Supreme Court of Western Australia
[2006] WASC 10
•27/01/06
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | VAN TONGEREN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 10 |
| CORAM | : TEMPLEMAN J | ||
| HEARD | : 19 JANUARY 2006 | ||
| DELIVERED | : 27 JANUARY 2006 | ||
| FILE NO/S |
| ||
| BETWEEN | : PETER JOSEPH VAN TONGEREN |
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Serious offence - Evidence in opposition not compelling - Long period on remand before trial - Difficulty of preparing defence while in custody
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA), s 444
Litter Act 1979 (WA)
Migration Act 1958 (Cth)
Passports Act 1938 (Cth)
[2006] WASC 10
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr G L W Vickridge |
| Respondent | : | Ms L Petrusa |
Solicitors:
| Applicant | : | Malcolm J Ayoub |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Asfoor v The Queen [2005] WASCA 126
Liang v The Queen (1995) 82 A Crim R 39
Mihaka v The State of Western Australia [2004] WASC 17
R v Roche [2005] WASCA 4
Saka v The Queen [2001] WASC 92
Case(s) also cited:
Nil
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TEMPLEMAN J: Peter Joseph Van Tongeren ("the Applicant") is charged in the District Court with 1 count of conspiracy to commit an indictable offence, namely, criminal damage by fire, and in the Magistrates Court with 19 counts of criminal damage.
The Applicant applies for bail, having been in custody for some 17 months since his arrest on 6 August 2004.
3 The trial of the Applicant and two co-accused on the conspiracy
charge is due to commence in the District Court on 20 March 2006, some
eight weeks hence. The trial is expected to take three weeks.
The criminal damage charges are to be mentioned in the Perth Magistrates Court on 21 April 2006.
| 5 | This is the Applicant's second application for bail. He was refused bail by his Honour Judge Muller in the District Court on 19 January 2005. |
6 The present application was made initially to the Hon Justice Jenkins
on 9 and 20 September 2005. The Applicant then sought home detention bail. However, following an unfavourable report from a Community Corrections Officer, leading counsel for the Applicant asked to have the application adjourned so that his client's position could be considered. Jenkins J acceded to that request and adjourned the matter sine die.
7 In the present application, counsel for the Applicant and counsel for
the State both relied on material before Judge Muller. However, the present application is not in any sense an appeal from his Honour's decision. The circumstances have changed; and I have heard evidence which was not before Judge Muller. Although, as I mentioned in the course of submissions, I consider, with respect, that Judge Muller came to the correct decision as matters then stood, I am required to exercise an independent discretion in the circumstances as they now appear.
8 In exercising that discretion, I am required to consider the matters set
out in Pt C of Sch 1 to the Bail Act 1982 (WA). So far as relevant, they
are as follows:
"(a) whether, if the accused is not kept in custody, he
may -
(i)
fail to appear in court in accordance with his bail undertaking;
(ii) commit an offence;
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(iii) endanger the safety, welfare, or property of any person; or
(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)
whether the accused needs to be held in custody for his own protection;
(c)
whether the prosecutor has put forward grounds for opposing the grant of bail;
(d) … (e)
whether there is any condition which could reasonably be imposed under Part D of this Schedule which would -
(i)
sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii) obviate the need referred to in paragraph (b); or
(iii) remove the grounds for opposition referred to in paragraph (c);
(f) … (g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate."
9 It will be convenient to dispose of the last consideration first: par (g)
above. It is not suggested by the State that the circumstances of the alleged offences are such as to make a grant of bail inappropriate. In any event, I do not think such a suggestion could properly be made. While it is not conclusive (see Mihaka v The State of Western Australia [2004] WASC 17) the fact that the alleged co-offenders have all been granted bail tends to support that conclusion. I therefore turn to consider the other matters set out above.
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The matters relevant to par (a)
In considering these matters, I am required by cl 3 of Pt C to have regard to the following:
"(a)
the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)
the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)
the history of any previous grants of bail to him; and
(d) the strength of the evidence against him."
Again, I take these matters in turn.
