Williams, G.A.C v The Queen

[1986] FCA 362

NOT FOR GENERAL DISTRIBUTION

3La.

IN THE FEDERAL COURT OF AUSTRALIA	)
\
AUSTRALIAN CAPITAL TERRITORY	)
1 No. G 39 of 1986
DISTRICT REGISTRY	) )
GENERAL DIVISION	)

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

N - B : GEOFFREY ANDREW CHARLES WILLIAMS

Applicant

AND : THE OUEEN

Respondent

MINUTE OF ORDER

THE COURT ORDERS THAT the application be dlsmissed.

m: Settlement and entry	of orders is dealt with in Order	36
of the Federal Court Rules.

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D

IN THE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY	)
) No. G 39 of 1986
DISTRICT REGISTRY	1
)

DIVISION GENERAL )

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN :	GEOFFREY	ANDREW	CHARLES
WILLIAMS

Applicant

m: THE OUEXN

Respondent

B: Neaves J.

U: 1 August 1986

EX TEMPORE REASONS FOR JUDGMENT

This is an appl ication by Geoffrey Andrew Charles

Wllllams ( "the appllcant" ) for bail pending the hearing of an

appeal instituted by him in this Court against the severity of

the sentence imposed upon hlm In the Supreme Court of the

Australian Capital Territory (Kelly J.) for an offence of

maliciously inflicting grievlous bodily harm, an offence

against 5.35 of the Crimes Act, 1900 (N.S.W.) in its

appllcatlon t o the Terrltory. It is unnecessary to refer to

the facts glving r l s e to the offence In any detail. It 1s

sufficlent to say that the applicant was waiting In a tollet

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block at a caravan park at the north side of Canberra and he

attacked the vlctim, who was then aged about 70 years, when she

came in to use the tollet facilitles in the block and inflicted

upon her general injuries including serious facial injurles.

Kelly J. described the attack as a brutal one. The applicant

had pleaded guilty to that offence, which was committed on 31

January 1985, and on 30 May 1986 he was sentenced to

imprisonment for a term of eighteen months	with	a non-parole
period of SIX months.

On 20 June 1986 the applicant appealed, as of right,

to this Court pursuant to sub-s.24(1) of the Federal Court of

Australia Act 1976. The grounds of appeal are -

(a) that his Honour was in error in giving

undue weight to the principle of general

deterrence in the sentence imposed;

(b)

that his Honour was in error in failing to give due weight to the appellant's personal circumstances, antecedents and rehabllitative needs;

that his Honour was in error in failing

to give due weight to the clrcumstance

that the appellant entered a plea of

guilty;

that his Honour was in error in failing

to take into account the degree of

lntoxication of the appellant at the

time of commission of the offence;

that the sentence lmposed was manlfestly

excessive.

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On the hearxng of the appeal the Court wlll be

asked, as I understand it, to set aside the sentence imposed

by the Supreme Court and to substitute a sentence whlch does

not requlre the appllcant to serve any further period of

imprisonment.

The power of a Judge of this Court to entertain an

appllcatlon for bail derives from the provisions of the

Federal Court of Australia Act 1976 and Order 52, sub-rule

3 5 ( 3 ) of the Federal Court Rules. Sub-rule 3 5 ( 3 ) provides

that the Court or a Judge may, upon such terms as it or he

thinks fit, admit an appellant to bail pending the hearing

of his appeal or his application for leave to appeal.

The applicant accepts that the principle which

governs the grantlng of bail after conviction and sentence is that it wlll not be granted otherwise than in exceptional

circumstances. Whether exceptional circumstances exist In

any case will depend upon the facts of that case: no

general prescription has been, or can be, laid down. The

appllcant also accepts that the onus of establishing that

such exceptional clrcumstances exist rests upon him.

The circumstances, taken in combination, which are

relied upon to establish the necessary exceptional

clrcumstances may be summarised as follows -

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(a) the applicant's appeal is not without prospects of success;

(b) the Court may be confident that the

applicant will answer his ball	if
granted;

(c) the appeal, ln the ordinary course of

the Court's buslness, will not be heard

and determined before the end of October

1986 by which time by far the greater

part of the non-parole period of six

months will have been served.

