Daryoush Zargari Samani(Appellant) v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Refshauge ACJ:
• Judgment Date: 12 September 2016
• Docket Number: File Number(s): ACTCA 32 of 2016
• Date: 12 September 2016

[2016] ACTCA 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Refshauge ACJ

File Number(s): ACTCA 32 of 2016

Daryoush Zargari Samani

(Appellant)

and

The Queen

(Respondent)

Cases Cited:

Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 2

Attorney-General (Qld) v Farden [2011] QCA 111

Bell v Lowe (Unreported, Supreme Court of Tasmania, Nettleford J, 2 March 1988)

Boulton v The Queen [2014] VSCA 342 ; 46 VR 308

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

Napper v Samuels (1972) 4 SASR 63

Polyukhovich v The Commonwealth (1990) 64 ALJR 589

Quzag v The Queen [2015] ACTCA 36 ; 298 FLR 330

Quzag v The Queen (No 3) [2015] ACTCA 37

R v Ciccone (1974) 7 SASR 110

R v Creighton [2011] ACTCA 13

R v EL [2016] ACTSC 241

R v O'Connor [1987] VR 496

R v Nevermann (1989) 43 A Crim R 347

R v Richardson [2016] ACTSC 133

R v Samani [2016] ACTSC 257

Sherd v The Queen (2011) 5 ACTLR 290

Valentini (1980) 2 A Crim R 170

Weston v Arley [2012] ACTSC 138

Legislation Cited:

Bail Act 1992 (ACT), s 9E

Crimes (Sentencing) Act 2005 (ACT), ss 10, 11, 12, 17, Pt 3.2

Crimes (Sentencing) Amendment Act 2014 (ACT)

Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)

Penalties and Sentences Act 1958 (Vic), s 11

Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT)

Texts Cited:

Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 30 October 2014

Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 November 2015

APPEAL — CRIMINAL LAW — Manifestly excessive sentence — guilty plea — no prior convictions — general deterrence relevant factor — consideration of sentencing options — intensive correction order — requirements for a stay and bail — prospects of success of appeal — special or exceptional circumstances — expedited hearing — sentence stayed — bail granted

Refshauge ACJ:

1 On 9 August 2016, the applicant, Daryoush Zargari Samani, was sentenced for six offences to which he had pleaded guilty. They were offences of dishonesty, namely, an offence of dishonestly obtaining a financial advantage by deception, an offence of attempting to commit such an offence, two offences of being knowingly concerned in committing such an offence, an offence of knowingly producing a false or misleading document, and obstructing or hindering an investigation by a law enforcement officer.

2 He was sentenced to an aggregate term of two years and four months imprisonment, to be served as to six months by full-time imprisonment and the balance suspended with a Good Behaviour Order for two years from the date of the suspension of the sentence. SeeR v Samani [2016] ACTSC 257.

3 Mr Samani has now appealed against the sentence of imprisonment on grounds that the sentence was manifestly excessive and that the sentencing judge did not consider an intensive correction order as a sentencing option. See s 11 of theCrimes (Sentencing) Act 2005 (ACT).

4 Mr Samani has now applied for bail and for an order expediting the hearing of the appeal.

Bail or Appeal

5 There is no doubt that the Court of Appeal can grant bail to an appellant. SeeSherd v The Queen (2011) 5 ACTLR 290; Quzag v The Queen (No 3) [2015] ACTCA 37.

6 It was made clear inQuzag v The Queen [2015] ACTCA 36; 298 FLR 330, however, that, before bail could be granted, the sentence of imprisonment imposed by the sentencing court had first to be stayed.

7 The Court did not establish any criteria by which to determine whether a stay should be granted, but inQuzag v The Queen (No 3) at [5], the Crown conceded that the criteria for granting bail ‘are at least no more stringent than the criteria for granting bail in the circumstances which are present in the present case.’

8 The principles generally for a stay pending appeal were set out inJennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 683, where Brennan J explained:

The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises.

