Steven Paul Beattie v The Queen
[2011] ACTCA 18
HUMAN RIGHTS ACT
STEVEN PAUL BEATTIE v THE QUEEN
[2011] ACTCA 18 (22 September 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – jurisdiction of Court of Appeal – need for special and exceptional circumstances – family hardship – bail not granted.
Bail Act 1992 (ACT), ss 12B, 20B, 57AA
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A
Human Rights Act 2004 (ACT), s 18
R v Eisenach [2011] ACTCA 2
Chamberlain v The Queen (1982) 69 FLR 445
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Sherd v The Queen [2011] ACTCA 17
Re Clarkson [1986] VR 583
R v Wilson (1994) 34 NSWLR 1
Re Kulari [1978] VR 276
Re Pennant [1997] 2 VR 85
Robinson v The Queen (1991) 65 ALJR 519
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 35 of 2011
No. SCC 19 of 2011
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 22 September 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 35 of 2011
) No. SCC 19 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:STEVEN PAUL BEATTIE
Appellant
AND:THE QUEEN
Respondent
ORDER
Judge: Refshauge J
Date: 22 September 2011
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 35 of 2011
) No. SCC 19 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: STEVEN PAUL BEATTIE
Appellant
AND: THE QUEEN
Respondent
Judge: Refshauge J
Date: 22 September 2011
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
Steven Paul Beattie was, with others, involved in an altercation in which he used what looked like a machete, his fists and his feet to injure three victims who were struck numerous times on their bodies and faces and left bleeding heavily from wounds to their faces and heads.
He was charged with one count of assault occasioning actual bodily harm in respect of each victim, that is three charges, and pleaded guilty to each in the Magistrates Court where he was committed to the Supreme Court for sentence.
On 22 June 2011, he appeared before Nield AJ and adhered to his plea of guilty. He was sentenced on the first count to imprisonment for two years from the date of sentence, on the second count to imprisonment for one year and seven months to date from 22 April 2012, that is cumulative as to five months on the sentence on the first count, and on the third count to one year and seven months imprisonment to date from 22 August 2012, that is cumulative as to four months on the sentence on the second count. The total sentence was two years and nine months and one year and nine months was set as the non-parole period.
On 6 July 2011, Mr Beattie appealed against the sentence on the grounds that:
(a)His Honour gave inadequate weight to the appellant’s favourable subjective factors, and excessive weight to the objective seriousness of the offences.
(b)His Honour failed to give reasons for declining to order that the sentence be served by way of Periodic Detention.
(c)In all respects, the sentence imposed was harsh.
There may need to be some attention directed to these grounds. That a sentence is harsh is unlikely to be a successful appeal ground; it must be shown to be manifestly excessive. The first ground is unlikely to have been an error of law or fact, but rather a particular of a ground that the sentence is manifestly excessive. See R v Eisenach [2011] ACTCA 2.
The index to the appeal papers was settled on 28 July 2011 and, although the appeal books have not been filed, it appears as though the appeal is ready to proceed. As the listings for the November appeal sittings are full, however, it is unlikely that the appeal will be able to be heard before the sittings in February 2012.
By application dated 1 August 2011, Mr Beattie applied for bail pending the hearing of his appeal.
Although the application was not entitled in this Court, but as for the Supreme Court, it was numbered by the appellant as in this Court. It seems to me that the Supreme Court has no jurisdiction to grant bail in respect of proceedings in this Court so I, and all the parties, accepted that the application was in reality made to this Court.
Jurisdiction
A preliminary point arose as to whether this Court, the Court of Appeal, had jurisdiction to grant bail to an appellant pending the hearing of the appeal.
Ms T Warwick, who appeared for Mr Beattie, submitted that I did have power and Mr J White, Director of Public Prosecutions, for the respondent, submitted that I did not.
Ms Warwick submitted that as the Court had an appellate jurisdiction, it also had an inherent jurisdiction to grant bail. She relied for this proposition on Chamberlain v The Queen (1982) 69 FLR 445. In that case, however, the Federal Court had an express statutory power.
The existence of an inherent power, it seems to me, is inconsistent with the decision of Brennan J in Chamberlain v The Queen (No 1) (1983) 153 CLR 514 at 517. Although Ms Warwick submitted that his Honour did not rule out an inherent jurisdiction, I have read the cases to which his Honour referred and they clearly hold that there is no inherent jurisdiction to grant bail pending appeal.
She accepted that s 20B, as interpreted under s 12B of the Bail Act 1992 (ACT), does not in express terms give jurisdiction to this Court to grant bail, but submitted that “any such removal of inherent power must be express, not implied”. It seems to me, however, that, whether this is so or not, s 57AA of the Bail Act is such an express provision abolishing the inherent jurisdiction of the Court.