11 The nature and seriousness of the conspiracy alleged against the
Applicant appear from the summary of the material facts given to
Jenkins J by the prosecutor who then appeared before her Honour:"… it's alleged that between 1 June and 16 July 2004 the accused man decided that there should be arson attacks carried out on four Chinese restaurants. He held several meetings with other persons concerning the actual planning of those arson attacks and there were three restaurants specifically identified, one in Karawara, one in Ferndale and one in Willetton as the targets for the bombings and one was to be determined later.
The accused planned with the others in detail how the attacks on these business premises were to be carried out and although no specific date was selected the attacks were to coincide with the release and launch of the accused's book, The ANM Story. During the meetings the people identified as actually carrying out the attacks changed from time to time and obviously the conspiracy did not come to fruition because the police intervened. The accused was arrested, it seems, on 6 August 2004 and interviewed and charged. Police allege that the
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accused was the man responsible for directing, procuring and at
times ordering the commission of the offences."
12 The prosecutor went on to say that he understood the intention of the
alleged conspirators was to carry out the attacks when the respective target premises were unoccupied. Counsel said his undertaking was that:
"… was to foster fear within an identified ethnic community consistent with the accused's stated beliefs that Australia would be better off without those persons being part of our community."
13 The various statements of material facts relating to the criminal
damage charges allege that the Applicant and others posted politically and racially motivated posters in prominent public places and placed racist graffiti in premises used by the Attorney-General for his electorate, and in other public places, at various times between about January 2003 and July 2004. Each charge is brought pursuant to s 444 of the Criminal Code (WA).
14 The conspiracy charge is undoubtedly serious. As the prosecutor
who appeared before Jenkins J informed her Honour, the maximum penalty which could be imposed on the Applicant is imprisonment for 4 years 8 months, taking into account the amendments to the sentencing legislation in 2004.
Before Jenkins J, the prosecutor submitted that:
"If the applicant were convicted at his trial a sentence very close to the maximum must be, if not inevitable, then certainly strongly on the cards, given the applicant's previous criminal history, given the nature of the offending alleged against him on this occasion, given the fact that it is inconceivable, in our respectful submission, that he would be made eligible for parole, and given that the offence with which he is charged alleges a conspiracy to fire bomb four restaurants and must therefore have as its starting point the maximum penalty for an offence of this type."
16 It is accepted by the Applicant that if convicted, a sentence of
imprisonment would be imposed on him. The Applicant's antecedents and previous convictions would count against him: in particular, his convictions in 1990 for a range of offences including arson, causing explosions and conspiracy. Sentences totalling 18 years' imprisonment
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were then imposed. The Applicant served 12 years. He was not made eligible for parole but he earned the maximum remission. The Applicant was therefore released in 2002.
In my view, however, the prosecutor may have overstated the case. In R v Roche [2005] WASCA 4 at [32] and [33] I said:
"In order to determine an appropriate sentence in relation to conspiracy it is necessary to consider what the offender actually did. Generally, an offender is not to be punished for what he might have done, or at some stage intended to do, or thought about doing – but did not do. The point is made in Savvas v The Queen (1995) 183 CLR 1, at p 6, where the High Court approved the statement in Gillies on the Law of Criminal Conspiracy (2nd ed (1990), p 254 - 5) that:
'A considerable number of more recently reported cases illustrate the imposition of sentences by reference to what was actually done in the transaction of the conspiracy.'
However, it may be necessary to draw a distinction between offenders whose criminal intentions are frustrated by the timely intervention of the police or other relevant authorities and those such as the respondent, who desist from criminal conduct voluntarily."
Murray ACJ at [4] agreed to this extent: his Honour said:
"… it will be proper to have regard not only to the features presented by the conspiracy itself, but also its established duration and the offender's participation in it: Savvas v The Queen (1995) 183 CLR 1, 7, 8."
