R v Cranston (No 28)

[2023] NSWSC 199

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Cranston & Ors (No 28) [2023] NSWSC 199

Hearing dates:

7 March 2023

Date of orders:

7 March 2023

Decision date:

09 March 2023

Jurisdiction:

Common Law - Criminal

Before:

Payne JA

Decision:

Orders at [3]

Catchwords:

CRIME — Bail — Detention applications post-conviction — whether special or exceptional circumstances exist

Legislation Cited:

Bail Act 2013 (NSW)

Criminal Code Act 1995 (Cth) sch 1, Criminal Code

Judiciary Act 1903 (Cth)

Cases Cited:

DPP v Day [2022] NSWCCA 173

DPP (NSW) v Van Gestel (2022) 405 ALR 371; [2022] NSWCCA 171

El-Hilli and Melville v The Queen [2015] NSWCCA 146

Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312

Kaya v Commonwealth Director of Public Prosecutions [2018] VSC 420

Ngoc Tri Chau v Director of Public Prosecutions (1995) 37 NSWLR 639

R v Anquetil [2020] NSWSC 995

R v Hammond [2020] NSWSC 888

R v Kitson [2019] NSWSC 1109

Category:

Procedural rulings

Parties:

Crown
Adam Michael Cranston (offender)
Dev Menon (offender)
Jason Cornell Onley (offender)

Representation:

Counsel:
P McGuire SC with J Paingakulam and C Tran (Crown)
J Stratton SC with H Blake (Adam Cranston)
P Bruckner (Dev Menon)
WR Johnson (Jason Onley)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
One Group Legal (Adam Cranston)
Hardinlaw (Dev Menon)
Pure Legal (Jason Onley)

File Number(s):

2017/148697; 2017/148776; 2017/149208

Publication restriction:

Not to be published other than to the parties until after the trials of each of the accused are completed.

JUDGMENT

1. On 7 March 2023, the jury found Adam Michael Cranston, Jason Cornell Onley and Dev Menon each guilty of the following offences:

1. Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe, Daniel Rostankovski and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.

Contrary to section 135.4(3) of the Criminal Code (Cth).

2. Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime.

Contrary to section 11.5(1) and 400.3(1) of the Criminal Code (Cth).

2. Immediately after the verdict, the Crown brought an application under s 50(1) of the Bail Act 2013 (NSW) to have Mr Cranston and Mr Onley detained before their sentencing. The Crown also applied for Mr Menon’s detention, but for reasons explained below, was content for his bail to continue, with varied conditions, for a period of eight weeks.

3. After hearing from the parties, I made the following orders:

1. The Court orders in the case of Adam Michael Cranston:

1. Bail is refused.

2. Matter adjourned for directions on sentencing on 4 May 2023.

3. Reasons reserved.

2. The Court orders in the case of Jason Cornell Onley:

1. Bail is refused.

2. Matter adjourned for directions on sentencing on 4 May 2023.

3. Reasons reserved.

3. In the case of Mr Menon:

1. Vary bail granted to Mr Menon as follows:

1. The Accused is to reside at the address: [redacted].

2. The Accused is not to approach international points of departure from Australia.

3. The Accused is not to leave / depart Australia.

4. The Accused is to forfeit any passport(s) he or she holds to the Australian Federal Police.

5. The Accused is to report once a week every Wednesday to the NSW Police between the hours of 8:00am and 8:00pm at Hornsby Police – 292 Peats Ferry Road, Hornsby NSW 2077.

6. The Accused is to only use one mobile telecommunications service, approved by AFP.

7. The Accused is not to associate with, or contact, any of the co-Accused referred to in the attached list “Accused” marked “A”, or any of the following:

1. Sevag CHALABIAN, born 22 May 1970

2. Jay Sasha KENDRICK

3. Joshua KITSON

8. The Accused is not to associate with, or contact, any of the “Straws Directors” referred to in the attached list “Straws Directors” marked “B”.

9. That two acceptable persons enter into an agreement to each forfeit the sum of $50,000 (total $100,000) if the Accused person granted bail fails to appear before a court in accordance with his bail acknowledgement.

