R v Sexton
[2006] VSCA 164
•4 August 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 1504 of 2006
| IN THE MATTER OF AN APPLICATION FOR BAIL BY: |
DARREN JAMES SEXTON |
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JUDGES: | NETTLE and NEAVE, JJ.A. |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 4 August 2006 |
DATE OF JUDGMENT: | 4 August 2006 |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 164 |
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Atkinson | Ms Angela Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Ms F.L. Dalziel | Robert Stary & Associates |
NETTLE, J.A.:
I will ask Neave, J.A. to deliver the first judgment.
NEAVE, J.A.:
On 16 December 2005 the applicant, Mr Sexton, was convicted by a jury on one count of aggravated burglary and one count of recklessly causing injury. He was sentenced to two years' imprisonment on the first count and 12 months' imprisonment on the count of recklessly causing injury, with six months to be served concurrently with the sentence imposed for count 1, amounting to a total effective sentence of imprisonment of two years and six months. A non‑parole period of 12 months was fixed. Taking into account 53 days of presentence detention, the applicant becomes eligible for parole on 17 December this year.
Applications for leave to appeal against conviction and sentence were lodged on behalf of the applicant on 14 February. Under Rule 2.09 of the Supreme Court (Criminal Procedure) Rules, a full statement of the grounds of appeal was required to be filed within two months of the filing of the Notice of Appeal. On 12 May 2006, the applicant's solicitor was advised by the registrar that the transcript of proceedings had not been received and that the time for filing the statement had been extended, until 19 July 2006. Because that time has expired the appeal stands dismissed under Rule 2.09(3)(1), but this court may order that it be reinstated under Rule 2.09.3(3).
Affidavits in support of the application for reinstatement of the appeal set out the circumstances in which the applicant's solicitor failed to file a full statement of the grounds of appeal by 19 July. On attending the Registry on 27 June the applicant's solicitor was told that the transcript had arrived at the Registry on 7 June, but has sworn an affidavit that he has no memory of his office being advised that the transcript was ready for collection. Counsel was briefed to prepare a full statement of grounds of appeal on 27 June, immediately after the transcript was received. Counsel for the applicant contacted the Registry on 18 July indicating that the transcript did not include closing addresses and that this was required for the preparation of grounds of appeal.
The reason for the failure to file the full statement of grounds cannot be attributed to the applicant and the Crown does not oppose reinstatement of the application for leave to appeal against sentence and conviction. Accordingly, I would make orders for reinstatement of the applications for leave to appeal.
I turn now to the application for bail pending appeal. The applicant's co‑accused, Stephen Black, is also applying for bail and appealing against conviction and sentence. Black has also appealed against conviction and sentence in two other unrelated matters involving multiple co‑appellants. The date for filing a full statement of grounds of appeal by Stephen Black was extended by the Registrar until 31 July. It is appropriate for the appeals against conviction and sentence by Mr Sexton and his co‑accused to be dealt with at the same time. Mr Sexton's non‑parole period will expire on 17 December. The applications for leave to appeal against conviction and sentence by Mr Sexton and his co‑accused are unlikely to be ready to be proceed or to be listed for listing until the first term of 2007 after the applicant's non‑parole period has expired.
Bail is only granted pending appeal in very exceptional circumstances. In Re Clarkson[1] the Full Court said that the word "very"
“reflects the difficulty of persuading the court that the circumstances put forward as special or exceptional are strong enough to overcome the powerful considerations of a general character which militate against the grant of bail pending appeal.[2]”
[1][1988] V.R. 583.
[2]Ibid at 584.
The fact that an appellant's guilt has been established by a jury verdict distinguishes an application for bail pending an appeal from an application made prior to conviction. In Chamberlain v. R.[3], Brennan, J. explained that
“[T]o suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted….The central feature in the administration of criminal justice is the jury, and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court.”
[3](1983) 153 C.L.R. 514.
The affidavit which has been sworn by the applicant's solicitor refers to four matters:
·the applicant was on bail pending trial, and that no conditions were imposed on that bail;
·he was granted day release in order to attend his mother's funeral;
·he has a partner and children with whom he would live if released from custody;
·he has a “meritorious argument” for appeal against sentence and conviction; and
·he may have completed the non‑parole period before his appeal is heard.
The first three matters are presumably intended to indicate that the applicant will not abscond and will comply with bail conditions. It is not an exceptional circumstance that the applicant is likely to comply with any bail conditions which may be imposed.
The fourth matter relates to the applicant's prospects of success on appeal. The strength of an applicant’s grounds of appeal is a relevant matter in deciding whether there are exceptional circumstances justifying the grant of bail. In this case, however, the only material supporting the assertion is a statement in the solicitor’s affidavit that the application for leave to appeal against sentence is based on “manifest excess” and that the application for leave to appeal against conviction is based on the fact that it is “unsafe and unsatisfactory”. This falls far short of showing that the applicant has a good chance of success.
The main matter on which the applicant relies is that the applicant may have served the full non‑parole period before the appeal is heard and determined. The solicitor's affidavit claimed that this “in itself warrants Mr Sexton being granted bail”.
In R. v. Jackson[4], Callaway, J.A., with whom Southwell and Coldrey, A.JJ.A. agreed, said that –
“The likelihood that an applicant will have served the whole or a very substantial part of the sentence before his application for leave to appeal and appeal, if the application is granted, are heard is often regarded as sufficient to satisfy the requirement of very exceptional circumstances to which I shall refer later in this judgment, always depending on the nature of offences and the grounds of appeal and the other attendant factors.
