The Queen v Thompson
[2015] ACTCA 19
•14 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Thompson |
Citation: | [2015] ACTCA 19 |
Hearing Date(s): | 14 May 2015 |
DecisionDate: | 14 May 2015 |
Before: | Refshauge J |
Decision: | 1) The sentence of imprisonment imposed on Andrew Francis Thompson on 20 March 2015 be stayed until further order; 2) That Andrew Francis Thompson be granted bail, pending the delivery of decision in these proceedings or until further order, subject to the following conditions: a. that he reside at [address redacted]; b. that he report to the officer in charge of the city police station each Monday, Wednesday and Friday between the hours of 8:00am and 8:00pm; c. that he not approach directly or indirectly, including through electronic means or be within 100 metres of [redacted for legal reasons], and d. that he attend the court when the decision in the proceedings is delivered. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURSIDICTION, PRACTICE AND PROCEDURE – Application for bail – Appeal pending– Whether stay necessary – Whether sentence will have been served while on bail – Special and exceptional circumstances |
Legislation Cited: | Supreme Court Act1933 (ACT), s 37Q |
Cases Cited: | Chamberlain v The Queen (No 1) (1983) 153 CLR 514 Chew v The Queen (1991) 66 ALJR 209 |
Parties: | The Queen (Crown) Andrew Francis Thompson (Defendant) |
Representation: | Counsel Mr S Drumgold (Crown) Mr M Kukulies-Smith (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant) | |
File Number(s): | ACTCA No 66 of 2014 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Robinson AJ Date of Decision: 8 December 2014 Case Title: R v Thompson Citation: SCC 50 of 2014 Court/Tribunal: Supreme Court of the ACT Before: Robinson AJ Date of Decision: 20 March 2015 Case Title: R v Thompson Citation: [2015] ACTSC 69 |
Refshauge J:
After the jury returned a verdict on 8 December 2014 of guilty on counts of aggravated burglary and unlawful confinement, the applicant, Andrew Francis Thompson, was, on 20 March 2015, convicted of counts of aggravated burglary and unlawful confinement and also of offences of common assault and carrying or using a firearm. He was sentenced to a total of two years imprisonment from 9 February 2015, to be suspended on 9 December 2015 after serving ten months in full-time custody. A Good Behaviour Order was made for fourteen months.
On 31 March 2015, he appealed against the convictions for these offences. On 7 April 2015, the Crown appealed against the alleged inadequacy of the sentences imposed. The appeal was heard on 6 May 2015 and judgment was reserved. Mr Thompson has now applied for bail pending the determination of the appeal.
Jurisdiction
As decided in Sherd v the Queen (2011) 5 ACTLR 290, an appellant to the Court of Appeal is entitled to apply to that court for bail, though the availability of bail in these circumstances is an incident of the court’s inherent power to preserve the subject matter of the appeal, and thus stay the orders from which the appeal was taken.
It was also held in Sherd v the Queen at 299; [44] that a stay does not have to be ordered before bail can be granted, though, as I pointed out in Quzag v the Queen (No 2) [2015] ACTCA 10, it may be necessary, in certain circumstances, to make a stay order to preserve the integrity of the sentence imposed. I am told that the decision in Quzag has been appealed but I do not know the basis of the appeal. Indeed, I do not know whether the appeal was against the initial grant of bail or the subsequent decision not to grant a stay of the sentence.
The decision in Sherd v the Queen has not been appealed. That seems to me to justify my reliance on it, but perhaps to take a more cautious view of the need for a stay. Bail will, however, only be granted pending an appeal if there are special and exceptional circumstances. See GW v The Queen [2014] ACTCA 54 at [9]. It will usually also be necessary to show that the appeal has arguable prospects of success. It was further held in Sherd v the Queen that the fact that the sentence may well have been fully or substantially served before the appeal is heard is a special or exceptional circumstance.
The application
The application was supported by an affidavit of Mr Thompson’s lawyer. It was also said to be supported by the appeal books in the appeal against conviction and the Crown’s appeals against sentence and the submissions filed on those appeals.
That is a little problematic in this case where the appeal has been heard, for it suggests that the court hearing the bail application might be persuaded to give some kind of indication of the likely fate of the appeal, even though the decision has not been delivered. This is particularly acute where, as is appropriate, I am hearing the bail application and also sat on the Court of Appeal to hear the appeals. Of course, my assessment of the appeal may be at variance with that of the other two judges who also sat on the appeal.