18 In the course of the bail application, the Applicant gave evidence that
when arrested, he was attempting to arrange a meeting with a senior police officer for the purpose of explaining that he was not involved in the offences of criminal damage which had then been committed. I accept that evidence. It demonstrates that the Applicant placed himself voluntarily in a position where he could be (as he was) arrested, without having carried any conspiracy into effect. If, therefore, there was a conspiracy, the Applicant appears to have desisted voluntarily.
19 Further, I do not think it could be said, with confidence, that the
Applicant would not be made eligible for parole, if convicted. The
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Applicant's age and health together with his general circumstances would need to be taken into account in reaching a decision about parole.
20 Counsel for the Applicant submitted that if the Applicant was
convicted without having been granted bail, he would already have served the entirety of a sentence likely to be imposed on him. This, I think, might be understating the case.
21 I wish to emphasise that in making these observations I should not be
taken as seeking in any way to influence the Judge who would be required to sentence the Applicant, if he was convicted. In that event, there would undoubtedly be a whole range of matters to be taken into account: matters which would only emerge at trial.
22 However, it is necessary for me to make some assessment of the
sentence likely to be imposed on the Applicant if he were to be convicted, in order to deal with the submission made by his counsel, to which I have referred above. In so doing, I have come to the conclusion that I cannot be confident that this is a case in which it could be said that the Applicant, if not granted bail, is likely to have served the custodial part of his sentence if convicted after trial.
23 I turn to consider the strength of the evidence against the Applicant.
The prosecution case relies substantially on the evidence of two alleged co-conspirators. One co-conspirator is said to have withdrawn at an early stage: that, it is said, is the reason he was not charged with any offence. The other alleged co-conspirator pleaded guilty and has been sentenced. However, the sentencing was carried out by a court sitting in camera. I am told that no-one present on that occasion has been permitted to disclose anything of the matter. I am told also, that the sentencing remarks are to be delivered to the Applicant's legal representatives on 1 February 2006.
24 If the evidence of the principal prosecution witnesses satisfies the
jury beyond a reasonable doubt of the Applicant's guilt on the conspiracy charge, then clearly, he will be convicted. However, the Applicant contends that crucial prosecution evidence is untrue: and that this will be demonstrated by witnesses whom he intends to call in his defence.
25 The Applicant is under no obligation to disclose his defence at this
stage: and he has not done so. In these circumstances, it is impossible to assess the strength of the case against the Applicant. All that can be said is that this is not a case in which there is any objective evidence of guilt.
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26 As to the Applicant's character, previous convictions and
antecedents: I have referred already to his previous convictions. These are obviously to be regarded as evidence of bad character. However, in the Applicant's favour is the fact that he has a distinguished record of service as an army reservist from 1964 - 1968 and as a regular soldier from 1968 - 1973, particularly in the Vietnam conflict. In addition to a number of campaign medals, the Applicant was awarded the Infantry Combat Badge. As a result of his experiences, the Applicant has been diagnosed as suffering from post-traumatic stress disorder. He is entitled to a 90 per cent disability pension.
27 I am told that the Applicant cannot receive this pension while on
remand. If that is so, it seems to me to be unfair. I can understand that a person convicted of a serious offence might be disqualified from receiving a pension. However, I should have thought that the presumption of innocence would apply to a pensioner held on remand.
28 The significance of the Applicant's service and related matters is that
he has the support of the Returned & Services League and of the Vietnam Veterans Association. This support is given notwithstanding the Applicant's political views, by people, most of whom (I am told without opposition by the State), have no association with the Australian Nationalist Movement (of which the Applicant was formerly the president) or the Australian National Workers Union ("the ANWU"), a trade union organisation.
This level of support reflects well on the Applicant's character.
30 Returning to the matters set out in cl 1(a) of Pt C to Sch 1 of the Bail Act: I am not persuaded that the Applicant is a flight risk. The State's contention to the contrary is based on the proposition that the Applicant has no ties with Western Australia. The State points to the fact that the Applicant has sold his house here and that his family resides in Victoria. While those matters are true, I accept the Applicant's evidence that he sold his house in order to raise funds to further his legitimate political ambitions.
I note that the Applicant has no passport: nor has he any previous convictions for breach of bail.
