Re Zoudi
[2006] VSCA 298
•19 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 1482 of 2006
| IN THE MATTER OF AN APPLICATION FOR BAIL by JACK ZOUDI |
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JUDGES: | MAXWELL, P., BUCHANAN, NETTLE, NEAVE and REDLICH, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 June 2006 | |
DATE OF REASONS: | 19 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 298 | |
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CRIMINAL LAW – Appeal – Bail pending appeal – Exceptional circumstances – Likelihood that non-parole period will have expired before appeal heard – Whether distinction between non-parole period and partly-suspended sentence should be maintained – Re Pennant [1997] 2 VR 85 not followed – Bail granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. with Mr M.A. Gamble | Ms A. Cannon, Solicitor for Public Prosecutions |
For the Applicant | Mr L.C. Carter | Lethbridges |
MAXWELL, P.,
BUCHANAN, J.A.,
NETTLE, J.A.,
NEAVE, J.A.,
REDLICH, J.A.:
This is an application for bail pending applications for leave to appeal against conviction and sentence. At the conclusion of argument on 23 June 2006, we announced that we were satisfied that there should be a grant of bail pending the applications for leave to appeal. These are our reasons for that decision.
Summary
Bail pending appeal will only be granted where exceptional circumstances are shown.[1] It has long been accepted in this Court that, in determining whether exceptional circumstances exist, it is relevant to consider the likely expiry, before the appeal is heard, of the whole or a substantial portion of –
(a) the non-suspended portion of a partly-suspended sentence;[2] or
(b) the period after which the applicant is to be released on recognisance.[3]
[1]The phrase “very exceptional circumstances” is also commonly used, but the approach is the same whichever form of words is used: Re Clarkson [1986] VR 583 at 584 per Murray, Brooking and Vincent JJ; Re Crawley (unreported, Court of Appeal, 5 August 1998) per Callaway JA.
[2]Re Pennant [1997] 2 VR 85; Re Schaefer [2006] VSCA 268.
[3]Re Crawley (unreported, Court of Appeal, 5 August 1998) per Callaway JA.
The question which occasioned the convening of a bench of five was whether the likely expiry of a non-parole period was likewise a relevant consideration. Although the course of decisions in this Court began differently,[4] the view which has prevailed since 1997 is that the expiry of the non-parole period is not relevant for this purpose. The ground of distinction which has been relied on is that the release of the applicant after the expiry of the non-parole period depends upon a favourable exercise of discretion by the Parole Board. This means that, unlike the position with a partly-suspended sentence and release on recognisance, the date of release is uncertain.[5]
[4]In Re Hoxha (unreported, Court of Appeal, 19 July 1995) and Salvo (unreported, Court of Appeal, 22 November 1995), the expiry of a non-parole period was treated as a significant factor.
[5]Re Pennant (supra) at 86-7.
In our view, this distinction should no longer be maintained. For the purposes of determining whether exceptional circumstances exist, the expiry of the non-parole period should – unless it appears that the applicant will not be released at or about that time – be treated as a relevant consideration of the same kind as the expiry of the non-suspended portion of a partly-suspended sentence.
The emergence of the distinction
In Re Jackson,[6] the Court emphasised the distinction between the head sentence and the non-parole period. Callaway JA (with whom Southwell and Coldrey AJJA agreed), said:
“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 the 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 a head sentence and a non-parole period.
The true character of the latter was recently discussed by Hedigan AJA in R v Romeo[7]. It is quite wrong to regard it as the ‘real’ sentence. As Jenkinson J said in Attorney-General v Morgan,[8] 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.[9]
Another reason is that a head sentence is imposed on the basis that the 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[10]”.[11]
[6][1997] 2 VR 1.
[7]Ureported, Court of Appeal, 29 August 1996 at 10-13.
[8](1980) 7 A Crim R 146 at 154.
[9][1971] VR 656 at 657.
[10][1985] VR 41, especially at 44-5.
