Mann v Tremethick
[2023] ACTSC 8
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mann v Tremethick |
Citation: | [2023] ACTSC 8 |
Hearing Date: | 24 January 2023 |
DecisionDate: | 24 January 2023 |
Before: | Mossop J |
Decision: | 1. The application for bail filed 19 January 2023 is dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL – Application for bail – where applicant seeks bail pending appeal from magistrate – consideration of s 9E of the Bail Act 1992 (ACT) – whether special or exceptional circumstances exist – applicant assaulted by other prisoners in prison – whether appeal rendered nugatory by time taken to hear appeal – special or exceptional circumstances not established – application dismissed |
Legislation Cited: | Bail Act 1992 (ACT), s 9E Crimes (Sentencing) Act 2005 (ACT), s 10 Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 7(1), 7A |
Cases Cited: | New South Wales v Budjoso [2005] HCA 76; 227 CLR 1 |
Parties: | Jayden Charles Mann (Applicant) David Matthew Tremethick (Respondent) |
Representation: | Counsel Self-represented (Appellant) E Roff (Respondent) |
| Solicitors Self-represented (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 34 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate B Campbell Date of Decision: 29 August 2022 Case Title: David Matthew Tremethick v Jayden Charles Mann |
MOSSOP J:
Application
This is an application for bail by Jayden Charles Mann. He was convicted in the Magistrates Court and has appealed to the Supreme Court in relation to one of the sentences that was imposed upon him.
Grounds for application
He is self‑represented on the application. His application for bail was not supported by an affidavit. He gave oral evidence concerning an assault which he suffered in prison and the restrictive consequences that have followed for him in prison, notwithstanding his good behaviour, as a result of the need to protect him from further such assaults. He also gave evidence of his desire to reform, particularly having regard to his bond with his young daughter and his motivation to get his son into his care.
Notice of Appeal
The Notice of Appeal sets out a single ground of appeal in relation to the sentence of imprisonment for the offence of dangerous driving contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). That ground is that the sentence of 18 months imprisonment is manifestly excessive.
Relevant provisions
Section 216 of the Magistrates Court Act 1930 (ACT) provides that if a person has appealed under the relevant division of that Act then the enforcement of the sentence that is the subject of the appeal is stayed until the appeal is decided, abandoned or discontinued. If the appellant is in custody the appellant may apply for bail under the Bail Act 1992 (ACT). That is the situation here.
However, s 9E of the Bail Act provides that a court must not grant bail to a person who has been sentenced to a period of imprisonment and appealed from that sentence unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
Circumstances
The facts are set out in the statement of facts which was admitted at the hearing before the magistrate. The circumstances involved high-speed driving during a police pursuit through a number of suburbs of Canberra. It occurred at about 1am. Speeds of 200km/h were reached. Approximately 25km were covered in about 10 minutes. The pursuit only ended sometime after tyre deflation devices were deployed.
Maximum penalty
The maximum penalty for a contravention of s 7(1) is, in the case of an aggravated offence by a first offender, 300 penalty units, imprisonment for three years or both. Aggravated offences are defined by s 7A. The charged circumstance of aggravation was that referred to in s 7A(1)(a)(v), namely exceeding the speed limit by more than 30 percent. However, other circumstances of aggravation were present, being a failure to comply with a signal given by a police officer to stop the motor vehicle and the presence of a prescribed drug in his oral fluid. The prescribed drugs being cannabis and methamphetamine. These circumstances, while not relied upon for any statutory increase in the maximum penalty, were circumstances increasing the objective seriousness of the offending.
Other circumstances affecting the objective seriousness of the offending were that the offender was on conditional liberty being subject to a good behaviour order associated with a suspended sentence and, further, on bail and subject to a condition that he not drive a motor vehicle.
At the hearing before the magistrate counsel for the offender accepted that the s 10 threshold in the Crimes (Sentencing) Act 2005 (ACT) was passed.
Criminal history
The appellant’s criminal history does not involve previous contraventions of s 7(1), but includes a substantial number of other driving offences as well as other criminal behaviour. He has been subject to custodial penalties in the past and has breached good behaviour orders associated with the suspension of sentences of imprisonment in the past.
Personal circumstances
The personal circumstances put before the magistrate included that he was 39 years old and had difficulties in his upbringing including spending time in foster care. He has suffered long-term attention deficit disorder (ADD) for which he should be using dexamphetamine but for which he had been using methamphetamine. He gave an explanation for driving on the evening of the offence relating to obtaining Panadol for his young daughter, which explanation appears to have been accepted by the magistrate.
