Sharma v The Queen - [2016] ACTCA 60

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Sharma v The Queen
Citation:	[2016] ACTCA 60
Hearing Date:	26 October 2016
DecisionDate:	26 October 2016
Before:	Murrell CJ
Decision:	Sentence stayed and bail granted with conditions. See [24].
Catchwords:	CRIMINAL LAW – BAIL – Appeal bail – Bail Act 1992 (ACT) s 9E – whether having substantially served the full-time custodial portion of a sentence before appeal is determined is a “special and exceptional circumstance” – relevance of appeal prospects of success – stay and bail granted.
Legislation Cited:	Bail Act 1992 (ACT) s 9E, 22 Crimes Act 1900 (ACT) s 20
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681 Samani v The Queen [2016] ACTCA 48 United Mexican States v Cabal [2001] HCA 60; 209 CLR 165
Parties:	Jordan Sharma (Appellant) The Queen (Respondent)
Representation:	Counsel Mr K Archer (Appellant) Ms E Beljic (Respondent)
Solicitors Sharman Robertson (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 35 of 2016

MURRELL CJ:

The applicant, the appellant in Court of Appeal proceedings, seeks bail pending the decision of the Court of Appeal.

On 22 July 2016, Elkaim J sentenced the appellant for an offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT). His Honour stated at [36]:

In my view, a sentence of imprisonment is inevitable. I do not think an intensive corrections order is appropriate. That is an order “that is intended as a sentence of ‘last resort’ for offenders before full‑time imprisonment.”

His Honour went on to state that, in his view, the offence required that the appellant spend some time in full‑time custody. He considered that the remainder of the sentence could be suspended.

After a 25% reduction for the plea of guilty, his Honour imposed a sentence of 27 months’ imprisonment, to be suspended after the appellant had served nine months’ imprisonment. As the sentence commenced on 22 July 2016, it is to be suspended from 22 April 2017.

The appeal is fixed for hearing on 23 February 2017. Even if the appeal is decided ex tempore, the appellant will have served most of the period of full-time imprisonment before the appeal is determined. There is a reasonable likelihood that the appeal will not be determined ex tempore and that a decision may not be handed down until the appellant has served the whole period of full-time imprisonment.

Stay of sentence and grant of bail

The parties accept that, before bail could be granted, the Court would need to stay the sentence, that the Court has power to do so, but that the Court should only do so in very limited circumstances. The issues of the grant of a stay and the grant of bail are fundamentally linked.

The prosecution opposes bail, contending that the Court should not grant a stay and grant bail unless satisfied that the appeal itself is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharma v The Queen

Details

AGLC: Sharma v The Queen [2016] ACTCA 60
Case: [2016] ACTCA 60
Decision Date: 26 October 2016

CaseChat Overview and Summary

Sharma appealed against a conviction and sentence imposed by the Supreme Court of the Australian Capital Territory. The appeal concerned the applicant's eligibility for bail pending the determination of his appeal against that conviction and sentence.

The central legal issue before the Court was whether the applicant having substantially served the full-time custodial portion of his sentence prior to the determination of his appeal constituted a "special and exceptional circumstance" for the purposes of granting bail under section 9E of the *Bail Act 1992* (ACT). The Court was also required to consider the relevance of the prospects of success of the appeal itself in this determination.

Murrell CJ reasoned that the substantial service of the custodial sentence was a significant factor, particularly when viewed in conjunction with the potential for the appeal to succeed. The Court applied the principles governing the grant of bail pending appeal, acknowledging that while substantial service of a sentence is not determinative, it can, in certain circumstances, weigh heavily in favour of granting bail, especially where there are arguable grounds of appeal. The Court concluded that the combination of these factors presented a special and exceptional circumstance justifying the grant of bail.

Consequently, the Court ordered that the sentence be stayed and that bail be granted to the applicant, subject to certain conditions.

Orders

Orders of the court

Sentence stayed and bail granted with conditions. See [24].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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