REGINA v ROWE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL KirBy P, HANDLEY JA and Hunt AJA 24 December 1991, 24 December 1991 [1991] NSWCA 300 PRACTICE and PROCEDURE — bail — prisoner awaiting sentence — should be referred to Court of Appeal. CRIMINAL LAW and PROCEDURE — bail — trial judge postpones sentence — prisoner remanded in custody — facts material to bail later appear during Long Vacation — application to Supreme Court for bail referred to Court of Appeal — HELD: (Hunt AJA; Handley P and Handley JA concurring) (1) Where the judge of trial of the District Court has not granted bail and bail is sought from the Supreme Court for a prisoner awaiting sentence the application should be removed to the Court of Appeal; (2) On the evidence in bail should be granted on terms. Hunt AJA This is an application by Travis Murray Rowe for bail pending the imposition of a sentence upon him in the District Court. It initially came before me in the Common Law Division yesterday, and was removed by me into the Court of Appeal pursuant to SCR Pt12 R2(1)(b). The circumstances which led to that procedure being adopted by me are that the applicant was committed to the District Court upon charges of assault with intent to rob and alternatively of assault occasioning actual bodily harm. He pleaded guilty to the less serious charge and that plea was accepted by the Crown in full satisfaction of the indictment. He then came before Judge Saunders QC for sentence and was remanded by his Honour in custody until 6 February 1992. The application which was made to me for bail was clearly within the jurisdiction of the Supreme Court, but the practice adopted by the Supreme Court (since as long ago as 1979), where an applicant is already the subject of a refusal of bail by a judge of either the District Court or the Supreme Court during a trial or pending sentence, has been for the single judge before whom the application comes to decline to exercise that jurisdiction, but (if there be circumstances shown which may be thought to justify a reconsideration of bail) to remove the application into the Court of Appeal. In the present case, it appeared to me that - due to an unfortunate confusion relating to the applicant's legal representation before the judge - material directly relevant to the issue of bail (and favourable to the applicant) was not brought to the attention of the judge. That material, in my view, justified a reconsideration of bail. As, however, Judge Saunders is on leave until a few days before sentencing is to take place, there was no opportunity for the judge to reconsider bail himself. Accordingly, I adopted the procedure to which I have referred, and the matter is now in the Court of Appeal. The questions which I formulated for the decision of this Court were whether bail is to be granted and, it so, on what conditions. The applicant was arrested very early in the morning of 21 July 1989. He was then just short of eighteen years of age. Earlier that evening, he had been in the company of one young man named Susnjara (who was eighteen years old), another young man named Piesley (who was sixteen years old), and three other 2 UNREPORTED JUDGMENTS young persons whose ages are not stated but who appear to have played no part in the events which subsequently took place. They were all on a train travelling towards the Blue Mountains, and they struck up a conversation with the victim (a seventeen year old man), mainly regarding his motor vehicle. Piesley informed Susnjara of his intention to assault the victim when he left the train. All seven of the applicant's group left the train with the victim and, when the victim entered his vehicle, he was punched in the face, pulled from the vehicle and punched again and kneed in the face. When the victim attempted to escape, he was tackled but he managed to escape again. Upon his return to the vehicle, the victim discovered that his wallet containing $25 and his watch had been stolen. He was subsequently examined at the Katoomba Hospital and found to have a broken nose, cuts and bruising to the face and bruising to the body. It is not suggested that the applicant played any major part in this violent incident. He did assist one of the others to pull the victim from his vehicle and he did punch the victim. It was not he who broke the victim's nose, nor he who tackled the victim. When arrested by the police, the applicant admitted the assault but denied stealing the wallet or the watch. He was bailed unconditionally into his father's custody. He remained on bail, despite two further offences committed subsequently - one of offensive language (for which he was fined $50) and one of unlawfully using a conveyance (for which sentence was deferred upon his entering into a twelve months' recognizance) - and notwithstanding his plea of guilty to this present charge until Judge Saunders remanded him in custody for sentence. The applicant had no prior convictions. He is now twenty years of age. Since the offence for which he is presently standing for sentence, the applicant