Timothy James West v The Queen
[2011] ACTCA 21
TIMOTHY JAMES WEST v THE QUEEN
[2011] ACTCA 21 (22 September 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – bail pending appeal – special or exceptional circumstances – custodial part of sentence substantially served – Naltrexone implant – bail granted.
R v Eisenach [2011] ACTCA 2
Sherd v The Queen [2011] ACTCA 17
United Mexican States v Cabal and Ors (2001) 209 CLR 165
Abbott (1997) 97 A Crim R 19
The Queen v Giordano (1982) 31 SASR 241
Re Kulari [1978] VR 276
Tieleman v The Queen (2004) 149 A Crim R 303
R v Ogawa [2009] QCA 201
Chew v The Queen (1991) 66 ALJR 209
Marotta v The Queen (1999) 73 ALJR 265
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 38 of 2011
No. SCC 463 of 2009
No. SCC 450 of 2009
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 22 September 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 38 of 2011
) No. SCC 463 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 450 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: TIMOTHY JAMES WEST
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Refshauge J
Date: 22 September 2011
Place: Canberra
THE COURT ORDERS THAT:
The parties be heard as to the conditions subject to which bail be granted to Timothy James West.
IN THE SUPREME COURT OF THE ) No. ACTCA 38 of 2011
) No. SCC 463 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 450 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:TIMOTHY JAMES WEST
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge J
Date: 22 September 2011
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
On 22 June 2011, Acting Justice Nield sentenced the appellant, Timothy James West, to terms of imprisonment for two sets of offences of dishonesty. The total period of imprisonment, which commenced on 7 December 2010, presumably the date when Mr West was taken into custody, was until 6 June 2014, namely three years and six months. His Honour set a non-parole period of one year and six months to end on 6 June 2012.
On 13 July 2011, Mr West appealed to this Court against his sentence, claiming that no or insufficient regard was had to totality, the delay in the prosecution of Mr West, his rehabilitation and his plea of guilty. The final ground was that the sentence was manifestly excessive. This was, of course, the real ground and the other claims actually particulars of the matters said to justify the claim of manifest excess. See R v Eisenach [2011] ACTCA 2 (at [38] to [40]).
On 25 July 2011, Mr West lodged an application for bail pending the hearing of his appeal. On that application, Mr West acted for himself, though he had been represented at the sentencing and his lawyers prepared and lodged the Notice of Appeal.
Mr West completed the prescribed form for an application for bail in the Supreme Court, Form 4.9 (AF 2006-382). The Supreme Court has, however, no power to grant bail to a person who has been sentenced to a term of imprisonment.
The Registry gave the application the court number of the appeal and filed it in the appeal file. I treated it as made to the Court of Appeal. The respondent, represented by a Crown prosecutor from the Office of the Director of Public Prosecutions, did not demur.
A preliminary point was raised, however, as to the jurisdiction of the Court of Appeal to grant bail. I heard a number of applications at the same time. In Sherd v The Queen [2011] ACTCA 17, I held that the Court of Appeal does have jurisdiction to grant bail. I apply the reasoning in that decision to this case.
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.
The grounds for bail are not limited to these matters, though, as set out in United Mexican States v Cabal and Ors (2001) 209 CLR 165 (at 181-2; [41]), these are two conditions that must be addressed. However, as Gillard J said (at 27) in Abbott (1997) 97 A Crim R 19, “a court must consider the totality of factors put forward and consider the question [of] whether in all the circumstances they are exceptional”.
As King CJ said (at 243) in The Queen v Giordano (1982) 31 SASR 241:
It is unnecessary, and would be unwise, to attempt to compile a list of circumstances which would be regarded as exceptional. The totality of the circumstances must be looked at.
The period until the appeal
The Court of Appeal sits four times a year. The next sittings are in November 2011. They are presently fully allocated with appeal hearings and, even were I to expedite Mr West’s appeal, it could not be heard until the sittings in February 2012.
By that time, Mr West will have served all but about four months of the custodial portion of his sentence, a substantial part of it. As I decided in Sherd v The Queen (at [51]) it is the custodial portion of the sentence which is relevant in these circumstances.
That would not render his appeal completely futile, though it might be said that a reduction of four months on his non-parole period is likely to be considered to be tinkering.
It seems to me that this is a borderline case. It is clear that for a grant of bail in these circumstances, it is not necessary that the whole of the custodial period of the sentence must have expired before the likely hearing of the appeal; it is often expressed as “the whole or a substantial part.” See, for example, United Mexican States v Cabal and Ors (at 182). It seems to me that in this case, a substantial part will have been served by the appeal date.
The prospects of success of the appeal
As Mr West is self-represented on the bail application, I have not had very helpful submissions on the likelihood that his appeal will be upheld.
On the other hand, the Notice of Appeal has been lodged by his lawyers who are Legal Aid ACT. I consider that I can take notice that there is, for legal aid, not only a means test but a test of whether there are reasonable prospects of success in the proceedings for which aid is sought. This cannot, of course, bind the court, but I consider that I can take this into account.
I have read the sentencing remarks of Nield AJ. They are careful and comprehensive. His Honour did refer to each of the matters referred to in the notice of appeal: totality, sentencing delay, rehabilitation and the pleas of guilty.
