Gregg v Director of Public Prosecutions (Cth) [2019] NSWCCA 254

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gregg v Director of Public Prosecutions (Cth) [2019] NSWCCA 254 Hearing dates: 18 October 2019 Decision date: 18 October 2019 Before: Brereton JA; Simpson AJA; R A Hulme J Decision: Bail granted on conditions Catchwords: CRIME – Bail – Appeal bail – Appeal against conviction and sentence – Release application – "special or exceptional circumstances" – Arguable merit in sentence appeal – Sentence will be largely served before determination of appeal – Crown concession as to no unacceptable risks Legislation Cited: Bail Act 2013 (NSW), ss 17(2), 19(2), 22(1) Corporations Act 2001 (Cth), s 1307(1) Category: Principal judgment Parties: Peter Alan Gregg (Applicant) Commonwealth Director of Public Prosecutions (Respondent) Representation: Counsel: T Game SC and J Roy (Applicant) M England (Respondent)

Solicitors: Webb Henderson (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2017/22547

Judgment 1. THE COURT : Mr Peter Alan Gregg has an appeal against conviction and sentence listed for hearing in this Court on 22 April 2020. It is estimated that two days will be required for the hearing. He now applies for bail pending the determination of the appeal. The Court's power to hear the application derives from s 61 of the Bail Act 2013 (NSW). 2. Mr Gregg was convicted after a relatively lengthy trial by jury before Lakatos SC DCJ of two counts under s 1307(1) of the Corporations Act 2001 (Cth) alleging that, being an officer of Leighton Holdings Ltd, he engaged in conduct that resulted in the falsification of books affecting or relating to the affairs of the company. The first offence related to a payment instruction for two payments totalling $15,000,000 to be made to another entity and the second offence related to an agreement to buy and sell between the company and that other entity. Both offences were alleged to have been committed in 2011. 3. Judge Lakatos sentenced Mr Gregg to terms of imprisonment of 12 months and 2 years respectively. He ordered that the terms be served concurrently and by way of an intensive correction order. In relation to the sentence for the second offence there is a home detention condition for a period of 12 months. The sentences commenced on 29 August 2019. 4. The Crown acknowledges that the conviction and sentence appeal is of some complexity and accepts that the Court will likely reserve judgment after the hearing. Without making any concession as to the outcome, the Crown does not oppose a grant of bail pending judgment on the appeal. 5. "Special or exceptional circumstances" are required to be established before bail may be granted when an appeal against conviction and/or sentence is pending in this Court: Bail Act, s 22(1). If such circumstances are established, there remains a need to assess the "bail concerns" listed in s 17(2): whether the applicant will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. The Court must refuse bail if satisfied that any of those matters amounts to an "unacceptable risk": s 19(2). 6. In summary, Mr Gregg contends that bail should be granted for the following combination of reasons. ● His term of home detention is likely to be nearly or completely exhausted by the time of the determination of the appeal. ● His conviction appeal has reasonable prospects of success and his sentence appeal is "very likely" to succeed. ● He does not pose any unacceptable risk under the Bail Act. ● He faces significant detriment from his isolation in home detention which acquittal on appeal or resentence on appeal cannot remedy. ● There is no "victim" or other community interest that is prejudiced or adversely impacted by a pause in the imposition of the term of imprisonment in the event that his conviction and sentence are ultimately upheld. ● He first took steps to secure the expeditious determination of his appeal proceedings in line with available CCA hearing dates, filing his appeal together with comprehensive submissions as well as a completed "Part A Summary of the Evidence of Material Witnesses at Trial" within one week of the imposition of his sentence, and is ready to prosecute the appeal. The appeal will not be heard until April 2020 as the Crown has experienced difficulty briefing counsel so as to permit a hearing before the end of 2019, and Mr Gregg's trial counsel was then unavailable until April 2020. 1. It is acknowledged that the Court is constrained in what it can find in respect of the prospects of an appeal's success as the arguments that will be presented to the Court at the hearing of the appeal cannot be fully developed and considered on a bail application. Nevertheless, even if the conviction appeal were to fail, it does appear to be reasonably arguable that the sentence appeal will have some success if the applicant is correct in the contention that the judge was in error in imposing the maximum penalty of 2 years' imprisonment for the second offence despite finding that the offence was "towards the mid-range" rather than falling in the worst case category. No concluded view can be formed about this; but it may be said on an impressionistic basis that there appears to be some force in the contention. 2. The most compelling features of the application are that Mr Gregg is subject to sentences that will have largely been served by the time his appeal is determined; through no fault of his, the hearing of the appeal has been deferred for an unusual period of time; and the Crown does not contend that there is any unacceptable risk if bail were to be granted. Special or exceptional circumstances are established. 3. The proposed conditions of bail have been agreed between the parties. They include the lodgement of $100,000 as security and an undertaking that a trust fund be liquidated and the funds be paid into court and forfeited if he fails to appear. The conditions sufficiently ameliorate any concern that Mr Gregg is a flight risk and will not attend and abide by the determination of the Court on his appeal. None of the other bail concerns in s 17(2) apply. 4. The application for release on bail should be granted on the conditions proposed by the applicant and agreed by the Crown.