Stott v The Queen
[2016] ACTCA 36
•18 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Stott v The Queen |
Citation: | [2016] ACTCA 36 |
Hearing Date: | 6 July 2016 |
DecisionDate: | 18 August 2016 |
Before: | Refshauge J |
Decision: | 1. The sentence of imprisonment imposed on Sharon Ann Stott on 16 March 2016 be stayed on 19 August 2016 until 9 September 2016. 2. Sharon Ann Stott be granted bail from 19 August 2016 until 9 September 2016 on the following conditions: (i) That a suitable person provide security in the sum of $10,000; (ii) That Sharon Ann Stott accept supervision by the Director-General or her delegate and obey all reasonable directions of the person supervising her; (iii) That Sharon Ann Stott not consume alcohol or illicit drugs; (iv) That Sharon Ann Stott submit to urinalysis or breath analysis when reasonably required by a police officer to whom she is required to report under condition 5 and by the person supervising her under condition 2; (v) That Sharon Ann Stott report to the Officer-in-Charge of Woden Police Station each day between the hours of 8:00 am and 8:00 pm; (vi) That Sharon Ann Stott be at her place of residence each day between 8:30 pm and 7:30 am. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – Stay – Special or exceptional circumstances - prospects of success of appeal– possible termination of tenancy – arrange accommodation for family members – arrange for care of pets – potential loss of possessions – temporary stay and bail |
Legislation Cited: | Bail Act 1992 (ACT), s 9E Crimes Act 1900 (ACT), s 162 Criminal Code 2002 (ACT), ss 45A, 603(7) |
Cases Cited: | Filippetti (1978) 13 A Crim R 335 In an Application for Bail by Massey [2008] ACTSC 145 |
Texts Cited: | T Wolfe, Counting the Cost. The Social and Financial Consequences of Women’s Imprisonment E Genders and E Player, ‘Women in Prison: The Treatment, the Control and the Experience’ in P Carlen and A Worrall (eds), Gender Crime and Justice (Open University, 1987) |
Parties: | Sharon Ann Stott (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Nicholson SC (Appellant) Mr M Reardon (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 12 of 2016 |
REFSHAUGE J:
On 16 March 2016, a jury found the appellant, Sharon Ann Stott, guilty of trafficking in methamphetamine contrary to s 603(7) of the Criminal Code 2002 (ACT) and of possessing a prohibited weapon, an offence under s 5 of the Prohibited Weapons Act 1996 (ACT).
Acting Justice Walmsley sentenced Ms Stott on 9 May 2016, imposing a sentence of five years imprisonment on the first charge and a concurrent sentence of one month imprisonment on the second charge. A non parole period of two years and eight months was set.
On 12 April 2016, Ms Stott appealed to this Court from the convictions for the two offences. She has now applied for a stay of the sentence and for bail pending the appeal.
Nature of the hearing
In R v Quzag (2015) 298 FLR 330 at 335; [34], the Court of Appeal confirmed what I had held in Sherd v The Queen (2011) 5 ACTLR 290 that the court has, as an incident of the statutory power to grant a stay of a decision of a court which is the subject of an appeal (s 37J(1)(d) of the Supreme Court Act 1933 (ACT)), power to grant bail but, contrary to what I had held in Sherd v The Queen, only if it has granted a stay of the sentence.
While the court then granted a stay and bail to Mr Quzag (Quzag v The Queen (No 2) [2015] ACTCA 37), it did not articulate the criteria for granting a stay but appeared to accept that criteria for granting a stay were no more stringent than the criteria for the grant of bail.
The criteria for the grant of bail pending appeal is set out in s 9E of the Bail Act 1992 (ACT), namely that special or exceptional circumstances favouring the grant of bail must be shown to exist.
In Sherd v The Queen, I considered such applications for bail and I considered some of the considerations for such an application that are relevant.
Thus, I held that an applicant was required to show special or exceptional circumstances. Sometimes that will be shown where the sentence, especially the custodial part of the sentence, will have been served before the appeal can be heard.
