Snowden v Clark
[2012] ACTSC 85
•May 10, 2012
SIMON MILNE SNOWDEN v JENNIFER MARY CLARK
[2012] ACTSC 85 (10 May 2012)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail pending appeal – need to show special or exceptional circumstances – original hearing date vacated by appellant because appeal books not ready – new expedited hearing date set – appellant would have served five months and three weeks of eight-month term of imprisonment – current appeal ground hard to make out – foreshadowed new appeal ground does not seem to identify error – special or exceptional circumstances not made out – bail refused.
Bail Act 1992 (ACT), s 9E
Crimes (Sentencing) Act 2005 (ACT), s 10
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 125 of 2011
Judge: Penfold J
Supreme Court of the ACT
Date: 10 May 2012
IN THE SUPREME COURT OF THE )
) No. SCA 125 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SIMON MILNE SNOWDEN
Appellant
AND:JENNIFER MARY CLARK
Respondent
ORDER
Judge: Penfold J
Date: 10 May 2012
Place: Canberra
THE COURT ORDERED THAT:
Bail be refused.
Introduction
Simon Snowden has applied for bail pending the hearing of his appeal from a sentence imposed in the Magistrates Court. As a sentenced prisoner, he is covered by s 9E of the Bail Act 1992 (ACT), which prevents bail being granted unless the court is satisfied that special or exceptional circumstances exist favouring the grant of bail.
Appeal processes
Mr Snowden’s sentence, the sentence against which he has appealed, was for eight months imprisonment running from early December 2011. He appealed in a timely way, and his appeal hearing was initially set for a date roughly four and a half months after that sentence was imposed. On that date, the hearing date was vacated because of a failure to finalise the Appeal Books in time, and indeed was vacated at the instigation of Mr Snowden’s representatives.
I note in passing that there have been occasions in this Court recently when Judges have, in fact, been willing to hear appeals, in what seemed to be fairly straightforward cases like this, if simply the basic documents are put in front of them, and my understanding is that there has been or there is being an attempt to simplify the Appeal Book process more generally, so that I am not absolutely sure that there was any real need for the massive properly-bound pile of documents that was apparently produced in the end for Mr Snowden’s appeal.
Be that as it may, the vacation of that appeal hearing then left Mr Snowden briefly unsure of when his appeal would be heard, and whether it would be heard before his sentence expired, but as of this afternoon a further appeal date has been set, and that again has been expedited, such that the appeal will now be heard five months and three weeks into his eight-month sentence.
Are there special or exceptional circumstances?
Timing of appeal hearing
On the face of it, the timing of his appeal hearing might be the start of a finding of special or exceptional circumstances as required for the granting of appeal bail; however, the other thing that I need to look at is, in very general terms, the strength of the appeal.
Strength of appeal grounds
The appeal ground that is in front of me is that the sentence is manifestly excessive, and there is a prospective ground along the lines that the sentencing Magistrate failed to consider whether the prison sentence she imposed should have been served partly in full-time custody and partly suspended.
It is possible that by the time the appeal hearing comes on in another couple of weeks that ground will have been filled out, but at this stage, a quick look at the papers suggests to me that the manifestly excessive ground would be fairly hard to make out. I reach this conclusion having considered Mr Snowden’s criminal record and the sentencing Magistrate’s description of the offence, in particular her finding that this offence comes very close to the worst case for a common assault – as to which her Honour says quite tellingly:
I have struggled to conceive of a situation which would result merely in a charge of common assault that could be significantly worse than this.
As to the second possible appeal ground that, as I have hinted, may have been developed into something clearer by the time the appeal comes on for hearing, my own immediate view is that once the Magistrate has satisfied the requirement in s 10 of the Crimes (Sentencing) Act2005 (ACT) by indicating her satisfaction that a prison sentence is the only appropriate sentence, and once she has then gone on, as her Honour did in this case, to consider both the possibility of periodic detention and the possibility of suspending the sentence, it is hard to see that there is any error in failing to consider specifically the third option of a partially suspended sentence.
Conclusion and order
For those reasons, I cannot see that special or exceptional circumstances have been made out in this case, and accordingly I refuse bail.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 7 June 2012
Counsel for the Appellant: Mr M Hassall
Solicitor for the Appellant: Darryl Perkins Solicitor
Counsel for the Respondent: Mr K Lee
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 10 May 2012
Date of judgment: 10 May 2012
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