R v Carberry

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.