Moore v Perkins
[2022] ACTSC 226
•29 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Moore v Perkins |
Citation: | [2022] ACTSC 226 |
Hearing Date: | 29 August 2022 |
DecisionDate: | 29 August 2022 |
Before: | Kennett J |
Decision: | Bail is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – Bail – where applicant appealing against sentence in Magistrates Court seeks bail pending appeal hearing – whether there are special or exceptional circumstances favouring grant of bail – where appeal unlikely to be heard before the custodial portion of the sentence has been served – where appeal does not have realistic prospect of success – bail refused |
Legislation Cited: | Bail Act 1992 (ACT) ss 9E, 22 Magistrates Court Act 1930 (ACT) s 216 |
Cases Cited: | Bilal v Middlemiss [2022] ACTSC 225 Ex parte Maher [1986] 1 Qd R 303 Kelly v The Queen [2015] ACTCA 35; 11 ACTLR 1 |
Parties: | Thomas John Moore (Applicant) Matthew John Perkins (Respondent) |
Representation: | Counsel D Rutherford (Applicant) L Hannigan (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 31 of 2022 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Stewart Date of Decision: 12 August 2022 Case Title: Perkins v Moore Court File Number: JC 5, 10, 11 of 2022 |
KENNETT J:
The appellant in this matter was sentenced on 12 August 2022 for three offences, having pleaded guilty to each. First, he was convicted and sentenced on a charge of committing an act of indecency which related to three separate incidents over a period of one and a half to two hours. That offence had a maximum penalty of five years' imprisonment. Secondly, he was sentenced on a count of common assault arising from five incidents that occurred in the same one and a half to two hour period. Thirdly, he was convicted and sentenced on a count of property damage arising out of the same events.
The sentences that were imposed by the Magistrate are as follows.
(a) On the common assault charge he was sentenced to four months and 15 days' imprisonment, suspended after two months upon entering into a 24-month good behaviour order.
(b) In relation to the act of indecency, he was also sentenced to four months and 15 days' imprisonment, suspended after serving two months and entering into a 24-month good behaviour order.
(c) On the property damage count the appellant was convicted and fined $1500.
By a Notice of Appeal filed on 24 August 2022 the appellant appeals from the sentences imposed in respect of the first and second counts. The only ground of appeal is that the sentences are manifestly harsh or excessive and, in particular, that the imposition of a term of full-time imprisonment was manifestly harsh or excessive. On the same day the appellant filed an application for bail pending the outcome of the appeal. That application is currently before me.
By reason of s 9E of the Bail Act 1992 (ACT) (Bail Act) bail can only be granted pending an appeal if the court is satisfied that special or exceptional circumstances exist favouring the grant of bail. Meeting the normal bail criteria in s 22 of the Bail Act is not a special or exceptional circumstance. It is necessary to overcome the barrier imposed by s 9E before considering those criteria.
The appellant submits that special or exceptional circumstances exist because the appeal will not be heard within two months of the filing of the Notice of Appeal. By the time the appeal is heard his period of full-time imprisonment will have ended and it is submitted the appeal may, therefore, be rendered nugatory. The Crown does not dispute that at a factual level.
It has been accepted in decisions of this Court and the Court of Appeal that a special circumstance is ordinarily established if, without a grant of bail, the utility of the appeal would be compromised by an unacceptably large proportion of the sentence having already been served before the appeal is heard. This is not limited to cases where the appeal will be rendered completely redundant. That can be seen by a passage from the judgment of Ex parte Maher [1986] 1 Qd R 303, which was quoted by Refshauge J in Kelly v The Queen [2015] ACTCA 35; 11 ACTLR 1 at [29]:
In some cases it may be possible to discern immediately a patent error in the proceedings below which indicates that the applicant has a good chance of success upon appeal. This may afford sufficient reason to grant him bail ... In some cases an appellant may inevitably be required to serve an unacceptable portion of his sentence before his appeal can be heard. This commonly occurs when the main penalty is a short custodial term. Indeed, experience suggests that these instances are the most common examples of favourable exercise of discretion for applicants for bail after conviction.
