Rogers, Darrin Baydon v White, Ivan [1986] FCA 673

613 | 198b

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

No. ACT G 80 of 1986 DISTRICT REGISTRY

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GENERAL DIVISION

BETWEEN : DARRIN BAYDON ROGERS Applicant

AND: IVAN WHITE Respondent

CORAM: Neaves J.

DATE: 12 December 1986

EX TEMPORE REASONS FOR JUDGMENT

The applicant, Darrin Baydon Rogers, has applied for bail pending the hearing of an appeal instituted by him in this Court against a judgment of the Supreme Court of the Australian Capital Territory given on 10 December 1986. The Supreme Court had before it appeals by the applicant against the severity of the sentences imposed upon him in the Magistrates Court of the Australian Capital Territory on 5 May 1986 in respect of 26 charges under s.29B of the Crimes Act 1914 (Cth). The learned magistrate imposed a sentence of nine months' imprisonment on the first charge, anda similar sentence on each of the remaining charges. All except one of the sentences' on the remaining charges were to be served concurrently with the sentence upon the first charge, the sentence on the remaining charge to be served cumulatively upon the sentence upon the

first charge so that effectively the applicant was sentenced to

2.

a term of imprisonment of 18 months. The magistrate fixed a non-parole period of 10 months and further directed that the applicant be released after serving six months' imprisonment upon entering into a recognizance self in the sum of $500 to be of good behaviour for 3 years. The amount of money involved in

the charges for which the applicant was sentenced was $18,435.

The applicant's appeals to the Supreme Court were dismissed and the sentences imposed by the magistrate confirmed. The applicant has appealed to this Court seeking to have the orders of the Supreme Court set aside and the matter remitted to that Court for further hearing. The ground of appeal as set out in the notice of appeal filed herein is that

the Supreme Court erred in law in finding that an appeal to

that Court against sentence is not a hearing de novo and in deciding that it was necessary to discover an error in the

sentencing at first instance before imposing a new sentence.

The general principle which governs the granting of

bail after conviction and sentence is that it will not be granted otherwise than in exceptional circumstances. Counsel for the applicant submitted that that principle was not applicable in the case of an appeal to this Court from a judgment of the Supreme Court given upon an appeal to that Court against the severity of a sentence imposed by the

Magistrates Court. He referred to s.216 of the Magistrates

Court Ordinance 1930 (A.C.T.) which provides that the

institution of an appeal to the Supreme Court operates to stay

the enforcement or execution of a sentence appealed from and

3.

makes provision for the release of the applicant from custody. It was submitted that the presumption in favour of bail which that provision embodies, although expressly limited to the appeal from the Magistrates Court to the Supreme Court, indicated a legislative intention or policy that bail should be readily available to a person in the position of the present

applicant until all avenues of appeal are exhausted.

I am unable to accept this argument. The express limitation in that provision to the period between the imposition of the sentence by the Magistrates Court and the disposition of the appeal to the Supreme Court tends in my view to support rather than detract from the general principle that once the matter has been dealt with by the Supreme Court bail

will only be granted in exceptional circumstances.

I express no view as to the prospects of the applicant succeeding on this appeal to this Court. I propose to deal with this application on the basis that there are matters that the applicant may properly put to the Court for its

consideration on the hearing of the appeal.

The only circumstance relied upon in this case to establish the necessary exceptional circumstance is the length of time which will elapse between the date on which the matter was dealt with by the Supreme Court and the likely date of disposition of the appeal. It may be expected that the appeal will be heard during the sittings of the Full Court of this

Court appointed to commence in Canberra on 17 March 1987. It

is submitted that by the time the appeal is heard one half ora little more of the period of six months' imprisonment before

the applicant may be released on recognizance will have been

served.

Having regard to the nature of the offences for which the applicant has been sentenced and the circumstances in which they were committed I have reached the conclusion that the

period which is likely to elapse before the appeal is heard is

not, of itself, sufficient to constitute the exceptional

circumstances referred to in the relevant authorities.

The application is, therefore, dismissed.

Ta eae iat Fd

| certify that ais avei tho taree (3) ; prececing pot pre a tree copy of the Reasons fer 'ucqment herein of his Honour

Mr. dustive Neaves szociate

Dated: 12 December IA86

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