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Court of Criminal Appeal 26 June 2014

MILSOM, Nigel Thomas v R

[2014] NSWCCA 118

Assault & violence
BAIL SPECIAL OR EXCEPTIONAL CIRCUMSTANCES UNACCEPTABLE RISK.

Citation: MILSOM, Nigel Thomas v R [2014] NSWCCA 118
Court: Court of Criminal Appeal
Date: 26 June 2014
Judges: Hoeben CJ at CL, Rothman J, Beech-Jones J

Background

The applicant pleaded guilty in May 2013 to one count of armed robbery with wounding under s 98(1) of the Crimes Act 1900 (NSW). In September 2013, the District Court sentenced him to six years' imprisonment commencing July 2013, with a non-parole period of two and a half years. He filed an application for leave to appeal against that sentence in the Court of Criminal Appeal.

On 24 June 2014, the full Court heard the leave application and reserved its decision. At that point, the Court indicated it was minded to grant bail pending judgment. The matter was stood over, and the same three judges convened to hear the formal bail application.

An initial question arose as to whether a single judge could grant bail under the Bail Act 2013 in these circumstances. The full bench of three judges sat to resolve any doubt about the Court's power and to deal with the application.

  • Whether the Court of Criminal Appeal (constituted by three judges) had power under the Bail Act 2013 to grant bail while a sentence appeal was pending before it
  • Whether "special or exceptional circumstances" existed under s 22 of the Bail Act 2013 to justify the grant of bail
  • Whether any identified risks of non-appearance or the commission of a serious offence could be adequately mitigated by bail conditions

Decision

Jurisdiction. The Court confirmed its power to grant bail under s 61 of the Bail Act 2013, which empowers a "court" to hear a bail application where proceedings for the offence are pending before it. Section 5(1)(d) of that Act expressly includes appeal proceedings within the definition of "proceedings for an offence." The Court left open the separate question of whether a single judge could exercise equivalent power in these circumstances.

Special or exceptional circumstances. Section 22 of the Bail Act 2013 replicates the former s 30AA of the Bail Act 1978, requiring the applicant to establish special or exceptional circumstances where a sentence appeal is pending. Beech-Jones J found that the leave application carried reasonably strong prospects of establishing a significant procedural error in the District Court sentencing proceedings. A potential outcome was that the matter would need to be remitted to the District Court for a full rehearing on sentence, which would introduce further delay. Those matters were sufficient to establish special or exceptional circumstances.

Unacceptable risk. The Court accepted that the nature of the offence and the possibility of ongoing or remitted proceedings gave rise to a small but unacceptable risk of non-appearance or the commission of a serious offence while on bail. However, the Court was satisfied this risk could be adequately mitigated. The applicant had complied with bail conditions throughout the period preceding sentence (apart from two brief custodial intervals), the conviction was his first, and proposed conditions were put forward by both parties that the Court regarded as sufficient.

Rothman J agreed with the orders but added a reservation: he did not endorse the proposition, if it were being advanced, that the mere possibility of delay or the probability of remittal and rehearing would, by themselves, always satisfy the exceptional circumstances threshold. He was nonetheless satisfied that exceptional circumstances existed on the facts before the Court.

Orders Made

  • Bail granted pursuant to ss 19(a) and 21 of the Bail Act 2013, subject to the following conditions:
  • The applicant be of good behaviour
  • The applicant report to the officer in charge of Newcastle Police on each Monday, Wednesday and Friday between 8:00am and 8:00pm
  • The applicant reside at 39 Albert Street, Wickham
  • The applicant appear as and when required by the Court

Key Takeaways

  • Under s 61 of the Bail Act 2013, the Court of Criminal Appeal constituted by a full bench has clear power to grant bail while a sentence appeal is pending before it, given that appeal proceedings fall within the statutory definition of "proceedings for an offence."
  • Section 22 of the Bail Act 2013 requires an applicant to establish "special or exceptional circumstances" before bail can be granted pending a sentence appeal, mirroring the test previously found in s 30AA of the Bail Act 1978.
  • Strong prospects of establishing a significant procedural error on appeal, combined with the realistic possibility of a full remittal for resentencing and consequent delay, were treated as sufficient to meet the exceptional circumstances threshold on the facts of this case.
  • Rothman J expressly declined to endorse any broader principle that delay or the prospect of remittal would, without more, always satisfy the exceptional circumstances requirement.
  • Where an unacceptable risk of non-appearance or reoffending is identified, the court may still grant bail if that risk can be sufficiently mitigated by appropriate conditions, such as regular reporting, a fixed address requirement, and a good behaviour undertaking.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 5(1)(d), 17, 19(a), 21, 22, 61
- Bail Act 1978 (NSW), ss 4, 28, 30AA
- Crimes Act 1900 (NSW), s 98(1)

Cases cited: No cases were cited in the judgment.