has resided with his de facto wife and baby daughter at his parents' home at Bundaberg, Queensland. He has been permanently employed. He has nevertheless always attended court when required by the conditions of his bail to do so. According to the Juvenile Justice Officer who interviewed him, the applicant presents as "a mature, dependable and settled young man". The Service has supported his application for bail. These are the matters which, for the reasons to which I earlier referred, were not brought to the notice of Judge Saunders. The criteria which must be considered in any bail application are set out in s32 of the Bail Act 1978. There is no suggestion that the applicant will not appear for sentence on 6 February. Nor is there any real suggestion that the applicant is likely to commit any further offences while at liberty on bail. He is no longer associating with his co-accused. Nor is there any suggestion that the interests of the victim or of the community require bail to be refused. In the circumstances of this case, that effectively leaves only the interests of the applicant to be considered. It is, of course, no part of the function of any court hearing a bail application to seek to limit the very wide discretion of a sentencing judge as to the punishment which is appropriate to both the crime committed and the person convicted of it. But it remains necessary for the purpose of assessing the applicant's interests to form some general assessment of what type of punishment is likely or unlikely to be imposed. If a full time custodial sentence were inevitable in this case, I would not for myself interfere with the sentencing judge's refusal of bail. If on the other hand such a sentence were not inevitable, it would clearly be contrary to this young man's interests that he should remain in full time custody awaiting any other sentence. URJ REGINA v ROWE (Handley JA) 3 In the present case, I do not believe that a full time custodial sentence is inevitable. The objective circumstances of the crime of assault occasioning actual bodily harm are undoubtedly serious, but the applicant appears to have played a relatively minor role in it. He has in his favour the report and the support of the Juvenile Justice Office, and it is fair to assume that the background report sought from that Office pursuant to s25 of the Children (Criminal Proceedings) Act 1987 will likewise be favourable. It was the applicant's first offence. It would be his first time in custody as a convicted prisoner. Whilst I do not think that a full time custodial sentence would necessarily be inappropriate, I repeat that it is not inevitable; there are many sentencing alternatives available and, indeed, there is every chance that the judge would take advantage of that availability in the present case. Susnjara has received a sentence of nine months to be served by way of periodic detention. His participation in the crime was certainly not less than the applicant's, and (from the statement of facts) it may well have been more. The Crown does not object to the grant of bail. Accordingly, I am satisfied that the applicant should be granted bail pending the imposition of his sentence. I propose that bail be granted subject to the following conditions: The applicant is to enter into an agreement to observe the following requirements as to his conduct while at liberty on bail: 1. He is to reside with his parents at 80 Berdin Street Bundaberg. 2. He is to report to the officer in charge of the Bundaberg Police Station once on each Monday and Friday between the hours of 8.00 am and 8.00 pm. 3. He is to appear before the District Court on 6 February 1992 for sentence. Bail is to be automatically revoked in the event of any breach of any one of these conditions and the applicant may thereupon be arrested by any police officer. Bail may be entered into before any Justice of the Peace. Kirby P I agree. Handley JA I agree. KIRBY P: The orders of the Court are therefore that the applicant is granted bail subject to his entry agreement containing the conditions nominated by Hunt AJA. 1. The applicant granted bail pending the imposition of his sentence subject to the following conditions: The applicant is to enter into an agreement to observe the following requirements as to his conduct while at liberty on bail: (a) He is to reside with his parents at 80 Berdin Street Bundaberg; (b) He is to report to the officer in charge of the Bundaberg Police Station one on each Monday and Friday between the hours of 8.00 am and 8 pm; and (c) He is to appear before the District Court on 6 February 1992 for sentence. 2. Bail to be automatically revoked in the event of any breach of any of the foregoing conditions and the applicant may thereupon be arrested by any police officer; and 3. Bail may be entered into before any Justice of the Peace. Counsel for the Crown: RN Howie QC 4 UNREPORTED JUDGMENTS Solicitors for the Crown: Director of Public Prosecutions Counsel for the Claimant: R Kellerman Solicitors for the Claimant: S Mullany, Legal Aid Commissioner