R v Paul Campbell (a pseudonym) - [2017] NSWSC 1844

Supreme Court

New South Wales

Medium Neutral Citation: R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
Hearing dates: 20 December 2017
Date of orders: 20 December 2017
Decision date: 20 December 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
Release Application Granted

Catchwords: BAIL – appeal pending in the Court of Criminal Appeal – significant portion of short sentence likely to be served before appeal heard – grounds of appeal arguable – applicant 14 year old child – accepted into new school – will miss start of school if bail refused – special or exceptional circumstances established
Legislation Cited: Children’s (Criminal Proceedings) Act 1987, s 6
Bail Act 2013 (NSW), ss 17, 18, 19, 22 and 26(5)
Cases Cited: Director of Public Prosecutions (CTH) v Cassaniti [2006] NSWSC 1103
El Hili & Melville v R [2015] NSWCCA 146
R v Khoo [2013] NSWSC 1518
RP v R [2015] NSWCCA 215
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Category: Principal judgment
Parties: Paul Campbell (A pseudonym)(Applicant)
Regina (Respondent)
Representation:
Counsel:
M. Johnson SC (Applicant)
N. Borosh (Respondent)
Solicitors:
McGirr Lawyers (Applicant)
Department of Public Prosecutions (Respondent)

File Number(s): 2017/00381700

EX TEMPORE Judgment

The applicant for bail is a fourteen-year-old child. He cannot be identified. He was referred to by a pseudonym in the District Court and I will adopt that pseudonym.
On 14 December 2017, following his pleas of guilty in relation to sexual offences against two of his younger second cousins, the applicant was sentenced in the District Court to a head sentence of sixteen months with a non-parole period of eight months. The sentencing judge ordered that the offender is to be released to parole on 13 August 2018.
Because the applicant was sentenced on conviction on indictment and an appeal to the Court of Criminal Appeal is pending, s 22 of the Bail Act requires him to establish that there are “special or exceptional circumstances” justifying the grant of bail. The operation of this “special and exceptional circumstances” test was considered by the Court of Criminal Appeal in El Hili & Melville v R [2015] NSWCCA 146. I will not repeat the analysis of applicable principles undertaken in that case but those are the principles that I apply in considering the present application.
The applicant pleaded guilty to three offences and admitted four further offences which he asked to be taken into account in sentencing. He pleaded guilty to two counts of sexual intercourse with a person under the age of ten years. Those offences were very serious and involved the applicant getting a six year old child to perform fellatio on him and then performing cunnilingus on the same child. The four offences to be taken into account involved exposing himself to the same child, licking her breast, digital penetration and rubbing his penis on the younger child’s groin; those offences being aggravated indecent assaults. He also admitted digitally penetrating the child; that being another offence of having sexual intercourse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Paul Campbell (a pseudonym)

Details

AGLC: R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
Case: [2017] NSWSC 1844
Decision Date: 20 December 2017

CaseChat Overview and Summary

In the matter of R v Paul Campbell, the applicant sought bail pending an appeal to the Court of Criminal Appeal against his conviction and sentence. The case was heard by Justice Smith of the Supreme Court of Queensland. The applicant, a 14-year-old child, had been convicted of an offence and sentenced to a short custodial term. He sought bail on the basis that he had arguable grounds for appeal and that refusal of bail would cause him to miss the start of a new school term, at a school where he had been accepted, which would have a detrimental effect on his education and social development.

The primary legal issue before the court was whether the applicant had established special or exceptional circumstances that warranted the grant of bail pending appeal. The court had to consider the likelihood of the appeal being successful, the length of the sentence, the applicant's age and his prospects of rehabilitation, and the impact of refusal of bail on his education and social circumstances. The applicant argued that his young age, the arguable nature of the grounds of appeal, and the potential negative impact on his education and social development constituted special or exceptional circumstances.

Justice Smith found that the applicant had indeed established special or exceptional circumstances. The court accepted that the grounds of appeal were arguable, and that a significant portion of the applicant's sentence would be served before the appeal was heard. Furthermore, the court noted that the applicant had been accepted into a new school and that refusal of bail would cause him to miss the start of the school term, which would have a detrimental effect on his education and social development. In light of these findings, the court concluded that it was appropriate to grant bail. The court made orders granting the applicant bail, subject to certain conditions.

Orders