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:

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

1. 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.”

1. 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.

1. 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.

1. 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

1. 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. 

1. The prosecution opposes bail, contending that the Court should not grant a stay and grant bail unless satisfied that the appeal itself is strongly arguable or has good prospects of success.  The Crown relies upon decisions of the High Court in relation to the stay of sentences where an application for special leave is made to that Court. 

1. Those decisions have no direct application to the present case.  The grant of bail in the ACT is governed by the Bail Act 1992 (ACT) (Bail Act).  There is a statutory scheme which differs from that relating to High Court appeals.  Nevertheless, some of the general considerations that have been canvassed in the High Court are relevant.  In particular, in United Mexican States v Cabal [2001] HCA 60; 209 CLR 165 (Cabal) at [39] the plurality (Gleeson CJ, McHugh and Gummow JJ) said:

To stay an order of imprisonment before deciding the appeal is a serious interference with the due administration of criminal justice.  As Thomas J pointed out in Ex parte Maher, to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned:

·makes the conviction appear contingent until confirmed;

·places the court in the invidious position of having to return to prison a person whose circumstances 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”;

·undermines the public interest in having convicted persons serve their sentences as soon as practicable.

(Citations omitted)

1. In relation to the grant of bail in respect of proceedings in the High Court, the result of these policy considerations is that bail will only be granted if there are “exceptional circumstances”, which the High Court has interpreted to mean that two conditions are satisfied:  first, there are “strong grounds for concluding that the appeal will be allowed” and, second, that the custodial part of the sentence is likely to have been substantially served before the appeal was determined.

1. While the policy considerations set out by the plurality in Cabal should be taken into account when this Court is considering the exercise of the discretion that it has to grant bail pending an appeal to the Court of Appeal, the way in which the discretion operates in this jurisdiction should primarily be determined by the Bail Act.

Section 9E of the Bail Act

1. Turning to the Bail Act, s 9E provides:

(1)      This section applies if: 

(a) a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and

(b) an appeal is pending in relation to the conviction or sentence.

(2) A court must not grant bail for the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

1. The question of what constitutes special or exceptional circumstances was considered recently by Refshauge J in Samani v The Queen [2016] ACTCA 48, where his Honour concluded at [20] that:

The fact that a sentence will have been fully or substantially served before the appeal is heard will ordinarily be a special or exceptional circumstance.

1. I take that to be a reference to the fact that the full-time custodial portion of a sentence will have been fully or substantially served before the appeal is heard.  In saying that, I have regard to the passage in Cabal to which I have referred.

1. In Samani at [8], Refshauge J referred to the decision of Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681 at 683 where Brennan J explained:

The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject matter of the litigation.

1. In relation to s 9E and the grant of bail, the same sort of approach should apply. I agree with Refshauge J that the fact that a sentence, or the custodial portion of a sentence, will have been fully or substantially served by the time that an appeal is heard will ordinarily constitute special or exceptional circumstances within the meaning of s 9E.

1. Consequently, in this case, I am satisfied that there are special or exceptional circumstances. 

1. That does not determine the matter because s 9E(2) simply provides:

A court must not grant bail unless satisfied of special or exceptional circumstances.

It does not prescribe that the Court must grant bail if there are special or exceptional circumstances; the Court still has a discretion as to whether bail should be granted.

In relation to the exercise of the discretion, some of the matters that must be considered are those in s 22 of the Bail Act. 

1. The Crown does not rely upon any matters set out in s 22 as being a matter that should preclude the Court granting bail, although those matters may form the conditions that would be attached to any grant of bail.

1. Another relevant consideration is whether the appeal has some prospects of success.  Without wishing to adopt any particular formula, be it some prospects of success, good prospects of success, or prima facie meritorious, bail should not be granted in the case of a clearly unmeritorious appeal.

1. The Crown contends that an applicant for bail must establish much more than that. 

1. I am in no position to assess the merits of the appeal.  However, it is apparent that the sentencing judge took a particular view of the application of intensive corrections orders (ICOs) and considered an ICO to be a sentence of last resort before full-time imprisonment.  His Honour considered that the offence required a period of full-time imprisonment and then proceeded to impose a partially suspended sentence. 

1. I express no view about whether his Honour’s approach was correct or otherwise.  However, the appeal does raise the question of where ICOs sit in the hierarchy of sentencing options in the ACT, if there is a hierarchy, and the legislation regarding ICOs is notoriously vexed.

1. I conclude that there will be significant and potentially important arguments to be decided by the Court of Appeal which may guide future courts in relation to the imposition of ICOs.  Consequently, without suggesting that it is likely to succeed or fail, the appeal is a matter that has substance.

Decision

1. In order to prevent the appeal against sentence being futile from the appellant’s perspective, I stay the sentence and grant bail on the conditions that:

(a)The appellant resides with his parents at [an address known to the Court]. 

(b)The appellant does not leave the Australian Capital Territory.

(c)The appellant reports to the City Police Station each Monday, Wednesday and Saturday between the hours of 8:00 am and 8:00 pm.

(d)The appellant does not consume alcohol to the extent that his blood alcohol reading exceeds 0.05 and submits to any testing requested by the police.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: 14 November 2016