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Ilett, Re [1974] PGLawRp 358; [1974] PNGLR 49 (12 July 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 49 - Ilett, Re

[1974] PNGLR 49

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE ILETT

Port Moresby

Lalor J

25 June 1974

12 July 1974

CRIMINAL LAW - Practice and procedure - Bail - Bail pending application for leave to appeal against sentence - Special circumstances - Grounds of appeal arguable - Fresh evidence of character.

Upon an application for bail after conviction and pending application for leave to appeal against sentence, special circumstances must be shown. Special circumstances are shown where it appears�(1) that unless released on bail the prisoner will be in gaol for about one month pending hearing of the appeal; (2) that prima facie the grounds of appeal are of an arguable nature; (3) that the prisoner was on bail before conviction; (4) that the sentence is not a long one; and (5) that the prisoner�s previous character was good.

Re Cooper [1961] A.L.R. 584 and R. v. Hopkins [1924] VicLawRp 43; [1924] V.L.R. 329 applied. There is an arguable case where the grounds of appeal are not frivolous. Re Cooper [1961] A.L.R. 584 applied.

Held

That where the applicant had been sentenced to twelve months� imprisonment for receiving stolen property and sought leave to appeal against sentence to enable fresh evidence to be put before the Court as to character and the effect of the prison sentence on his business and family, both of which matters could not be regarded as frivolous, special circumstances existed and bail should be granted.

Bail Application

This was an application for bail by Barry Ilett who had been convicted of receiving stolen property and sentenced to twelve months� imprisonment. The applicant had lodged Notice of Appeal and applied for leave to appeal against sentence on the ground that in all the circumstances the sentence was manifestly excessive.

Counsel

S. Cory, for the applicant.

R. H. B. Wood, for the respondent, Crown.

29 July 1974

LALOR J: This is an application for bail by Barry Ilett who was convicted at the Lae sittings of the Supreme Court on 23rd March, 1974, of receiving stolen property, for which he was sentenced to twelve months� imprisonment.

The applicant has lodged Notice of Appeal and applied for leave to appeal against sentence. The order sought from the Full Court is a reduction of sentence on the grounds that in all the circumstances the sentence was manifestly excessive.

Counsel for the applicant submitted that bail should be granted if special circumstances were shown. For that proposition he relies on Re Cooper [lvii]¹. He contends that there are, in this case, special circumstances because of which bail should be granted, and to establish these special circumstances he relies on R. v. Hopkins [lviii]². In that case Hopkins who was convicted of attempting to obtain money by menaces from one Thomas Berry, was duly convicted and sentenced to nine months� imprisonment and he had lodged an application for leave to appeal, both against conviction and sentence.

On the application for bail before Mr. Justice Schutt of the Supreme Court of Victoria his counsel relied on five circumstances that he said constituted special circumstances within the meaning of the rule. They were, (1) that unless released on bail the prisoner would be in gaol for one month pending the appeal, (2) that prima facie the grounds of appeal are of an arguable nature, (3) that the prisoner had been on bail before conviction, (4) that the sentence is not a long one, and (5) that the prisoner�s previous character was good. In that case the sentence was one of nine months� imprisonment.

In giving judgment Mr. Justice Schutt said:

�There is no doubt as to the general rule that bail is not granted after conviction unless special circumstances are shown. But in the present case there are special circumstances.�

Counsel for the applicant says that the circumstances in this case are closely similar to those in Hopkins� case: namely that unless released on bail the prisoner will be in gaol for one month, i.e. until the sittings of the Full Court in August, (2) that prima facie the grounds of appeal are of an arguable nature, and I will return to this ground in a moment, (3) that the prisoner had been on bail before conviction, and that is not disputed, (4) that the sentence is not a long one, in this case one year as opposed to the nine months in Hopkins� case, and (5) that the prisoner�s previous character was good; that again is not disputed. So it would appear that if the applicant can establish that the grounds of appeal are of an arguable nature he has brought himself within the definition of special circumstances as set out in Hopkins� case.

As to the arguability of the grounds of appeal, it will be seen that the one ground of appeal is that the sentence is manifestly excessive. Counsel for the applicant did not argue that one year as a punishment for a crime of this nature was excessive simpliciter. In fact, as I understand it, he rather argued the opposite; in other words, that it was in fact a light sentence but a sentence so light that it could properly have been a bond if the trial judge had been in possession of further information as to the accused which it is, this Court is informed, proposed to put before the Full Court as a Court of criminal appeal.

This evidence is very largely concerned with character and is also concerned about the effect of a prison sentence on the business and family of the accused. Counsel opposing bail put to the Court that in fact a lot of this evidence either could have been given at the trial or had been given in a summary or secondhand form by counsel for the accused. The principal witness as to character was not available but counsel for the accused did in fact state the substance of what he would have said. The question then is whether this new evidence, which it is proposed to put before the Court, constitutes an arguable ground against the sentence.

There is no doubt that evidence of character is of special importance in considering sentence, and I would refer to the decision of the Court of Criminal Appeal in New South Wales, R. v. Simpson [lix]³. At p. 593 the Court quoted a statement of the New Zealand Court of Appeal and adopted it saying that �justice and humanity both required that the previous character and conduct and probable future life and conduct of the individual offender and the effect of sentence on these should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment�.

As we have seen the only appeal is against sentence, and the onus is on the applicant to show grounds on which the Full Court should interfere with the discretion of the trial judge. The circumstances that the appeal court has more information than the trial court is, and always has been, a ground upon which an appeal court will reconsider sentence, and I would refer to the decision in R. v. McIntosh & Others [lx]⁴. This was a particularly strong court, specially constituted and consisted of five judges. At p. 282 the court said:

�We have had a fuller chance of investigating the circumstances of these prisoners than had the trial judge and we think it desirable to emphasize that the circumstances relevant to punishment should be fully placed before the trial judge by Crown counsel and counsel for the accused and that fuller details than it has been customary to furnish be afforded particularly in regard to first offenders. The grave responsibility cast upon the judge cannot be satisfactorily discharged if the necessary data are not placed at his disposal.�

And on this basis, the court, in view of the new evidence which it had in front of it, did in fact reduce sentence in those cases. See also Wanosa & Others v. The Queen [lxi]⁵.

Turning now to the new evidence which it is sought to introduce the question then is whether this evidence will provide an arguable case against sentence. It is no part of this Court�s duty on a bail application to consider the weight of the evidence or the probability of the appeal court altering the sentence. The test, as I understand it, is that which is set out by Mr. Justice Fullagar in Re Cooper[lxii]⁶�namely that the grounds of appeal are not frivolous; in other words that there is material there which the Court will consider whatever view they may take to it. Of course, I do not attempt to predict the outcome of the appeal, but, in my view, the matters raised are not frivolous; they relate to the circumstances of this man which were not fully before the trial judge and are properly the subject of consideration by the Full Court.

In the event then, I hold that the applicant has made out special circumstances within the rule as explained in R. v. Hopkins[lxiii]⁷�and I would accordingly grant bail to the applicant until the August sittings of the Full Court in the sum of $500.00 and a surety of a similar amount, and with the further condition that the appellant report once a week to the Police Station at Lae.

Orders accordingly.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.

Solicitors for the applicant: Messrs. McCubbery, Train, Love & Thomas.

[lviii][1924] V.L.R. 329.

[lix](1959) 76 W.N. (N.S.W.) 589.

[lx][1923] Q.S.R. 278.

[lxi][1971-72] P. & N.G.L.R. 90.

[lxii][1961] A.L.R. 584.

[lxiii][1924] V.L.R. 329.

[lxiv]Infra p. 56.