R v Wilson [2011] NTSC 15

PARTIES:                                         THE QUEEN

                                                         v

                                                         WILSON, GEOFFREY

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:                                          20931372

DELIVERED:                                   4 MARCH 2011

HEARING DATES:                           1 MARCH 2011

JUDGMENT OF:                              REEVES J

CATCHWORDS:

BAIL
Application for bail pending sentencing hearing – defendant pleaded guilty to an offence to which the presumption against bail under s 7A(1) of the Bail Act (NT) applies – the Bail Act (NT) applies to defendants during the period between a guilty plea and their sentencing under s 6(c)(ii) of the Bail Act (NT) – consideration of the circumstances necessary to overcome the presumption – circumstances need to be sufficiently special or unusual – something more than the circumstances generally common to all bail applications – a heavy burden rests on the applicant – the strength of the Crown case is an important consideration – none of defendant’s circumstances sufficiently special or unusual to displace the presumption

Held the defendant’s application for bail refused

 

Evidence Act (NT) s 21B(2)(b)
Bail Act (NT) ss 3, 3A(1), 6(c)(ii), 7A, 7A(1), 7A(2), 8(1), 8(2)
Customs Act 1901 (Cth)
Bail Act (NSW) s 8A
Sentencing Act (NT) s 50

 

Director of Public Prosecutions (Cth) v Germakian (2006) 166 A Crim R 201
R v Iskandar (2001) 120 A Crim R 302
R v Kissner (unreported, Supreme Court, NSW, No 70768 of 1992, 17 January 1992)

 

REPRESENTATION:

Counsel:
    Plaintiff:                                      Mr Robson
    Defendant:                                    Mr Sinoch

Solicitors:
    Plaintiff:                                      Office of the Director of Public Prosecutions
    Defendant:                                    Central Australian Aboriginal Legal Aid Service

Judgment category classification:    B
Judgment ID Number:                       REE1102
Number of pages:                             11


IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

R v Wilson [2011] NTSC 15
No. 20931372

 

                                                     BETWEEN:

                                                     THE QUEEN
                                                         Plaintiff

                                                     AND:

                                                     GEOFFREY WILSON
                                                         Defendant

CORAM:     REEVES J

REASONS FOR JUDGMENT

(Delivered 4 March 2011)

Shortly before a special sitting for the purpose of recording the evidence of a vulnerable witness under s 21B(2)(b) of the Evidence Act (NT), the defendant’s counsel, Mr Sinoch, indicated that his client intended to plead guilty to both of the charges.  Accordingly, when the special sitting commenced, Mr Robson for the Crown presented an indictment and the defendant was arraigned on it.  In response, the defendant pleaded guilty to both of the charges contained in the indictment.  They were:

  1. Count 1
  2. [That] [o]n 10 October 2007 at Yuendumu in the Northern Territory of Australia, [you] unlawfully entered a building, namely Lot 444 Ti Tree Crescent, Yuendumu with intent to commit an offence therein, namely, assault
  3. AND THAT the unlawful entry involved the following circumstances of aggravation, namely,
  4. that the offence intended to be committed therein was a crime, namely stealing
  5. that the building was a dwelling house, and
  6. that the unlawful entry occurred at night-time.
  7. AND FURTHER
  8. Count 2
  9. [That] [o]n 10 October 2007 at Yuendumu in the Northern Territory of Australia, [you] had sexual intercourse with HM without her consent and knowing about or being reckless as to the lack of consent.

Given the circumstances of aggravation, Count 1 carries a maximum penalty of 20 years imprisonment .  Count 2 carries a maximum penalty of life imprisonment .  Clearly these penalties show that these are very serious offences.
After the defendant’s pleas were taken, Mr Sinoch applied to adjourn the sentencing hearing so that he could better prepare for it.  Among other things, he said he needed to obtain references from certain people in Yuendumu, the defendant’s home community.  Further, because the current sittings in Alice Springs are particularly busy, it was proposed to adjourn the sentencing hearing to the next sittings in Alice Springs which are due to commence on 28 March 2011.
Mr Sinoch then applied to have the defendant released on bail pending the sentencing hearing.  In support of that application, he relied upon the following matters:

  1. the defendant is relatively young – I was told he had his twentieth birthday in October 2010;
  2. the defendant has been on bail since 15 February 2010 and he has answered that bail in the Court of Summary Jurisdiction and in this Court on numerous occasions since;
  3. the defendant has strong community ties at Yuendumu where he lives with his mother;
  4. if granted bail, the defendant proposes to continue his education at the Yuendumu High School where he is currently in Year 11.  He was said to have good prospects of completing his secondary education;
  5. it was proposed that bail be continued on the same terms and conditions, including a cash surety in the amount of $1,000 that had been provided by a friend of the defendant.

