Re Schaefer

[2006] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1559 of 2006

IN THE MATTER OF AN APPLICATION FOR BAIL

by

ROBERT JACK SCHAEFER

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JUDGE:	MAXWELL, P. and BUCHANAN, J.A.
WHERE HELD:	MELBOURNE
DATE OF APPLICATION:	16 November 2006
DATE OF ORDER:	16 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 268

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CRIMINAL LAW – Bail pending appeal – Partly suspended sentence – Non-suspended portion of sentence would have largely expired before appeal heard – Leave to appeal already granted – Exceptional circumstances – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D.A. Dann	Campbell McAuley

MAXWELL, P. (FOR THE COURT):

1. In this matter the applicant was sentenced by the learned judge in the County Court on 25 July 2006 to an effective sentence of 15 months, of which the judge ordered that six months be served immediately and nine months be suspended for two years. 

1. On 29 September 2006, Callaway JA granted the applicant's application for leave to appeal against his sentence on the ground that there was disparity.  On the same occasion his Honour granted leave to appeal to one of the co-accused, on the same ground.

1. Of the six months being the non-suspended part of the sentence, almost four months have already been served.  The expectation is that the appeal itself will be heard in late January 2007, at the commencement of the Court of Appeal sittings for 2007, by which time the applicant will have served all or almost all of the custodial portion of his sentence. 

1. The circumstance of the expiry of all or a substantial part of the non-suspended portion of a partly suspended sentence has been the subject of successful applications for bail in this Court since its inception in 1995.  I refer, for example, to Re Ratcliffe and Lynch,[1] where the sole ground on which bail was granted was that circumstance.  Likewise, in Re Pennant, [2] decided in 1997, the same circumstance was held to be sufficient by itself to justify a grant of bail. 

   [1]Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Southwell and Vincent AJJA, 6 December 1995.

   [2][1997] 2 VR 85.

1. There was reference by counsel for the Crown, in opposing the grant of bail, to what was said in the matter of Crawley,[3] where Callaway JA said:

"It will often be found that very exceptional circumstances are made out by a congeries of factors which include the fact that the applicant will have served an unacceptable portion of the sentence before the application for leave to appeal can be heard and determined.  Re Pennant establishes that in the case of a partially suspended sentence it is the period of immediate incarceration to which regard is to be had.  The same logic applies to release on recognizance under the Crimes Act 1914. Those cases are to be distinguished from eligibility for parole.”

His Honour drew a distinction (which is the subject of a reserved decision of this Court in Zoudi) between a partially suspended sentence, which is the present case, and a non-parole period, which is not. 

[3]Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Callaway and Batt JJA,  5 August 1998.

1. In our view, this application is all the stronger because this applicant has already been granted leave to appeal.  It is not suggested in the early authorities that “exceptional circumstances” can only be made out where reasonable prospects of success on appeal are established.  But the applicant in any case has that additional consideration in his favour;  that is to say, he has persuaded a judge of this Court that he has a reasonably arguable ground of appeal and on that basis leave to appeal was granted.

1. The submission for the Crown in opposition is essentially that those two matters are not sufficient by themselves to constitute exceptional circumstances.  But, as I have already indicated, the single circumstance of expiry of the non-suspended part of a sentence has for many years been regarded as sufficient by itself, in appropriate circumstances, to justify a grant of bail. 

1. When asked whether there were any considerations which would weigh against a grant of bail, counsel for the Crown referred only to the undoubted fact that, if bail is granted and the appeal against sentence fails, this applicant will be returned to custody to complete the balance of the non-suspended part of his sentence.  That is a well-recognised consideration.  As has been made clear over the years, it is a reason why the Court should exercise caution before granting bail after conviction, precisely because the failure of the appeal will have that consequence.  But it is a general consideration which serves to explain why the test is one of exceptional circumstances.[4]  It adds nothing specific to the consideration of this case.

   [4]United Mexican States v Cabal (2001) 209 CLR 165 at 181 [39]-[40].

1. Mr Trapnell also argued that there were not very strong prospects of success.  We would decline to entertain that argument, for two reasons.  First, as has often been said, it is virtually impossible to make any realistic assessment of prospects of success of an appeal at the bail application stage.[5]  Secondly, as already noted, leave to appeal has already been granted.  The only relevant test of prospects of success has therefore been satisfied.

   [5]Re Clarkson [1986] VR 583 at 584-5; Re Jackson [1997] 2 VR 1 at 3.

1. Accordingly, in our opinion, the applicant should be released on bail pending the hearing and determination of his appeal against sentence.  We will make the grant of bail on conditions to be spelt out in the order.

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