Pa a IN THE FEDERAL COURT Ur AUSTRALIA AJSTRALIAN CAPITAL TEPRITORY DISTRICT RECISTRY ) } ) » Ne, ACT G 344 of 1984 ) ) ) AN APPEAL FROM ThE SUPREME COURT OF THE AUSTRALIAN CAFITAT, TERRITORY BETWEEN : WILLIAM CHARLE= WEBSTER Srnlicant AND: THE. WUEEN Respondent ARDER JUDGE MAFING CPDEP : Neaves 7. DATF_OF OPDEP - 14 Decramber 1984 WHERE MALE: Vanpecna THE COURT CRDERS THAT - The applicat ton se dismissed. N THE FETERAL COUPT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 34} of 1984 DISTRICT REGISTRY a GENEPAL DIV? SION ON APPEAL E'ROM THE SUPREME COURT O=" THE AUSTRALIAN CAPITAL TERPITOPY BETWEPN : WILLIAM CHARLES WCBSTER Arp) want AMI: THE QUESH Pesronient TORAM Neaves J. DATE: 14 December 19A4d REASONS FOR, JUDGMENT. This 1s an application by William Charles Webster ("the appli: ant") for hail pending the hearing of an arpeal instituted by him in this Court against the ceverity of the senten-e amposed uron him in the Supreme Courk of the Australian Capital 'Lerritory on ffl December 1944 on a charge cw ret under the Poisons and Narewtics DPruas Ordinances 1978 of i) Territory that he had in his possessian a guantity of -oacaine for the pura se of osupr lying brat substance to ancther person or to other pereane The arevlicant had pleaded cmtrity to tne -charae befere the ourt of Fetty Sessiont at Canberra and had been vommitted to the Surreme Court for sentence on 15 August 1984. de had been on bail since nis first appearance betore the 'Court of Petty Sessions on 26 Mav 13284. The sentence impesed on the apelicant was one of imprisonment fnr a term of three vears with a non-parzle period of nine months. Jhe applicant has appealed, as of right, toa this Court pursuant to sttb-section 24(1) of the Federal Court of Australia Act 137+. The grourds af appeal are fal that the sentence 16 manifestly excessive; and (bi that the learned sentencing Judge erred in according ten much significance to the aspect of general deterrence in the imposition of sentence and tn little welght toa the subjzechive circumetances qenerally of the applicant. On the hearcna of the appeal the Court 15 to be asked Fo set aside tne sentence imposed Py the Supreme Court and subctrtute a seantence which dees net require the arplicant to serve any, or any f.iryther. oeriol of imprizonment. Alternatively, the Court ais to he acwed fo vary the non-paraje periad so that the apeltrant wtll nor he required fo serve any, or ane fiirther, reriod «f imprisonment, Mhe power oF a Judae of thie Court La entertain an avplication for ball derives from the provisions of the Federal Act 1976 and Order 52, cub-rule 35¢3) of the Federal Court Rule-. Sub-rute 35¢2) pravides that the Court or a Judage may, upon such terms as if er he thinks fit, admit an appellant foe bail pending the hearing of his appeal or his appliration for leave to appeal. The applicant accepts that the principle which gaaverns the granting of ball after convictior and sentence circumerances. The applicant also accepts that the crus of establishing that such excerhional circumstances exist rests upon him. The circumstances, taken in combination, which are relied upon tye establish the on A) Cessaryv exceptional circumstance may be simmarised as follaws - fa) the prospects oF the apel icant succeeding in the appeal are good; (b' the Court may be confident that the applicant will answer his ball uf aranted; (er) the sentence appealed from 1s relatively (qd) oa perirod of aprroximately four menths 1s likely to elapse before the appeal is heard and determined; and (e1 the personal e1reumstances of the Applicant vie-a-vis the imperdaing birth of his first child. 4. As to the first of the above matters. nameiy the Prospects «of succeeding in the appeal. 