Citation: Rogers v Director of Public Prosecutions (NSW) [2021] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 9 July 2021
Judge(s): Bell P, Gleeson JA, Button J
Background
The applicant was serving a sentence of 17 years' imprisonment imposed in December 2003 for an armed robbery with wounding committed in May 2000. The sentence commenced in October 2010 and was partly cumulative on earlier sentences. The non-parole period expired in May 2021, but the State Parole Authority refused the applicant release to parole, meaning he continued to serve the balance of his sentence.
Following that refusal, the applicant sought bail from the Court of Criminal Appeal, in anticipation of a proposed application for leave to appeal against his 2003 sentence. No extension of time to bring that appeal had been sought or granted at the point bail was sought. The Court dismissed the bail application on 2 July 2021, and these reasons were published on 9 July 2021.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to grant bail where no extension of time to appeal had been sought or granted, meaning no appeal was formally on foot.
- Whether, even if jurisdiction could be established, the applicant had demonstrated "special or exceptional circumstances" as required by s 22 of the Bail Act 2013 (NSW) for a proposed appeal from a District Court sentence.
- Whether releasing the applicant on bail would have posed an unacceptable risk of the commission of a serious offence within the meaning of s 19(2)(b) of the Bail Act 2013 (NSW).
Decision
Jurisdiction. Button J (with Bell P and Gleeson JA agreeing) held that the Court lacked jurisdiction to grant bail because no application for leave to appeal was actually on foot. The applicant had not sought, nor been granted, an extension of time to file such an application. Without a live proceeding, the bail application did not engage ss 59 and 61 of the Bail Act 2013 (NSW). Button J accepted, consistently with Mashayekhi v R, that the Court could in some circumstances grant the necessary extension in order to overcome this jurisdictional hurdle and then consider bail on the merits. However, given that the sentence in question was imposed more than 17 years prior, his Honour declined to take that course here.
Special or exceptional circumstances. Button J proceeded to consider the bail merits on a contingent basis. The proposed grounds of appeal included manifest excess, fresh evidence of serious liver disease, the impact of the pandemic on custodial conditions and parole prospects, and alleged disparity with a co-offender's sentence for separate offences. Button J accepted the first three grounds were arguably arguable, but was not satisfied any was likely, let alone very likely, to succeed. Separately, the head sentence did not expire until more than six years after bail was sought. Even a partially successful appeal would almost certainly not reduce the sentence sufficiently to prevent the applicant being returned to custody after any period on bail. That prospect further weighed against finding special or exceptional circumstances.
Unacceptable risk. On the third basis, Button J was satisfied that granting bail on the lax conditions proposed (self-surety and own recognisance, with accommodation offered by the applicant's brother) would have created an unacceptable risk of commission of a serious offence of violence. The applicant's extensive history of violent offending over many years, combined with the proposed conditions and the significant effects of nearly two decades of continuous custody, outweighed the rehabilitation evidence he placed before the Court.
Orders Made
• Bail application refused
Key Takeaways
- The Court of Criminal Appeal's jurisdiction to grant bail in the context of a proposed appeal is found in the Bail Act 2013 (NSW), not in any inherent or residual power. Where no extension of time to appeal has been sought or granted, no appeal is on foot and the bail jurisdiction under ss 59 and 61 is not engaged.
- In limited circumstances, the Court of Criminal Appeal may be prepared to grant a necessary extension of time in order to overcome the jurisdictional hurdle, and then proceed to consider bail on the merits. However, the Court declined to do so where the sentence under challenge was imposed more than 17 years previously.
- Under s 22 of the Bail Act 2013 (NSW), an applicant seeking bail pending an appeal from a District Court sentence must establish "special or exceptional circumstances." Where even a successful appeal would be unlikely to produce a reduction large enough to avoid a return to custody, that outcome itself tends against the establishment of such circumstances.
- Extensive past violent offending, combined with proposed minimal bail conditions and the effects of prolonged institutionalisation, can support a finding of unacceptable risk of commission of a serious offence under s 19(2)(b) of the Bail Act 2013 (NSW), even where the applicant presents credible evidence of rehabilitation.
- Refusing bail on all three bases, the Court confirmed that jurisdictional, merits-based, and risk-based considerations each independently supported the dismissal of the application.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 19, 22, 59, 61
Cases
- Mashayekhi v R [2021] NSWCCA 55
- Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
- Widdowson v R [2020] NSWCCA 213