R v Robson No. DCCRM-97-316 Judgment No. D3614

[1997] SADC 3614

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour Judge Robertson

Hearing

27/05/97.

Catchwords

Bail - Application for bail pending appeal from conviction in Court of Summary Jurisdiction to the Supreme Court - Exercise of the discretion - Bail Act, 1985 - Bail refused.

Materials Considered

• Cameron v Millard (1978) 19 SASR 161;
• McLeod v Fauser 42 SASR 356;
• Peake v McDonald 146 LSJS 495, applied.

Representation

R:
Counsel: Mr Leask - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Applicant Colin James ROBSON:
Counsel: Mr Caldicott - Solicitors: CALDICOTT &; CO

DCCRM-97-316

Judgment No. D3614

27 May 1997

(Criminal)

R v COLIN JAMES ROBSON

REASONS FOR DECISION

Criminal

Judge Robertson

The applicant has applied for bail pending an appeal to the Supreme Court from a decision of Mr Deegan SM in the Adelaide Magistrates Court convicting him of indecent assault on a person of 14 years of age contrary to Section 56 of the Criminal Law Consolidation Act 1935.After his conviction the accused was remanded in custody.The Special Magistrate has committed the applicant for sentence in the District Court.In so doing the learned Special Magistrate indicated that he regarded the circumstances of the offending as particularly serious.I should also indicate that the applicant is also to be sentenced in the District Court for knowingly supplying a quantity of cannabis to another person contrary to Section 32(1)(c) of the Controlled Substances Act 1984. That offence arose out of the same set of circumstances relevant to the offence of indecent assault.

In dealing with the application for bail I accept that I have an unfettered discretion.I accept that an applicant for bail pending an appeal from a conviction in a Court of Summary Jurisdiction is not required to show that there are exceptional circumstances (see: Cameron v Millard (1978) 19 SASR 161; Mcleod v Fauser 42 SASR 356 and Peake v McDonald 146 LSJS 495.Mr Caldicott, counsel for the applicant, submitted that the principle is that if a person has been granted bail up to the hearing, then notwithstanding a conviction and sentence, he should be given bail pending an appeal hearing in the Supreme Court.I do not accept that submission.In my view such a principle would be a fetter upon a Bail Authority's discretion and as such would be unacceptable. Furthermore, the two decisions of McLeod v Fauser (supra) and Peake v McDonald (supra), upon which he relied, do not, in my opinion, support that submission. As I said earlier my discretion is at large.

Mr Caldicott said that the appeal was likely to be heard on 21 June.He submitted that prior to the hearing in the Magistrates Court the applicant was not on bail.He said that the applicant appeared on every occasion that he was required to do so in the Magistrates Court.Mr Caldicott submitted that such a record indicates that he is a good candidate for bail.Counsel for the applicant further submitted that I should take into account that the appeal is not one lacking merit; he said it had "substantial substance" to it.

I have taken into account the submissions made by Mr Caldicott.However, the applicant has been convicted of a serious offence and this, in my view, is a factor of considerable importance (see: Peake v McDonald (supra) at page 496. Furthermore, his antecedents disclose that he has been convicted on two earlier occasions of indecent assault.It would be anticipated that the application will receive a lengthy term of imprisonment if his conviction for indecent assault is confirmed on Appeal.In my view in balancing all of the relevant matters required to be considered in the exercise of my discretion I am of the view that the seriousness of the offending and the accuseds antecedents lead me to the conclusion that the application should not be granted.

Accordingly, I refuse to grant the application.Bail is refused.