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Court of Criminal Appeal 9 June 2020

Samandi v Director of Public Prosecutions (NSW)

[2020] NSWCCA 102

Assault & violenceDomestic & family violence
CRIME BAIL RELEASE APPLICATION PENDING CONVICTION AND SENTENCE APPEAL WHERE CONDITIONAL BAIL GRANTED

Citation: Samandi v Director of Public Prosecutions (NSW) [2020] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 9 June 2020
Judge(s): Harrison J, R A Hulme J, Wright J

Background

The applicant had been sentenced in the District Court in December 2018 to an aggregate term of six years imprisonment, with a non-parole period of three years and nine months expiring in November 2020. The offences, committed against his wife, included multiple counts of assault, assault occasioning actual bodily harm, intentional property damage, and contravening an apprehended domestic violence order.

The applicant had pleaded guilty to those charges in October 2018 following negotiations with the Crown, which resulted in the withdrawal of several counts of sexual intercourse without consent. Before sentencing, however, he wrote to his lawyers seeking to withdraw the plea. At the sentencing hearing, he interrupted the delivery of sentencing remarks to declare that he had been "tricked" into taking the deal, but the sentencing judge proceeded on the basis of the entered plea.

The applicant subsequently lodged appeals against both conviction and sentence and applied to the Court of Criminal Appeal for bail pending the hearing of those appeals, which was listed for August 2020.

  • Whether the applicant could establish "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW) to justify the grant of bail pending a conviction and sentence appeal.
  • Whether the applicant had reasonable prospects of success, or reasonably arguable grounds, on his conviction appeal, given his claim that his lawyers failed to follow his instructions to withdraw his guilty plea.
  • Whether the applicant had reasonable prospects of success on his sentence appeal.
  • Whether the difficulty of preparing an appeal while in custody constituted special or exceptional circumstances.
  • Whether any unacceptable risks attending release could be mitigated by bail conditions.

Decision

Conviction Appeal: The Court found no reasonable prospects of success on the conviction appeal. The applicant's own written instructions from October 2018 had expressly authorised his legal team to negotiate a plea. His December 2018 letter seeking to withdraw the plea made clear that his objection was to his lawyers' advice about the likely sentence, not to any deception about the nature of the plea itself. The Crown case was, by the time of sentencing, very strong, supported by an extensive victim statement running to approximately 540 paragraphs and reinforced by additional material obtained during the proceedings.

Sentence Appeal: The Court took a different view of the sentence appeal. Without detailing the specific grounds in the available text, the Court was satisfied that there were reasonable prospects of success on the sentence appeal, particularly given the applicant's non-parole period was due to expire in November 2020. The possibility of a re-sentence resulting in a non-parole period already served provided a meaningful basis for the appeal.

Difficulty Preparing in Custody: The Court rejected the proposition that the difficulty of preparing an appeal while in custody amounted to special or exceptional circumstances. This factor alone was insufficient to satisfy the statutory threshold.

Bail Conditions and Risk: The Court concluded that the combination of reasonable prospects on the sentence appeal and other relevant factors established special or exceptional circumstances. Any residual risks were considered manageable through appropriate conditions, noting in particular that the applicant had strong incentives not to approach the victim or fail to appear, given those actions would undermine his appeal.

Orders Made

  • Bail granted, subject to the following conditions:
  • The applicant is to be of good behaviour.
  • The applicant is to reside at a specified address in Castle Hill.
  • The applicant is to report daily to Castle Hill Police Station between 8am and 8pm.
  • The applicant is not to be absent from his residential address except for court attendance, police reporting, urgent medical attention, or pre-arranged medical or mental health appointments.
  • The applicant is to have no contact of any kind, direct or indirect, with the victim.
  • The applicant is not to apply for any new passport or travel document.
  • The applicant is not to go within 1km of any point of international departure.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), bail pending a conviction or sentence appeal requires the applicant to establish "special or exceptional circumstances," which can be demonstrated by combining reasonable prospects of success on appeal with other relevant factors.

  • Reasonable prospects of success on a sentence appeal, particularly where a re-sentence could result in a non-parole period already served, can form part of the combination of circumstances justifying bail pending appeal, even where the conviction appeal has no prospects.

  • Difficulty preparing an appeal while in custody does not, by itself, constitute special or exceptional circumstances for the purposes of s 22 of the Bail Act 2013.

  • Where an applicant's own contemporaneous written instructions authorised the entry of a guilty plea, and subsequent correspondence showed dissatisfaction with sentencing advice rather than the plea itself, a conviction appeal on the basis of a miscarriage of justice from failure to follow instructions is unlikely to demonstrate reasonable prospects of success.

  • Residual bail risks, including risks of contact with a victim and failure to appear, may be assessed in light of the applicant's own self-interest in the outcome of the appeal, and may be addressed through appropriate conditions.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17(2), 22, 61
- Criminal Procedure Act 1986 (NSW), s 157

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- El-Hilli and Melville v R [2015] NSWCCA 146
- El Khouli v R [2019] NSWCCA 146
- Hunter Quarries Pty Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326
- Rae v R [2019] NSWCCA 284
- R v Hura [2001] NSWCCA 61; 121 A Crim R 472