R v Lyons

[2018] NSWSC 223

Supreme Court

New South Wales

Medium Neutral Citation:	R v Lyons [2018] NSWSC 223
Hearing dates:	22 February 2018
Date of orders:	22 February 2018
Decision date:	22 February 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	Conditional bail granted.
Catchwords:	BAIL - applicant convicted and sentenced in Local Court - 24 offences of using position to dishonestly gain an advantage or cause a detriment and using position dishonestly to recklessly gain an advantage contrary to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - sentenced to imprisonment for 15 months with an order to be released on recognisance after nine months - all grounds appeal to District Court - appeal bail refused - application for bail in Supreme Court - relevant factors on bail application - likely delay before appeal heard - conditional bail allowed
Legislation Cited:	Bail Act 2013 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Crimes (Appeal and Review) Act 2001 Crimes Act 2014 (Cth)
Cases Cited:	Tyler v R (1995) 80 A Crim R 371
Texts Cited:	---
Category:	Principal judgment
Parties:	Regina (Crown) Selena Lyons (Applicant)
Representation:	Counsel: Ms H Sewell, Solicitor (Crown) Ms P Beaumont, Solicitor (Applicant)   Solicitors: Director of Public Prosecutions (Cth) (Crown) Pearl Beaumont, Solicitor (Applicant)
File Number(s):	2018/52120
Publication restriction:	---

Judgment

1. This is an application for bail by Selena Lyons, who is to appear at the Wagga Wagga District Court on 13 March 2018 with respect to an appeal she has brought from convictions and sentence for certain offences in the Local Court.

2. The Applicant was charged with 27 offences of using her position to dishonestly gain an advantage or cause detriment contrary to s.265.25(3)(a) Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and one offence of using her position dishonestly to recklessly gain an advantage or cause detriment contrary to s.265.25(3)(b) of that Act.

3. The matters proceeded to a defended hearing before Magistrate Erin Kennedy in the Wagga Wagga Local Court. The hearing proceeded over nine sitting days, between 3 April 2017 and 27 October 2017. After the evidence and addresses, her Honour reserved her decision with respect to verdict.

4. On 22 November 2017, her Honour found 24 of the 28 alleged offences proven. A presentence report was ordered and the matter was stood over for sentence and ultimately came before her Honour on 12 February 2018. On that day, her Honour imposed a global penalty and sentenced the Applicant to 15 months’ imprisonment, to be released after serving nine months upon the Applicant entering into a recognisance herself in the sum of $500.00 to be of good behaviour for six months pursuant to s.20(1)(b) Crimes Act 2014 (Cth). The Applicant was also ordered to pay reparation in the amount of $24,187.25.

5. On 12 February 2018, the then solicitor for the Applicant lodged an all grounds appeal to the District Court with respect to these matters. An application for bail proceeded before Magistrate Kennedy that day for the purpose of the appeal. Her Honour refused bail.

6. On 13 February 2018, the then solicitor for the Applicant sent an email to the Registrar of the Local Court at Wagga Wagga (copied to the Commonwealth Director of Public Prosecutions) indicating that his initial instructions had been to lodge an all grounds appeal, but that following the unsuccessful bail application, he had received instructions to amend the appeal to one of severity of sentence only and not to contest the convictions recorded. It was noted that a consequence of this decision would be that no transcript would be needed to be prepared prior to the hearing of the appeal, and that it was hoped that the appeal would be able to proceed in an expeditious way.

7. On 15 February 2018, a release application was filed in the Supreme Court of New South Wales on behalf of the Applicant. There had been a change in the solicitor for the Applicant and Ms Pearl Beaumont now acted for the Applicant. On the same day, Ms Beaumont filed an application for expedition of a bail application and the Registrar, in due course, granted that application and it has come on for hearing today, one week later.

8. The Court has received a substantial volume of material furnished by both the prosecution and the defence on the application.

9. The fact that an appeal was lodged does not stay the orders of the Local Court. It was necessary for the Applicant to make an application for bail and that application was refused by the Magistrate.

10. The Court has power to grant bail in the circumstances of an appeal from the Local Court to the District Court: s.5(1)(d) Bail Act 2013.

11. I have mentioned that the Notice of Appeal, as filed (Exhibit 3), indicated that it was an all grounds appeal, this being the statement of “the general grounds of appeal” for the purpose of s.14(2) Crimes (Appeal and Review) Act 2001. The email from the Applicant’s then solicitor sent the next day (Exhibit B) indicated an intention to seek to amend the appeal to a severity appeal only. However, the Notice of Appeal has not been amended and the prosecution accepts, on this application, that the email of 13 February 2018 did not constitute an amendment to the Notice of Appeal.

12. Accordingly, there remains on foot an all grounds appeal to the Wagga Wagga District Court, with the scheduled date for the appeal to come before that Court for the first time being about three weeks off, on 13 March 2018.

