DPP v SKA (formerly DPP v AZ) [2009] NSWCA 51

New South Wales Court of Appeal

CITATION: DPP v SKA (formerly DPP v AZ) [2009] NSWCA 51 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 March 2009

JUDGMENT DATE: 13 March 2009

JUDGMENT OF: McClellan CJ at CL at 25; Buddin J at 1; Price J at 26

DECISION: Bail revoked forthwith.

CATCHWORDS: Bail - review by Crown of grant of bail in District Court - whether "special or exceptional circumstances" established

LEGISLATION CITED: Bail Act Criminal Appeal Act 1912

CATEGORY: Principal judgment

DPP v Louizos [2008] NSWCA 271 R v Pakis (1981) 3 A Crim R 132 CASES CITED: R v Roberts and Lardner (1997) 97 A Crim R 456 R v Wilson (1994) 34 NSWLR 1 United Mexican States v Cabal (2001) 209 CLR 165

PARTIES: Director of Public Prosecutions SKA

FILE NUMBER(S): CA 2009/40068

COUNSEL: M Grogan (Crown) M Gallagher (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) Crawford & Duncan Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0763

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 6/2/2009

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/040068

McCLELLAN CJ at CL BUDDIN J PRICE J

FRIDAY 13 MARCH 2009 DIRECTOR OF PUBLIC PROSECUTIONS v SKA (formerly DPP v AZ) Judgment – Application for review of bail 1 BUDDIN J: This is an application by the Director of Public Prosecutions to review a decision by Finnane DCJ (the trial judge) to grant bail to the respondent. To place the present matter in some sort of context it will be necessary to sketch some background detail. 2 The respondent was convicted on all five counts of an indictment which alleged that he had sexually interfered with the complainant, who is his niece. The first three offences occurred in the period between 1 June 2004 and 31 July 2004 when the complainant was 8. They consisted of one count of sexual intercourse and two counts of aggravated indecent assault. The remaining two offences occurred in the period between 1 and 25 December 2006 when the complainant was 10. On this occasion there was one charge of sexual intercourse and one of aggravated indecent assault. The sexual intercourse offences involved digital penetration and the remaining matters involved the respondent touching the complainant's breasts. The offences occurred in the respondent's home on occasions when the complainant stayed the night. The complainant gave evidence that the offending conduct commenced when she was 4 although that earlier conduct did not give rise to charges. 3 The trial ran from 13 August until 21 August when the jury returned unanimous verdicts of guilty. The respondent was then granted bail, over the Crown's objection, and the matter was stood over for sentence. For reasons that remain unexplained, the respondent was not sentenced until 6 February 2009. 4 His Honour sentenced the respondent to the following terms of imprisonment: Count 1 – sexual intercourse with a child under the age of 10 – a non-parole period of 4 years with an additional term of 4 years A maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years is applicable to this offence. Counts 2 and 3 – aggravated indecent assault On each count a non-parole period of 2 years with an additional term of 2 years to be served concurrently with each other and with count 1. A maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years is applicable to these offences.