She raised the question of whether s 20B, if limiting the power of the Supreme Court in relation to bail, is invalid as inconsistent with s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth). This would also apply, arguably, to s 57AA of the Bail Act. For reasons that appear below, I do not need to address this issue.
Finally, Ms Warwick referred to s 18(6) of the Human Rights Act 2004 (ACT). That section does not seem to me to be relevant to a grant of bail. It is a right that is consistent with the right of appeal that Mr Beattie is currently exercising, that is a right to appeal to determine the lawfulness of his detention, that is to say, whether his sentence is lawful, but that does not entitle him to bail.
In any event, I decided in Sherd v The Queen [2011] ACTCA 17 that a single judge of the Court of Appeal has jurisdiction to grant bail. I adopt, without repeating, what I there said.
Whether bail should be granted
I also set out in Sherd v The Queen, the considerations that the Court must have when determining an application for bail.
In brief, the applicant must show special or exceptional circumstances. These must address at least two issues, namely, whether the applicant for bail will have served all or a substantial portion of the custodial part of his sentence before the appeal can be heard and whether there are arguable prospects of success of the appeal.
Here, the appeal is, as I have noted above (at [6]), likely to be heard in February 2012. As Mr Beattie’s non-parole period does not expire until March 2013, it cannot be said that the appeal being heard in February 2012 will be rendered futile nor that a substantial portion of his sentence will have been served by the time it is heard.
In the absence of this consideration, it is usually required that the prospects of success on the appeal must be very strong; it must be very likely that the appeal will be upheld. See Re Clarkson [1986] VR 583 (at 586); R v Wilson (1994) 34 NSWLR 1 (at 6).
It is always difficult to assess the strength of the prospects of success of an appeal on a bail application. It is also inappropriate to analyse the grounds too closely for full argument has, necessarily, not been able to be made or heard about the appeal.
Nevertheless, some brief, if limited, analysis is inevitably required to assess at the very least whether the appeal is arguable and, if able to be ascertained, whether the grounds are strong.
Here, I have few, if any, indications of the strength of the case on appeal. The first ground involves a weighing of factors which is always a matter of judgment and, while, therefore, an arguable case, it cannot be said to be a very strong case on appeal.
As to the issue of periodic detention, Nield AJ was, it is clear, aware of the various sentencing alternatives and concluded that imprisonment was, in his Honour’s view, the only appropriate sentence. His Honour also expressly addressed the issue of whether the sentence should be served by periodic detention, which, it was said, was desirable so as not to set back Mr Beattie’s rehabilitation. His Honour addressed this issue and held that the other purposes of punishment outweighed this factor. Thus, his Honour did give reasons. Whether they were adequate is, perhaps, arguable, but no more than that.
Finally, as to the ground that the sentence is manifestly excessive (if that is what the third ground really is), I note what Young CJ said in Re Kulari [1978] VR 276 (at 277-8).
It is not possible or desirable to attempt to describe what might be regarded as very exceptional circumstances but the fact that there is a prima facie arguable ground of appeal is, I think, of very little weight where the ground of appeal is that the sentence imposed is too severe.
The real ground for seeking bail is, however, the family hardship that Mr Beattie’s partner and his mother are experiencing from his incarceration.
Mr Beattie’s partner is 20 weeks pregnant and suffers from depression and insomnia. Her general practitioner has opined that Mr Beattie “be considered for weekend detention to help improve her health”.
In addition, Mr Beattie’s mother says she has relapsed to alcohol use as a result of his sentencing and that her mental health has deteriorated. Mr Beattie is her primary carer. She also depends on Mr Beattie to cook her meals, pay her bills and make sure her medication is up-to-date.
It is difficult not to feel sympathy for the inevitable hardship that families of sentenced prisoners experience, often through no fault of their own.
It is often said that such prisoners should be mindful of the consequences of their actions and the effects on their families of the ensuing punishment before committing such crimes for it is they and not the courts who are putting their families through this hardship. That is, while true, perhaps a little unrealistic especially where, as here, the offender was well affected by alcohol at the time of the offence. Nevertheless, it is only in rare circumstances and where the hardships are truly exceptional that an otherwise just punishment can be moderated to take account of such hardships.
When considering bail pending appeal, it is clear that ordinarily, family hardship will not be considered a special or exceptional circumstance. See Re Pennant [1997] 2 VR 85; Robinson v The Queen (1991) 65 ALJR 519.
I have given careful thought to all the matters argued on behalf of Mr Beattie. I cannot, however, find special or exceptional circumstances in the application for bail.
The application must be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 22 September 2011
Counsel for the Appellant: Ms T Warwick
Solicitor for the Appellant: Darryl Perkins
Counsel for the Respondent: Ms M Hunter (5 August 2011)
Mr J White (8 and 10 August 2011)
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 5, 8 and 10 August 2011
Date of judgment: 22 September 2011
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