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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Timothy James West v The Queen

Details

AGLC: Timothy James West v The Queen [2011] ACTCA 21
Case: [2011] ACTCA 21
Decision Date

CaseChat Overview and Summary

Timothy James West appealed his sentence to the Court of Appeal of the Australian Capital Territory. He had been sentenced by Acting Justice Nield to a total of three years and six months imprisonment, with a non-parole period of one year and six months, commencing from 7 December 2010. Mr West sought bail pending the determination of his appeal against the sentence, which he contended was manifestly excessive due to insufficient regard for totality, prosecution delay, his rehabilitation, and his guilty plea.

The primary legal issue before the Court of Appeal was whether it possessed the jurisdiction to grant bail to a person sentenced to imprisonment pending an appeal against that sentence, and if so, under what circumstances. The court was required to determine whether special or exceptional circumstances existed to justify granting bail, considering factors such as the substantial portion of the custodial sentence likely to be served before the appeal hearing and the prospects of success of the appeal.

The Court of Appeal affirmed its jurisdiction to grant bail, applying reasoning from a previous decision. It held that for bail to be granted, the applicant must demonstrate special or exceptional circumstances, which typically involve serving a substantial part of the custodial sentence and having arguable prospects of appeal success. In this instance, the appeal was unlikely to be heard until February 2012, by which time Mr West would have served all but approximately four months of his custodial sentence, constituting a substantial portion. While the prospects of success on appeal were considered arguable rather than strong, the court found that the combination of this factor with other matters, particularly Mr West's successful management of his drug addiction through a Naltrexone implant and the unavailability of its renewal within the prison system, constituted special or exceptional circumstances. The Crown did not oppose bail, which was also noted as a relevant consideration.

Consequently, the Court of Appeal ordered that Timothy James West be granted bail pending his appeal, subject to further submissions from the parties regarding the specific conditions of that bail. The court emphasised that if the appeal were dismissed, Mr West would still be required to serve the full term of his non-parole period.

Orders