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Supreme Court 15 December 2016

R v Obeid (No 13)

[2016] NSWSC 1840

Fraud & dishonesty
BAIL BAIL IMMEDIATELY APPLIED FOR VARIOUS FACTORS RELIED ON NON AGE, HEALTH AND OTHER FACTORS RELIED ON PROSPECTS OF APPEAL

Citation: R v Obeid (No 13) [2016] NSWSC 1840
Court: Supreme Court of New South Wales
Date: 15 December 2016
Judge: Beech-Jones J

Background

On the morning of 15 December 2016, Beech-Jones J sentenced a convicted offender to five years' imprisonment with a non-parole period of three years, following a jury trial. The sentencing judgment is reported as R v Obeid (No 12) [2016] NSWSC 1815. Immediately upon the publication of those reasons, the offender applied for bail pending his appeal to the Court of Criminal Appeal against his conviction.

A notice of intention to appeal had already been filed. Senior counsel for the applicant also foreshadowed an application for leave to appeal against sentence, in addition to the conviction appeal.

The application was supported by detailed written submissions identifying twelve factors said, individually or in combination, to constitute the "special or exceptional circumstances" required under the Bail Act 2013 (NSW) before bail can be granted to a person convicted on indictment and awaiting appeal.

  • Whether "special or exceptional circumstances" existed under s 22 of the Bail Act 2013 (NSW) to justify the grant of bail pending an appeal to the Court of Criminal Appeal against a conviction on indictment
  • Whether the applicant's health, age, prior bail compliance, risk of absconding, and other personal factors, taken together, satisfied that threshold
  • Whether there was a realistic prospect that the applicant would serve all or a substantial portion of his sentence before the appeal was determined
  • Whether the grounds of appeal disclosed prospects that exceeded "reasonably arguable," which is the standard required where no sentence expiry risk is present

Decision

The two-stage framework. Beech-Jones J applied the approach confirmed in El-Hilli and Melville v R (2015) NSWCCA 146. First, the applicant must establish special or exceptional circumstances under s 22. If that threshold is met, the court proceeds to consider the s 18 factors. The two most common considerations at the first stage are the merits of the proposed appeal and the risk that the sentence will expire before the appeal is determined. Where no realistic risk of sentence expiry exists, the applicant must demonstrate correspondingly stronger appeal prospects.

Sentence expiry. The court considered it likely that a hearing date for the conviction appeal could be obtained between March and May 2017, with judgment to follow. Given the five-year term imposed, there was no realistic prospect of the custodial sentence expiring before the appeal was resolved. The argument that a resentenced term on appeal might be so short that it would have been served by then was rejected as speculative. The court observed that a wide sentencing range cuts both ways: it makes it harder to establish appealable error and, if error is found, it gives scope for a favourable resentence, but it does not create the kind of sentence-expiry risk that assists a bail application.

Personal factors. The applicant's health and age had been considered in detail in the sentencing judgment. The court accepted that he had a number of health conditions but had concluded that adequate care would be available in custody. Those matters did not materially advance the bail application. His prior compliance with bail conditions was acknowledged, though the court noted that being subject to a substantial custodial sentence changes the calculus somewhat. The argument that the public interest favoured bail pending appeal because the conviction might ultimately be set aside was rejected. The court described that reasoning as misconceived: the public interest in upholding the sanctity of the jury's verdict pointed against bail, not in favour of it.

Appeal prospects. The court then turned to the proposed grounds of appeal. Most grounds had not been raised at trial, and several concerned rulings on directions given or refused at the summing-up stage. Beech-Jones J assessed each ground in turn. He found that the applicant's knowledge of his beneficial interest, the relevance of a protocol breach, and the question of whether the applicant knew his conduct breached his parliamentary duty were all matters squarely open on the evidence. Grounds seeking to revisit conclusions reached by the Court of Criminal Appeal in earlier proceedings faced a high hurdle. Taking all grounds together, the court was not persuaded that the prospects of appeal rose higher than being "reasonably arguable." That level of merit, absent a sentence expiry risk, was insufficient to establish special or exceptional circumstances. Bail was refused.

Orders Made

  • Bail refused pending the hearing and determination of the appeal to the Court of Criminal Appeal.
  • Bail also refused pending any further application for release to the Court of Criminal Appeal.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), a court must not grant bail pending a Court of Criminal Appeal conviction appeal unless the applicant establishes "special or exceptional circumstances," a two-stage threshold confirmed in El-Hilli and Melville v R (2015) NSWCCA 146.
  • Where there is no realistic prospect that a custodial sentence will expire before the appeal is determined, the applicant bears a heavier burden: appeal prospects that are merely "reasonably arguable" will not suffice to establish the required circumstances.
  • A wide range of available sentences does not, of itself, create a sentence-expiry risk capable of lowering the appeal-merit threshold; the court in R v Obeid (No 13) found it cuts in both directions.
  • Accepted health conditions, advanced age, and a prior record of bail compliance are relevant factors but do not, on their own or in combination, constitute special or exceptional circumstances where adequate custodial care is available and no stronger appeal prospect is demonstrated.
  • Framing the public interest as favouring bail because a conviction might ultimately be overturned was rejected: the sanctity of the jury's verdict carries its own public interest weight pointing against bail pending appeal.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 18, 22, 62
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Constitution (Disclosure by Members) Regulation 1983 (NSW)
- Constitution Act 1902 (NSW)

Cases
- El-Hilli and Melville v R (2015) NSWCCA 146
- Obeid v R [2015] NSWCCA 309
- R v Obeid (No 12) [2016] NSWSC 1815
- Obeid v R (No 11) [2016] NSWSC 974
- R v Obeid (No 2) [2015] NSWSC 1380
- Peters v R (1998) 192 CLR 493
- R v Macleod (2003) 214 CLR 230
- R v Ghosh (1982) QB 1053
- R v Quach [2010] VSCA 106; 201 A Crim R 522
- R v Boston [1923] HCA 59; 33 CLR 386
- Horne v Barber [1920] HCA 33; 27 CLR 494
- Wilkinson v Osborne [2015] HCA 92; 21 CLR 89
- Egerton v Brownlow (4 HLC 1 at 161)