R v Carberry

[2023] ACTCA 22

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.

3․Mr Carberry did apply for leave to be granted pursuant to s 205 of the Corrections Management Act 2007 (ACT) and his solicitor deposes that this application has been refused. No document relating to the refusal or the reasons for that refusal is contained within the evidence.

4․The jurisdiction of this court to entertain the application arises because there are appeals on foot in relation to the sentencing orders made by a judge of the court on 27 April 2022. The Crown has appealed against the sentences imposed on the grounds of manifest inadequacy and that the sentencing judge erred in failing to consider s 35(4) of the Crimes (Sentencing) Act 2005 (ACT). There is also an appeal brought by the offender against his sentence asserting an error in the findings of fact made and that the sentence is manifestly excessive.

5․The sentences imposed by the primary judge were for three offences:

(a)damaging property: 27 months’ imprisonment commencing on 10 January 2021 and ending on 9 March 2024;

(b)arson: 38 months’ imprisonment commencing on 10 January 2021 and ending on 9 March 2024; and

(c)aggravated robbery: four years and 10 months imprisonment commencing on 10 March 2023 and ending on 9 January 2028.

6․It should be noted that the sentence for damaging property was wholly concurrent with the sentence for arson.

7․The aggregate sentence was seven years’ imprisonment. No non-parole period could be set in relation to the first two sentences but, in relation to the third sentence, the non‑parole period commenced on 10 March 2023 and will end on 9 July 2024.

8․The first two offences were committed while the offender was in custody at the Alexander Maconochie Centre. The offending occurred on 12 May 2021. The relevant facts were found in the primary judge’s reasons at [43]-[64]. A very brief summary is as follows. The offender and a number of other detainees were intoxicated. Their behaviour escalated and involved threatening corrections officers. The offender and others broke into the officers’ station and then set alight the materials and caused a fire within it. The offender subsequently lit further items and continued to cause damage to property, including movable items and the officers’ station. The incident was captured on CCTV footage.

9․The sentence for aggravated robbery related to events on 12 August 2020. This involved the offender and two co-offenders attending a residential unit in Gordon. The offender was carrying two knives and his co-offenders a gun and a long metal weapon. They broke into the premises and threatened the occupant in a very serious manner. In his oral sentencing reasons, the primary judge mistakenly referred to the offender as having said certain words to the occupant which included a threat of sexual assault and an admonition not to call the police. This was corrected in the published version of the reasons.

10․So far as the Crown appeal asserted manifest inadequacy, it related to the sentence for arson both in relation to its length and the extent of concurrency with the charge of damaging property, as well as the effective non-parole period imposed for the aggregate sentence. It also asserted a failure to consider s 35(4), particularly arising from the capturing of events on CCTV and the availability of numerous witnesses. If either of these matters led to the appeal being allowed, then any resentence would increase the overall sentence upon the offender.

11․So far as the offender’s appeal is concerned, the factual errors alleged relate to who made the comments to the victim of the aggravated robbery and the fact that the primary judge found that a brief of evidence had been prepared prior to the plea of guilty. His Honour found at [183] that the pleas of guilty to arson and damage property offences had occurred at an early stage, but after a brief of evidence had been prepared.

12․In the context of appeals, the risk which a grant of bail accommodates is the risk that the offender will be successful on appeal and the custodial sentence set aside or reduced to an extent that means that the offender has spent more time in custody than the law ultimately requires. The risk is avoided if a grant of bail is made. That risk could only exist in the present case if the appeal might lead to a resentence in which the custodial portion of the offender’s sentence expired prior to the date when the offender was released on bail.

13․There is no prospect of that occurring as a result of the Crown appeal.

14․If the Crown appeal was successful, the sentence will not be reduced, it would be increased. As a consequence, the existence of a Crown appeal does not provide a basis upon which bail might be granted.

15․So far as the appeal by the offender is concerned, the existence of that appeal could only be a factor favouring a grant of bail if there was a prospect that the length of the custodial sentence prior to the eligibility for bail was reduced so that it expired prior to tomorrow. Given that the offender’s sentence commenced on 10 January 2021 that would mean that the custodial portion of the sentence would need to be reduced below 28 months and 14 days (10 January 2021 to 23 May 2023). The prospect of that occurring may be assessed by reference to the grounds of appeal.

16․Insofar as the grounds of appeal assert an error relating to the brief of evidence, the relevant sentence is that for arson because the damage property sentence is wholly concurrent and less than the sentence for arson. The sentence for arson is 38 months. Therefore, in order for there to be some prospect of the appeal being relevant to a grant of bail it would need to reduce the sentence from 38 months to 28 and a half months.

17․There is no prospect of that occurring. That is because the existing sentence already incorporates a discount on account of the plea of guilty of 22.5 percent (that is a reduction from 49 months down to 38 months). The realistic maximum possible discount would have been 25 percent. If that was applied, then the sentence would have been 36 months and 21 days.

18․Insofar as the ground of appeal asserts an error in the fact-finding process relating to whether the offender or his co-offender, Mr Hall, said the words to the victim of the aggravated robbery, this was an error which was drawn to his Honour’s attention at the time of the sentencing decision. The exchange between counsel for the offender and his Honour make it clear that his Honour considered the issue and gave counsel for the offender an opportunity to be heard as to whether any consequences should flow from the correction of that error. This opportunity was not taken up and the primary judge did not vary the orders that he had made. Having regard to the facts found by his Honour at [32]-[38] of his reasons the prospects of the appellant succeeding on this ground appear to be remote. More fundamentally, however, any success on this ground would have no effect on the sentence of imprisonment imposed upon the charge of arson, which is the relevant sentence that would prevent the offender’s release even if there was no sentence at all for the aggravated robbery. As a consequence, the offender’s appeal could never achieve an outcome which would mean that the custodial sentence imposed upon the offender on the arson charge would be reduced so that it expired prior to tomorrow.

19․As a consequence, there is no prospect that the exercise of the appellate jurisdiction would result in a sentence of full-time detention which expired prior to tomorrow.

20․For the reasons given in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290, there is power to grant bail to a person appealing from a sentence imposed by a judge of the Supreme Court to the Court of Appeal. For the reasons given in The Queen v Quzag [2015] ACTCA 36; 298 FLR 330, a stay must be granted prior to bail being considered.

21․Given that the relevant portion of the sentence is unchallenged, the position is equivalent to that of a sentenced prisoner who simply seeks release from custody. Just as there is no basis for staying the sentence of a sentenced prisoner who has not appealed, there is no basis for staying the sentence of a prisoner who has appealed but whose appeal could not result in the relevant part of the sentence being removed as an outcome of the appeal. Notwithstanding that there are significant compassionate factors arising in relation to the funeral tomorrow, which might have been relevant if there was some prospect of the appeal reducing the sentencing in a way that was relevant, in the present case, notwithstanding the availability of jurisdiction to consider the grant of a stay and bail as a result of the existence of the appeals, for the reasons I have given, it could not be appropriate in the circumstances of the present case to grant a stay of the sentence which would permit a grant of bail to the offender.

22․The orders of the Court are:

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.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 29 June 2023