R v Alexopoulos
[2009] VSCA 269
•18 November 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 844 of 2009
THE QUEEN
v
FOTIUS ALEXOPOULOS
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APPLICATION FOR BAIL PENDING APPEAL
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JUDGES: | NEAVE and REDLICH JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 18 November 2009 |
DATE OF JUDGMENT: | 18 November 2009 |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 269 |
JUDGMENT APPEALED FROM: | R v Alexopoulos (Unreported, County Court of Victoria, Judge Lewitan, 10 September 2009) |
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Bail pending appeal – Applicant serving short non-parole period – Cancellation of applicant’s parole – Attitude of Parole Board to further grant of parole unknown – Re: Application for Bail by Zoudi (2006) 14 VR 580 distinguished – s 78 Corrections Act 1986 – Grant of bail futile – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr L R C Gwynn | Andrew George Solicitors |
NEAVE JA:
I will ask Redlich JA to deliver the reasons of the Court.
REDLICH JA:
The applicant, having been convicted of one count of recklessly causing injury, received a sentence of 12 months' imprisonment with a non-parole period of six months. Having sought leave to appeal against conviction and sentence, the applicant seeks bail pending appeal.
It is well established that to succeed upon such an application, exceptional circumstances must be shown. The applicant seeks to rely upon a combination of factors but principally points to the possibility that he might serve a significant portion of the sentence imposed upon him prior to the hearing and determination of his appeal. He contends that by the time of a successful appeal, he may have served well in excess of any non-parole period that was considered appropriate.
The circumstances surrounding the commission of the offence can be briefly stated. On the evening of 15 April 2006, the applicant was involved in an altercation with other patrons of a night club located in the Crown Casino. The applicant claims to have been kicked and punched in the face during this altercation. Security personnel then ejected the applicant and other persons from the casino premises. The applicant remained outside the casino. A short time later, he spotted the victim, who was a security guard. The victim was not one of the security personnel involved in the earlier altercation in the night club. He was confronted by the applicant, who struck the victim with a number of blows to the head. After the victim fell to the ground, the applicant continued to strike and kick him. The applicant then walked away, and it was then alleged that he broke two glass doors at the casino. We note that there was an inconsistency between the affidavits filed on this application as to whether it was alleged that the windows were broken before or after the assault. He was subsequently located and restrained by security officers until police arrived at the scene.
The victim suffered injuries including a fractured mandible on the left and right sides.
The applicant was presented for trial on one count of intentionally causing serious injury or, alternatively, of recklessly causing serious injury, and one count of causing criminal damage. His defence was one of automatism, namely, that as a result of injuries sustained during the earlier altercation, he was incapable of forming the necessary mens rea. Following the jury trial, the applicant was convicted of recklessly causing injury. He was acquitted on the count of intentionally causing injury and causing criminal damage.
On 10 September 2009, the appellant was sentenced to 12 months' imprisonment with a non-parole period of six months. His earliest possible release date was 9 March 2010.
By affidavit dated 19 October 2009, the solicitor for the applicant deposed that she had been advised by the Registry of the Court of Appeal that the appeal against conviction and sentence is unlikely to be heard until September or October 2010. In the event of expedition, the matter might be heard in February or March 2010. In those circumstances, the applicant may have served the entirety of his non-parole period.
A complicating factor in seeking bail is that, in addition to serving the sentence for the offence which is the subject of the bail application,[1] the applicant presently is to serve a parole sentence arising from an earlier sentence, as his parole was revoked on 23 September 2009, some thirteen days after the date of sentencing, as a consequence of the commission of the offence which is the subject of this application. The applicant then owed one year and eleven months and thirty days from that previous sentence. Hence, the total sentence which the applicant may now have to serve is much longer than that imposed by the sentencing judge. As the parole sentence, by virtue of s 16(3B) of the Sentencing Act1991, is to be cumulated on the sentence the subject of appeal, unless there are exceptional circumstances, the applicant may not be released for two years eleven months and thirty days.
[1]See s 15 Sentencing Act 1991.
In support of the application, the applicant referred to the likelihood that his appeal against conviction would be successful, as the jury, it was submitted, had returned inconsistent verdicts. That was said to follow because the defence to all counts was that the applicant was unable to form the necessary intent because he was at the time suffering from post-traumatic amnesia. This diagnosis rests upon the accuracy of a history given by the applicant. We do not stay to consider the accuracy of that history.
Senior counsel for the Director refrained from making any submission as to the likelihood of success of the appeal against conviction, as there was no transcript available of any aspect of the trial. We are similarly in no position to assess whether the verdicts were inconsistent.