It will also involve a consideration of the prospects of success of the appeal, though that is a difficult issue for it is inappropriate to try the appeal on a bail application. At least an arguable case would be required to be shown – and that can be difficult in appeals against sentence – but if the strength of the case or appeal is the only ground, then the case must be very strong; indeed, it is sometimes expressed that the appeal must be “most likely to succeed”.
The bail application
The application was supported by an affidavit of Ms Stott’s lawyer, a not infrequent situation for bail applications.
That affidavit set out the formal matters concerning the commencement of the appeal and annexed a compact disc of the draft appeal books.
Ms Stott’s lawyer also deposed that Ms Stott had been on bail from 24 February 2015 until she was sentenced to a term of imprisonment on 9 May 2016. Indeed, bail was continued after the verdicts of guilty were returned by the jury until sentence was imposed.
The affidavit showed that Ms Stott was 54 years old and, prior to her incarceration, lived at an address in Kambah with her 16 year old son. She appears to have lived there for 14 years. She has no convictions in ACT Courts for failing to appear in accordance with a bail undertaking, though she has in NSW, described, what was perhaps curiously (and elliptically), as her “last failure to appear was in 1997 in NSW”.
At the hearing, a friend of Ms Stott’s gave evidence. That friend lives in NSW, adjacent to the ACT. She has known Ms Stott for eight or nine years. Ms Stott’s friend has never been in trouble with the law and was prepared to offer a surety of $10,000, if required for Ms Stott’s bail.
Ms Stott’s friend said that she knew Ms Stott well and was a good friend. She said that she was convinced that Ms Stott would not commit offences while on bail and that she would attend court when required.
She also knew Ms Stott’s son and had had recent contact with him. She said that he is finding life difficult without his mother. He was presently living in the house by himself. He was struggling and not coping very well. He was withdrawn and not attending school.
The residence where Ms Stott and her son lived was leased from the government and photos of its contents were admitted into evidence. They showed objets d’art and items of obvious value.
An email from the ACT Government was admitted into evidence. It showed that consideration was being given to whether the tenancy should continue as a result of Ms Stott’s imprisonment. Under clause 94 of the standard residential tenancy agreement (being Sch 1 to the Residential Tenancies Act 1997 (ACT)) the landlord, here the ACT Government, presumably through the Commissioner for Social Housing established under the Housing Assistance Act 2007 (ACT), could terminate such an agreement without cause on giving 26 weeks notice.
The document showed that a Notice to Vacate under that clause is ordinarily given to a tenant who has been imprisoned. That Notice requires vacant possession no earlier than 26 weeks after service of the Notice. Such a Notice had not been given at the date of the application.
Ms Stott’s friend indicated that, were such a Notice to be given, she would help if she could but had no idea how she would be able to assist Ms Stott to pack up and arrange storage for the items in the house. She could only take a very much secondary role.
She also noted that Ms Stott had three dogs; she was looking after one, but Ms Stott’s son was looking after the other two. She had no idea what would happen to the other dogs.
There was also a problem as to where Ms Stott’s son would live. Ms Stott’s friend assumed that he would have to be housed in a unit somewhere. She had, she said under cross-examination, seen Ms Stott’s son twice since Ms Stott was imprisoned, but had spoken to him over the phone a number of times, about once a week. He was, she said, not at school and without a job. She could not, it appears, identify any particular change in him since his mother was sentenced.
She did express concern that he may, if re-housed through the Commissioner for Social Housing, be placed with unemployed people and also undesirable associates who may be a bad influence on him. He was quite reliant on his mother for supervision.
Ms Stott’s friend was aware that Ms Stott’s older son had a drug problem and that Ms Stott was keen to shield her younger son from starting to use drugs.
Ms Stott’s friend was aware of her criminal history, that she had a prior conviction for drug trafficking and also for kidnapping.
