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Court of Criminal Appeal 27 August 2021

Carnaby v R

[2021] NSWCCA 203

Fraud & dishonesty
BAIL RELEASE APPLICATION RELEASE APPLICATION DISMISSED

Citation: Carnaby v R [2021] NSWCCA 203
Court: Court of Criminal Appeal, New South Wales
Date: 27 August 2021
Judge(s): Payne JA; Garling J; Wright J

Background

The applicant was convicted in October 2019, following a jury trial, of 19 offences: 15 counts of dishonestly obtaining a financial advantage by deception and four counts of recruiting persons to engage in criminal activity. The offending involved causing third parties to lodge false documentation with finance companies to secure loans for luxury vehicles, with total fraudulently procured loans of approximately $2.56 million and losses to lenders of approximately $2.29 million.

In May 2020 the applicant was sentenced to an aggregate term of nine years' imprisonment, with a non-parole period of five years and five months. He filed an appeal against conviction in April 2021, with the appeal listed for hearing on 3 November 2021. He then applied for bail pending determination of that appeal.

The applicant was self-represented at the time of the bail application. He had withdrawn instructions from counsel during the trial and then discharged his solicitor after the trial judge refused an adjournment to allow him to retain new counsel. No evidence was placed before the Court of any steps taken to obtain representation for either the appeal or the bail application.

  • Whether the Court of Criminal Appeal had jurisdiction to hear the bail application while appeal proceedings were pending.
  • Whether the applicant had demonstrated "special or exceptional circumstances" under s 22 of the Bail Act 2013 (NSW) so as to overcome the general limitation on granting bail to a person convicted on indictment whose appeal is pending.
  • Whether, if that threshold was met, the applicant would have passed the "unacceptable risk" test under s 19(1) of the Bail Act.

Decision

The Court confirmed that it had jurisdiction under Part 6 of the Bail Act 2013, as the pending conviction appeal meant proceedings for the relevant offences remained "pending in the court" within the meaning of ss 5, 59 and 61 of the Act.

The primary obstacle for the applicant was the two-stage test described in El-Hilli and Melville v R [2015] NSWCCA 146. Where s 22 of the Bail Act applies, an applicant serving a sentence following conviction on indictment must first establish special or exceptional circumstances before the court proceeds to the standard unacceptable risk assessment. The applicant raised five matters in support of that threshold: the 15 months already served; inadequate prison legal resources; alleged denial of natural justice at trial forcing him into self-representation; prior compliance with bail conditions; and poor health.

The Court dismissed each matter individually and collectively. The period served (fewer than 18 months of a nine-year sentence by the appeal date) was not a substantial proportion of either the head sentence or the non-parole period. The claimed restrictions on prison legal resources were not demonstrated to be so severe as to qualify as special or exceptional. The Court assessed the appeal grounds as, at best, only arguably arguable, with none appearing strong. Prior bail compliance and the trial judge's earlier refusal to detain the applicant pending sentencing were relevant only to the unacceptable risk assessment, not to the threshold test. The applicant's health conditions, while acknowledged at sentencing, were not shown to be inadequately managed in custody or to meaningfully impair his capacity to prepare for appeal.

Because the applicant failed to establish special or exceptional circumstances, the Court did not proceed to consider the unacceptable risk test under s 18 and s 19 of the Bail Act.

Orders Made

  • The release application is dismissed.
  • Bail is refused.

Key Takeaways

  • Under s 22 of the Bail Act 2013 (NSW), a person seeking bail while serving a sentence following conviction on indictment, where a conviction appeal is pending, must first establish "special or exceptional circumstances" before the unacceptable risk test is even engaged.
  • Serving a relatively short period of a lengthy sentence before the appeal is heard does not, without more, constitute a special or exceptional circumstance; the proportion of the sentence served is the relevant consideration, not the absolute duration.
  • Claimed limitations on prison legal resources can be a relevant factor, but the applicant must demonstrate concretely that those limitations rise to the level of special or exceptional circumstances, not merely assert inconvenience.
  • Prior compliance with bail conditions and a prior refusal to detain an accused at the prosecution's request are matters relevant to the unacceptable risk test, not to the special or exceptional circumstances threshold.
  • Refusing bail, the Court of Criminal Appeal confirmed that health grounds require evidence of inadequate management in custody or a demonstrated impact on the applicant's ability to prepare for proceedings; unsupported assertions of poor health are insufficient.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 5, 17, 18, 19, 22, 48, 59, 61
- Crimes Act 1900 (NSW), ss 192E, 351A

Cases:
- El-Hilli and Melville v R [2015] NSWCCA 146
- Obeid v R (No 2) [2016] NSWCCA 321
- R v Williams [2018] NSWSC 994