AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 1 May 2020

R v Kurtulmus (No. 2)

[2020] NSWDC 163

Fraud & dishonesty

Citation: R v Kurtulmus (No. 2) [2020] NSWDC 163
Court: District Court of New South Wales
Date: 1 May 2020
Judge: Bennett SC DCJ

Background

The applicant had been sentenced by the same court to imprisonment for 3 years, 4 months and 15 days, with a non-parole period of 1 year and 4 months commencing 25 March 2020. He had pleaded guilty to dealing with approximately $1.9 million as proceeds of crime, reckless as to the source of those funds, and also asked the court to take into account a related offence of participating in a criminal group.

Following sentence, the applicant sought bail pending his application for leave to appeal to the Court of Criminal Appeal. He appeared via audio visual link from Glenn Innes Correctional Centre.

In support of the application, his father-in-law offered his home (valued between $1.07 million and $1.13 million) as security. Evidence was also placed before the court about the applicant's employment prospects, his wife's impending second birth, and the likelihood that his non-parole period would be largely exhausted before the Court of Criminal Appeal could hear the matter.

  • Whether the applicant could demonstrate "special or exceptional circumstances" under s 22 of the Bail Act 2013, as required when an appeal against sentence imposed on conviction on indictment is pending.
  • Whether the proposed appeal to the Court of Criminal Appeal had sufficient prospects of success to satisfy that threshold.
  • Which provisions of the Bail Act 2013 conferred power on the District Court to hear the application at all.

Decision

The court identified s 22 of the Bail Act 2013 as the operative constraint. That section prohibits the grant of bail pending a Court of Criminal Appeal sentence appeal unless the applicant establishes special or exceptional circumstances. The applicant's counsel acknowledged that if the court was not satisfied the appeal had reasonable prospects, the remaining factors such as flight risk, risk of reoffending, and personal circumstances could not in combination supply the required threshold.

Drawing on El-Hilli and Melville v R [2015] NSWCCA 146, the court accepted that establishing special or exceptional circumstances required the applicant to show the appeal was most likely to succeed. The applicant put forward three draft grounds: that the court had erred in increasing the sentence, in assessing the objective seriousness as above mid-range, and in failing to give adequate weight to subjective factors.

The court was not persuaded by those proposed grounds. It noted that the submissions advanced had already been considered and rejected at sentencing, including the contention that an intensive correction order of no more than two years was appropriate. The court declined to take a contrary view of the matter at this stage.

The court also resolved a procedural question about which provision of the Bail Act conferred jurisdiction. It found that s 65 did not apply on the facts, but that s 62 plainly provided power to grant bail where proceedings on an appeal against sentence are pending and the person has not yet appeared before the appellate court. Nonetheless, applying that power, the court refused the application on the merits.

Orders Made

  • The application for release on bail was refused.

Key Takeaways

  • Under s 22 of the Bail Act 2013, an applicant seeking bail while a sentence appeal is pending in the Court of Criminal Appeal must establish special or exceptional circumstances, and the court accepted that this requires the appeal to be shown as most likely to succeed.
  • Refusing bail, the District Court found that proposed grounds challenging the assessment of objective seriousness and the weighing of subjective factors did not establish the necessary prospects of success, particularly where those same arguments had been advanced and considered at sentencing.
  • Section 65 of the Bail Act 2013 does not confer jurisdiction to hear a bail application in this context; the relevant power is found in s 62, which applies where a conviction has occurred and appeal proceedings are pending in another court.
  • Personal circumstances, including an imminent birth, absence of flight risk, and the likelihood that the non-parole period would be served before the appeal was heard, were not sufficient on their own to satisfy the threshold when the appeal's prospects were not established.
  • The court noted the application was novel: it is uncommon for a convicted person to seek bail from the very court that sentenced them following a plea of guilty, as distinct from appeals from the Local Court to the District Court which proceed as of right.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 22, 62, 65
- Crimes Act 1900 (NSW), ss 93T(1), 193B(3)
- Criminal Procedure Act 1986 (NSW), s 101
- Children (Criminal Proceedings) Act 1987 (NSW), s 20(1)

Cases:
- El-Hilli and Melville v R [2015] NSWCCA 146
- R v Kurtulmus [2020] NSWDC 149 (the original sentencing decision)