I note that by reason of a quirk arising from s 216 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) the appellant, having appealed, is technically not serving his sentence at present. However, for reasons that I gave recently in Bilal v Middlemiss [2022] ACTSC 225 at [13]–[14] the present issue should be approached on the footing that he is serving his sentence and, therefore, he is due to be released in two months' time. Indeed, the fact that technically he is now a remandee rather than a sentenced prisoner may strengthen the case for the existence of special circumstances. If not granted bail, either now or later, he will continue to be detained until the appeal is heard and determined, a period which may be longer than the period of imprisonment to which he has been sentenced.
I note that two months of full-time imprisonment is not the whole of the sentence. The sentence requires the appellant, in order to be released, to enter into a 24-month good behaviour order. That is not an insignificant matter. However, it is the imposition of full-time imprisonment that is the aspect complained of in the appeal and the aspect of the sentence that is evidently sought to be undone by the appeal. If that part of the sentence has already been served or almost fully served before the appeal is heard the appeal will be stripped of most, if not all, of its utility for the appellant.
Decisions in this Court also recognise that the potential for an appeal to be rendered nugatory should only be seen as a special or exceptional circumstance if the appeal itself has reasonable prospects of success. That does not require it to be shown that the appeal has strong prospects, nor does it require a detailed assessment of prospects. It is undesirable for the hearing of a bail application to become a preview of the appeal hearing. If arguments are raised that have some realistic prospect of persuading the Court in the appeal that error occurred and a lesser sentence should be imposed that is sufficient. Here, as I have said, the only ground is that the custodial aspect of the sentence is manifestly harsh or excessive. No specific error is alleged.
An appeal against sentence challenges a quintessentially discretionary decision and an appeal court does not intervene simply because it has a different view from the court below about what is appropriate and it is often said that there is no single correct sentence in any case.
Manifest excess or manifest inadequacy requires the appeal court to be persuaded that the sentence is so clearly wrong that some underlying error of principle or misunderstanding must be inferred or that the sentence has not been imposed according to the rules of reason or justice.
In a bail application it is important for me not to prejudge what the Court may decide in the appeal which is, in itself, an exercise of instinctive synthesis. However, I am obliged to form a view as to the prospects of success for the purpose of dealing with the s 9E point.
Focusing for the moment on the act of indecency charge, as I have said, the maximum sentence for that offence was five years' imprisonment. That gives an indication of the seriousness with which the legislature views this kind of offending. On the facts before the Magistrate the offending here was clearly not of the most serious kind but, at the same time, it was certainly not trivial. It was sustained over a significant period. It occurred partly in the complainant's home and her children were present. Those were among the aggravating factors referred to by the Magistrate.
To persuade the Court on appeal that the imposition of a short custodial sentence was manifestly harsh or excessive in the sense I have referred to earlier will, in my view, be very difficult.
His Honour made the sentences on the indecency charge and the assault charges wholly concurrent. That means that in order to achieve any reduction of the time spent in prison it will be necessary for the appellant to overturn both sentences. On the indecency charge at least, and leaving aside the assault charge, the prospects of success seem to me to be poor. That, I stress, is not because I necessarily agree with the sentence that was imposed. It is a consequence of what I take to be the high hurdle that needs to be crossed in order to persuade a court on appeal that the sentence is so clearly wrong as to be manifestly excessive.
I am conscious that in refusing bail I will probably be causing the appeal to become pointless. However, that is not a sufficient basis for overcoming s 9E if there is not a realistic prospect of success. I am bound to form my own view on that and I do not think the prospects here are sufficient to make the potential nullification of the appeal a special circumstance.
Bail will therefore be refused. However, I do note that steps will need to be taken to ensure that the appellant does not serve more than the two months of full-time imprisonment imposed on him. In the light of the effect of s 216 of the Magistrates Court Act which, as I noted, stays his sentence, a further approach to the Court may be required at the end of that period, if the appeal has not been heard by then, to ensure that some arrangement is made to ensure that additional custodial time does not arise from having appealed.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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