NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. G 39 of 1986 ON APPEAL FROM THE, SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GEOFFREY ANDREW CHARLES WILLIAMS Applicant AND: THE QUEEN Respondent Th MINUTE OF ORDER \% YY OK ¢ JUDGE MAKING ORDER Neaves J. Re ced DATE OF ORDER 1 August 1986 6 25 AUG 1986 FEDERAL "vn, OF WHERE, MADE Canberra AUST, LIV PRINCIPAL DHE COURT ORDERS THAT the application be dismissed. Note: of the Federal Court Rules. Settlement and entry of orders is dealt with in Order 36 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) ) ) No. G 39 of 1986 ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : GEOFFREY ANDREW CHARLES WILLIAMS Applicant AND: THE QUEEN Respondent CORAM: Neaves J. DATE 1 August 1986 EX TEMPORE REASONS FOR JUDGMENT This is an application by Geoffrey Andrew Charles Williams ("the applicant") for bail pending the hearing of an appeal instituted by him in this Court against the severity of the sentence imposed upon him in the Supreme Court of the Australian Capital Territory (Kelly J.) for an offence of maliciously inflicting grievious bodily harm, an offence against s.35 of the Crimes Act, 1900 (N.S.W.) in its application to the Territory. It is unnecessary to refer to the facts giving rise to the offence in any detail. It 1s sufficient to say that the applicant was waiting ina toilet block at a caravan park at the north side of Canberra and he attacked the victim, who was then aged about 70 years, when she came in to use the toilet facilities 1n the block and inflicted upon her general injuries including serious facial injuries. Kelly J. described the attack as a brutal one. The applicant had pleaded guilty to that offence, which was committed on 31 January 1985, and on 30 May 1986 he was sentenced to imprisonment for a term of eighteen months with a non-parole period of six months. On 20 June 1986 the applicant appealed, as of right, to this Court pursuant to sub-s.24(1) of the Federal Court of Australia Act 1976. The grounds of appeal are - (a) that his Honour was in error in giving undue weight to the principle of general deterrence in the sentence imposed; (b) that his Honour was in error in failing to give due weight to the appellant's personal circumstances, antecedents and rehabilitative needs; (c) that his Honour was in error in failing to give due weight to the circumstance that the appellant entered a plea of guilty; (d) that his Honour was in error in failing to take into account the degree of intoxication of the appellant at the time of commission of the offence; (e) that the sentence imposed was manifestly excessive. On the hearing of the appeal the Court will be asked, as I understand it, to set aside the sentence imposed by the Supreme Court and to substitute a sentence which does not require the applicant to serve any further period of imprisonment. The power of a Judge of this Court to entertain an application for bail derives from the provisions of the Federal Court of Australia Act 1976 and Order 52, sub-rule 35(3) of the Federal Court Rules. Sub-rule 35(3) provides that the Court or a Judge may, upon such terms as it or he thinks fit, admit an appellant to bail pending the hearing of his appeal or his application for leave to appeal. The applicant accepts that the principle which governs the granting of bail after conviction and sentence is that it will not be granted otherwise than in exceptional circumstances. Whether exceptional circumstances exist in any case will depend upon the facts of that case: no general prescription has been, or can be, laid down. The applicant also accepts that the onus of establishing that such exceptional circumstances exist rests upon him. The circumstances, taken in combination, which are relied upon to establish the necessary exceptional circumstances may be summarised as follows - (a) the applicant's appeal is not without prospects of success; (b) the Court may be confident that the applicant will answer his bail if granted; (c) the appeal, in the ordinary course of the Court's business, will not be heard and determined before the end of October 1986 by which time by far the greater part of the non-parole period of six months will have been served. As to the first of these grounds, counsel referred to the approach to the sentencing of the applicant which had been taken by Gallop J. onan earlier occasion consequent upon his conviction for an offence against s.33 of the Crimes Act, 1900 (N.S.W.) am ats application to the Territory arising out of the same incident. On that occasion Gallop J. imposed a sentence of imprisonment for a period of two years but suspended the execution of that sentence upon the applicant entering into a recognizance, self in the sum of §2,000, to be of good behaviour for two years, to submit himself to the supervision of the Director of Welfare or some officer appointed in that behalf and to obey the directions of such person about his accommodation, his employment and his associates, and to come up for sentence in the meantime if required todo so. The conviction for that offence was set aside by a Full Court of this Court on 20 March 1986 and the matter sent back for re-trial. It was upon the occasion of the re-trial that the applicant pleaded guilty to the offence under s.35 of the Crimes Act, 1900 (N.S.W.) ain ats application to the Territory for which he was sentenced by Kelly J. on 30 May 1986. IT am not ina position to express an opinion upon the prospects of success in the appeal. Detailed evidence 1s not before me as to the circumstances in which the offence was committed nor as to the whole of the matters put before the learned sentencing judge. No copy of the learned judge's remarks on sentencing has been formally placed before me though some references have been made during the argument before me to what his Honour then said. There is, however, evidence before me of the applicant's criminal record between June 1976 and 31 January 1985. Suffice it to say that it is a very long record for a person who is now only 24 years of age. It may be accepted that there are matters which may properly be put on the hearing of the appeal but I am not satisfied, on the material before me, that the prospects of success are, in themselves, sufficient to constitute the exceptional circumstances warranting the granting of bail. In particular, I cannot think that the prospects are good of convincing an appellate tribunal that this was not a case for the imposition of a custodial sentence. With respect, I agree with what was said by Young C.J. in Re Kulari (£19787 V.R. 276 at pp.277-278: " ,... at 1s clear that bail will only be granted after conviction and pending an appeal in very exceptional circumstances. It is not possible or desirable to attempt to describe what might be regarded as very exceptional circumstances but the fact that there 1s a prima facie arguable ground of appeal is, I think, of very little weight where the ground of appeal is that the sentence imposed is too severe." As to the second ground relied upon, I am prepared to accept for the purposes of dealing with the present application that the applicant would answer his bail if such were granted. The substantial ground on which the applicant relies 1s the iength of time which will elapse before the date of disposition of the appeal. It is said that, by the time the appeal is heard and determined in the ordinary course, the greater part of the non-parole period will have been served. It is also said that there has been a substantial turnabout in the applicant's lifestyle since the commission on 31 January 1985 of the offence for which the applicant is now undergoing a sentence of imprisonment, Reference 1s made to the periods on which the applicant has been on bail since that date and to the rehabilitation programme which the applicant has undertaken while on bail in relation to his alcohol problem, a problem seen by both Gallop and Kelly Jd. as the root of his anti-social behaviour. Tt ais submitted that, as the rehabilitation programme 15 not available to him while he 1s in custody, the applicant should be granted bail so that he may continue with the programme, as 1t 18 his desire to do. Substaritial matertal concerning the matter of the applicant's rehabilitation was, as I understand it, put before Kelly J. and taken into account by him in determining the sentence he should impose. Conscious as his Honour must have been of the importance to the applicant and, indeed, to the community of the need for rehabilitation, his Honour was unable to regard that circumstance as requiring that a sentence other than a custodial sentence be imposed. Nor do I regard it as providing the exceptional circumstance necessary to warrant the granting of bail. Mr Marshall has urged everything that could be urged in favour of the application. However, in my opinion, exceptional circumstances have not been made out and I, therefore, dismiss the application. I certify that this the preceding 6 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Lh hey. Lap hell Associate Dated: 1 August 1986