Prospects of success on the Appeal
The Amended Notice of Appeal listed the following grounds of appeal:
(a)The learned trial judge failed to restore the Indictment to the charge upon which the accused had originally been arraigned;
(b)The learned trial judge failed to direct the jury that the trial was focused only upon the question of whether the Crown had proved drug trafficking between the accused and the co-accused, Charlie Vo, and not trafficking at large;
(c)The learned trial judge erred in failing to apply R v Filippetti (1978) 13 A Crim R 335 to count 1 on the indictment, and thereby failing to direct the jury to return a verdict of acquittal;
(d)The learned trial judge erred in failing to direct the jury to return a verdict of acquittal on count 2;
(e)The learned trial judge erred in his direction to the jury in relation to the elements of the offence in count 2;
(f)The learned trial judge erred in failing to exclude the evidence of moneys found in the bedroom of the accused;
(g)The jury were clearly confused as to the burden and standard of proof in light of the final jury question;
(h)The verdict in respect of each count was unreasonable having regard to the evidence; and
(i)The sentence imposed in relation to count 1 is manifestly excessive.
I was not taken to all of the grounds.
Grounds (a) and (b) related to an amendment to the indictment. Originally, Ms Stott was charged with another accused, Charlie Vo, and she was charged as part of a joint criminal enterprise under s 45A of the Criminal Code (ACT).
On the Friday before the trial commenced, however, Mr Vo pleaded guilty to a different charge, namely attempting to participate in the sale and supply of methylamphetamine.
The Crown then sought to amend the indictment simply by removing Mr Vo’s name. Ms Stott’s counsel consented to the amendment, but realised later that he should not have done so and submitted to me that this then caused an unfairness. The unfairness suggested was that the Crown case was said then to be left as if Ms Stott was trafficking with the world at large and not simply with Mr Vo, as was said to be constituted by the Crown case as set out in the Case Statement.
There were also substantial amounts of money found in the house when police searched it. The amendment to the indictment was said to have raised an unfairness which counsel for Ms Stott had not appreciated at the time, namely that some of the money found may be supportive of Ms Stott trafficking in drugs on other occasions or more widely than through any involvement with Mr Vo.
The ground of appeal raised the issue that the trial judge declined to re-visit the amendment to the indictment but on the basis, with which the Crown agreed, that the case was limited to that set out in the Case Statement, namely the incidents that happened on 18 January 2015 and that Ms Stott was working with Mr Vo. This, however, was not how the case was, in the event, put to the jury. It was said that the case as put to the jury was wider than that which was set out in the Case Statement. This, it was asserted, was an unfairness which resulted in a miscarriage of justice. I note, however, that no objection was taken by Ms Stott’s counsel to the trial judge’s charge to the jury.
This ground was closely linked to ground (f), which involved a quantity of money found by police in Ms Stott’s bedroom. She said that she had an innocent explanation for having the money but was unable to put it forward through the admission into evidence of an interview she had with police where she gave the explanation because of a claim by police that a portion of the interview was privileged from disclosure on the ground of public interest immunity. Ms Stott had, therefore, asked the trial judge to exclude the evidence of the money, but his Honour declined to do so.
It was further put as ground (c) of the Appeal, that the Court did not properly apply the principles set out in Filippetti (1978) 13 A Crim R 335, namely that the finding of an object in a place to which other persons, such as occupants of a house, had access, did not establish the physical control or custody of the object by one of the persons or occupants because any physical control or custody was not, as required, to the exclusion of the others and liability could only attach if joint or shared custody and control would be inferred.
In this case, methylamphetamine was found in three locations: a small amount (0.766 grams) on top of the refrigerator, 139.005 grams in the washing machine and 27.909 grams in a water tank of a portable air conditioner in the bedroom of Ms Stott’s older son who was addicted to drugs.
Ms Stott submitted that Mr Vo had bought the drugs onto the premises and had hidden them in the washing machine so that she could not have been found to have been in possession of the drugs. The results of the search, however, could not properly exclude that he or one of Ms Stott’s sons had possession or account for the drugs.
These matters, I accept, provide an arguable case for Ms Stott. I am unable to say that it is a strongly arguable case. It does not rise to the level that is referred to in Sherd v The Queen as necessary to found an application for bail where the strength of the case is the only or the only substantial ground of the appeal. That is to say, the appeal cannot be said to be “most likely to succeed”.
Other matters
I held in In an Application for Bail by Massey [2008] ACTSC 145 at [8], that an applicant for bail, where the grant of bail requires the court to be satisfied that there are special or exceptional circumstances favouring the grant of bail, must show that there are “some unusual or uncommon circumstances which justify the granting of bail”.
