Citation: R v Thomas [2014] NSWSC 1975
Court: Supreme Court of New South Wales
Date: 4 June 2014
Judge: Campbell J
Background
The applicant had pleaded guilty before Blanch CJ DC to supplying methylamphetamine and knowingly dealing with the proceeds of crime (approximately $1,000). On 7 April 2014, he was sentenced to a total effective term of two years imprisonment with an effective non-parole period of six months, making him eligible for release on parole from 6 October 2014.
Following sentence, the applicant lodged a notice of intention to apply for leave to appeal to the Court of Criminal Appeal. Legal Aid had not yet determined whether to fund the appeal, as counsel's opinion on its merits had not yet been obtained.
The applicant sought bail pending the hearing of that leave application. His personal circumstances included a fiancée who had recently given birth prematurely, post-natal complications, and an imminent loss of accommodation linked to the applicant's Aboriginal heritage that his fiancée would not retain access to after mid-June 2014.
Legal Issues
- Whether the applicant had commenced "appeal proceedings" within the meaning of the Bail Act 2013 so as to enliven the court's bail jurisdiction
- Whether the applicant could establish "special or exceptional circumstances" under s 22 of the Bail Act 2013 to justify the grant of bail pending appeal against sentence
- Whether, if special circumstances were established, any unacceptable risks under ss 17 and 20 of the Bail Act 2013 precluded the grant of bail, or whether those risks could be mitigated by conditions
Decision
Campbell J was satisfied that lodging the notice of intention to apply for leave to appeal constituted the commencement of appeal proceedings under s 5 of the Bail Act 2013, bringing the application within the court's jurisdiction under s 8.
The applicant faced the stringent test in s 22 of the Bail Act 2013, which requires an applicant to establish on the balance of probabilities that special or exceptional circumstances justify bail where an appeal against a sentence imposed on conviction on indictment is pending. Campbell J noted that the considerations developed under the former Bail Act would continue to inform the exercise of the discretion under s 22. A central consideration in the case law is whether an applicant will have served the whole or a very substantial part of the sentence before the appeal is heard, always taking into account the nature of the offences, the grounds of appeal, and other attendant factors.
Campbell J held that, on the totality of the circumstances, special or exceptional circumstances were made out. The applicant would serve the only custodial portion of his sentence well before any appeal could be heard and decided. While family hardship is ordinarily not a basis for bail, the combination of the premature birth of the applicant's child, post-natal complications for the fiancée, and the imminent loss of the family's accommodation contributed to the overall picture of exceptional circumstances in this case.
Turning to the unacceptable risk assessment under ss 17 and 20, Campbell J accepted that there was no unacceptable risk of the applicant committing a serious offence, endangering the community, or interfering with witnesses, noting his early guilty plea and the arresting officer's candid acknowledgment of minimal risk. However, there was an unacceptable risk of non-appearance, particularly if counsel advised against the appeal and Legal Aid was refused. Given the applicant's compliance with strict bail conditions over nine months prior to sentencing, Campbell J was satisfied that strict conditions could sufficiently mitigate that risk. Conditional bail was granted.
Orders Made
• Conditional bail granted
• Applicant to appear before the Court of Criminal Appeal on the date fixed by that court
• Default position: appear before the court on 4 September 2014 unless previously dealt with by the Court of Criminal Appeal
• Strict conduct requirements to be imposed (details on court file)
Note: The judgment records that bail conditions were imposed and are detailed on the court file. A review date of 4 September 2014 was set as a default if the Court of Criminal Appeal had not by then dealt with the matter.
Key Takeaways
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Under s 22 of the Bail Act 2013, an applicant seeking bail pending appeal against a sentence imposed on conviction on indictment must establish special or exceptional circumstances on the balance of probabilities, a test that mirrors the stringent threshold under the former Bail Act.
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Lodging a notice of intention to apply for leave to appeal is sufficient to constitute the commencement of appeal proceedings under s 5 of the Bail Act 2013, enlivening the court's jurisdiction to consider bail under s 8.
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Where an applicant will serve the entire custodial portion of their sentence before the appeal can be heard and determined, that fact is a significant indicator of special or exceptional circumstances, though it must be assessed alongside the nature of the offences, the appeal grounds, and all other relevant factors.
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Family hardship is not ordinarily a basis for appeals bail, but the Supreme Court here treated it as one component in a cumulative assessment that, taken together with the sentence structure, crossed the threshold for special circumstances.
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Even after special circumstances are established, the court must still undertake the unacceptable risk analysis under ss 17 and 20 of the Bail Act 2013, and may impose conditions to mitigate risks that do not independently bar a grant of bail.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 5, 8, 17, 20, 22
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases
- Peters v The Queen (1996) 71 ALJR 309
- R v Hilton (1987) NSWLR 745
- R v Martin [2012] NSWSC 801
- Re Jackson [1997] 2 VR 1