In evidence in support of the bail application the appellant said that he had been assaulted by three other prisoners. This evidence was corroborated by email correspondence which was in evidence. He said that this had occurred because the other prisoners sought to obtain dexamphetamine from him which he was prescribed for his ADD. Obtaining those drugs was not possible because he was required to take the drugs in supervised circumstances, however, that did not prevent the assault from occurring.
In order to protect him from other prisoners, his accommodation and employment within the prison was changed in a way that was adverse to his interests, and, I infer, his rehabilitation.
Special or exceptional circumstances
The operation of s 9E of the Bail Act is the first hurdle faced by the appellant. In some cases the length of the sentence and the time taken to hear an appeal is such that by the time the appeal is heard the sentence or the non-parole period for that sentence will have expired, rendering the appeal nugatory. That is not the case here. In the present case, the non-parole period of 14 months commenced on 14 July 2022 and ends on 13 September 2023. The appeal will be heard on 28 February 2023 and is likely to be determined on that day or very shortly afterwards. The appellant will therefore have served approximately seven and a half months of the sentence by the time his appeal is determined. If he was successful in the appeal the appeal would not be rendered nugatory by the time taken to hear it and the service of the sentence in the interim. Rather, the appeal would retain its utility.
As a result, if special or exceptional circumstances are to be established, they must be established from one or other or a combination of the prospects of success on the appeal and the circumstances surrounding the assault upon the appellant in prison.
In prison, the prison authorities are charged with the custody and care of persons involuntarily held there. Violence is, to a greater or lesser degree, often on the cards. No one except the prison authority can protect the target from the violence of other inmates. It is notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners. A prison authority is therefore required to take reasonable care for the protection of prisoners and the content of that reasonable care must be determined in the light of those notorious facts: New South Wales v Budjoso [2005] HCA 76; 227 CLR 1 at [44]. In this case, not only has the appellant been assaulted but, as a consequence of that assault, his circumstances of imprisonment have been adversely affected. In some circumstances prisoner on prisoner violence or other adverse circumstances of incarceration can be accepted as amounting to at least special circumstances. Although it is an unattractive conclusion, the assault in the present case that has occurred during the appellant’s imprisonment is not of sufficient gravity or otherwise of such an unusual nature as to amount to special or exceptional circumstances. That conclusion is an unattractive one because it tends to normalise the concept of prisoner-on-prisoner violence which, in a jurisdiction like the Territory, should be an exceptional circumstance. Nevertheless, that is not the case.
Separately, so far as his prospects of success on the appeal are concerned, a starting point of two thirds of the maximum penalty, which was the stating point in the present case, involves a stern sentence. The essential point made by the appellant was that the sentence was too long having regard to other sentences imposed for similar conduct. This submission is likely to be developed by reference to other cases involving sentences in ACT courts for contraventions of s 7. Some of the appellant’s submissions tended to suggest an argument based upon an apprehension of bias by the magistrate, but this is not presently reflected in his grounds of appeal.
As pointed out earlier, the circumstances of the offending were very serious and involved a number of aggravating factors. They occurred in the context of a significant criminal history involving numerous traffic and licensing offences as well as other offending. Although an application for bail is not an occasion to make a detailed assessment of the prospects of success of an appeal, it cannot be said that the prospects in this case are clearly strong. It is certainly not a case where it could be said that the prospects of the appeal alone are such as to give rise to special or exceptional circumstances. The fact that other judges or magistrates have imposed more lenient sentences in other cases that are to a greater or lesser degree comparable to the present is not sufficient to demonstrate manifest excess. That is because sentencing involves a discretionary decision and an appeal from such a discretionary decision on the grounds of manifest excess is not made out merely because the appellate court might have sentenced differently or because other judicial officers have sentenced differently in the past.
Taking the combination of circumstances together, namely the prison assault and the prospects of success, I remain of the view that the threshold of special or exceptional circumstances is not met. I accept the submission made by counsel for the respondent that in cases where it cannot be shown that an appeal will be rendered nugatory by reason of the effluxion of time, in order to establish special or exceptional circumstances it will usually be necessary to establish greater prospects of an appeal than in circumstances where the appeal would be rendered nugatory. In the present case it cannot be said that the appeal would be rendered nugatory and further the timing of the hearing of the appeal is such that the utility of the appeal, even if successful, is unlikely to be affected. In this case, given that it cannot be said that the prospects of appeal are particularly good, the principal factor of significance is the prison assault. However, as I have pointed out, the unfortunate conclusion is that the fact of the assault and its consequences are not sufficient to establish special or exceptional circumstances in the present case.
Because the threshold required by s 9E of the Bail Act has not been met the application for bail must be refused.
Orders
The order of the Court is:
1.The application for bail filed 19 January 2023 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: 27 February 2023 |
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