[11]At 2; see also Re Pennant [1997] 2 VR 85 at 86, per Winneke P.
In Re Pennant,[12] the Court drew a distinction between the expiry of a non-parole period and the expiry of the non-suspended portion of a partly-suspended sentence. The Court referred to Jackson and said:
“... [A] case where an application for bail [is] made in circumstances where a minimum term is fixed before the prisoner is eligible for parole [is to be] contrasted with a case such as this, where the trial Judge has suspended the sentence or a portion thereof ... so that the real incarceration time to be served will definitely be known and no discretion of the Parole Board enters into the equation.” [13]
[12][1997] 2 VR 85.
[13]At 86-7 (emphasis added).
In Re Pennant, the applicant had been sentenced to 14 months’ imprisonment, of which 10 months had been ordered to be suspended. The Court could not hear his applications for leave to appeal against conviction and sentence before the expiry of the first four months of the sentence. The application for bail was granted. Delivering the judgment of the Court (Winneke P and Callaway JA), the President said:
“It must necessarily follow that by the time this application can be heard the custodial portion of the applicant’s sentence will have either expired or very nearly expired.
This court has stated on previous occasions that these circumstances are capable of being ‘exceptional’ so as to warrant the grant of bail pending appeal. We refer to R v Salvo and the matters of R v Ratcliffe and Lynch. In each of those applications, like this application, part suspension ordered by the trial Judge had reduced the ‘real time to be served’ to a limited amount, most of which would have expired by the time the business of this court allowed those applications to be heard.”[14]
(In fact, although Ratcliffe and Lynch[15] was a case of part suspension, Salvo[16] concerned the expiry of a non-parole period.) The applicant in Re Pennant had relied on other grounds, but they were rejected.[17] The grant of bail was based solely on the expiry, or near-expiry, of the non-suspended portion of the sentence.
[14]At 86 (emphasis added, citations omitted).
[15]Unreported, Court of Appeal, 6 December 1995 (Winneke P, Southwell and Vincent AJJA).
[16]Unreported, Court of Appeal, 22 November 1995 (Winneke P, Hayne JA, Southwell AJA).
[17][1997] 2 VR 85 at 87.
The same distinction was drawn in Kursunlu.[18] There, the applicant had been sentenced to 18 months’ imprisonment, with a non-parole period of six months. Leave to appeal against sentence had been granted. Application was made for bail pending the appeal, primarily on the ground that, by the time the appeal was likely to be heard, the applicant would have served a considerable portion of his non-parole period.
[18]Unreported, Court of Appeal, 3 December 2001 (Winneke P, Brooking and Buchanan JJA).
Delivering the judgment of the Court (Winneke P, Brooking and Buchanan JJA), the President said:
“The tests applied by this Court for the grant of bail pending appeal are not in doubt: the Court will rarely grant such bail pending appeal and will only do so when exceptional circumstances have been shown. Those circumstances will, in many cases, be demonstrated when it can be shown that the whole of the custodial portion of the sentence will have been served, as distinct from the non-parole period, by the time when the appeal can be heard. Normally the Court acts upon the well established principle that the prisoner must expect to serve the whole of his sentence, subject to the power in the Adult Parole Board to release him on the expiration of the non-parole period.
...
Even if this appeal cannot be heard until March 2002, the applicant will by then not have served the whole of his non-parole period. The fact that he will have served a large portion of it, in itself, in our view, is not sufficient reason for the grant of bail. Nevertheless, as I have indicated to counsel, this Court will seek to make arrangements for the hearing of this appeal later this month.”[19] (emphasis added)
[19]At [2] and [4].
The distinction was also made in Crawley.[20] The applicant had been sentenced to 12 months’ imprisonment, with a direction that at the expiration of six months he be released on recognisance. 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 recognisance under the Crimes Act 1914. Those cases are to be distinguished from eligibility for parole.” (emphasis added)
[20]Supra.