The focus in the present case, however, must necessarily be not on the sentence but on the non‑parole period. It is not the practice of this court, nor was it the practice of our predecessor, to regard a non‑parole period in the same light as the head sentence in considering an application for bail pending appeal. One reason is that to do so would be to misconceive the respective natures of head sentence and a non‑parole period.
The true character of the latter was recently discussed by Hedigan, A.J.A., in R. v. Romeo, unreported, Court of Appeal, 29 August 1998. It is quite wrong to regard it as the ‘real’ sentence. As Jenkins, J. said in Attorney General v. Morgan (1980) 7 A.Crim.R. 146 at 154, it is the period before the expiration of which release of the offender would be in violation of justice according to law, notwithstanding the mitigation of punishment which both mercy to the offender and benefit to the public may justify.
The head sentence is not a non‑parole period plus an additional term. It is, again in his Honour's words, ‘the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender’. It is an ‘appropriate term of imprisonment’. See R. v. Bruce [1971] V.R. 656 at 657.
Another reason is that a head sentence is imposed on the basis that a prisoner may have to serve every day of it, and the court does not speculate as to decisions that may or may not be taken by the Parole Board. There are many authorities for both branches of that proposition. It is sufficient for present purposes to refer to the decision of the Full Bench in R. v. Yates [1985] V.R. 41, especially at 44-5.”
[4][1997] 2 V.R. 1, at 2.
Some cases decided after Jackson have interpreted Callaway, J.A.'s
observations to mean that the possibility that an applicant's non‑parole period may expire before the appeal can be heard and determined is irrelevant in considering whether bail should be granted pending the appeal.[5] I do not go that far. In my view, it is relevant that the applicant may have served the non‑parole period prior to the determination of the appeal, but, as Jackson makes clear, the head sentence is to be given greater weight than the non‑parole period. The fact that the applicant may have served the whole of his non‑parole period before determination of appeal would normally be insufficient, in the absence of other factors, to permit the granting of bail pending appeal.
[5]See, for example, R. v. Pennant [1997] 2 V.R. 85 at 86.
In this case the Crown does not oppose the grant of bail pending the appeal to the applicant on certain conditions. While this lack of objection is not an irrelevant matter, it is for this court, and not for the parties, to decide whether there are exceptional circumstances which justify the grant of bail pending appeal.
For the reasons set out above, this requirement has not been satisfied. I would therefore refuse bail pending appeal.
NETTLE, J.A.:
I agree with Her Honour that the application for leave to appeal should be reinstated, but that the applicant has failed to establish exceptional circumstances sufficient to warrant the grant of bail pending appeal.
As Brennan, J. said in Chamberlain[6],
"The central feature in the administration of criminal justice is the jury and it is a mistake to regard the effect of its verdict as contingent upon confirmation by an appellate court."
[6]Chamberlain v. The Queen (No. 1) (1983) 153 C.L.R. 514 at 520.
The same is true of sentences. To adopt and adapt terms which Kirby, J. employed in Re Pinkstone'sApplication[7] in the context of a pending application for
leave to appeal, convictions and sentences and other orders are not to be regarded as provisional.[8]
[7][2003] HCA 46 at [16].
[8]See also Putland v. The Queen [2003] HCA 263 at 6-7, per Kirby, J.; and Markovina v. R. (1998) 72 A.L.J.R. 1522 at [8], per Hayne, J.
While, therefore, an applicant has a statutory right to apply for leave to appeal against conviction and sentence, it is a right which operates subject to a presumption in favour of the validity of the conviction and sentence, not a right to have the conviction or appeal treated as suspended pending appeal, and it is for that reason that bail pending appeal will not be granted unless exceptional circumstances are shown.
Furthermore, as Her Honour has explained, the probability that an applicant may complete the non‑parole portion of his or her sentence before the appeal is heard and determined has rarely been regarded as by itself amounting to exceptional circumstances sufficient to warrant the grant of bail. The reasons for that were essayed by Callaway, J.A. in Re Jackson[9].
[9][1997] 2 V.R. 1.
So to say does not mean that the probability of an applicant completing service of the non‑parole period before his or her appeal is heard and determined is to be regarded as irrelevant. It may be that in combination with other considerations, such as, for example, that there are strong grounds for concluding that the appeal will be allowed[10] and that there has been exceptional delay in the processing of the appeal, not due to the applicant or his or her advisers, that expiration of the non-parole period will appear sufficiently exceptional to warrant the grant of bail. But that is not so here.
[10]Cf. United Mexican States v. Cabal (2001) 209 C.L.R. 165 at 182 [41]-[43].
In this case, it is not suggested, even less demonstrated, that there are strong grounds for concluding that the appeal will be allowed and, so far as can be seen, such delay as there may have been has been due largely to the applicant or his advisers.
In effect, the only things said to be exceptional are that the non‑parole period is likely to be completed before the appeal comes on for hearing and that the Crown does not oppose the application. I do not think that that is enough.
In the result, the orders of the court will be ‑
1.That the application for leave to appeal against conviction and sentence shall be reinstated, and
2.That the application for bail pending appeal is refused.
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