2. Further consideration of Crown application for Mr Menon’s detention adjourned until 4 May 2023.

3. Reasons reserved.

4. These are my reasons for making those orders.

Principles to be applied

5. Under s 50(1) of the Bail Act, the prosecutor may apply to a court for the refusal or revocation of bail, or for a grant of bail with conditions attached. After hearing the detention application, the court may, under s 50(3), dispense with bail, grant bail (with or without conditions) or refuse bail. If, as in this case, a bail decision has previously been made, the court that hears a detention application may affirm or vary that decision under s 50(4). Under s 75 of the Bail Act, a detention application is to be dealt with as a new hearing, where evidence or information may be given “in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision”.

6. Section 22B of the Bail Act, which was introduced on 27 June 2022, effected a significant change in relation to the circumstances in which a court may grant bail following conviction and before sentence. Section 22B relevantly provides:

22B   Limitation regarding bail during period following conviction and before sentencing for certain offences

(1)  During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—

…

(b)  on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

7. The parties agreed, and I am satisfied, that s 22B(1)(b) applies to the Crown’s application to detain Mr Cranston, Mr Onley and Mr Menon. Although this matter is in federal jurisdiction, by parity of reasoning with earlier authorities s 22B of the Bail Act is picked up and applied in this case by s 68 of the Judiciary Act 1903 (Cth): Ngoc Tri Chau v Director of Public Prosecutions (1995) 37 NSWLR 639 at 644 (Gleeson CJ, Kirby P and Powell JA); Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312 at [40] (Beech-Jones J); Kaya v Commonwealth Director of Public Prosecutions [2018] VSC 420 at [72] (Croucher J), discussing the Victorian Bail Act 1977.

8. In the present case, it was accepted that both preconditions for the application of s 22B are met. The first precondition is that the accused has been convicted. At the outset of the application, I made orders of conviction, although noting that “conviction”, as defined in s 4 of the Bail Act, includes “a finding of guilt”.

9. The second precondition is that the accused will be sentenced to a period of imprisonment to be served by full-time detention. In DPP (NSW) v Van Gestel (2022) 405 ALR 371; [2022] NSWCCA 171, Gleeson JA, Wright and Cavanagh JJ explained at [17] that this condition requires an evaluative judgment about a future matter, rather than an assessment of whether a fact has been proved. The standard is therefore not proof on the balance of probabilities. See also DPP v Day [2022] NSWCCA 173 at [21] (Gleeson JA, Wright and Cavanagh JJ).

10. It is clear I must assess “what is realistically inevitable as distinct from what may happen or is likely to happen”: Van Gestel at [44]. Absolute certainty is not required, but a high degree of satisfaction clearly is. As explained in Van Gestel at [45], when making its assessment, a court must have regard to:

(1)   the offence(s) for which the accused person has been convicted, bearing in mind the principles of sentencing and all applicable sentencing laws, specifically the Crimes (Sentencing Procedure) Act 1999 (NSW), including the available sentencing alternatives to full time imprisonment;

(2)   the materials and submissions placed before the Court as the bail authority relevant to the future disposition of the sentence with respect to the convicted person; and

(3)   the abbreviated nature of the release or detention application before the Court, especially, that the application is not a pseudo or abridged sentencing hearing.

11. In this case, it is common ground that it is inevitable that all three offenders will be sentenced to a period of full-time detention. I accept that this concession was correctly made.

12. Both of offences for which the three offenders have been convicted are extremely serious. Count 1 is an offence of conspiring with another person with the intention of dishonestly causing a loss to the Commonwealth, against s 135.4(3) of the Criminal Code. That offence carries a maximum penalty of 10 years’ imprisonment and/or a fine of $108,000. Count 2 is an offence of conspiring with another person to deal with more than $1 million while believing it to be the proceeds of crime, against ss 11.5(1) and 400.3(1) of the Criminal Code. That offence carries a maximum penalty of 25 years’ imprisonment and/or a fine of $270,000.

13. Secondly, several of the three offenders’ co-conspirators have already pleaded guilty and received substantial custodial sentences. The three co-offenders and the sentences I have imposed (following discounts for the plea [redacted]) are:

1. Joshua Kitson: 4 years and six months’ imprisonment for his offending against s 135.4(3) of the Criminal Code: R v Kitson [2019] NSWSC 1109,

2. Devyn Hammond: aggregate sentence of 4 years’ imprisonment for her offending against s 135.4(3) and ss 11.5(1) and 400.3: R v Hammond [2020] NSWSC 888.

3. Simon Anquetil: 4 years and 8 months’ imprisonment for his offending against s 135.4(3) and 6 years for his offending against s 400.3: R v Anquetil [2020] NSWSC 995.