Batt JA also noted that, because the applicant would automatically be released at the expiration of the six months, no discretion was involved. Hence, in his Honour’s view, the case was like Pennant rather than Jackson. His Honour continued:
“I assume, without deciding, that the serving of two-thirds of the custodial portion of a sentence amounts to serving an unacceptable part of that short portion. But the purpose for allowing bail on that basis is to forestall an injustice to an applicant, and here ... the applicant had already served almost two-and-a-half months at the date of application for bail, so that the purpose cannot be effectuated.” (emphasis added)
The distinction first drawn in Pennant has since been interpreted as meaning that the possibility of an applicant completing service of the non-parole period before an appeal is heard and determined should be regarded as irrelevant to the grant of bail. Thus, for example, in R v Phung,[21] Batt and Chernov JJA said that:
“It is well established that in order to obtain bail pending the hearing of an appeal, an applicant must show very exceptional circumstances. Where the sentencing disposition has been by way of imprisonment with a non-parole period, it is the service of an unexceptional portion of the head sentence, not the non-parole period, which relevantly is the factor falling for consideration, though it is only one of the factors: Re Jackson and Re Pennant.[22]
[21][2001] VSCA 81.
[22]At [8], citations omitted.
Counsel for the applicant submitted that such an approach is out of step with the practice adopted in other Australian jurisdictions, and ill-accords with principle, and therefore should no longer be followed.
Practice in other Australian jurisdictions
In Marotta v The Queen[23] Callinan J said that:
“... there is, and almost all penal legislation and executive policies relating to parole, work release, home detention, rehabilitation and the like recognise, a real distinction between custody in prison and the head sentence actually imposed: and accordingly it is not inappropriate to have regard to the non-custodial aspect of a sentence in considering an application for bail.”[24]
[23](1999) 73 ALJR 265.
[24]At 267 [18] at point 13.
To similar effect, in Doggett v The Queen[25] his Honour said that:
“In considering these two [applications for bail pending appeal] I do not overlook that the administration of the penal system, including admission to work release programs and parole, is, subject to all relevant legislation and regulation, a matter for the Executive. I keep in mind also that it is a matter for the Executive in what manner public funds are to be disbursed on programmes, competing public demands and in confining and protecting prisoners. Nor do I overlook that the head sentence imposed is a highly relevant, indeed, a primary consideration.
Having said that, however, it would be unreal, as I suggested in Marotta, not to have regard to the likelihood or possibility of earlier partial release and parole. By partial release I mean release from prison to work outside it.”
[25]Unreported, High Court, 2 November 2000; see also R v Velevski (2000) 117 A Crim R 30 (NSWCCA).
In United Mexican States v Cabal,[26] Gleeson CJ, and McHugh and Gummow JJ implicitly rejected several aspects of Callinan J’s observations, but said this:
[26](2001) 209 CLR 165 at 181[41] and [43].
“The history of decisions of this Court shows that ordinarily it will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. The grant of special leave will often – perhaps usually – indicate that there are strong grounds for so concluding. Secondly, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined. Thus, in Marotta v The Queen,[27] Callinan J granted bail after special leave had been granted. His Honour thought that substantial parts of the custodial sentences were likely to have been served and possibly completed in one case by the time the Court gave its decision on the appeal. Furthermore, the grant of special leave indicated that the applicants had at least reasonable prospects of succeeding in their appeals.
However, a very strong case is required for the grant of bail in a criminal case before the Court has granted special leave to appeal. As Dawson J pointed out in Peters v The Queen: [28]
‘[S]ince an application for special leave to appeal against conviction or sentence or both will ordinarily be made after an appellate court has considered the case and found no error, the occasions on which this Court will grant bail are rare indeed.’
