Chetcuti, Re [2017] QSC 196

SUPREME COURT OF QUEENSLAND CITATION: Re Chetcuti [2017] QSC 196 PARTIES: JAMIE VALANTINE CHETCUTI (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QLD) (respondent) FILE NO/S: BS No 8444 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 24 August 2017 DELIVERED AT: Brisbane HEARING DATE: 24 August 2017 JUDGE: Burns J ORDER: Application refused CATCHWORDS: CRIMINAL LAW – PROCEDURE – BAIL – AFTER CONVICTION – GENERALLY – where the applicant was convicted after a trial of two counts of common assault – where the applicant was sentenced to six months imprisonment with a parole release date set after serving three months imprisonment – where the applicant applied for bail pending appeal against conviction and sentence – whether there are strong grounds for concluding that the appeal will be allowed – whether the sentence imposed is likely to have been substantially served before the appeal is determined – whether the applicant has demonstrated exceptional circumstances Bail Act 1980 (Qld), s 8(1), s 8(5) Ettridge v Director of Public Prosecutions (Qld) [2003] QCA 410, cited Ex parte Maher [1986] 1 Qd R 303, cited Hanson v Director of Public Prosecutions (Qld) [2003] QCA 409, cited R v Fuller [2008] QCA 303, cited R v Martens (No 1) [2010] 1 Qd R 564; [2009] QCA 139, cited R v Ogawa [2009] QCA 201, followed -- 1 of 4 -- 2 United Mexican States v Cabal (2001) 183 ALR 645; [2001] HCA 60, cited COUNSEL: S McLennan for the applicant V J Adams (sol) for the respondent SOLICITORS: Fisher Dore for the applicant Office of the Director of Public Prosecutions (Qld) for the respondent HIS HONOUR: This is an application for bail pending an appeal which has been brought on behalf of Jamie Valantine Chetcuti. On 10 August 2017, Mr Chetcuti was convicted after a trial in the District Court at Mackay of two counts of common assault and was sentenced to six months imprisonment with a parole release date set after serving three months imprisonment. It was settled as long ago as the decision of the Full Court in Ex parte Maher [1986] 1 Qd R 303 that, whilst s 8(1) and s 8(5) of the Bail Act 1980 (Qld) confers jurisdiction on the court to grant bail to convicted offenders wishing to appeal their conviction or sentence, or both, the respect for a jury’s verdict which underlines our system of criminal justice requires that a regularly obtained conviction should not be seen as a mere step in the process of appeal. As such, the release on bail of an appellant sentenced to a reasonably long term of imprisonment (or even shorter terms of imprisonment) should only occur in exceptional circumstances. That the favourable exercise of the discretion to admit a person to bail pending appeal will ordinarily require the demonstration of exceptional circumstances is well established: see United Mexican States v Cabal (2001) 183 ALR 645 at 656; Ettridge v Director of Public Prosecutions (Qld) [2003] QCA 410 at [4]; Hanson v Director of Public Prosecutions (Qld) [2003] QCA 409 at [25]; R v Fuller [2008] QCA 303; R v Ogawa [2009] QCA 201; R v Martens (No 1) [2010] 1 Qd R 564 at [19]. As Thomas J pointed out in Maher (in remarks that were quoted with approval in the joint judgment in Cabal) to allow bail pending the hearing of an appeal after a person has been convicted and imprisoned makes the conviction appear contingent until confirmed; it places the court in the invidious position of having to return to prison a person whose circumstances may have changed dramatically during the period of liberty on bail; it encourages -- 2 of 4 -- 3 unmeritorious appeals; it undermines respect for the judicial system in having a recently sentenced person walking free; and it undermines the public interest in having convicted persons serve their sentences as soon as practicable. In Hanson, the Court of Appeal observed that decisions of the High Court, which are equally applicable to appeals in that court, show that ordinarily bail will be granted after conviction only if two conditions are satisfied: first, that there are strong grounds for concluding that the appeal will be allowed; and, second, that the sentence (or, in all events, the custodial part of the sentence) is likely to have been substantially served before the appeal is determined. Of course, as was later made clear by the Court of Appeal in Ogawa, although it will ordinarily be necessary to show that there are “strong grounds for concluding that the appeal will be allowed” and that the appellant may be required to serve an unacceptable portion of his or her sentence before the appeal can be heard, exceptional circumstances may still be held to exist even though both of these requirements are not satisfied. Nonetheless, the Court went on to observe (at [8]): Prospects of success on appeal, however, will always be an important consideration. Of course, it is always necessary that the discretion to grant or withhold bail be exercised in the light of the principles stated earlier, with regard to all relevant circumstances, and in particular, those referred to in s 16 of the Bail Act 1980 (Qld). For the reasons I expressed during the course of argument, I accept that there is substance in the appeal against conviction. That, of course, is not to say that it will succeed; merely that the points raised are points of substance. It is more difficult, however, to say that there is substance in the proposed application for leave to appeal against sentence because the learned sentencing judge’s sentencing remarks are not available. But if, when properly considered, those remarks are to the effect submitted by Mr McLennan who appears for the applicant, then there may also be substance in the proposed appeal against sentence. However, and again for the reasons I expressed during the course of argument, I am unable to say that there are strong grounds for concluding that the applicant’s appeal against conviction or his proposed appeal against sentence will be allowed. As to the question whether the sentence imposed is likely to have been substantially served before the appeal is determined, the sentence in this case was one of six months imprisonment, with a parole release date set after three months. In the ordinary course of -- 3 of 4 -- 4 things, it would be unlikely that any appeal will be heard and determined before that release date is reached. However, since the application came on for hearing this morning and was stood down, arrangements have been made to ensure that there can in this case be an expedited hearing and, further, that this can occur, should the applicant wish, within a period of weeks. Should the applicant wish to pursue that course, those arrangements may be pursued in the ways I have indicated to Mr McLennan. For these reasons, the application is refused. -- 4 of 4 --