Okeke v State of Queensland

[2021] QCA 284

[2021] QCA 284

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
MULLINS JA

Appeal No 14672 of 2021
SC No 13235 of 2021

ANTHONY ONYEKA OKEKE  Appellant

v

STATE OF QUEENSLAND  Respondent

BRISBANE

TUESDAY, 14 DECEMBER 2021

JUDGMENT

SOFRONOFF P:  This is an appeal against a refusal of bail by Justice Kelly.  Consequently, this is an appeal against the exercise of discretion.  To succeed, the appellant must show an error of fact or an error of law, or demonstrate, by the unreasonableness of the order made, that the discretion has miscarried.  The appellant is in custody on remand in relation to 117 offences.  Three of these offences have been charged on indictment and the remaining 114 charges are before the Ipswich Magistrates Court.  The charges on indictment relate to the appellant’s use of false identities to take out motor vehicle’s insurance policies, pursuant to which, the appellant then made dishonest claims for money.  The amount of money in issue has been charged as between $30,000 and $100,000.  The remaining charges in the Magistrates Court involve similar charges and also some serious motor vehicle offences.

The appellant has made previous applications for bail before appearing before Justice Kelly.  Justice Brown refused bail on the 19th of March 2020.  Justice Callaghan refused bail on the 18th of November 2020.  Justice Williams refused bail on the 11th of March 2021 and Judge Lynch in the District Court has also refused bail.  Finally, the appellant applied to Justice Kelly for bail and his Honour refused that application a little while ago.  The trial was to have commenced in the District Court on the 27th of September 2021, but for reasons that are not the fault of the appellant, that trial was aborted and a new trial has been scheduled to begin on the 31st of January 2022.  By the time that trial commences, the appellant will have been in prison for almost three years.

The Crown has conceded that, at least in relation to the charges to be tried in the District Court, the penalty that the appellant is likely to have imposed will not involve a greater term of imprisonment than that which he has already spent on remand.  The Crown does not concede that the charges in the Magistrates Court, which relate to further fraud offences and serious motor vehicle offences, will not exceed that period spent on remand.  As to the appellant’s circumstances, there are the following:  some of the offences were committed whilst he was on bail, and it follows that it was the appellant to show cause before Justice Kelly why bail should be granted to him.  The appellant has no ties to Queensland.  When he applied for bail before one of the judges whom I have mentioned, he submitted that he had no criminal history in the United States, but investigations by the Crown found that that was untrue.

The appellant was in this country on a visa, but that visa has now expired.  It follows that, if he is released on bail, one of two things will happen.  The Crown understands that he would be taken into Immigration Detention.  Of course, if that happens, there is nothing that the state can do in a useful way to prevent the appellant from applying for a speedy deportation and, thus, frustrating the state’s legal process.  The appellant has submitted to the Court today, that it is not the case that he will immediately go into Immigration Detention.  On the contrary, a letter that he has shown to the Court suggests that he would be interviewed in due course by an Immigration Officer with a view to determining whether a further visa would be granted to him to permit him to remain in the community, or whether some other course would be followed.

If the appellant were to be held in Immigration Detention, there is small risk of his reoffending but, of course, as I have said, there is not much that the state could usefully do to prevent his departure from this country.  However, if, as the appellant submits, he will not automatically go into detention but would be released to the community, at least pending an interview with an Immigration Officer, and perhaps until a trial, then it follows that the appellant has been unable to demonstrate that Justice Kelly erred in his assessment of risk, either as to the risk of reoffending or the risk of flight.  In those circumstances, there having been no shown no error of fact or law, in the exercise of discretion, the appeal should be dismissed.

MORRISON JA:  I agree.

MULLINS JA:  I agree.

SOFRONOFF P:  The appeal is dismissed.