Ordinarily, a person will be admitted to bail before the grant of special leave in a criminal case only where the Court is satisfied there are very strong grounds for concluding that leave will be granted. The applicant will also need to show that it is likely that the custodial sentence or the greater part of it will have expired before the application for leave is heard. It is true that in Pelechowski v Registrar,Court of Appeal[29] bail was granted to a person convicted of contempt of court by the Court of Appeal even though the prospects of succeeding in the application were not regarded as high. But that case had two special factors. First, the whole or substantially most of the custodial sentence would have been served by the time the special leave application was determined. Secondly, there had been no intermediate appellate review of the decision. Thus, the case was not one where ‘an appellate court has considered the case and found no error’.”
[27](1999) 73 ALJR 265.
[28](1996) 71 ALJR 309 at 310.
[29](1998) 72 ALJR 711 at 712.
In R v Antoine Antoun,[30] the New South Wales Court of Criminal Appeal treated Cabal as having determined the way in which an application for bail pending appeal to the High Court is to be decided. Consistently with that approach, Simpson, Johnson and Rothman JJ treated completion of the applicant’s non-parole period as a significant factor which, in combination with others, was capable of amounting to exceptional circumstances warranting the grant of bail. As their Honours put it:
“In our opinion bail ought to be granted in each of these cases. Antoine Antoun will be eligible for release on parole in less than three months from now. He has a limited criminal history. There is no way of forecasting when a decision in the matter would be given by the High Court. In our opinion, having regard to his compliance with bail conditions pending trial, and again pending appeal to this Court, there is no reason to fear his non-attendance. To deprive him of bail at this stage may very well deprive him of the benefit of his appeal, should he be successful.”[31]
[30][2005] NSWCCA 270.
[31]At [16].
More recently still, in Hanson v Director of Public Prosecutions,[32] the Queensland Court of Appeal has held that the Cabal test should be applied in applications for bail pending appeal to the Queensland Court of Appeal. In a joint judgment, Jerrard JA and Dutney and Philippides JJ said that:
“[Gleeson, McHugh and Gummow JJ] held that in consequence in a criminal case an order granting bail will only be made if there are exceptional circumstances, and that the history of decisions in the High Court show that ordinarily that Court will grant bail in criminal cases only if two conditions are satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal will be allowed. Second, the applicant must show that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined. Those remarks were made in the context of an application for bail pending extradition, but are equally applicable in an appeal to this Court, which point is demonstrated by the citation from Thomas J in Ex parte Maher in the decision in Cabal.”[33]
[32](2003) 142 A Crim R 241.
[33]At 243[7].
Different considerations apply in South Australia. The position there is governed by a statute which expressly excludes the common law “exceptional circumstances” test which applies in most other Australian jurisdictions. In Western Australia, where the exceptional circumstances test does apply, it seems to be commonplace for the court to take into account as a relevant consideration the probability that all or a majority of the non-parole or custodial portion of a sentence will have been served by the time an appeal has been heard and determined.
For example, in R v Bernt[34] Scott J, in dealing with an application for bail pending an appeal to the Court of Criminal Appeal, observed that:
“The more important aspect of this application is that the applicant will have served all or the majority of the custodial portion of his sentence prior to this appeal being heard. That fact alone is a basis upon which a court may grant bail in the circumstances, see Re Cooper's Application for Bail.[35] In applying that principle it is necessary to bear in mind that bail will only be granted in very exceptional circumstances pending appeal: see Chamberlain (No 1)[36] and the authorities referred to by Brennan J at 517.
…
In my view, in this case, taking into account all of the matters referred to in these reasons, and that is both the nature of the case against the applicant and the unusual circumstances of the case together with the fact that it is unlikely that this appeal can be heard before a substantial portion of the non-custodial [sic] part of his sentence of imprisonment has been served, this is a case where bail should appropriately be granted. In saying that, however, I wish to make it quite plain to the applicant that I have not reached the conclusion that there is any particular merit in the appeal, so that in due course it may be necessary for him to be returned to custody so that the balance of his sentence can be served. The grant of bail in this case is being exercised in order to ‘secure the ends of justice’: see Mickelberg.[37] To refuse bail in this case may have the result that the whole of the custodial portion of the applicant's sentence would be fully served before the appeal could be heard and determined, thus rendering the appeal effectively futile.[38]
[34](1994) 70 A Crim R 1.