As to the first of these grounds, counsel referred to the approach to the sentencing of the applicant which had

been taken by Gallop J. on an earlier occasion consequent

upon his conviction for an offence against s . 3 3 of the

Crimes Act, 1900 (N.S.W.) In Its application to the

Territory arising out of the same incident. On that

occasion Gallop J. imposed a sentence of imprisonment for a

period of two years but suspended the execution of that

sentence upon the applicant entering into a recognizance,

self ln the sum of $2,000, to be of good behaviour for two

years, to submlt himself to the supervision of the Director

of Welfare or some officer appointed in	that behalf and to
obey the directions of such person about	his accommodation,

his employment and his associates, and to come up for

sentence in the meantime if requlred to do so. The

conviction for that offence was set aside by a Full Court of

this Court on 20 March 1986 and the matter sent back for

re-trlal. It was upon the occasion of the re-trial that the

applicant pleaded guilty to the offence under 5.35 of the

5.

Crimes Act, 1900 (N.S.W.) in its application to the

Territory for	whlch he was sentenced by Kelly	J. on 30 May
1986.

I am not in a posltlon to express an opinion upon

the prospects of success in the appeal. Detailed evidence

1s not before me as to the circumstances in which the

offence was committed nor as to the whole of the matters put before the learned sentencing judge. No copy of the learned judge's remarks on sentencing has been formally placed

before me though some references have been made during the

argument before me to what his Honour then said. There is,

however, evidence before me of the applicant's criminal

record between June 1976 and 31 January 1985. Suffice it to

say that it is a very long record for a	person who is now
only 24 years of age.

It may be accepted that there are matters which may

properly be put on the hearing of the appeal but I am not satisfied, on the material before me, that the prospects of success are, in themselves, sufficient to constitute the

exceptional circumstances warranting the granting of bail.

In particular, I cannot thlnk that the prospects are good of

convinclng an appellate trlbunal that this was not a case

for the imposltion of a custodial sentence. With respect, I

agree with what was sald by Young C.J. in Re Xulari C19783

V.R. 276 at pp.277-278:

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" .... ~t LS clear that ball wlll only be granted

after convlctlon and pcndlng an appeal in very

except~onal clrcumstances. It is not possible or

deslrable to attempt to descrlbe what might be

regarded as very exceptlonal clrcumstances but

the fact that there 1 s a prma facle arguable

qround of appeal IS, I think, of very llttle

welght where the ground of appeal is that the

sentence Imposed is too severe."

As to the second ground relied upon, I am prepared

to accept for the purposes of dealing with the present

appllcation that the appllcant would answer	his bail if such
were granted.

The substantial qround on which the applicant

relles 1 s the length of tlme which will elapse before the

date of disposition of the appeal. It is said that, by the

tlmc the appeal is heard and determined in the ordinary

course, the greater part of the non-parole period will have

been served. It is also said that there has been a

substantial turnabout in the applicant's lifestyle since the

commisslon on 31 January 1985 of the offence for which the

applicant is now undergolng a sentence of imprisonment.

Reference 1s made to the periods on which the appllcant has

been on ball since that date and to the rehabilitation

programme which the appllcant has undertaken whlle on bail

In relatlon to hls alcohol problem, a problem seen by both

G a l l o p and Kelly JJ. as the root of his anti-social

behaviour. It 1s suhnlttcd that, ds the rehabilitatlon

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programme 1 s not available to hln while he 1 s In custody,

the appllc.1nt zhould bc grantcd ball so that he may contlnue

wlth the progtnmrne, as ~t 1 s h15 desire to do.

Substant L a 1 m,? trr tal conccr n1 ng the matter of the

appllcant’s rehabllltatlon was, as I understdnd it, put

before Kelly J. and taken Into account by him in determinlng

the sentence he should Impose. Conscious as his Honour must

have been of the Importance to the applicant and, indeed, to

the community of the need for rehabilitatlon, his Honour was

unable to regard that circumstance a s requiring that a

sentence other than a custodial sentence be Imposed. Nor do

I regard it as providing the exceptional circumstance

necessary to warrant the granting of bail.

Mr Marshall has urged everything that could be

urged in favour of the application. However, In my opinlon,

exceptIona1 circumstances have not been made out and I,

thereforc, dismiss the applicntlon.

I certify that thlo and

the preceding 6 pages are a true copy of the Reasons for Judgment herein of the

Honourable Mr Justlce

Neaves .

I) AssoriatP U %-

Dated: 1 August 1986