The applicant in support of a grant of bail relies upon the decision of this Court in Re: Application for Bail by Zoudi.[2] In that case, the applicant would have served his entire non-parole period before his application for leave to appeal could be heard. This, together with the fact that the appeal was not without prospect of success, led to bail being granted.
[2](2006) 14 VR 580.
In the present case the Crown opposes the grant of bail. It rightly distinguished Zoudi because of the parole sentence which the applicant is required to served. In Zoudi, the Court observed that the annual reports of the Adult Parole Board showed that in excess of 90% of those eligible for parole were released on parole. It was noted that the practice of the Board is to make the decision for release before the expiry of the non-parole period so that a decision to release can be effected either immediately the period expires or within a few days thereafter. Thus the Court in Zoudi concluded that in any given case there was an overwhelming probability that the non-parole period would be the custodial portion of the applicant's sentence. As Zoudi shows, the focus must therefore be on the date on which 'as a matter of practical reality, the applicant for bail will be released from custody'.[3] Conversely, as was also recognised in Zoudi, if the court forms the view 'based on evidence relating to the applicant that he or she is unlikely to be released on parole on the expiry of the non-parole period, the time lapse argument will not be relevant'.[4] These observations led to the conclusion in Zoudi that, subject to an important qualification, the expiry of the non-parole period will be a relevant consideration as to whether exceptional circumstances exist, 'unless it appears that the applicant will not be released at or about that time'.[5]
[3]Ibid [26].
[4]Ibid [26].
[5]Ibid [4].
Unlike Zoudi, no statistics have been provided which would presently assist the Court in its evaluation of the prospects of the Parole Board granting further parole on the parole sentence upon the expiration of the non-parole period of the sentence the subject of appeal. We were provided with a further affidavit from the applicant's solicitor during the course of oral argument which was to the effect that the Board had informed her that they would consider the parole sentence shortly prior to the expiration of the applicant's non-parole period on the sentence under appeal. No indication was given however nor would we have expected one, that the Parole Board was disposed to grant the applicant further parole on his parole sentence immediately upon the expiration of his non-parole period. There is no evidence before us that the Parole Board is unlikely to place weight on the fact that the present offence was committed in breach of parole and warranted its revocation. The policy of the Sentencing Act as reflected in s 16(3B) may also be relevant to any assessment of what the Parole Board is likely to do. Accordingly, the Court has no guidance as to the way in which the Parole Board is likely to deal with the applicant. That alone would be fatal to the application. Those who seek bail bear the onus of establishing those facts which it is intended to rely upon as constituting the necessary exceptional circumstances. The applicant cannot show that as a matter of practical reality he is likely to be released on the expiration of the non-parole period. It cannot be assumed that the Parole Board would not require the applicant to serve at least some portion of his parole sentence before his release.
There is a more fundamental obstacle to the granting of bail. Whether parole is granted on a parole sentence is a matter that is in the discretion of the Adult Parole Board, who may again release a prisoner on parole after the prisoner's parole has been previously cancelled, provided that the non-parole period of the new sentence has been served.[6] The effect of s 78 of the Corrections Act 1986 is that the applicant is ineligible for further parole in respect of that parole sentence until the non-parole period imposed on the sentence the subject of appeal has expired. Until then, the Parole Board cannot release the applicant.[7] Accordingly, it would be inutile for this Court to grant the applicant bail, as he cannot be released from custody. We should not make a futile order.
[6]See s 78, Corrections Act1986.
[7]See s 78.
Upon the Court drawing attention to these considerations during oral argument, counsel for the applicant did not initially press further argument in support of the application for bail. However, prior to our delivering these reasons, counsel advanced further argument in which he placed reliance upon s 4, and in particular s 4(2A) of the Bail Act1977. That provision has no application to the question of bail pending an appeal to this Court. The applicant also sought to rely on s 17(2) of the Sentencing Act1991, but that section is also, in our view, irrelevant for present purposes.
For those reasons, the application for bail must be refused.
Counsel for the applicant invited the Court to recommend that the appeal against conviction and sentence be expedited. We anticipate that the applicant may seek to amend his grounds of appeal against sentence to add a ground in which he
seeks to rely upon fresh evidence, being the subsequent cancellation of his parole.[8] Given the issues that are likely to be ventilated on appeal, senior counsel for the Director, with his customary fairness, accepted that it would be appropriate that the appeals be given some priority. We shall, therefore, invite the Registrar to give the appeal such priority as can be reasonably accommodated.
[8]See R v Alashkar and Tayar (2007) 17 VR 65. .
NEAVE JA:
The order of the Court is that the application for bail is refused.
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