32 The State contends that the Applicant was seeking to evade capture
at the time of his arrest. I do not accept that contention. As I have noted above, I accept the Applicant's evidence that when arrested, he was in the
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course of arranging a meeting with a senior police officer, whom he had
contacted voluntarily.33 Nor do I think it likely that if released to bail, the Applicant would
commit any further offence. I think it unlikely that the Applicant would do anything which would increase his potential liability to imprisonment. It is clear from the evidence given by the Applicant that he has been worn down - both mentally and physically - by his lengthy incarceration on remand. Further, I accept that the Applicant's primary objective, in applying for bail now, is to enable him to prepare his defence. I shall return to this matter later in these reasons.
34 I take together the considerations of whether, if not held in custody,
the Applicant might endanger the safety, welfare, or property of any person or interfere with witnesses or otherwise obstruct the course of justice.
35 On the evidence before Judge Muller, there appeared to be a
significant risk of interference with witnesses for the prosecution. The evidence was set out in an affidavit sworn by a police officer on 19 January 2005, the day of the hearing before Judge Muller. In essence, the evidence was that a prosecution witness had been telephoned on 31 December 2004 by a person who identified himself as "Norm", a friend of the Applicant. "Norm" was said to have spoken to the witness at length about withdrawing or altering his statement as it was causing people problems. "Norm" was said to have spoken in detail about the exact wording of the statement and was said to have been upset that the witness had implicated the Applicant in the conspiracy offence.
36 The police officer went on to say that enquiries had revealed that the
caller was Norman Kenneth Heslington, the most frequent visitor to the Applicant at the prison where he is held on remand. The investigations revealed also that Mr Heslington had visited the Applicant on 31 December 2004, some four hours before he telephoned the witness.
37 The police officer's affidavit was given to the Applicant's counsel
about 30 minutes before the application was called on (TS 7 of 19 January 2005). In those circumstances, the Applicant was given no opportunity to answer the allegations.
38 Mr Heslington did, however, give evidence before me on the bail
application. He gave his evidence in an open, frank and forthright manner which led me to believe that he was telling the truth. I therefore accept Mr Heslington's evidence, which I now summarise.
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39 Mr Heslington served with the Applicant in Vietnam for a period of
14 months from 1970. Mr Heslington has never been a member of any organisation with which the Applicant is associated. He did not contact the Applicant until his release from prison.
40 Mr Heslington took an interest in the Applicant's case because he
believed the Applicant needed a friend and needed some support. That being so, Mr Heslington visited the Applicant some nine days after his arrest and has visited him at least once per week since then.
41 During the course of Mr Heslington's visits, he was given copies of
statements made by prosecution witnesses. He discussed the contents of those statements not only with the Applicant, but with numerous other people.
42 On the occasion to which the police officer referred in his affidavit,
Mr Heslington contacted a prosecution witness. He did so by telephoning the number which the witness had included in his statement.
43 It is neither necessary nor desirable for me to set out the evidence
given by Mr Heslington about his conversation with the witness. It is sufficient to say that I accept that Mr Heslington did not attempt to suborn the witness or to pervert the course of justice in any way. While it was unwise of Mr Heslington to have contacted the witness as he did, I am satisfied that he did so for the purpose of encouraging the witness to tell the truth; and further, that he did so of his own initiative. I am satisfied that the Applicant did not request Mr Heslington to telephone the witness and did not know that he had done so.
44 The State relies also on two letters written to another prosecution
witness. The letters were received by the witness on 9 or 10 November 2004. This was about three weeks after the author of the letters, who is a friend of the Applicant, had visited the Applicant on remand. The first letter was undated. The second was dated 4 November 2004.
45 The object of the first letter was to persuade the witness to make a
statement to the effect that the Applicant and a co-accused did not authorise any conduct the subject of the conspiracy or criminal damage charges: and that the witness had been subjected to police pressure to give evidence against the accused.
46 The witness was not, however, persuaded by the letters. He made a
subsequent statement confirming that his original statement had been
made voluntarily.
