Rogers v Director of Public Prosecutions (NSW)

[2021] NSWCCA 153

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rogers v Director of Public Prosecutions (NSW) [2021] NSWCCA 153

Hearing dates:

2 July 2021

Date of orders:

2 July 2021

Decision date:

09 July 2021

Before:

Bell P at [1];
Gleeson JA at [2];
Button J at [3]

Decision:

Bail refused for want of jurisdiction

Catchwords:

CRIME — appeal bail — application for bail pending purported appeal against sentence imposed many years previously — no extension of time for leave to appeal sought or granted — whether Court has jurisdiction to grant bail — whether Court should grant extension to permit application to be entertained —whether special or exceptional circumstances established in any event — whether unacceptable risk of commission of serious offence in any event

Legislation Cited:

Bail Act 2013 (NSW) ss 19, 22, 59, 61

Cases Cited:

Mashayekhi v R [2021] NSWCCA 55

Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238

Widdowson v R [2020] NSWCCA 213

Category:

Principal judgment

Parties:

Grahame Andrew Rogers (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:

B Hatfield (Respondent)

Solicitors:

Director of Public Prosecutions (NSW)

File Number(s):

2021/116644

Judgment

1. BELL P:  As Button J has explained, the Applicant’s application for bail was dismissed on 2 July 2021.  The Court indicated on that occasion that reasons for its decision would be published in due course.  I have had the benefit of reading the judgment of Button J.  It captures and reflects extremely well the reasons why I joined in the decision of the Court to refuse the bail application.

2. GLEESON JA: My reasons for joining in the order of the Court on 2 July 2021 accord with those of Button J.

3. BUTTON J:

Introduction

On 2 July 2021, I joined in an order of this Court dismissing a bail application brought by Mr Grahame Rogers (the applicant). The bail application related to an application for leave to appeal against sentence that the applicant proposes to mount in this Court on 9 August 2021.

4. The sentence in question was imposed on 4 December 2003 with regard to an armed robbery with wounding committed at the Criterion Hotel in the centre of Sydney in May 2000. It is composed of a head sentence of imprisonment for 17 years, to commence on 5 October 2010 and expire on 4 October 2027, with a non-parole period of 10 years 7 months, which expired on 4 May 2021. That sentence was partly cumulative on a series of sentences that themselves stretched back many years. The applicant was refused release to parole on the expiry of his non-parole period by the State Parole Authority (the SPA), and accordingly is serving his parole period. It was that refusal of release to parole that had led to his recent application for bail.

5. What follows are my reasons for joining in that order, in descending order of importance.

Three bases for refusal of bail

6. First, this Court had no jurisdiction to grant bail, because the applicant in truth had no application for leave to appeal against sentence on foot within it. That is in turn because no extension of time had been sought or granted. The result was that the application did not fall within ss 59 and 61 of the Bail Act 2013 (NSW): see Widdowson v R [2020] NSWCCA 213 and Mashayekhi v R [2021] NSWCCA 55.

7. I respectfully agree with what Hamill J said in Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238 and Mashayekhi v R to the effect that, at least nowadays, the jurisdiction of this Court to grant bail is to be found in the Bail Act, and not elsewhere.

8. I also agree with the judgment of his Honour in Mashayekhi to the effect that one can conceive of circumstances in which, in order to overcome this jurisdictional hurdle, this Court may be prepared to grant the necessary extension, and thereafter proceed to consider a bail application on the merits.

9. Nevertheless, I did not accept that that should occur here, not least because the sentence under putative appeal was imposed well over 17 years ago.

10. Secondly and contingently, because the proposed appeal is against a sentence imposed in the District Court, pursuant to s 22 of the Bail Act, the applicant needed to establish “special or exceptional circumstances”. Very often, establishment of such circumstances focuses upon the merit of the proposed grounds of appeal. Here, those grounds may be summarised as assertions that the sentence imposed was manifestly excessive; that fresh evidence that the applicant suffers from serious liver disease should lead to intervention; that the effect of the current pandemic on his custodial conditions (including the availability of leave from prison, affecting his ability to be granted parole) should do so; and that erroneous disparity exists between separate sentences imposed upon the applicant for a separate set of offences of grave violence committed in Queanbeyan, and his co-offender in those offences.

11. Apart from the last ground, which pertained to series of sentences that have fully expired and that are not the subject of proposed appeal in any event, I was prepared to accept, for the sake of contingent consideration only, that the first three grounds may be arguable. But I was not satisfied that any of them was likely to meet with success, let alone very likely to do so. Neither on that basis, nor any other basis, was I satisfied that the applicant had demonstrated special or exceptional circumstances.

12. Separately but relatedly, it is to be recalled that the head sentence does not completely expire until more than six years after the date upon which bail was sought. And as I have said, the SPA has currently refused the applicant parole. That means that, unless the applicant were able to persuade this Court that the sentence should be reduced by more than six years, if granted bail pending appeal he would have needed to be returned to custody, even if the appeal were successful to some degree. It seemed to me unlikely in the extreme that any appeal against sentence would succeed in achieving such a large reduction. Speaking generally, that inapposite state of affairs – release on bail for a number of weeks, followed almost inevitably by a return to custody – also argued against the establishment of special or exceptional circumstances.

13. Thirdly, turning contingently to the assessment of unacceptable risks for the purposes of the Bail Act, the written bail application proposed that the applicant be released on self-surety and his own recognisance. A brief letter from his brother offered accommodation. The applicant claimed in writing that he had rehabilitated himself over a period of more than 19 years of continuous custody commencing in February 2002, including having become a new person due to embracing religion. A certificate of completion of a therapeutic violence prevention program was placed before the Court. The applicant also spoke of his health challenges as an incarcerated man in his late sixties.

14. For the purposes of the application, I was prepared to accept that all of that may be true. But to be weighed against that was the fact that the applicant had been convicted of many offences of violence over many years, including sexual violence. Bearing in mind the lax bail conditions that were proposed, the criminal record of the applicant, and his undoubted institutionalisation after a period of almost two decades of continuous custody, I was satisfied that, if the bail application had been granted, there would have been an unacceptable risk of the commission of a serious offence of violence, in accordance with s 19(2)(b) of the Bail Act.

Conclusion

15. It was for all of those reasons that I joined in the order of the Court refusing bail.

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