SBT v Wright (No 2)
[2022] ACTSC 97
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SBT v Wright (No 2) |
Citation: | [2022] ACTSC 97 |
Hearing Date(s): | 5 April 2022 |
DecisionDate: | 5 April 2022 |
Before: | McCallum CJ |
Decision: | Bail refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – Bail – Application for bail pending appeal – Bail refused – Whether there are special or exceptional circumstances favouring the grant of bail |
Legislation Cited: | Road Transport (Safety and Traffic Management) Act 1999 (ACT) Criminal Code 2002 (ACT) Bail Act 1992 (ACT) |
Cases Cited: | SBT v Wright [2021] ACTSC 322 Samani v The Queen [2016] ACTCA 48 |
Parties: | SBT (Applicant) Wright (Respondent) |
Representation: | Counsel Self-represented (Applicant) K McCann (Respondent) |
| Solicitors Self-represented (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | AC 3 of 2022 |
McCALLUM CJ:
The applicant, SBT, was sentenced in the Magistrates Court for a series of offences, the most serious of which were an offence of failing to stop a motor vehicle for police, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and an offence of driving a stolen motor vehicle, contrary to s 3182 of the Criminal Code 2002 (ACT).
For those offences, he was sentenced to an aggregate sentence of 11 months of which the two offences I have just mentioned account each for nine months to be served concurrently. As some of the offences were committed when the applicant was a child, it was not possible for the court to consider imposing an Intensive Corrections Order. Further, because the sentence was less than 12 months, no non-parole order was set: see s 65 of the Crimes (Sentencing) Act 2005 (ACT). Finally, no portion of the sentence was suspended.
The applicant appealed to this Court and was represented at the appeal. The appeal was heard by Mossop J on 3 November 2021 and his Honour dismissed the appeal for the reasons published in a judgment dated 21 December 2021: SBT v Wright [2021] ACTSC 322. The applicant now seeks bail pending an appeal against the judgment of Mossop J.
As the application is brought by a person who has been convicted and sentenced to a period of imprisonment, s 9E of the Bail Act1992 (ACT) applies. That section provides that the Court must not grant bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
The Crown has very fairly drawn attention to the likelihood that, had the applicant been represented on the present appeal, it would have been argued on his behalf that a stay of his sentence and a grant of bail are necessary to preserve the subject matter of the pending appeal. His sentence is currently due to expire on 31 May 2022 and the Court will, in all likelihood, not be able to hear the appeal before that date.
The Crown drew my attention in that context to the decision of Refshauge AJ in Samani v The Queen [2016] ACTCA 48. That was a case in which his Honour considered that the fact that the appeal would be rendered nugatory if a stay and bail were not granted was enough to establish special or exceptional circumstances for the purposes of s 9E of the Bail Act. However, that was in circumstances where his Honour considered that there were reasonable prospects of success in the appeal, the case being one in which the court had failed to consider whether to impose an intensive correction order in circumstances where that was an available option.
I have read the judgment of Mossop J and cannot see in that judgment any obvious error of the kind which might establish special or exceptional circumstances. Two proposed grounds of appeal are specified. They are that his Honour erred in determining that the sentences imposed by Special Magistrate Campbell were not manifestly excessive and that his Honour erred in not admitting fresh evidence on the appeal. The second of those grounds appears to be misconceived. His Honour did consider the proposed fresh evidence but formed the view that the evidence would not afford any ground for allowing the appeal since the fresh evidence raised matters which had been considered by the magistrate. Unless there was some element of perversity or unreasonableness in that view, or it was not open to his Honour, that would be an answer to that proposed ground. As to whether the sentence was manifestly excessive, Mossop J did note that the sentences were stern and I can only agree.
I also would express my sympathy for the applicant’s argument that he is concerned if he is released without any supervision orders at the end of his sentence, he will be less able to remain out of contact with the criminal justice system than if he were released on bail with some form of intensive supervision at this stage.
Regrettably, however, in light of the view I have reached as to the force of the reasons in Mossop J’s judgment, my hands are tied and in accordance with the provisions of the Bail Act, I must refuse the application.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 4 May 2022 |
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