Citation: R v Paul Campbell (a pseudonym) [2017] NSWSC 1844
Court: Supreme Court of New South Wales
Date: 20 December 2017
Judge(s): Hamill J
Background
The applicant, referred to by a pseudonym throughout proceedings, was a fourteen-year-old child who had pleaded guilty in the District Court to serious sexual offences against two younger second cousins, aged six and seven years respectively. The offences involved multiple acts of sexual intercourse with children under ten years of age, as well as aggravated indecent assault. The applicant had been on bail for fourteen months prior to sentencing.
On 14 December 2017, the District Court sentenced the applicant to a head sentence of sixteen months with a non-parole period of eight months, with release to parole ordered from 13 August 2018. The sentencing judge rejected the Crown's submission that a sentence other than full-time custody was available, and proceeded to impose immediate full-time custody.
The applicant's legal team moved swiftly, filing a notice of intention to appeal on the day of sentence and providing drafted grounds of appeal with supporting written submissions from senior counsel within four days. The applicant then sought bail from the Supreme Court pending the hearing of that appeal in the Court of Criminal Appeal.
Legal Issues
- Whether the applicant could establish "special or exceptional circumstances" as required under s 22 of the Bail Act 2013 (NSW) to obtain bail following conviction on indictment
- Whether the proposed grounds of appeal against sentence were at least arguable
- Whether a significant portion of the sentence would be served before the appeal could be heard
- Whether any unacceptable risks within the meaning of ss 17 and 19 of the Bail Act 2013 were present
- Whether a condition requiring secured surety could lawfully be imposed in the circumstances
Decision
Hamill J applied the principles for bail pending appeal articulated in El Hili & Melville v R [2015] NSWCCA 146, which identifies two frequently occurring considerations: the arguability of the proposed grounds of appeal, and whether the custodial component of the sentence may be substantially served before the appeal is heard. His Honour acknowledged the inherent difficulty of assessing appeal prospects without the benefit of full submissions from both sides, but was nonetheless satisfied that each of the four proposed grounds was at least arguable, with some carrying stronger prospects than others.
On the question of sentence being served before appeal, Hamill J noted that although the applicant might serve only half to one third of the non-parole period before a March 2018 hearing, the total non-parole period was only eight months. Given the applicant's age, and the speed with which his legal team had prepared the appeal, this factor contributed to the finding of special or exceptional circumstances. The court also took into account the applicant's age and developmental circumstances, the absence of any criminal history or prior non-compliance with court orders, a fourteen-month period of satisfactory compliance with bail prior to sentence, and the practical need for the applicant to commence attendance at a new school.
Hamill J was satisfied that no unacceptable risks of the kinds identified in ss 17 and 19 of the Bail Act 2013 were present, noting that any residual bail concerns were addressed by stringent proposed conditions. On the question of secured surety, the applicant's parents had offered a $1 million security, but Hamill J found that s 26(5) of the Act permits such a condition only where a bail concern exists that the applicant will not appear. Given the applicant's community ties and his attendance at the District Court knowing a custodial sentence was likely, no such concern was established and the condition could not lawfully be imposed.
Orders Made
• The bail application is granted on conditions (detailed on court file)
Key Takeaways
- Under s 22 of the Bail Act 2013 (NSW), an applicant sentenced on conviction on indictment must establish "special or exceptional circumstances" before bail will be granted pending appeal, and the framework from El Hili & Melville v R [2015] NSWCCA 146 governs how that test is applied.
- Arguable grounds of appeal and the prospect of serving a substantial portion of a short sentence before the appeal is heard are two of the central considerations in assessing whether special or exceptional circumstances exist.
- The youth of the applicant, including the practical consequences of incarceration such as missing the commencement of a new school year, formed part of the factual matrix supporting the special circumstances finding.
- Secured surety conditions under s 26(5) of the Bail Act 2013 can only be imposed where a genuine bail concern about non-appearance exists; a willingness by family members to provide security does not of itself justify imposing such a condition.
- Granting bail in this matter did not reflect any minimisation of the seriousness of the offences; rather, the decision rested on the confluence of the applicant's age, the short sentence, the arguability of the appeal, and the absence of unacceptable risk.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 17, 18, 19, 22 and 26(5)
- Children's (Criminal Proceedings) Act 1987 (NSW), s 6
Cases
- El Hili & Melville v R [2015] NSWCCA 146
- RP v R [2015] NSWCCA 215
- RP v R [2016] HCA 53
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (CTH) v Cassaniti [2006] NSWSC 1103
- R v Khoo [2013] NSWSC 1518