Citation: Gregg v Director of Public Prosecutions (Cth) [2019] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 18 October 2019
Judges: Brereton JA; Simpson AJA; R A Hulme J
Background
The applicant had been convicted by jury in the District Court on two counts under s 1307(1) of the Corporations Act 2001 (Cth). The charges related to conduct that resulted in the falsification of company books while he was an officer of Leighton Holdings Ltd, with both offences alleged to have occurred in 2011. The first count concerned payment instructions for $15 million in payments to another entity; the second concerned an associated buy and sell agreement.
The sentencing judge imposed terms of 12 months and 2 years' imprisonment respectively, to be served concurrently by way of an intensive correction order. The second sentence included a 12-month home detention condition. Both terms commenced on 29 August 2019.
The applicant lodged an appeal against both conviction and sentence, with the hearing listed for 22 April 2020. He then applied to the Court of Criminal Appeal for bail pending determination of that appeal.
Legal Issues
- Whether the applicant had established "special or exceptional circumstances" required under s 22(1) of the Bail Act 2013 (NSW) to justify bail while an appeal against conviction and sentence is pending
- Whether any of the "bail concerns" under s 17(2) of the Bail Act amounted to an unacceptable risk warranting refusal of bail under s 19(2)
- Whether the sentence appeal had sufficient arguable merit to inform the special circumstances analysis
Decision
The Court accepted that special or exceptional circumstances had been established, pointing to three particularly compelling features. First, the applicant's sentences would have been largely served by the time the appeal was determined. Second, the delay in listing the appeal was not attributable to any fault of the applicant; rather, it arose from difficulties the Crown experienced in briefing counsel and the unavailability of the applicant's trial counsel before April 2020. Third, the Crown did not contend that any unacceptable risk existed if bail were granted.
On the question of merits, the Court was careful not to express any concluded view. It noted, on an "impressionistic basis," that there appeared to be some force in the contention that the sentencing judge may have erred by imposing the maximum two-year term for the second offence while finding it fell towards the mid-range rather than the worst category. The Court acknowledged the inherent limits of assessing appeal prospects at the bail stage, where arguments cannot be fully developed.
Turning to bail concerns under s 17(2), the Crown conceded there were no unacceptable risks. The agreed bail conditions, including the lodgement of $100,000 as security and an undertaking to liquidate a trust fund with the proceeds to be paid into court and forfeited if the applicant failed to appear, were sufficient to address any residual flight risk concern. None of the other statutory bail concerns applied.
Orders Made
- Release application granted
- The applicant to be released on bail subject to conditions
Key Takeaways
- Under s 22(1) of the Bail Act 2013 (NSW), an applicant seeking bail while an appeal against conviction or sentence is pending must first establish "special or exceptional circumstances" before bail concerns are assessed.
- The combination of a sentence likely to be largely exhausted before the appeal is determined, an unusual delay in listing not caused by the applicant, and a Crown concession of no unacceptable risk was sufficient to establish special or exceptional circumstances.
- Arguable merit in a sentence appeal can contribute to the special circumstances analysis, even where the Court cannot express a concluded view on the merits at the bail stage and assesses prospects only "on an impressionistic basis."
- A finding that sentencing may have imposed the maximum available term for an offence assessed as falling at the mid-range, rather than the worst case category, was identified as a potentially arguable ground, though without any firm conclusion.
- Once special or exceptional circumstances are established, the court must still assess each of the four bail concerns in s 17(2) and must refuse bail if any concern amounts to an unacceptable risk under s 19(2).
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17(2), 19(2), 22(1)
- Corporations Act 2001 (Cth), s 1307(1)
Cases: No cases were cited in the judgment.