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47 It is not suggested by the State that the letters contained any threat to
the witnesses. There is no evidence that the Applicant asked the author of the letters to write them. Indeed, in his evidence before me, the Applicant denied that he had done so. Further, the letters give the clear impression that they were written on the author's own initiative.
48 The Applicant said in his evidence before me that he had received a
visit by a person who was to have been a witness for the prosecution but who is now to be a witness for the defence. However, the Applicant was emphatic in his denial that he had not, directly or indirectly, interfered with a prosecution witness. I accept his evidence.
49 I have no doubt that the Applicant is well aware that he would
prejudice his defence if he attempted to interfere with prosecution witnesses. There is no evidence that he has done so: and I do not think there is any risk that he will do so.
50 For similar reasons, I do not think there is any risk that the Applicant
will endanger the safety, welfare or property of any person, if granted bail.
Paragraph (b)
There is no evidence to suggest that the Applicant needs to be held in custody for his own protection.
Paragraph (c)
The State opposes the grant of bail on the grounds set out in the police officer's affidavit. In summary, it is said that:
"The State opposes bail because there is no condition that could be imposed that would satisfactorily address the following concerns:
(1) the seriousness of the offence (2) the unacceptable risk of re-offending (3) the unacceptable risk of failing to answer his bail (4) the unacceptable risk to State witnesses and therefore the
integrity of the court process(5)
the unacceptable risk to the community and the obvious danger Van TONGEREN poses if her [sic he] were to re-offend in a like manner."
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I have dealt with the matters relied on by the police officer in the body of his affidavit, except for one matter to which I now turn.
54 The police officer referred to the fact that police had located,
concealed at premises occupied by a long-standing senior member of Club Deros, "5 operational concealable handguns, approximately 1000 rounds of assorted live ammunition and approximately 80 explosive detonators and a quantity of pyrotechnics".
55 A State witness has made a statement to the effect that the Applicant
had obtained firearms from the person in whose premises they were found. However, the police officer deposed to the fact that despite the execution of "numerous" search warrants, only the handguns referred to above had been located. The police officer referred to his belief that weapons had been hidden and that the location of the weapons would only be known by the Applicant.
56 In my view, this is speculation. The fact that weapons and
ammunition have been found at the residence of a person who apparently has no association with the Applicant and that no other weapons have been found despite the execution of numerous search warrants, supports the inference that there are no other hidden weapons. There is no independent evidence to suggest that the Applicant does have access to weapons. In these circumstances, I place little weight on the police officer's belief.
57 While I therefore take account of the State's opposition to the grant
of bail, for reasons given above, I am not persuaded that the opposition is
compelling.
Other matters
58 There are two further considerations. The first is the length of time
the Applicant has spent in custody. I do not suggest that the State is any sense culpable for what I regard as an unacceptable delay. I was informed by counsel for the State that the delay was attributable to the fact that a witness had been injured in a motor vehicle accident and needed time to recover: and that there were difficulties in finding a convenient trial date, having regard to the availability of counsel for the Applicant and his co-accused.
59 Accepting that these are valid reasons, there is, I think, much force in
the observation made by McKechnie J in Saka v The Queen [2001]
WASC 92 at par [38]:
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"… detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.
A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice … where there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention."
60 I do not suggest that a period of 19 months on remand is ipso facto excessive. Every case will turn on its particular circumstances. However, in my view, in this case a period of 19 months on remand (assuming a grant of bail was to be refused) would be excessive, having regard to the Applicant's age (he is 58 years old) and the state of his health.
61 It is not in dispute that the Applicant is suffering from post-traumatic
stress disorder; that he has suffered on four occasions while in custody from profuse bleeding arising from burst veins and that he has irritable bowel syndrome. The Applicant is also suffering from hearing loss.
62 Apart from specialist intervention for the purpose of fitting a hearing
aid, the Applicant has received no specialist treatment for his other medical problems. I think that after so long a period on remand, the Applicant should be given the opportunity of obtaining medical advice and (if necessary) attention which is not available to him in the prison system.