14. The three offenders I am dealing with in the present application will not enjoy the sentencing discounts for pleas of guilty [redacted] applied in the cases referred to above.

15. While, of course, this is not a sentencing hearing and I do have before me all the material that will be relied on at sentencing, I am sufficiently familiar with the matters to conclude that Mr Cranston, Mr Onley and Mr Menon will each be sentenced to significant periods of full-time imprisonment.

16. Thirdly, I accept, as the Crown submitted, that the three offenders’ conduct was extremely serious. In Anquetil at [90], I described one of their co-conspirator’s offending as relating to “one of the most serious offences of its kind to come before a court in this country”. The three present offenders were involved in the same conspiracy and played important roles in it. Mr Cranston and Mr Onley received large financial benefits from their conduct. While Mr Menon’s benefit was much smaller, he was purporting to act as a lawyer while facilitating the conspiracy. I conclude that the seriousness of the offending and the consequent need for deterrence and denunciation can realistically result in no other sentence than a significant period of full-time imprisonment.

17. I was therefore satisfied that both preconditions are met and the limitation in s 22B of the Bail Act applies to my determination of the Crown’s detention application.

18. Accordingly, I must refuse bail unless special or exceptional circumstances are shown by the offender to exist.

Special or exceptional circumstances: Principles

19. The existence of “special or exceptional circumstances” is a question of fact on the balance of probabilities, to be proven by the convicted person: Van Gestel at [20]-[21].

20. I accept that special or exceptional circumstances “may exist in the combination of factors or in ‘the coincidence of a number of features” and that “It is not possible to determine or predict in advance what those features may be”: Van Gestel at [51], quoting El-Hilli and Melville v The Queen [2015] NSWCCA 146 at [29] (Hamill J; Simpson and Davies JJ agreeing).

21. I approach the question of the existence of special or exceptional circumstances on a “case-by-case determination”: Van Gestel at [51]; DPP (NSW) v Duncan [2022] NSWSC 927 at [48] (Bellew J).

22. If special or exceptional circumstances exist, a grant of bail is not automatic. The Court must then assess bail concerns under s 18 of the Bail Act and determine whether there is an “unacceptable risk” under s 19(2). If there is an unacceptable risk, then bail must be refused: Bail Act s 19(1). If there is no unacceptable risk, bail must be granted: Bail Act s 20(1).

23. Mr Stratton SC, appearing for Mr Cranston, and Mr Johnson appearing for Mr Onley submitted that whether or not there is an “unacceptable risk” is also relevant to the assessment of “special or exceptional circumstances” under s 22B. It is a matter of some considerable doubt whether that submission is correct having regard to the subject matter, scope and purpose of s 22B in the context of the Bail Act. What is required by ss 18-20 of the Bail Act is separate and distinct from the consideration required by s 22B of whether “special or exceptional circumstances” exist. There is a textual indication that the existence “unacceptable risk” is not to be determined when assessing “special or exceptional circumstances” under s 22B. Section 19(2) of the Bail Act reads:

19   Refusal of bail—unacceptable risk

(1)  A bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk.

(2)  For the purposes of this Act, an unacceptable risk is an unacceptable risk that the accused person, if released from custody, will—

(a)  fail to appear at any proceedings for the offence, or

(b)  commit a serious offence, or

(c)  endanger the safety of victims, individuals or the community, or

(d)  interfere with witnesses or evidence.

24. Under subsection (1) a bail authority, including a court, can be satisfied about the existence of unacceptable risk only after assessing bail concerns “under this Division”, that is Division 2 of Part 3. Section 18(1), which falls under that Division, sets out a list of 19 matters which a bail authority “is to consider” when assessing bail concerns. A bail authority cannot decide whether there is an “unacceptable risk” without considering the matters in s 18(1). Section 22B, by contrast, does not require a court to “assess bail concerns” or consider the matters in s 18(1) when deciding whether are “special or exceptional circumstances”. It is strongly arguable that the court should therefore decide the question of “special circumstances” without engaging in the reasoning process relevant to deciding whether there is an “unacceptable risk”.

25. In the absence of appellate authority, however, I will proceed in this application on the basis, favourable to the offenders, that whether or not there is an “unacceptable risk” is also relevant to the assessment of “special or exceptional circumstances” under s 22B. For that purpose, I will take into account, favourably to the three offenders, that they have been on bail for a considerable period and appeared in accordance with their bail throughout that period.

Are there special circumstances in this case?