13. The statutory principles with respect to an appeal from the Local Court to the District Court are different to those if there was an appeal from a conviction on indictment to the Court of Criminal Appeal. Section 22 Bail Act 2013 makes clear that a convicted person in that position must demonstrate special or exceptional circumstances to justify a grant of bail. That provision does not apply to an appeal of the present type.    

14. That said, the provisions contained in ss.17 and 18 Bail Act 2013 have application. If the accused person has been convicted of an offence and proceedings on appeal against conviction or sentence are pending before a Court, the Court must consider whether the appeal has a reasonably arguable prospect of success: s.18(1)(j) Bail Act 2013.

15. There are other provisions in s.18 which have application as well, including the accused person’s background and community ties (s.18(1)(a)), the nature and seriousness of the offence (s.18(1)(b)) and in this case, the special vulnerability or needs of the Applicant as she is Aboriginal (s.18(1(k)).

16. The defended hearing before the Local Court proceeded over nine sitting days. There was then a 10th day (when judgment was delivered on conviction) and an 11th day for the sentencing hearing when sentence was passed. There is no transcript presently available of any of the 11 days.

17. I note that s.18 Crimes (Appeal and Review) Act 2001 provides that an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings except as provided by s.19 of the Act, which allows, in some limited circumstances, for witnesses to be called with provision being also made in s.18(2) for fresh evidence in some circumstances. Clearly, the starting point for a conviction appeal under s.18 is that there be a transcript of the evidence given in the Local Court.

18. An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings: s.17 Crimes (Appeal and Review) Act 2001. That provision has been interpreted as meaning that the appeal is a de novo hearing on the question of sentence.

19. A transcript is not necessary for a severity appeal although, in an apparently complex case such as this, it is likely to be of considerable assistance to understand what it is that the Magistrate has found in convicting the Applicant and why it was that the Magistrate imposed a custodial sentence. Indeed, it is difficult to make a realistic assessment as to whether the Applicant has reasonably arguable prospects of success on the appeal without the transcripts of the Magistrate’s reasons concerning conviction and sentence.

20. It has been said, with respect to bail applications in this Court when a person was appealing from the Local Court to the District Court, that the Court should have regard to the fact that there has been a considered decision of the Local Court which is the subject of appeal. In Tyler v R (1995) 80 A Crim R 371, Sully J referred (at 372) to that consideration as well as other factors, such as the likelihood of success on the appeal, but also (and significantly) to the question of whether a person would be required to serve a substantial part of the sentence whilst waiting for the appeal to the District Court to get on. Although the Bail Act 2013 now governs an application in this context, his Honour’s observations continue to have some practical application.

21. The Crown has submitted on the application that there is an unacceptable risk that the Applicant would fail to appear if bail was granted. In this respect, it was noted that she has been found guilty and sentenced to a term of imprisonment for these matters, that this constitutes an incentive not to appear and reference has been made to other features of the evidence.

22. In support of the application, Ms Beaumont has relied upon a substantial body of evidence. There are affidavits from a variety of people who will support the Applicant in the community and, I infer, guarantee that she will attend Court. If the Applicant does not appear in the future, then she would be doing a grave disservice to all the people who are prepared to stand by her, many of whom are in Court today.

23. In addition, there is evidence before the Court that the Applicant has a number of health issues which can be better and more satisfactorily treated if she is at large in the community. I note, as well, that there are some other issues raised in the reports of Dr Ann Harrison, which I do not need to expand upon in this judgment.

24. It seems to me that, to the extent that there is any risk that the Applicant would not appear, that risk is mitigated entirely by the set of conditions which are proposed.

25. It is not suggested that there is any risk of the commission of further offences if bail is granted, nor that any of the other specified bail concerns in the Bail Act 2013 arise for consideration in this case.

26. Accordingly, there is an appeal on foot. There is no realistic basis that the appeal would be heard, let alone determined, on 13 March 2018. If the Applicant remained in custody, there is the distinct prospect that the period in custody would extend significantly beyond that date, thereby giving rise to a number of problems which I have mentioned, including the risk of the sentence being substantially served before any appeal could come on.

27. I am satisfied that the appropriate way forward is to grant the Applicant conditional bail. An important part of the grant of bail, however, will be the need to prosecute expeditiously the appeal to the District Court. That will involve ensuring that all necessary steps are taken promptly to get the transcript to ensure that the Applicant receives advice so that the appeal can come on for hearing at the earliest available opportunity. Although that might be implicit in a grant of bail pending an appeal, it will be explicit in this case because I will make it an actual condition of bail. If at any point the prosecution forms the view that there is any “dragging of the chain” with respect to the bringing on of the appeal, then it would be open to the prosecution to approach the District Court because of that concern.

28. Having heard Ms Beaumont, however, I accept that she will diligently and promptly take all necessary steps to ensure that the Applicant can be properly advised and that the matter can proceed in the District Court without any unnecessary delay.

29. I grant conditional bail.

[The conditions are not included in this judgment]

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