The non-parole period was quite low: one year and six months of a three year and six month sentence. It was set because, his Honour said, “of the offender’s positive steps towards his rehabilitation.”
I note, too, that the pleas of guilty on two of the counts were entered during his trial, though it resulted in three counts also on the indictment not proceeding. The other two counts for which he was sentenced were the subject of pleas of guilty about a month before the trial date. In those circumstances, it is not readily apparent that a generous discount for the pleas of guilty would be available.
Finally, his Honour noted that while two of the offences were committed in July 2005, and while he had been sentenced for similar offences in July 2007, he was not charged until later for reasons that do not reflect adversely on the police or the Director of Public Prosecutions, particularly as he pleaded not guilty to these charges up until the trial had commenced.
Nevertheless, I do note that there was no consideration by his Honour of options as to how the sentence was to be served, such as by periodic detention, though this is not noted as a particular of the ground of manifest excess.
I am also aware of what Young CJ said in Re Kulari [1978] VR 276 (at 277-8) as to this ground:
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.
I do not consider that this ground is hopeless or frivolous, but it is certainly not a strong ground and no more than arguable, though it is arguable.
While the test usually and appropriately applied is that, as well as the custodial portion of the sentence having been served or substantially served, there must be strong prospects of success in the grounds of appeal, as enunciated in United Mexican States v Cabal and Ors, this is not necessarily required in every case, as what is special or exceptional will depend on the facts of a particular case: Tieleman v The Queen (2004) 149 A Crim R 303 (at 308). Even though strong prospects of success is not an essential criterion in every case, however, prospects of success will always be an important consideration: R v Ogawa [2009] QCA 201 (at [8]). Thus, where the appeal has no real or little prospects of success, it would be inappropriate to grant bail.
Other matters
Mr West raised a number of other matters that he said favoured bail. He referred to:
· the employment that was available to him; a letter from his prospective employer was tendered and confirmed that this was so;
· his rehabilitation was progressing well; his parents had “noticed [a] dramatic improvement with ... [his] behaviour.”;
· he had a new partner to whom he was devoted and to whose two year old son he provided surrogate fatherhood; his partner had a positive attitude and influence which supported his rehabilitation.
His most significant ground, however, was that he had received a Naltrexone implant which has substantially managed his addiction. His first implant was in October 2010 and his counsellor said in sworn evidence to me that he had not committed any crime or used any heroin since then. He was then returned to custody on 7 February 2011, but granted bail on 9 May 2011 to attend a clinic in Melbourne for the purpose of a renewal of the Naltrexone implant. He underwent that procedure and, in accordance with his bail, returned and surrendered to the Alexander Maconochie Centre on 11 May 2011.
The evidence before me was that such implants last for between three and six months and then need to be renewed. There is no mechanism in the Alexander Maconochie Centre for him to have such implants renewed.
He also informed me that he has been held to be ineligible for drug courses in the Centre because he has completed them before. I find that at least odd but no contrary information was available to me.
It seems to me that the situation about his Naltrexone implant is a significant factor where he was granted bail for the purpose of such treatment, that further treatment is necessary and that it is not available in the prison. If granted bail, he could have sufficient further treatment that would remain effective for the balance of his custodial term were he required to serve it after the appeal.
In this case, while the respondent relied on submissions in earlier cases to the effect that the application should be dismissed because there was no jurisdiction to grant bail, the position on the substantive issue, were I to find that I had jurisdiction, was different. The Crown did not oppose bail.
McHugh J said in Chew v The Queen (1991) 66 ALJR 209 (at 210):
I hasten to add that the attitude of the Crown cannot be conclusive. But, in a case where the Crown does not oppose bail, it may well be that that factor added to other circumstances in the case makes the matter exceptional.
Consideration
Although the period of the custodial part of Mr West’s sentence that would have been served substantially prior to the hearing of the appeal is such that it may have in itself justified a grant of bail, it is not a very strong factor; it is finely balanced. It seems to me that the other matters to which I have referred in combination with that factor do satisfy the criterion that special or exceptional circumstances need to be shown before bail pending appeal may be granted. Bail will, accordingly, be granted to Mr West.
As Callinan J point out in Marotta v The Queen (1999) 73 ALJR 265 (at 267), in his thirteenth reason, it must be made clear to Mr West that the full term of his non-parole period in actual time to be served in prison will have to be served if his appeal is dismissed.
I shall make that clear when granting Mr West bail.
I have some views about what conditions should be imposed on the bail to be granted but having not heard from the parties as to those matters, I will hear submissions before actually granting the bail.
Conclusion
The application will be granted and an order made for Mr West to be admitted to bail pending his appeal, subject to such conditions as I shall consider after hearing submissions from the parties.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 22 September 2011
Counsel for the Appellant: Self-represented
Solicitor for the Appellant: Self represented
Counsel for the Respondent: Mr T Jackson (29 July 2011)
Ms M Hunter (5 August 2011)
Mr J White (8 and 11 August 2011)
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 29 July 2011, 5, 8 and 11 August 2011
Date of judgment: 22 September 2011
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