Mr Robson did not oppose the bail application, but he essentially left it to the defendant to establish his entitlement to bail.  However, Mr Robson did inform me that there was little risk of any danger being posed to the victim if the defendant were to be released on bail.  This was so because she left Yuendumu after the offence and is now residing in the Middle East.  Mr Robson also informed me that the defendant has not committed any offences since he was arrested on the present charges in September 2009.  He said the last occasion the defendant had appeared before a court was in January 2009 when he was convicted in the Court of Summary Jurisdiction at Halls Creek in Western Australia of driving a motor vehicle with a prescribed concentration of alcohol in his blood in excess of .05, viz .07.  Finally, I was informed by Mr Robson that the defendant also has a conviction for an offence committed while he was a juvenile.  That offence involved him having unlawful carnal knowledge of a female person under the age of 16 years.  The offence was said to have been committed while the defendant was in a relationship with the female person concerned.
Section 7A(1) of the Bail Act (NT) specifies a number of offences in relation to which there is a presumption against the grant of bail.  One of those is a serious sexual offence .  The expression “serious sexual offence” is defined in s 3A(1) of the Bail Act to include a Territory sexual offence for which a maximum penalty of imprisonment of seven years or more is prescribed.  The expression “Territory sexual offence” is defined in s 3 of the Bail Act to mean, among others, an indictable offence of which an element is “sexual intercourse or sexual penetration”.  Plainly enough, sexual intercourse is an element of the second offence to which the defendant has pleaded guilty.
It follows that the Legislature has prescribed the second offence to which the defendant has pleaded guilty, as a serious sexual offence.  It follows further that there is a presumption against the defendant being granted bail in relation to that offence.
That presumption is expressed in s 7A(2) of the Bail Act in the following terms:

  1. ‘A person accused of an offence to which this section applies is not to be granted bail unless the person satisfies an authorised member or Court that bail should not be refused.’

In contradistinction, s 8(2) of the Bail Act sets out the approach to be taken where there is a presumption in favour of bail being granted.  That presumption applies in relation to all offences except those identified in s 7A(1), or those identified in ss 8(1)(aa) to (b) inclusive.  In that event, a defendant is entitled to be granted bail unless, under s 8(2)(a):  “an authorised member or Court is satisfied that he or it is, pursuant to a consideration of the matters referred to in s 24, justified in refusing bail”, or under s 8(2)(b):  “the person stands convicted of the offence”.
While it is of little moment, given that the presumption in s 7A(2) clearly applies here, I note that the latter provision does not strictly apply because a conviction has not yet been recorded on the two charges to which the defendant has pleaded guilty.  I say it does not strictly apply because, given the defendant’s pleas of guilty and the seriousness of the offences involved, it is highly unlikely that convictions will not ultimately be recorded in relation to them.  It may also be noted that s 6(c)(ii) of the Bail Act makes it clear that the Bail Act applies to the grant of bail to defendants during the period between their pleas of guilty and their sentencing.
So far as I can ascertain, s 7A of the Bail Act has not been considered in any decision in this jurisdiction.  It has certainly not been considered by the Northern Territory Court of Criminal Appeal.  However, an identical provision to s 7A was considered relatively recently by the Court of Appeal in New South Wales in Director of Public Prosecutions (Cth) v Germakian (“Germakian”).
In Germakian, the Court of Appeal was reviewing the decision of a Supreme Court judge who granted bail to a defendant during the period between his being found guilty by a jury and his sentencing hearing.  The offence concerned was the importation of a commercial quantity of cocaine into Australia in breach of certain provisions of the Customs Act 1901 (Cth).  The presumption against bail in s 8A of the Bail Act (NSW) applied to that offence.
In his decision, Tobias JA referred to various authorities of the New South Wales Supreme Court and the Court of Criminal Appeal, that set out the principles that have been applied to the construction of s 8A of the Bail Act (NSW).  His Honour then adopted the following summary of the effect of those authorities given by Sperling J in R v Iskandar :

  1. ‘In view of the authorities binding on me, I proceed on the basis that where s 8A applies, an application for bail should normally or ordinarily be refused.  A heavy burden rests on the applicant to satisfy the court that bail should be granted.  The strength of the Crown case is the prime but not the exclusive consideration.  Countervailing circumstances common to applications for bail in the generality are to be accorded less weight than in the ordinary case.  The application must be somewhat special if the Crown case in support of the charge is strong.’

