RCW v R [2014] NSWCCA 169

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RCW v R [2014] NSWCCA 169 Hearing dates: 28 July 2014 Decision date: 28 July 2014 Before: Bathurst CJ; Adams J; R A Hulme J Decision: Bail granted Catchwords: BAIL - grant of bail where appeal against sentence is pending in Court of Criminal Appeal - special or exceptional circumstances exist - no unacceptable risk - unconditional bail granted Legislation Cited: Bail Act 2013 (NSW) Category: Principal judgment Parties: RCW (Applicant) Regina (Respondent) Representation: Counsel: Mr Dhanji SC (Applicant) Mr L Crowley (Crown) Solicitors: Commonwealth Director of Public Prosecutions Legal Aid Commission NSW File Number(s): 2012/271407

Judgment 1THE COURT: This is a bail release application pursuant to the Bail Act 2013 (NSW) (the Act). 2The applicant is before the Court having sought leave to appeal against a sentence imposed upon him in the District Court on 10 October 2013. For an offence of aiding and abetting an attempt to import commercial quantities of border controlled drugs he was sentenced to imprisonment for 5 years and 6 months with a non-parole period of 3 years. The sentence was backdated to 14 July 2013 so as to take into account a period of presentence custody. 3Section 17 of the Act requires a consideration of whether there is any unacceptable risk of the applicant failing to appear; committing a serious offence; endangering the safety of victims, individuals or the community; or interfering with witnesses or evidence. 4The applicant is aged 57. Prior to his arrest he had never been held in full-time custody; indeed, he has no relevant previous convictions. He was arrested on 19 January 2012. He entered a plea of guilty in the Local Court and was committed to the District Court for sentence on 11 December 2012. He spent 2 months and 27 days in custody when bail was refused but for the vast majority of the time he was awaiting sentence he was on bail. There is no suggestion of any failure to comply with the requirements of his bail. 5In these circumstances, there are no unacceptable risks. 6Where an appeal is pending in this Court against sentence, s 22 of the Act requires that bail is not to be granted (or dispensed with) unless it is established that special or exceptional circumstances exist. There are such circumstances in this case: having considered extensive written and oral submissions by both parties, the Court indicated earlier today upon reserving its judgment that leave to appeal would be granted; the appeal would be allowed; and the applicant would be re-sentenced in terms that would not require him to serve any further period in mandatory custody. 7Finally, it is noted that the Crown did not oppose unconditional bail being granted.