[35][1961] ALR 584.
[36](1983) 153 CLR 514.
[37]Unreported, Court of Criminal Appeal of Western Australia, 25 October 1989, (Malcolm CJ) at 3.
[38]At 3-4; see also Hull v The State of Western Australia [2005] WASCA 107; Duong v The State of Western Australia [2005] WASCA 148 at [11]-[13].
In the result, it may be seen that the practice followed in this State is out of step with what is done in other Australian jurisdictions operating under the “exceptional circumstances” test.
Plainly enough, the nature of practice is such that it may vary from place to place without any error of principle. The mere fact of difference between our practice and that followed elsewhere is not necessarily a sufficient reason for change. But the fact that our practice is out of step with other Australian jurisdictions in a manner which affects the liberty of the subject suggests that it may be in need of some amendment. And, if nothing else, logic and common sense imply that, since service of the bulk of a non-parole period is a relevant consideration in other Australian jurisdictions operating under the “exceptional circumstances” test, it should also be the case in Victoria.
No distinction in practice
The basis of the distinction first drawn in Pennant – between the expiry of the non-parole period and the expiry of the non-suspended portion of a sentence is clear enough. The date of expiry of the non-suspended portion of a partially-suspended sentence is certain, because it is specified by the order of the sentencing court. When that date arrives, the release of the sentenced person follows automatically. The expiry of a non-parole period, by contrast, does not trigger the automatic release of the sentenced person. The question whether or not he/she should be released on parole is a matter for the Parole Board, in its discretion.
But, while that is an important legal distinction, there is in the vast majority of cases no practical difference between the two. The annual report of the Adult Parole Board of Victoria for 2004-05 records that in 2002-03, 95.1% of those eligible for parole were released on parole; in 2003-04, 94.8%; and in 2004-05, 90.6%.[39] The practice of the Board is to make the release decision before the expiry of the non-parole period, so that a decision to release can be effected either immediately the period expires or within a few days thereafter. In any given case, therefore, the overwhelming probability is that the non-parole period will be the custodial portion of the applicant’s sentence.
[39]In 2005-06, according to the Board’s Annual Report, 86.4% of those eligible were released on parole.
The fundamental principle, as Winneke P said in Ratcliffe and Lynch,[40] is one of fairness. As his Honour said:
“[I]t would be unfair for an applicant to be disadvantaged by the inability to have his appeal heard either before the expiry of his sentence or before the expiration of a substantial part of the custodial portion of the sentence.”
[40]Supra.
The rule of law requires that like cases be treated alike. What matters is the date on which, as a matter of practical reality, the applicant for bail will be released from custody. As the figures show, in most cases the non-parole period is the custodial portion of the sentence. In the ordinary case, therefore, the expiry of the non-parole period should be treated in exactly the same way as the expiry of the non-suspended portion of a suspended sentence and the expiry of that part of a sentence which is directed to be served before release on recognisance. Of course, if the Court forms the view, based on evidence relating to the applicant, that he/she is unlikely to be released on parole on the expiry of the non-parole period, the time lapse argument will not be relevant.
Axiomatically, whether bail will be granted in a particular case will depend on all of the circumstances, of which the expiry of the non-parole period will only be one. There may be countervailing considerations, of the “unacceptable risk” variety,[41] which mean that bail will be refused despite the fact that the non-parole period (or the suspended portion of a partly-suspended sentence) will have expired before the appeal is heard. The question of whether the applicant can establish that he or she has reasonable prospects of success is another factor that must be considered. That is not to say that an application will fail because of the applicant’s inability to demonstrate the existence of such prospects. In some – perhaps many – cases, it will be difficult to make any meaningful assessment of the prospects of success.[42]
[41]Bail Act 1977 (Vic) s.4(2)(d)(i).