9 It is not necessary to determine whether this constitutes all of the relevant criteria. It is suggested not, for the principles have been set out in civil cases inAlexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 at 693–5, which are well established. They include the following:

1. (1) Special or exceptional circumstances are not required to be established to justify a stay pending appeal;

2. (2) The onus is on the applicant to demonstrate a proper basis for the stay;

3. (3) The power of the Court to grant a stay as a matter of discretion;

4. (4) The Court will weigh the balance of convenience and the competing rights of the parties;

5. (5) A stay may be granted conditionally;

6. (6) Where there is a risk that the appeal will prove abortive, if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of a stay; and

7. (7) Where the appeal has been lodged simply to gain time, no granting of a stay arises.

10 These principles are said to be generally applicable to criminal appeals. See, for example,Attorney-General (Qld) v Farden [2011] QCA 111 at [15]–[18]. The High Court also appears to have accepted that. See Polyukhovich v The Commonwealth (1990) 64 ALJR 589 at 591.

11 Given that, by virtue of s 9E of theBail Act 1992 (ACT), at least special and exceptional circumstances are required to be shown before bail can be granted pending appeal to a person subject to a sentence of imprisonment, it seems that the Court's concession in Quzag v The Queen (No 3) was rightly made.

12 The application by Mr Samani that was on the Court file did not seek a stay, but I gave leave to file a copy of an application that apparently had earlier been filed but had not found its way onto the Court file, but which did seek such an order. Given what I have said above, there was no prejudice to the Crown in this and the Crown properly acknowledged that.

The Application

13 The application was supported by an affidavit of Mr Samani's lawyer, a common practice and generally appropriate. I read the affidavit.

14 He deposed that Mr Samani had attended Court on each occasion on which he was required to attend and did not breach his bail prior to sentence. He noted that the appeal sittings in October — November are now fully allocated with appeals and that the next sittings will commence in February 2017.

15 This, of course, means that, unless either the appeal is expedited or bail is granted, Mr Samani will have served a substantial portion of the sentence and, if the Court reserves its position, probably all of it before the appeal is determined.

16 No evidence was adduced by the Crown.

The Requirements for a Stay and Bail

17 As noted above, the requirements for a stay rely heavily on whether an appeal would be rendered nugatory if a stay is not granted. In this case, that pre-condition is met.

18 The stay, however, should in this case not be granted unless bail is to be granted. There is no utility and certainly no advantage to Mr Samani, in a stay, if he is not granted bail, as he will remain in custody but will not be serving his sentence. The effect of that would be to increase the period of his custodial confinement.

19 I have addressed the issues of bail pending appeal inSherd v The Queen. So far as the question of the requirement of a stay was concerned, the decision was overruled in Quzag v The Queen, but I do not understand that the principles otherwise applicable for the grant of bail pending an appeal were subject of any adverse finding or criticism. The decision has also been followed since so far as the issues of bail pending appeal are concerned.

20 As noted there at 299; [46], special or exceptional circumstances must be shown to justify a grant of bail. I also pointed out at 299; [47], that the fact that a sentence will have been fully or substantially served before the appeal is heard will be ordinarily a special or exceptional circumstance.

21 The second issue I identified at 300; [52], is what the prospects of success are on the appeal. As I pointed out at 300; [54], where the appeal has little or no prospects of success, such as in a frivolous appeal, this will strongly militate against the grant of bail.

22 Neither Mr K Archer, appearing for Mr Samani, nor Ms E Beljic, appearing for the Crown, contended that there were other issues to be addressed.

Special or Exceptional Circumstances

23 It is clear on the facts deposed about the Court of Appeal sittings referred to above (at [14]), and not controverted, that Mr Samani will have served all but at best a few days of the custodial portion of his sentence before his appeal can be heard. As I pointed out inSherd v The Queen at 300; [50], this is the relevant portion of the sentence.

24 Accordingly, I am satisfied that there are special or exceptional circumstances.

Prospects of Success

25 It is, as I also observed inSherd v The Queen at 300; [53], the fact that the determination of prospects of success is a difficult issue for it is inappropriate to try the appeal on a bail application.

26 Nevertheless, some assessment must be made.

27 As to the first ground, it may be ironic to say that it will often be difficult to assess the prospects of success of a ground that relies on manifest excess or inadequacy, despite the description suggesting obviousness and the...