the context of a pending application for special leave, convictions and sentences and other orders are not to be regarded as provisional.
(2) Secondly, although there is a statutory right of appeal, it is a right which is conditioned by the presumption which operates in favour of the validity of the conviction and sentence and it is, therefore, not a right to have the conviction or sentence suspended pending the hearing and determination of an appeal.
(3) Thirdly, as has been confirmed by the High Court in Cabal, to allow bail pending the hearing of an appeal, after a person has been convicted and imprisoned:
• makes the conviction appear contingent until confirmed;
• places the court in the invidious position of having to return to prison a person whose circumstance may have changed dramatically during the period of liberty on bail;
• encourages unmeritorious appeals;
• undermines respect for the judicial system in having a ‘recently sentenced man walking free’; and
• undermines the public interest in having convicted persons serve their sentences as soon as is practicable.
These considerations have long been recognised as also applicable where the appeal is against sentence.[3]
[3]Ibid 588–9 [28] (citations omitted).
In the present case, counsel for the applicant relies on a combination of circumstances, helpfully summarised in the written outline as follows:
Other factors in favour of a grant of bail cumulate:
a. the applicant is 70 years old;
b. the applicant’s written case discloses arguable grounds of appeal;
c.the applicant’s incarceration deprives Mrs W (terminally ill friend and neighbour) of her support and care;
d.the applicant has been on bail without incident for significant periods over the last 20 years while his court cases have been determined;
e.the applicant presents no risk of flight, failing to appear or offending while on bail;
f. he has a secure place of residence if granted bail.
It is respectfully submitted that the relative brevity of the sentence to be served immediately, combined with the delay in the final determination of the case, the suffering imposed upon Mrs W, and the absence of risk factors if the applicant is granted bail amount to exceptional circumstances such that a grant of bail is warranted.
Delay
The first matter relied on is what counsel submits will be an unacceptable delay before the application for leave to appeal is heard and determined. Counsel helpfully set out, in table form, by reference to the expiry of the 18 month period of incarceration, the proportions of that period which will have expired depending on when the leave application and the appeal are dealt with:
Date Event Number of Days (out of 540) 10 May 2017 Commencement of sentence 0/540 23 June 2017 Application for bail. 45/540 23 August 2017 Listing date for application for leave. 106/540 1 November 2017 ‘Possible’ date in mid-term 4. 176/540 28 February 2018 ‘Possible’ date in mid-term 1 2018 295/540 9 November 2018 Expiration of immediate sentence. 540/540
As appears from the table, if the appeal were heard in November 2017, approximately one-third of the period of incarceration would have expired. Counsel properly conceded that, even if the applicant succeeded on that occasion in having his period of incarceration reduced by 50 per cent, he would still have time to serve.
That illustrates, in our view, why this case falls well short of the threshold to which we have referred, that is, of suggesting a real risk that the applicant will have served time which this Court might conclude he should not have served. We do not overlook the foreshadowed appeal submission that the judge ought to have concluded that no custody was required. But on a manifest excess ground, it is very difficult to establish that it was not reasonably open to the judge to conclude that a period of incarceration was required.
On that limb of the argument, accordingly, we are not persuaded that the case approaches the ‘exceptional circumstances’ threshold. Our conclusion in that regard does not depend on whether arrangements may be able to be made for the appeal to be heard before November.
Third party hardship
The second matter emphasised in oral submissions is the hardship which the applicant’s incarceration has caused — and will continue to cause — to his terminally ill friend and neighbour. In support of the application for bail, an affidavit has been filed which describes, in terms which we accept, the support which the applicant has provided to his neighbour, and the extent of her reliance on him.
We accept for the purposes of determining this application that third party hardship is capable of being relevant on an application of this kind. We note the respondent’s submission that it would be a ‘very rare case’ where third party hardship would be sufficient by itself — that is, without some kind of concession from the Crown — to constitute exceptional circumstances for this purpose.
It is sufficient to say that we regard the adverse impact on the neighbour as having only marginal relevance to this application. We do not doubt the importance of the applicant’s altruistic assistance to his neighbour, but we do not consider that this consideration justifies, let alone requires, the conclusion that bail should be granted.
Conclusion
It is also said on behalf of the applicant, and not contested, that were bail to be granted, there would be no risk of his absconding. We have proceeded on that assumption. For obvious reasons, however, that consideration could not affect the question of whether the circumstances were exceptional. On the other hand, if there were an unacceptable risk of absconding, that would count against a grant of bail.
Finally, we think that it will be in the interests of the parties, and of the Court, for the application for leave to appeal to be listed before two judges for hearing on the basis that, if leave were granted, the appeal would also be determined on that occasion. Subject to availability, we would propose to sit to hear that application in August this year.
The order of the Court is: application refused.
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