[42]Re Clarkson at 585-6; Re Jackson at 3.
Otherwise, the principles and practice which apply to an application for bail pending appeal in this State remain as they have been understood since Jackson:
1) First, to reiterate the words of Brennan J in Chamberlain,[43] 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. In Markovina v R,[44] Hayne J doubted that there was any reason to distinguish these remarks in the case of an appeal against sentence. In Re Pinkstone’s Applications[45] Kirby J stated that in the context of a pending application for special leave, convictions and sentences and other orders are not to be regarded as provisional.[46]
[43]Chamberlain v R (No 1) (1983) 153 CLR 514 at 519-520.
[44](1998) 72 ALJR 1522 at 1523 [8].
[45](2003) 77 ALJR 1561 at 1563 [16].
[46]See also Putland v The Queen [2003] HCA 263, per Kirby J.
2) Secondly, although there is a statutory right of appeal, it is a right which is conditioned by the presumption which operates in favour of the validity of the conviction and sentence and it is, therefore, not a right to have the conviction or sentence suspended pending the hearing and determination of an appeal.
3) Thirdly, as has been confirmed by the High Court in Cabal,[47] to allow bail pending the hearing of an appeal, after a person has been convicted and imprisoned:
[47]United States of Mexico v Cabal (2002) 209 CLR 165 at 181 [39], per Gleeson CJ and McHugh and Gummow JJ.
·makes the conviction appear contingent until confirmed;
·places the court in the invidious position of having to return to prison a person whose circumstance may have changed dramatically during the period of liberty on bail;
·encourages unmeritorious appeals;
·undermines respect for the judicial system in having a “recently sentenced man walking free”; and
·undermines the public interest in having convicted persons serve their sentences as soon as is practicable.
These considerations have long been recognized as also applicable where the appeal is against sentence.[48]
4) Fourthly, and consequently, an order granting bail will only be made if there are exceptional circumstances.
5) Fifthly, “exceptional circumstances” means circumstances which are truly exceptional.
[48]R v Giordano (1982) 31 SASR 241 at 244 per King CJ; R v Velevksi (2000) 117 A Crim R 30 at 32[12]; Ettridge v DPP [2003] QCA 410 at [4]-[7].
Exceptional circumstances are established
That said, in this case it appeared to us that the circumstances were exceptional. The applicant was born in Sydney on 11 June 1980 and is 26 years of age. He relocated to Melbourne in 1998 and between December 2000 and October 2003 he owned and operated a hair dressing salon. From June 2005 to 24 January 2006, he was employed full time as a senior sales manager. Until he was sentenced on 24 January 2006 he lived at rented premises with his partner and their baby son.
On 16 January 2003 the applicant was arrested. After being interviewed by police, he was charged with multiple counts: kidnapping, trafficking in ecstasy, possessing ecstasy, false imprisonment, intentionally causing injury, recklessly causing injury, unlawful assault, blackmail, robbery, theft of a motor vehicle, theft, using a false document, obtaining property by deception, making threats to inflict serious injury, making threats to kill, and possessing a drug of dependence. On 23 January 2003 the applicant was bailed on his own undertaking to report to police three times per week.
Following a three day committal hearing from 13 to 15 October 2003, the applicant was committed to stand trial on a very much smaller number of counts. He was discharged from all other complaints. His trial was listed for hearing in the County Court at Melbourne on 30 August 2004. On that date the Crown applied to have the trial adjourned because a witness could not be located. The applicant’s co-accused had also not retained counsel to appear on his behalf at the trial
On 4 April 2005 the applicant was arraigned before the County Court at Melbourne where he pleaded not guilty to all counts on the presentment, except for the count of possessing a drug of dependence, to which he pleaded guilty. Following argument before the empanelment of the jury, the judge excluded as inadmissible parts of the evidence upon which the Crown proposed to rely. Consequently, on the morning of 5 April 2005, defence counsel handed the prosecutor an application for a nolle prosequi, which led to the matter being stood down from 10.20 am to 2.30 pm to enable the Director of Public Prosecutions to consider the application. Then at 2.30 pm on 5 April 2005 the prosecutor applied to have the trial adjourned, in order to file over a fresh presentment preferring all the charges originally preferred against the applicant, including those from which he had been discharged at the committal hearing. The application was justified on the basis that it was said that the Crown now intended to rely upon a photograph seized from the applicant’s home in January 2003, which it was said implicated the applicant in the offences involving Cook. Over objection, the judge granted the Crown’s application.
