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Supreme Court 17 July 2012

R v. Alexandra Jane Martin

[2012] NSWSC 801

Assault & violenceTheft & property
[CRIMINAL LAW] BAIL APPLICATION S30AA BAIL ACT 1978 (NSW) CONDITIONAL BAIL GRANTED.

Citation: R v Alexandra Jane Martin [2012] NSWSC 801
Court: Supreme Court of New South Wales
Date: 17 July 2012
Judge: S G Campbell J

Background

The applicant had pleaded guilty in the District Court of New South Wales to breaking and entering a dwelling house and committing a serious indictable offence (assault occasioning actual bodily harm) contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). She had entered her plea at the earliest opportunity when the matter came before the Local Court at Dubbo. The maximum penalty for the offence is 14 years' imprisonment.

The sentencing judge imposed a total sentence of 15 months, arrived at by taking a starting point of approximately 20 months and applying a 25 per cent discount for the utilitarian value of the early guilty plea. The sentence comprised a non-parole period of six months from 30 May 2012, followed by a nine-month balance of term on parole. The sentencing judge also made an order for automatic release on parole at the end of the non-parole period, given the length of the term.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal. That leave application and appeal were listed for hearing on 26 October 2012. She applied to the Supreme Court for bail pending the appeal.

  • Whether the Supreme Court (as distinct from the Court of Criminal Appeal) had jurisdiction to grant bail pending an appeal against sentence imposed on conviction on indictment.
  • Whether the applicant had established "special or exceptional circumstances" justifying the grant of bail under s 30AA of the Bail Act 1978 (NSW).
  • Whether the likelihood that the whole or major part of a custodial sentence would be served before the appeal was heard could, by itself or in combination with other circumstances, constitute "special or exceptional circumstances."
  • Whether the strength of the grounds of appeal was a relevant consideration, and what standard applied where that was one of several factors advanced.

Decision

Campbell J confirmed that the Supreme Court has concurrent jurisdiction with the Court of Criminal Appeal to grant bail pending an appeal against sentence imposed on conviction on indictment. Section 28 of the Bail Act empowers the Supreme Court to grant bail to any person accused of an offence, and that expression extends to persons convicted and to persons with a pending appeal. The jurisdiction of the Court of Criminal Appeal under s 30 is not exclusive.

The applicable test under s 30AA is whether "special or exceptional circumstances" exist justifying the grant of bail. His Honour accepted that this test re-establishes the common law principle that existed before the Bail Act was enacted, and confirmed that no fixed or closed categories of circumstances satisfy it. The totality of the circumstances must be examined. The bar is high: the Full Court of Victoria described in Re Clarkson [1986] VR 583 the "powerful considerations of a general character" that militate against granting bail pending appeal.

On the facts, Campbell J found that the applicant would, by the date of the appeal hearing, have served just short of five months of the six-month non-parole period. The judgment on appeal could not be predicted to follow immediately after the hearing. His Honour accepted, consistently with the weight of Australian authority, that the likelihood of serving the whole or a major part of a custodial sentence before the appeal is heard is itself capable of constituting special or exceptional circumstances, depending on the nature of the offence, the grounds of appeal, and all attendant factors. In combination with the applicant's strong subjective circumstances, including her good character, remorse, early plea, and the overall bail factors under s 32(1), Campbell J was satisfied that special or exceptional circumstances were established and granted conditional bail.

Orders Made

  • The applicant was granted bail pending her appearance before the Court of Criminal Appeal on 26 October 2012, subject to the following conditions:
  • To be of good behaviour in all respects.
  • To reside at a specified Darlinghurst address with her mother.
  • To report to Surry Hills police station within 24 hours of release and thereafter on Mondays, Thursdays, and Saturdays between 8am and 8pm.
  • One acceptable person to enter a $5,000 cash-secured agreement to forfeit if the applicant breaches her bail undertaking.
  • To surrender any current passport to Surry Hills police on first reporting.
  • Not to apply for any new passport or travel documents.
  • Not to approach any point of departure from Australia by air or sea.
  • Not to go within 50 kilometres of Dubbo.
  • Not to approach, contact, or attempt to contact (directly or indirectly) the victim.
  • To prosecute the appeal with all due diligence.
  • Automatic revocation of bail upon any breach, with power to arrest and return the applicant to custody.

Key Takeaways

  • Under s 30AA of the Bail Act 1978 (NSW), bail pending an appeal against a sentence imposed on conviction on indictment cannot be granted unless "special or exceptional circumstances" are established. This test restores the common law standard that applied in New South Wales before the Bail Act was enacted.

  • The Supreme Court confirmed it holds concurrent jurisdiction with the Court of Criminal Appeal to grant bail in such cases. Section 28 of the Bail Act is not limited by the Court of Criminal Appeal's power under s 30.

  • No fixed categories of circumstances satisfy s 30AA. The totality of all relevant circumstances must be assessed, meaning an applicant is not confined to relying solely on the strength of grounds of appeal.

  • Where the prospect of success on appeal is the sole ground advanced, a high standard applies: the ground must be one that can be seen without detailed argument to be certain to succeed (following R v Wilson (1994) 34 NSWLR 1). Where multiple factors are combined, the strength of the appeal grounds may form one element of a broader assessment.

  • Consistent with authority across Australian jurisdictions, the likelihood that an applicant will serve the whole or a very substantial part of a custodial sentence before the appeal is determined is capable of satisfying the "special or exceptional circumstances" threshold, particularly when viewed alongside other relevant factors such as the applicant's character, the nature of the offence, and the grounds of appeal.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 4, 28, 30, 30AA, 32
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 50
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- Chamberlain v The Queen (No 1) (1983) 153 CLR 514
- Chew v The Queen [No 2] (1991) 66 ALJR 221
- Doggett v The Queen (unreported), High Court of Australia, Callinan J, 2 November 2000
- Ex Parte Maher [1986] 1 Qd R 303
- Marotta v The Queen (1999) 73 ALJR 265
- Peters v The Queen (1996) 71 ALJR 309
- Re Clarkson [1986] VR 583
- Re Jackson [1997] 2 VR 1
- Re Pennant [1997] 2 VR 85
- R v Antoun [2005] NSWCCA 270
- R v Charbel Rahme [2003] NSWCA 135
- R v Giordano (1982) 31 SASR 241
- R v Hilton (1987) 7 NSWLR 745
- R v Southgate (1960) 78 WN (NSW) 44
- R v Waters (1990) 9 Petty SR 4016
- R v Wilson (1994) 34 NSWLR 1
- United Mexican States v Cabal (2001) 209 CLR 165