I further held in that case, at [28], that, where there are a number of relevant factors on which an applicant relies, the special or exceptional circumstances may exist from the interaction or totality of those factors, even if, alone, each of them would not reach that level. I noted also in R v Celeski [2016] ACTSC 140 at [42], that the words do not mean “unique, or unprecedented, or very rare”.
Mr J Nicholson SC, who appeared for Ms Stott, submitted that the loss of her rental home would render her homeless and that this was a special or exceptional circumstance. He submitted that, were her appeal to be successful then, when released, she would be homeless if the tenancy were terminated.
That did not seem to me to be special or exceptional. That is, regrettably no doubt, a common consequence of the incarceration of persons who reside in rental properties.
Mr Nicholson SC also relied on research which he said showed that persons who are imprisoned for more than six months lose property. He did not identify the research but I note there are statements to the same general effect in publications about imprisonment. Perhaps helpfully, I refer to Toby Wolfe, Counting the Cost. The Social and Financial Consequences of Women’s Imprisonment, a Report prepared for the Wedderburn Committee on Women’s Imprisonment, March 1999, who reported, at 26-27, that:
· one third of women lost their home through imprisonment;
· the loss of a home may also result in a loss of possessions and that “[more] typically, eviction results in a prisoner’s possessions being thrown away”.
See also, E Genders and E Player, ‘Women in Prison: The Treatment, the Control and the Experience’ in P Carlen and A Worrall (eds), Gender Crime and Justice (Open University, 1987).
In this case, however, the evidence was that Ms Stott’s property, including the objets d’art, photographs of which I saw, were said in evidence to be worth $30,000 to $40,000. That seems to me to be somewhat unusual or uncommon for a person who is imprisoned without, for example, owning her own home or having someone else who could protect her property.
Mr Nicholson SC also relied on the issue of the relocation of Ms Stott’s younger son, who was having difficulties with re-adjustment. Again, I pointed out in Sherd v The Queen at 302; [67], that, ordinarily, family hardship will rarely amount to a special or exceptional circumstance. That is, again, the common, if really regrettable, consequence of imprisonment. There are some such circumstances that rise this high, but they will, as with personal circumstances, need to be very special or unusual.
The evidence was that Ms Stott’s son was withdrawn and feeling unsafe and is not currently at school or in employment.
Finally, Ms Stott has three dogs. Her friend can look after one, which she is presently doing, but cannot look after the other two.
Consideration
I accept that there are reasonably arguable grounds of appeal. I cannot describe them as strong, but they cannot be dismissed at this stage.
I have looked at the draft Appeal Book and found a basis for each of the arguments put. That is, of course, not to say that I have formed a view that any of them will succeed.
None of the other matters, in my view, amount, in themselves, to being special or exceptional circumstances sufficient to justify the grant of bail. The potential losses of her possessions, given the value of them, is the closest that any came to meeting the requirements and is a relevant factor, but it is not sufficient in itself.
Taking all the matters together, however, I consider that there are special or exceptional circumstances favouring the grant of bail, but not simply pending appeal.
It seems to me that, given the reasonably arguable grounds of appeal, Ms Stott is justified in being granted bail for a relatively short period to make arrangements for her son’s future accommodation, the security of her possessions and the care of her dogs.
Accordingly, I will grant Ms Stott a temporary stay and bail for three weeks to permit her to attend to these matters.
I add that this is a special case which justifies this approach and I do not regard it as or as intended to be a general precedent for grants of bail pending appeal.
It may not need saying, but Ms Stott will have to return to custody prior to the hearing of her appeal and, if her appeal is unsuccessful, she will, of course, have to serve out the balance of her sentence which will, by virtue of s 37Q of the Supreme Court Act and the consequences of the stay, not include those three weeks on bail which will still later have to be served in custody.
I note, too, that her failure to comply with the requirement that she return to custody at the end of the period of the temporary stay and bail will not merely breach a condition of her bail but may well constitute the offence of being unlawfully at large contrary to s 162 of the Crimes Act 1900 (ACT).
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 18 August 2016 |
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