All that can be said, and it may be said, is that the fact that the court heard the detailed argument and reserved its decision, shows that there was an arguable case on the appeal of sufficient cogency to meet the relevant criterion for a bail application.
The affidavit filed in support of the application sets out a table of the time it has taken the Court of Appeal to deliver judgment in a number of appeals. Apart from one appeal where the decision was not delivered until more than a year after it was reserved, the table included decisions made after the hearing of the appeal of up to periods of a little over seven months later. Eight of the last 15 appeals were decided four months or more after the hearing. This is, in part, a function of the workload of the court. Of course, the time taken may also be a function of the complexity of the issues to be addressed.
Mr M Kukulies-Smith, who appeared for the applicant, suggested that the average time taken for deciding the appeals was three months. That, I assume, is the average in the sense of the mean time taken. Given that three of the appeals were heard and determined on the day, and that one appeal decision was delivered beyond a little over twelve months, that is not an appropriate measure as it does not represent the more likely result where a decision is reserved. It seems to me, in the circumstances, that I should assess the likelihood of the appeal, in a case such as this, being decided in less than four months; it is not an unreasonable assessment.
If the decision in this matter takes four months to decide, then Mr Thompson will have served all but three months of the full-time custodial portion of the sentence.
It must also be borne in mind that the Crown appealed against the alleged inadequacy of the sentence, which, if upheld, is likely to extend the custodial portion of the sentence. Indeed, if bail is granted but the conviction appeal is dismissed, Mr Thompson will be required to return to custody.
The Crown opposed the application. It referred to the need not to render the verdict of a jury provisional, as warned by Brennan J in Chamberlain v The Queen (No 1) (1983) 153 CLR 514, consistent with views expressed by McHugh J in Chew v The Queen (1991) 66 ALJR 209, and Hayne J in Markovina v The Queen (1998) 72 ALJR 1522 at 1523.
I did refer in Sherd v The Queen to what Callinan J more recently said in Marotta v The Queen (1999) 73 ALJR 265, that his Honour doubted “[w]hether a grant of bail does treat a verdict of guilty as provisional.”
The Crown also referred to the need for strong grounds for concluding that the appeal will be allowed, as expressed in United Mexican States v Cabal (2001) 209 CLR 165 at 181-2.
As I have indicated above, and applying such care as is needed, because I was a member of the Court of Appeal that heard the appeal, I am satisfied that the arguments put to the court were such that the test that should be applied has been met. I stress though, that the Court of Appeal has not made a decision and the issues in the case were complex, requiring some mature and careful reflection. However, it cannot be said that the appellant has not made out a case on appeal that meets the requirements imposed on him in making out a case for bail. No issue, however, was raised by the Crown that Mr Thompson may not surrender himself to serve the balance of his sentence if his appeal is dismissed.
It seems to me that the case is somewhat borderline. Given, however, that delay of the order of that estimated by me – and it may of course be longer – would leave only three months to be served or less, I consider that that would constitute a substantial amount of the sentence having been served. This is, of course, less than a third of the sentence. The matter, however, should not be decided by reference to percentages alone. Accordingly, I consider that seven months of a ten-month sentence, in these circumstances, is such a substantial part of the sentence having been served, that it amounts to special or exceptional circumstances.
I consider that Mr Thompson should be granted bail. It must be made clear to him, however, that if the appeal is dismissed, he will be required to serve the balance of the current sentence, together with any additional term that may be imposed if the Crown’s appeal is upheld.
Given that the sentence imposed meant that the term of imprisonment is to be suspended on a specific date, and that date, if unaltered by the Court of Appeal when delivering judgment, may possibly mean that part of the sentence which is to be served by full-time custody may in fact be served in the community as in Whan v McConaghy (1984) 153 CLR 631, it may be necessary to make a stay.
Further, given the uncertainty imported by the pending appeal in Quzag, notwithstanding that I think it likely that s 37Q of the Supreme Court Act1933 (ACT) would have the effect of dealing with that, I will also stay the sentence.
Accordingly, I will order:
1. The sentence of imprisonment imposed on Andrew Francis Thompson on 20 March 2015 is stayed until further order;
2. That Andrew Francis Thompson is granted bail, pending the delivery of decision in these proceedings or until further order, subject to the following conditions:
a. that he reside at [address redacted];
b. that he report to the officer in charge of the city police station each Monday, Wednesday and Friday between the hours of 8:00am and 8:00 pm;
c. that he not approach directly or indirectly, including through electronic means or be within 100 metres of [redacted for legal reasons], and
d. that he attend the court when the decision in the proceedings is delivered.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 22 May 2015 |
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