Yeboah v The Queen
[2022] ACTCA 37
•14 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Yeboah v The Queen |
Citation: | [2022] ACTCA 37 |
Hearing Date(s): | 14 July 2022 |
DecisionDate: | 14 July 2022 |
Before: | Elkaim J |
Decision: | (i) The application for bail is refused. (ii) The application in respect of fresh evidence is adjourned to the hearing before the Court of Appeal. |
Catchwords: | APPEAL – APPLICATION – where applicant seeks bail pending Court of Appeal hearing – where appeal application has no marked degree of strength |
Legislation Cited: | Corrections Management Act 2007 (ACT) s 53 |
Cases Cited: | Achanfuo-Yeboah v The Queen [2016] ACTCA 71 Achanfuo-Yeboah v The Queen (No 2) [2017] ACTCA 11 Warne v The Queen [2022] ACTCA 35 |
Parties: | David Achanfuo Yeboah ( Appellant) The Queen ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) K McCann ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 31 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: Kennett J Date of Decision: 1 June 2022 Case Title: R v Yeboah Citation: [2022] ACTSC 127 Court File Number(s): SCC 296, 297 of 2020 |
Elkaim J:
Mr Yeboah has filed an application for bail pending the hearing of his appeal. There is no separate affidavit supporting the application but the relevant form has been filled in by Mr Yeboah and indicates the reasons behind the application. I assume, as is required for appeal bail, that the applicant also seeks a stay of the sentence pending the appeal.
By way of background, the applicant was sentenced by Kennett J on 1 June 2022 to a term of imprisonment of two years and five months with a non-parole period of 15 months (R v Yeboah [2022] ACTSC 127).
The applicant had pleaded guilty to two offences, trafficking in a controlled drug other than cannabis and dealing with the proceeds of crime. For the former offence the sentence was imprisonment for two years and four months commencing on 30 May 2022. For the second offence, the sentence was imprisonment for two months, but overlapping with the first sentence by one month.
The applicant has appealed against his sentence. He is currently self-represented.
The applicant has a significant criminal record. This includes being sentenced to a term of imprisonment of three years and five months on 25 May 2016. Following his sentencing he applied for bail. The application was decided by Refshauge J in December 2016 (Achanfuo-Yeboah v The Queen [2016] ACTCA 71). Bail was granted, initially for a fixed period, but then extended in a later decision on 5 April 2017 (Achanfuo-Yeboah v The Queen (No 2) [2017] ACTCA 11).
The application for bail before Refshauge J had been made on a number of bases, including some having similarities to the application before me. These included obtaining legal representation, hardship to the applicant’s family and dealing with his medical situation. His Honour rejected all of the reasons put forward other than to allow, initially, a short period of time for the applicant to return to work in order to generate funds for a private solicitor.
Legal Aid for the appeal had been refused. I note that in the present case the applicant had Legal Aid for his sentencing but does not appear to have Legal Aid for the appeal.
Bail pending an appeal is most unusual. I recently considered such an application in Warne v The Queen [2022] ACTCA 35 (Warne). I set out the general principles to be applied, derived from the decision of Refshauge J in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290. I then continued, from [8]:
8.The result of the above authorities is that bail should not be granted in the absence of exceptional circumstances, but that exceptional circumstances may be established by showing that a successful appeal would render the success as nugatory because of the time that had passed pending the appeal.
9.It was pointed out that by 7 November 2022 the applicant would have spent about 75 per cent of the non-parole period in custody.
10.Clearly therefore the outcome of the application should be dictated by the strength of the appeal. If it has no prospects then that attribute should be shared with the application. But if there is an arguable case on appeal, and the stronger the better, then the chances of success on the application will be increased.
There was specific evidence in Warne indicating a viable ground of appeal (arising from a lack of parity with the sentencing of a co-offender) and the likelihood that success on the appeal would be largely defeated by the amount of time Mr Warne would have been in prison when his appeal was heard.
Neither of these considerations are evident here. It is to be emphasised that I concluded there were exceptional circumstances in Warne. That decision should not be regarded as a general ‘ticket’ to obtain bail pending an appeal.
No date has been set for the appeal. The Crown thought the most likely date would be in the sittings commencing on 20 February 2023. On this assumption the applicant would have served about 58 per cent of the nonparole period before the appeal was heard. This is to be contrasted with about 75 per cent in Warne.
The Notice of Appeal, filed on 22 June 2022, lists the grounds of appeal as being that the sentences and the non-parole period are all manifestly excessive.
In the current application the reasons listed as justifying the grant of bail include the applicant wishing to organise legal representation, to gather documents for his appeal including medical reports and notes concerning an eye condition from which he suffers and his need to seek medical treatment for the eye and other conditions.
During the hearing the applicant also informed me that his family had been sent to Queensland pending the sentencing hearing and he was anxious that he be able to arrange for their return.
Although the eye condition was accepted to exist by the Crown, Kennett J was hampered in its consideration by the “bogus document” tendered by the applicant and masquerading as a medical report.
A sentence is manifestly excessive if it is plainly unjust. It will be a matter for the Court of Appeal, at final hearing, to decide if that is the case.
For purposes of this application however I cannot identify any aspect in the sentencing reasons which would suggest that the ground of appeal has any marked degree of strength. His Honour set out the maximum penalties for the offences, he assessed and took into account the objective seriousness of the offences, he factored in the applicant’s subjective circumstances including his criminal history (which included a similar conviction) and he specifically referred to the need for general deterrence in “any matter involving drug trafficking”.
The difference between the position before Refshauge J and that before me is that there was obviously substantial detail before his Honour concerning legal representation. I have no information other than that the applicant wishes to have legal representation. I do not know if has tried and failed or in fact any other detail other than the bare fact of the desire to be represented.
It will obviously be of great benefit to the applicant if he is represented, and he is entitled of course to representation. However, on the evidence before me I cannot be satisfied that representation cannot be organised.
In relation to the personal features listed by the applicant, I agree with the approach taken by Refshauge J, essentially to the effect that they were issues that lay at the feet of the applicant; they had been brought about by his offending.
If a lawyer is retained, that lawyer will be able to gather relevant medical evidence. If a lawyer is not retained that will not be a bar to the applicant requesting the evidence from the medical providers.
As to treatment, the prison authorities are obliged to consider any request for medical treatment made by a prisoner: s 53 of the Corrections Management Act 2007 (ACT). This Act specifically requires that “detainees have a standard of health care equivalent to that available to other people in the ACT”.
Refshauge J actually heard evidence from the medical authorities at the prison and was satisfied that the applicant’s eye condition was the subject of treatment.
In the absence of special circumstances, which I cannot identify in this case, the application must be refused.
I note that the applicant filed a separate application seeking leave to rely on fresh evidence. The fresh evidence that is contemplated is medical evidence which has not yet been obtained. It would consequently be inappropriate for me to deal with the application at this stage. The application is probably best dealt with by the court hearing the appeal. I will stand this application over accordingly.
I make the following orders:
i.The application for bail is refused.
ii.The application in respect of fresh evidence is adjourned to the hearing before the Court of Appeal.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
0
5
1