Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: MILSOM, Nigel Thomas v R [2014] NSWCCA 118
• Hearing dates: 26 June 2014
• Decision date: 26 June 2014
• Before: Hoeben CJ at CL at [1], [16], [18]; Rothman J at [17]; Beech-Jones J at [2]

Decision

Conditional bail granted.

• Catchwords: BAIL - grant of bail after court reserved decision on appeal against sentence - special or exceptional circumstances - unacceptable risk.
• Legislation Cited: - Bail Act 1978 (NSW), s 4, s 28, s 30AA; - Bail Act 2013 (NSW), s 17, s 19, s 21, s 22; - Crimes Act 1900 (NSW), s 98
• Category: Principal judgment
• Parties: Nigel Thomas Milsom (Applicant); Crown (Respondent)
• Representation: Counsel: P.R. Boulten SC (Applicant); R.A. Herps (Respondent); Solicitors: Catherine Hunter (Applicant); S. Kavanagh, Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2012/122623

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-09-13 00:00:00
• Before: Judge Maiden SC
• File Number(s): 2012/122623

Judgment

1 HOEBEN CJ at CL: The judgment of the Court will given by Beech-Jones J.

2 BEECH-JONES J: On 3 May 2013 the applicant pleaded guilty to one charge of armed robbery with wounding contrary to s 98(1) of the Crimes Act 1900 (NSW). On 13 September 2013 he was sentenced to a term of imprisonment of six years commencing 25 July 2013 and expiring on 24 July 2019, with a non-parole period of two years and six months. The earliest date he is eligible for release pursuant to this sentence is 24 January 2016. An application for leave to appeal against that sentence was then filed in this Court.

3 On 24 June 2014, this Court, constituted by Hoeben CJ at CL, Rothman J and myself, heard that application. At the conclusion of argument the Court reserved its decision. At that time, the presiding judge, Hoeben CJ at CL, with the agreement of Rothman J and myself, indicated that, in light of the matters raised during argument, the Court was minded to grant the applicant bail pending the delivery of the Court's judgment. The proceedings were then stood over until today.

4 The Court was initially minded to have the bail application heard by a single judge. However, to avoid any doubt about the power of a single judge to grant bail under the Bail Act 2013 in these circumstances, the three judges who constituted the Court of Criminal Appeal on 24 June 2014 sat to hear the bail application.

5 Section 61 of the Bail Act 2013 confers on a "court", which includes the Court of Criminal Appeal, power to hear a bail application if "proceedings for the offence are pending in the Court". Subsection 5(1)(d) of that Act defines "proceedings for an offence" to include "proceedings on an appeal against conviction or sentence". Thus, there is no doubt that this Court, comprised of three judges, can grant bail pending the determination of an application for leave to appeal against sentence.

6 In these circumstances, I do not consider it necessary to consider whether a single judge of the Supreme Court or a single judge of the Court of Criminal Appeal has the same power to grant bail pending the determination of an application for leave to appeal from a sentence imposed by a court other than the Supreme Court to the Court of Criminal Appeal, as they did under the former Bail Act 1978 (NSW) (see s 28 and 4(2)(b) of the Bail Act 1978 and the definition of the "Court of Criminal Appeal" in former s 4(1)).

7 At the outset it should be noted that s 22 of the Bail Act 2013 provides that where an appeal is pending against sentence to this Court "special or exceptional circumstances" must be established before bail can be granted. This provision replicates the test found in former s 30AA of the Bail Act 1978.

8 In view of the fact that this Court has reserved its judgment on the application for leave to appeal, I do not consider it appropriate to discuss the merits of the matters raised on the application in any detail. It suffices to say that I consider the application for leave to appeal has reasonably strong prospects of at least demonstrating a significant procedural error in the course of the sentencing proceedings in the District Court. Further, in view of the submissions made on the appeal, I consider that a potential outcome of the application is that the proceedings on sentence concerning the applicant would need to be remitted to the District Court for reconsideration in their entirety. If that were to occur, then there is the obvious potential for the further delay in the final disposition of proceedings concerning the applicant.

9 In my view, in this case those matters suffice to establish special or exceptional circumstances for the purposes of s 22 of the Bail Act 2013.

10 In terms of s 17 of the Bail Act, the circumstances surrounding the offence committed by the applicant and the fact that the applicant still has extant proceedings in this Court and may have the proceedings remitted to the District Court, gives rise to a small but nevertheless unacceptable risk that he may fail to appear in subsequent proceedings or commit a serious offence while on bail.

11 However, I am not satisfied that this is an unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions. In that regard I note three matters.

12 First, with the exception of a period of nine days after his arrest and a 21 day period while his sentence proceedings were adjourned, the applicant was at liberty on bail pending sentence and subject to reasonably strict conditions. There is no suggestion that he failed to conform with his bail conditions during that period.

13 Second, the offence the subject of the application, while undoubtedly serious, was the applicant's first conviction.

14 Third, as between the legal representatives of the parties, proposed bail conditions have been put forward which in my view will alleviate the risks that I have identified. Those conditions are that the applicant be of good behaviour, that he report to the officer in charge of police at Newcastle each Monday, Wednesday and Friday between the hours of 8:00am and 8:00pm, that he reside at 39 Albert Street, Wickham, and that he appear as and when required by the Court.

15 Accordingly, pursuant to s 19(a) and 21 of the Bail Act, I propose this Court decide to grant bail subject to the conditions I have just noted.

16 HOEBEN CJ at CL: I agree.

17 ROTHMAN J: I agree with the orders proposed by his Honour, Justice Beech-Jones. I agree also generally with the reasons given. This Court has heard in full the appeal and application for leave to appeal. It is therefore in a particularly good position to be able to determine the possible or probable outcomes that may arise therefrom. I do not want to accept the proposition, if it be said, that the mere potential of delay or the probability of an outcome of remittal and re-hearing would be sufficient to satisfy exceptional circumstances under the Act, but I simply do not make any comment at all on it. I am satisfied there are exceptional circumstances and I agree with the orders proposed.

18 HOEBEN CJ at CL: The orders of the Court will be those proposed by Justice Beech-Jones and bail is to be granted subject to the conditions which he has enunciated.

**********

Decision last updated: 01 July 2014