Lucas v Simmonds
[2018] ACTSC 120
•20 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lucas v Simmonds |
Citation: | [2018] ACTSC 120 |
Hearing Dates: | 20 April 2018 |
DecisionDate: | 20 April 2018 |
Before: | Loukas-Karlsson J |
Decision: | The application for bail be refused. |
Catchwords: | CRIMINAL LAW – BAIL – Appeal bail – Bail Act 1992 (ACT) s 9E – whether having substantially served the full-time custodial portion of a sentence before appeal is determined is a “special and exceptional circumstance” – relevance of appeal prospects of success - Bail Act 1992 (ACT) s 22 criteria for granting bail to adults – likelihood of applicant committing an offence while released on bail – likelihood of applicant harassing or endangering the safety or welfare of anyone while released on bail |
Legislation Cited: | Bail Act 1992 (ACT) ss 9E, 22 |
Cases Cited: | Samani v The Queen [2016] ACTCA 48 Sharma v The Queen [2016] ACTCA 60 |
Parties: | Leigh Andrew Lucas (Applicant) Taya Nicole Simmonds (Respondent) |
Representation: | Counsel Mr H Jorgensen (Applicant) Ms K McCann (Respondent) |
| Solicitors Legal Aid ACT (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 14 of 2018 |
LOUKAS-KARLSSON J
Introduction
The applicant, the appellant in ACT Supreme Court proceedings, seeks bail pending the decision of the ACT Supreme Court.
On 27 February 2018, Magistrate Morrison made the following orders following a contested hearing:
(a)In relation to charge CC2017/10004 the appellant was convicted and sentenced to a term of 12 months' imprisonment;
(b)In relation to charge CC2017/9832 the appellant was convicted and sentenced 30 to a term of three months' imprisonment with two months to be served concurrently; and
(c)The total sentence to be backdated to commence on 1 November 2017 and be suspended after serving a term of seven months’ imprisonment upon entering a good behaviour order for a period of 18 months.
The applicant's suspended sentence will come into effect on 31 May 2018.
The applicant appealed the conviction through a notice of appeal filed 23 March 2018. A directions hearing for settling the appeal papers will be held on 26 April 2018. The grounds of appeal are related to both conviction and the sentence. The appellant will be likely to have served most of the period of full-time imprisonment before the appeal is determined.
In relation to the application for grant of bail
The applicant seeks bail under section 9E of the Bail Act 1992 (ACT) (Bail Act) for the following reason: as the applicant's suspended sentence will come into effect on 31 May 2018, he will have served all or a substantial part of the full-time custody component of his sentence before the appeal is able to be heard. The respondent opposed bail, contending that the court should not grant bail unless satisfied the appeal itself is strongly arguable or has good prospects of success. It is contended that the appeal has a low prospect of success.
The respondent also contends that bail should be refused because of the likelihood of the applicant while released on bail to commit the acts listed in section 22(1)(b)(i) and section 22(1)(b)(ii) of the Bail Act.
The relevant provisions of the Bail Act are section 9E, that a court must not grant bail for the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail, and section 22 of the Bail Act. In particular, subsection (1)(b) includes the likelihood of the person whilst released on bail committing an offence or harassing or endangering the safety or welfare of anyone.
Refshauge J in Samani v The Queen [2016] ACTCA 48 concluded at [20] that:
…the fact that a sentence will have been fully or substantially served before the appeal is heard will ordinarily be a special or exceptional circumstance.
I consider that the requirement for there to be a special or exceptional circumstance has been made out.
Another relevant consideration is whether the appeal has some prospects of success. In this case, I believe that consistent with Murrell CJ's decision in Sharma v The Queen [2016] ACTCA 60, there is at least some substance to the appeal to the extent that it is not unmeritorious.
As Murrell CJ stated in Sharma v The Queen [2016] ACTCA 60 at [17]:
That does not determine the matter because section 9E(2) simply provides: A court must not grant bail unless satisfied of special or exceptional circumstances. It does not prescribe that the Court must grant bail if there are special or exceptional circumstances; the Court still has a discretion as to whether bail should be granted. In relation to the exercise of the discretion, some of the matters that must be considered are those in section 22 of the Bail Act.
The respondent submits that sections 22(1)(b)(i) and (ii) are matters that should preclude the court granting bail. I agree with the respondent’s submission that the applicant's criminal record and history of offending would suggest a likelihood of the applicant committing an offence under section 22(1)(b)(i), or harassing or endangering the safety and welfare of anyone under section 22(1)(b)(ii).
It is of concern that despite the complainant's wish to have the applicant out on bail that he would continue to pose a serious risk of endangering her safety or welfare. The pattern of reoffending in relation to the complainant is such that I am not prepared to grant bail.
I have given careful and anxious thought to the circumstances involved and have given due weight to the various factors. I am satisfied that refusal of bail is justified in the circumstances and I dismiss the application.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: 11 May 2018 |
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