Legal Research
Cases
R v Carberry

R v Carberry

Case [2023] ACTCA 22 23 May 2023

No judgment structure available for this case.

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	R v Carberry
Citation:	[2023] ACTCA 22
Hearing Date:	23 May 2023
Decision Date:	23 May 2023
Before:	Mossop J
Decision:	1. The time for service of the application in proceeding is abridged so that it may be heard at 2pm on 23 May 2023. 2. The application in proceeding and application in relation to bail, both dated 22 May 2023, are otherwise dismissed.
Catchwords:	CRIMINAL LAW – APPEAL – Application for stay of sentence and bail pending appeal – applicant seeks to attend funeral of deceased uncle – no prospects of sentence being reduced on appeal so as to expire prior to being released on bail – applications dismissed
Legislation Cited:	Corrections Management Act 2007 (ACT), s 205 Crimes (Sentencing) Act 2005 (ACT), s 35(4)
Cases Cited:	Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 The Queen v Quzag [2015] ACTCA 36; 298 FLR 330
Parties:	The Queen ( Appellant/Cross-respondent) Keith Carberry ( Respondent/Cross-appellant)
Representation:	Counsel K McCann ( Appellant/Cross-respondent) M Keaney ( Respondent/Cross-appellant)
Solicitors Director of Public Prosecutions ( Appellant/Cross-respondent) Matthew Adam and Associates ( Respondent/Cross-appellant)
File Numbers:	ACTCA 22 of 2022 ACTCA 34 of 2022
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Refshauge AJ Date of Decision: 27 April 2022 Case Title: R v Carberry Citation: [2022] ACTSC 208

MOSSOP J:

1․Keith Carberry is a sentenced prisoner. He has applied for a stay of his sentence and for bail in order to allow him to attend the funeral of his uncle which is tomorrow. The affidavit of his solicitor, Mr Adam, indicates that the deceased was “Mr Carberry’s primary father figure and that the relationship between [the deceased] and Mr Carberry was very close”. It is proposed that he be granted bail and released into the custody of his partner at 9am and returned to custody at 4pm. The funeral is scheduled for 11am.
2․Ms Keaney, who appeared for Mr Carberry on the application, emphasised that special or exceptional circumstances were established by reference to the evidence in Mr Adam’s affidavit but also a psychological report that was prepared for the purposes of the sentencing proceedings which disclosed his personal circumstances and family connections in more detail. She emphasised that the deceased was close to his deceased mother, spent time in and out of the home of the offender’s grandmother where the offender grew up and was the significant father figure for the offender. She submitted that it was significant for the offender to be able to attend his funeral because of the significance of the deceased as a father figure, the fact that attendance at the funeral was important for his extended Aboriginal family, that the deceased had taught him things and that there had been other significant deaths in his life which he had not been able to participate in, either because he was too young or because he was in custody at the time.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carberry

Details

AGLC: R v Carberry [2023] ACTCA 22
Case: [2023] ACTCA 22
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an application by Keith Carberry, a sentenced prisoner, for a stay of his sentence and for bail. Mr Carberry sought to attend the funeral of his uncle, who was described as his primary father figure and with whom he had a very close relationship. The application was supported by an affidavit from his solicitor detailing the deceased's significance to Mr Carberry and the importance of his attendance for his extended Aboriginal family.

The legal issues before the Court were whether to grant a stay of sentence and bail pending Mr Carberry's appeals against his sentencing orders. The Court was required to determine if there were prospects of Mr Carberry's appeals leading to a reduction in his sentence such that the custodial portion would expire before his proposed release on bail. The Crown had appealed the sentences on grounds of manifest inadequacy and failure to consider a specific section of the Crimes (Sentencing) Act 2005 (ACT), while Mr Carberry appealed on grounds of error in factual findings and the sentence being manifestly excessive.

Justice Mossop reasoned that the risk bail accommodates is that an offender might succeed on appeal and have their sentence reduced to the extent that they have served more time than legally required. In this case, the Crown's appeal would, if successful, increase the sentence, thus providing no basis for bail. Regarding Mr Carberry's appeal, the Court found no prospect that it would result in a reduction of his sentence to a point where it would expire before the proposed bail date. The sentence for arson, the longest single sentence, was 38 months, and even with the maximum possible discount for his guilty plea, it would not reduce the custodial period sufficiently. Furthermore, any potential success on the factual error ground concerning the aggravated robbery charge would not affect the arson sentence, which was the relevant sentence preventing his release.

Consequently, the Court concluded that there was no prospect that the appellate jurisdiction would result in a sentence of full-time detention expiring before the date of the funeral. Despite the compassionate factors presented, the Court found no basis for staying the sentence or granting bail. The Court ordered that the time for service of the application be abridged for a hearing at 2pm on 23 May 2023, and that the application and application for bail, both dated 22 May 2023, be otherwise dismissed.

Orders