63 The second matter of concern is the difficulty which the Applicant's
imprisonment causes both to himself and to his counsel in relation to the
preparation for trial.64 Counsel informed me that the Applicant is held in a segregation unit
where visiting times are limited. Counsel very properly accepted that it was not impossible for him to prepare the case for trial in those circumstances, but that it would be difficult to do so.
65 A further difficulty arises from the fact that there are witnesses
whom the Applicant wishes to see in relation to his defence but who are unwilling to visit him in prison because of a concern that they might identified.
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66 I accept that this does not make it impossible to call the proposed
witnesses. The Applicant could give their names to his counsel, who could then make his own arrangements to proof the witnesses. However, I regard that as an unsatisfactory situation. In my view, it is important that a person charged with a serious offence should have a proper opportunity to prepare for his or her trial in any reasonable way which he or she regards as appropriate. If an accused person is not given that opportunity, then there is a risk that the trial will be unfair.
Paragraph (e)
67 It must be accepted that every grant of bail involves risks of the kind
referred to in Pt C to Sch 1 of the Bail Act. However, the judicial officer who hears an application for bail is not required to be satisfied that no risk would exist if bail was to be granted. The judicial officer is required to consider whether there is any condition which could reasonably be imposed which would "sufficiently" remove the risks referred to in cl 1(a) and (d) of Pt C and would remove the grounds of opposition by the State. In my view, the risks must be weighed in the balance against the injustice of keeping a person who is not in good health in custody on remand for a lengthy period, and the risk of an unfair trial.
68 Having regard to the matters to which I have referred, and bearing in
mind that the period of bail before trial on the conspiracy charge is relatively short, I consider that the risks can be "sufficiently" removed by the imposition of the following conditions:
1 a personal undertaking and a surety each in the sum of $30,000;
2 an undertaking by the Applicant not to contact any prosecution witness directly or indirectly;
3 an undertaking by the Applicant to reside at a specified address;
4 a requirement that the Applicant report daily to a police station;
5 the imposition of a curfew on the Applicant from 7 pm to 7 am.
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69 If the Applicant accepts these conditions and gives the undertakings
referred to above, I will grant him bail in relation to the conspiracy
charge.70 I will grant bail also in relation to the criminal damage charges. In
the circumstances of this case, the maximum penalty on summary conviction is imprisonment for 3 years and a fine of $36,000. However, such a penalty would be imposed only for criminal damage offences of the most serious kind.
71 Counsel for the Applicant submitted that it would have been open to
prosecute the Applicant under the Litter Act 1979 (WA), where the
maximum penalty for each offence would be $40.72 In Asfoor v The Queen [2005] WASCA 126, the appellant had been charged with an offence under the Migration Act 1958 (Cth) which carried a penalty of 10 years' imprisonment. It would have been open to the authorities to charge the appellant with similar offences under the Passports Act 1938 (Cth) which attracted a maximum penalty of only 2 years' imprisonment.
73 The Court of Criminal Appeal referred to Liang v The Queen (1995) 82 A Crim R 39 where the Court of Appeal in Victoria held that although it was for the prosecuting authority, in its absolute discretion, to determine the charge to be brought against an accused person, it was nevertheless relevant and proper for a sentencing Judge to take into account the fact that there was another and less punitive offence which was equally available or was more appropriate to the facts alleged against the accused.
74 In the present case, if the Applicant was acquitted of the conspiracy
charge, I could see no justification for remanding him in custody until April 2006 (at the earliest) in respect of charges which could have been brought under the Litter Act. The Applicant would by then have been in custody for some 21 months. That, I think, would be a period far in excess of any sentence likely to be imposed on him if he was to be found guilty of the criminal damage charges, having regard to the principle of Liang (supra).
75 For practical purposes, it is convenient to grant bail in respect of the
criminal damage charges on the same terms as the grant relating to the conspiracy charge. If the Applicant was acquitted of the latter, it would no doubt be appropriate to review the conditions imposed in relation to the criminal damage offences.
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