Adam Michael Cranston

26. The evidence led on behalf of Mr Cranston was a report from psychiatrist Dr Rhoderic Chung dated 18 January 2023 (Exhibit C). Dr Chung writes that he has been treating Mr Cranston for attention deficit hyperactivity disorder and major depressive disorder since June 2017. He describes Mr Cranston’s psychological state as very vulnerable, involving suicidal ideation. Dr Chung writes that, if Mr Cranston were permitted bail, he would be able to prepare Mr Cranston for incarceration and formulate a plan to transfer his care to a prison psychiatrist.

27. Mr Stratton SC submitted that Mr Cranston’s special circumstances emerged from a combination of the following factors:

1. Mr Cranston’s need to put his financial affairs in a state where they could be managed by his wife;

2. the fact Mr Cranston has been on bail since 2017 and on trial since April 2022, and has been awaiting the jury’s verdict since 18 January, nearly 6 weeks ago. It was unrealistic to expect him to have said “his goodbyes” or have put his affairs in order continuously over a period of six years;

3. the risk that sudden incarceration, without a period of preparation, would exacerbate Mr Cranston’s major depressive disorder, as attested by Dr Chung.

28. I am not persuaded that special or exceptional circumstances have been shown to exist in the case of Mr Cranston. The combination of factors relied upon did not persuade me that “special circumstances” exist:

1. Mr Cranston has had many months to manage his affairs, including the orderly handover of his finances and of his job.  There was no evidence to explain why this had not happened;

2. as I have said, I take into account, favourably to Mr Cranston, the fact that he has met his bail obligations for a considerable period. While the length of the trial may perhaps be described as exceptional, Mr Cranston’s period on bail is not, particularly for accused persons on bail immediately before the COVID pandemic struck. The jury’s period of deliberation, between 18 January 2023 and 7 March 2023, is not special or extraordinary in the context of a 10 month trial;

3. whilst the matters raised by Dr Chung have been taken into account, I do not regard the risks of sudden imprisonment that he describes as giving rise to “special circumstances”. Regrettably major depressive disorder is a common diagnosis and there is nothing in Dr Chung’s report to suggest that, if immediately incarcerated, Mr Cranston will suffer ill-effects from this mental health condition that are greater than the ill-effects suffered by the many offenders with depression who are incarcerated daily.

29. For these reasons, Mr Cranston has not satisfied me that special or exceptional circumstances are present in his case. I therefore must refuse bail, in accordance with s 22B(1).

Jason Cornell Onley

30. The evidence led on behalf of Mr Onley to establish special or exceptional circumstances related to his wife and daughter. In her affidavit, dated 7 March 2023, Mr Onley’s wife, Ms Keary swore that she suffered from long-term PTSD, anxiety and depression; that she had no assets or financial support other than Mr Onley and would have to rely on benefits once he is imprisoned; that she relied on Mr Onley as a father to their daughter; and that the family’s relocation to Jindabyne would be disrupted by Mr Onley’s sudden imprisonment.

31. The affidavit also attested that the couple’s daughter has not been told Mr Onley is facing a jail term; that Mr Onley and Ms Keary are concerned for her mental health and welfare; and that Ms Keary “needed” Mr Onley to help their daughter “transition”.

32. Mr Onley also tendered a bundle of historical medical documents (Exhibit B) concerning Ms Keary’s heath. In a psychiatric report made on 14 November 2018, Dr Antony Henderson diagnosed Ms Keary with posttraumatic stress disorder, major depressive disorder and panic disorder, and described her mental state as “highly agitated”, “distressed” and “overwhelmed”. In a letter dated 3 August 2019, Dr Mark Bloch that Ms Keary has been suffering from anxiety and depression with features of PTSD since 1997.

33. Mr Johnson, appearing for Mr Onley, indicated he would seek bail for a period of 12 weeks, or until the sentencing hearing. To establish special or exceptional circumstances, he relied on the following matters, in combination:

1. the length of the trial and period of bail, adopting the argument Mr Stratton SC made on behalf of Mr Cranston:

2. the effect immediate incarceration would have on Ms Keary;

1. the hardship that Mr Onley’s daughter would encounter if he were immediately imprisoned.

34. I was not persuaded that, taken as a whole, Mr Onley had established special or exceptional circumstances.

35. First, the length of the trial and period of bail does not amount to special or exceptional circumstances, as explained above in relation to Mr Cranston.

