R v Cranston (No 30)

[2023] NSWSC 216

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Cranston (No 30) [2023] NSWSC 216

Hearing dates:

14 March 2023

Date of orders:

14 March 2023

Decision date:

14 March 2023

Jurisdiction:

Common Law - Criminal

Before:

Payne JA

Decision:

Orders at [14]

Catchwords:

CRIME — Bail — Detention application post-conviction

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

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

[Redacted]

Category:

Procedural rulings

Parties:

Crown
Lauren Anne Cranston (offender)

Representation:

Counsel:
P McGuire SC with J Paingakulam and C Tran (Crown)
TD Anderson SC (Lauren Cranston)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Greg Willis Criminal Defence Lawyer (Lauren Cranston)

File Number(s):

2017/148185

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Not to be published other than to the parties until after the trials of each of the accused are completed.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 13 March 2023, the jury found Lauren Anne Cranston 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 Ms Cranston detained before her sentencing. Given the late hour, bail was granted (by consent) overnight.

Principles to be applied

3. 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”.

4. 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.

5. The parties agreed, and I am satisfied, that s 22B(1)(b) applies to the Crown’s application to detain Ms Cranston. 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.

6. In the present case, Mr Anderson SC on behalf of Ms Cranston accepted that both preconditions for the application of s 22B were met. The first precondition is that the accused has been convicted. At the outset of the application, I made orders convicting Ms Cranston of counts 1 and 2 in the indictment, although I note that “conviction”, as defined in s 4 of the Bail Act, includes “a finding of guilt”.

7. 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).

8. 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.

9. In this case, it is common ground that it is inevitable that Ms Cranston will be sentenced to a period of full-time detention. I accept that this concession was correctly made. The sentence I imposed on [redacted] of 4 years’ imprisonment for [redacted] offending against s 135.4(3) and ss 11.5(1) and 400.3 of the Criminal Code is likely most comparable:[redacted]. Ms Cranston will not enjoy the sentencing discounts for pleas of guilty and offers of assistance applied in the case of [redacted].

10. 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 matter to conclude that Ms Cranston will be sentenced to a significant period of full-time imprisonment.

11. 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.

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

13. Mr Anderson SC did not submit that special or exceptional circumstances exist.

14. Accordingly, on 14 March 2023 I made the following orders:

1. Lauren Anne Cranston is convicted of counts 1 and 2;

2. Bail refused;

3. The matter is stood over for directions on sentencing to 4 May 2023 before Payne JA.

**********

Amendments

22 March 2023 - Publication restriction lifted. Name of offender in related proceedings redacted.

22 March 2023 - Pronoun redacted.

22 March 2023 - Catchwords updated.