1l am notin ia position to express any view. There is no evidence before me as toa the circumstances in which the offence was committed ner as to the whole of the matters pul before the learned sentencing Judqe. No copy of the iearned Judge's remarks on passing sentence 1s before me. The affidavit of Piachard Thomas Gatnett, the arplicant's solicitor, failed in support of the application states that th learned Judge, in Passing sentence, accepted that the applicant, wno 15 33 years of age, was extremely sorry for his actions, that he did not realise the seriousness of what he was doing, that he had suffered materially through the publicity accorded toa his arrest and that he hadi hitherto been of good character. The affidavit alsa states that hiz Honour accepted that the anplicant was not a odruq user, that the applicant's motivation twas to make monev ard that he «7as paid $190 far his services, Iwas informed that the quantity af cocaine involved was four bimes the prescribed traffirkable quantity. Tt was alsa said that if haa been submitted to the learned sentencing Judae that there was puk a single transaction involved though, ac Mr Purneil for fhe applicant frankly ant properly stated, 21f could nor he sail that his Honour had expressly accepted that submission. ' In support of the submission that the sentence was manifestly exceseive, counsel for the applicant referred ta the decision of the Court of Uriminal Appeal in New South Wales in Re Glen Alan Bristow '1482) 7 A Crim. FP, 35 and the decision of this Court in Pe Bozo Jurkovie '1981) 6 A Crim. R. 215. Tt may be accepted that there are matters which may properly be put on the heariny of the appeal but I vannot he satisfied on the material that 13 before me that the prospects are qood of convincing the appellate tribunal that it 1s not a case for the imeosition of a custodial sentence with an appropriate non-parole periad. With recpect, I ~ agree with what was said by Young (C.J. un Re Kuljari Cis79g . it oie clear that bail will only be granted afher canviction and perdiny an appeal in "ery exceptional circumstances. It 1¢ not possibie or table to attempt to describe what might pe reyqarded as very exceptional circumstances but the fact that there 1s a prima facie arguable gqeound oof appeal ous, JT think, of very ditties welaght where the ground vi appeal is that the sentence imposed 15 too severe." As to the second matter relied upon, T am oreparced te accept for the purpose of dealing with the present application that the applicant would answer his bail if such were granted. As to the third matter, I am ouinable to agree that a sentence of aimprisenment for three years can be relevantly described as a relatively short sentence. As to the feurth matter, Tam unable t9 agree tra there will be substantial delav hefore the appeal is heard. The next sittings of the Full Court cf this Court ain Canberra are appointed toa commence on 19 March 1985. Provided the necessary preliminary steps are taken witn due expeditilon., there is no reason why the appeal cannot be heard during those sittings. The last of the matters relied upon 19° «a8 campassrorare one. An affidavit sworn by Adele Maree Croshy has heen {sled depasina to the fact that she has been Living ina ge facto relationship with the applicant for two years and that she 15 expecting hic child, the expected date uf hirth being 29 December 1984. She saves thakh ner pregqnarcy has heen complicated, that she as no family (ather than her 14 year old daughter, one of two children of a former Marriage) living ain Manberra and that she needle the assistance of the applicant during the birth and poet natal period. She also says that she has no independent financial means and relies onthe applicant for financ.al support. There 1s, however, mo) medical eviderce before the Mnouret concerning the deponent's eregnancy or the nature or seriousness of the complications which mav arise in reiatren ha it. Mr Purnell has urged everything that ceuld be urved on behalf of the applicant. Whilst i have great syvmrathy for Ms Craesby in the circumstances in which she now finds herself, I am net satisfied that the matter: relied upan, considered severally or in combination, constitute exceptional cizecumstances justifying the granting of bail to the applicant pending the hearint and determination appeal. The aprjication is, theretree, dismissed. I certify that tnis and the preceding 6 pages are a true copy of the Feasons far Tidament merein o£ the Honourable Mr Tustyece Neave:, ALS LaRe Ditel: 14 Lecember Lord