36. Secondly, while the effect of an offender’s incarceration on a spouse or child can amount to special circumstances (Van Gestel at [65]-[71]), the consequences facing Mr Onley’s wife and daughter do not rise to the high level required. That is because:

1. there is no up-to-date medical evidence that Ms Keary was still suffering the diagnoses she reported in her affidavit. Dr Henderson’s report is more than four years old and Dr Bloch’s letter is more than three years old. Further, Dr Henderson assessed Ms Keary in the specific context of stress she felt after she was required for cross-examination in proceeds of crime proceedings in 2019. There is no medical evidence that this condition has continued;

2. the financial hardship that Mr Onley’s incarceration might cause to Ms Keary is unremarkable. Regrettably, the spouses of imprisoned breadwinners must regularly access government benefits. In addition, Ms Keary swore in her affidavit that Mr Onley has been unable to earn an income for some time. I am not satisfied that his incarceration will meaningfully change the family’s financial situation;

3. the trauma Mr Onley’s daughter might experience is, regrettably, an unexceptional consequence of the incarceration of her father. Further, there was no real evidence before me that delaying that incarceration for a period of weeks will help either Ms Keary or her daughter adjust to their separation from Mr Onley. That separation will be difficult whenever it occurs.

37. I acted on the basis that special or exceptional circumstances may exist in the combination of factors or in ‘the coincidence of a number of features”. Taking into account all of the features pressed on Mr Onley’s behalf in this way, I was not satisfied that special or exceptional circumstances existed. I was bound in those circumstances to refuse bail.

Dev Menon

38. Mr Menon relied on a series of medical documents which formed the Crown’s bundle (Exhibit A), all concerning Mr Menon’s five-year-old daughter. The following documents set out Miss Menon’s diagnoses:

1. In a letter to Miss Menon’s general practitioner dated 9 March 2020, paediatrician Dr Gaya Raman diagnosed Miss Menon with a significant matter;

2. In a letter to the National Disability Insurance Scheme dated 17 October 2020, paediatrician Dr Leila Masson diagnosed Miss Menon with another significant matter.

39. Mr Menon then relied on a report, dated 12 January 2023, from Miss Menon’s occupational therapist, Ms Marissa West. The report explained the high degree of support Miss Menon requires, her heightened sensitivity to disruptions in her routine, and her propensity to dysregulation when circumstances become challenging.

40. According to Ms West, Mr Menon’s incarceration will represent a significant transition for Miss Menon, which is likely to cause anxiety and dysregulation if not managed. To manage that transition, Ms West made the following recommendation:

…if feasible, the father has a period to be able to transition the child with joint sessions with myself and [Miss Menon]….A longer period is likely to produce a better outcome, however much could be achieved in 4 weeks, and even more in 8 weeks. In either case, knowledge of the end date would be important in managing [Miss Menon’s] expectations.

41. Counsel for Mr Menon submitted that the desirability of a transition period satisfied the “special circumstances” threshold. The Crown accepted it was open for me to find as much, and I make that finding.

42. Ms West’s report persuaded me that a period of transition is in the best interests of a young child living with a grave illness. I am satisfied that the benefit to Miss Menon of deferring her father’s imprisonment rises to the level of a special circumstance. I was persuaded that Ms West’s report explained in clear detail why it was that steps could not be taken prior to conviction to commence that transition process.

43. I may therefore consider whether bail should be granted to Mr Menon, with or without conditions, or should be dispensed with entirely.

44. Counsel for Mr Menon applied for eight weeks’ bail, to give effect to Ms West’s recommendation. The Crown conceded that Mr Menon, if released on the agreed conditions, would not pose an “unacceptable risk”. I accept this concession, having considered the matters in s 18(1), including the agreed conditions.

45. I therefore ordered, under s 50(4)(b) of the Bail Act, that Mr Menon’s existing bail be varied to include the conditions agreed between Mr Menon and the Crown. The conditions are those set out in paragraph [3(3)] above.

46. I adjourned further consideration of the Crown’s detention application until 4 May 2023, after a period of about 8 weeks. I made clear to all concerned that if any extension of that period were sought, proof would be on Mr Menon to persuade me that there were special or exceptional circumstances warranting that course.

**********

Amendments

09 March 2023 - Case Name amended.

21 March 2023 - Publication restriction lifted. Address redacted.

04 April 2023 - Redacted to comply with publication restriction.

Decision last updated: 04 April 2023