On 20 September 2005 the applicant was arraigned before the County Court at Melbourne on the fresh presentment and pleaded not guilty to all counts except the count possessing a drug of dependence. The Crown case closed on 24 October 2005, and on 25 October 2005 defence counsel made a no case submission. On 26 October 2005, the trial judge ruled that the applicant had no case to answer on any of the counts concerning one of the victims, and the judge entered verdicts of not guilty in relation to each of those counts. The remaining counts – theft (Count 3), false imprisonment (Count 4), intentionally causing serious injury (Count 6), recklessly causing injury (Count 7) and blackmail (Count 10) – were left to the jury. On 10 November 2005, the jury returned verdicts of guilty on Counts 3, 4, 6 and 10 and acquitted the applicant of Count 7.
The matter was thereafter adjourned for plea several times until 13 December 2005. After hearing a plea in mitigation of penalty, on 24 January 2006 the judge sentenced the applicant on the count of theft (Count 3) to four months’ imprisonment, on the count of false imprisonment (Count 4) to two years’ imprisonment, on the count of intentionally causing injury (Count 6) to eight months’ imprisonment, on the count of blackmail (Count 10) to eight months’ imprisonment and on the count of possessing a drug of dependence to a fine of $200 without conviction. That made for a total effective sentence of two years’ imprisonment and the judge set a non-parole period of eight months.
A full statement of grounds of appeal against conviction was filed on 7 June 2006. While the Crown contended that the appeal against conviction should be held to fail, it conceded that the application for leave to appeal was not without prospects of success.
A full statement of grounds of appeal against sentence was also filed on 7 June 2006. Again, although the Crown contended that the appeal should be held to fail, it conceded that, for the purposes of this application, the application for leave to appeal against sentence was not without prospects of success. If so, the sentencing discretion would be reopened. We were told that, on the last occasion, the Crown had not opposed a wholly-suspended sentence. It is, therefore, reasonably possible that if the applicant were re-sentenced, the non-parole period fixed on re-sentencing could be less than already served.
The applicant was at liberty on bail for some two years before being sentenced and, as the sentencing judge found, he reported and otherwise met the bail conditions assiduously. It was not suggested that there was any appreciable risk of flight or further offending and, in the particular circumstances of this case, the grant of bail pending appeal was not opposed by the Crown.
We were advised that the earliest possible date on which the applications for leave to appeal against conviction and sentence could be heard was 15 September 2006. Unless bail pending appeal was granted, therefore, the applicant would have completed service of the non-parole period of his sentence before the applications are heard and determined.
Finally, we noted that, if the applicant had been tried alone, arrangements could – and, in the usual course, would – have been made to deal with his applications for leave to appeal well before the expiration of the non-parole period. But, because he was tried with two co-accused, who had also applied for leave to appeal and whose applications should properly be dealt with at the same time as the applicant, that had not been practicable.
Given the extraordinary manner in which the applicant was presented for trial; the concessions made as to the applicant’s chances of success on appeal; the reasonable probability that, unless bail pending appeal was granted, the applicant would have served the whole of the non-parole period before the applications were heard and determined; and the fact that the hearing of the applications had been delayed because of the need to deal with the applicant and his co-accused at the same time, we were persuaded that the circumstances of the case were sufficiently exceptional to warrant the grant of bail.
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