Tobias JA made similar observations about the character of the circumstances necessary to support such an application later in his decision , as did Basten JA in his decision .
Earlier in his decision , Tobias JA referred to a decision of Hunt CJ at CL in R v Kissner , where, among other things, the Chief Justice had identified the circumstances that are common to all bail applications, as follows:

  1. ‘…  Common to all bail applications are the circumstances that the applicant’s continued incarceration will cause a serious deprivation of his general right to be at liberty, together with hardship and distress to himself and his family, an (sic) usually with severe effects upon the applicant’s business or employment, his finances and his abilities to prepare his defence and to support his family.  Also common to most bail applications by persons charged with the offences to which s 8A applies is the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail; an application would otherwise be unlikely to be considered in relation to such serious matter.  …’

While these New South Wales decisions are not binding on me, given the two sections in issue are identical and most of the other relevant provisions of the corresponding pieces of legislation are very similar, they are obviously highly persuasive.  I therefore consider I should follow them.
Applying those principles to this application, the first thing to be observed is this.  In circumstances where this defendant has pleaded guilty to these two offences, the strength of the Crown’s case must obviously be taken as unassailable.  The second thing to be observed is that, even if the terms of imprisonment are to be served concurrently, which is the presumption created by s 50 of the Sentencing Act (NT), the maximum penalties for these two offences dictate that the defendant is almost certain to serve a term of imprisonment.  Furthermore, the length of that term of imprisonment is not likely to be short.  In other words, whether his sentencing is finalised next month, or cannot be finalised until some months hence, the period of imprisonment the defendant is ultimately likely to serve will far exceed the period that is likely to elapse before his sentencing is finalised.
Thirdly, none of the circumstances identified by Mr Sinoch is, in my view, sufficiently special or unusual such as to satisfy me that it overcomes the statutory presumption against bail in s 7A of the Bail Act.  Most of them are the sorts of circumstances that are generally common to all bail applications, viz the defendant’s youth , his strong community ties , the defendant’s personal desire to continue his education and the cash surety that has been offered .  The circumstances that do not fall into this category essentially serve to reinforce the strength of various considerations mentioned in s 24 of the Bail Act such that they would preserve a presumption of bail in the defendant’s favour, if one existed, viz that he has answered bail often in the past , that he has strong community ties and that there is little risk of harm to the victim of the offence .  However, none of these circumstances has any special or unusual aspect to it that distinguishes it from the general or ordinary circumstances common to most bail applications.
In short, the defendant has failed to discharge the heavy burden he bears to satisfy me that there exists a sufficiently special or unusual circumstance to overcome the presumption against granting bail set by s 7A(2) of the Bail Act, in circumstances where the Crown’s case must be taken to be unassailable given the defendant’s pleas of guilty to these offences and the defendant is likely to serve a term of imprisonment when he is eventually sentenced on them.
For these reasons, I consider the defendant’s application for bail must be refused.

  1. -----------------------------------------

See s 213 of the Criminal Code.

See s 192(3) of the Criminal Code.

see s 7A(1)(f)

(2006) 166 A Crim R 201.  See at [7] per Tobias JA setting out the provisions of s 8A(2) of the Bail Act (NSW) which are in identical terms to s 7A(2) of the Bail Act (NT).

with whom Ipp and Basten JJ agreed – the latter in a separate decision.

(2001) 120 A Crim R 302 at [14]:  see Germakian at [11].

at [18]-[19] – “somewhat special if the Crown case is strong”

at [54] – “exceptional, special or even … unusual”

(2006) 166 A Crim R 201 at [9]

unreported, Supreme Court, NSW, No 70768 of 1992, 17 January 1992

See [4(a)] above

See [4(c)] above

See [4(d)] above

See [4(e)] above

See [4(b)] above, cf s 24(1)(a)(ii) of the Bail Act.

See [4(c)] above, cf s 24(1)(a)(i) of the Bail Act.

See [5] above, cf s 24(1)(e)(i) of the Bail Act.