2016-12-23 Achanfuo-Yeboah V the Queen 2016 ACTCA 71

HUMAN RIGHTS ACT SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Achanfuo-Yeboah v The Queen

Citation: [2016] ACTCA 71

Hearing Dates: 13 October, 15 December 2016

Decision Date: 23 December 2016

Before: Refshauge ACJ

Decision: 1. The sentence imposed on David Achanfuo-Yeboah on 25 May 2016 be stayed from 23 December 2016 until 24 March 2017. 2. Bail be granted to David Achanfuo-Yeboah from 23 December 2016 to 24 March 2017 on conditions to be determined.

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of sentence – bail – considerations where grant of bail pending appeal – special and exceptional circumstances required – difficulty in obtaining legal representation – medical condition requiring daily medication – severe hardship to family – stay of sentence granted – bail granted on strict conditions – remunerated employment for the purpose of securing legal representation

Legislation Cited: Canadian Charter of Rights and Freedoms, ss 7, 10(b), 15 Crimes (Sentencing) Act 2005 (ACT), ss 11(2), 11(3), 33(1)(o) Corrections Management Act 2007 (ACT), s 53 Human Rights Act 2004 (ACT), ss 8(3), 18(1), 22(2)(d)

Cases Cited: Aldridge v The Queen [2011] ACTCA 20 Dietrich v The Queen (1992) 177 CLR 292 Director of Public Prosecutions v Ip [2005] ACTCA 24 Duke v. The Queen (1972) 7 CCC(2d) 474 Edwards (1996) 90 A Crim R 510 In the Matter of an Application for Bail by Massey [2008] ACTSC 145 Panacui v. Legal Aid Society of Alberta (1989) 40 CCC(3d) 459 Powell v. State of Alabama 287 US 45 (1932) Quzag v The Queen (No 3) [2015] ACTCA 37 Re Pennant [1997] 2 VR 85 R v Al-Harazi (No 4) [2016] ACTSC 298 R v Carmody [2016] ACTSC 382 R v Le Clair [2016] ACTSC 79 R v Ngerengere (No 3) [2016] ACTSC 299 R v. Robinson (1989) 51 CCC(3d) 452 R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325 R v Wirth (1976) 14 SASR 291 R v Yeboah [2016] ACTSC 126 R v Zerafa (2013) 235 A Crim R 265 Samani v The Queen [2016] ACTCA 48 Sherd v The Queen (2011) 5 ACTLR 290 Stott v The Queen [2016] ACTCA 36

Texts Cited: Bruce Macfarlane QC, “The Right to Counsel at Trial and on Appeal” (1989-90) 32 Criminal Law Quarterly 440

Max H. Epstein “The Guiding Hand of Counsel: The Charter and the Right to Counsel on Appeal” (1987) 30 Criminal Law Quarterly 35

R Moon “The Constitutional Right to State Funded Counsel on Appeal” (1989) 14 Queen’s Law Journal 171

Parties: David Achanfuo-Yeboah (Appellant) The Queen (Respondent)

Representation: Counsel In person (Appellant) Mr M Fernandez (Respondent)

Solicitors In person (Appellant) ACT Director of Public Prosecution (Respondent)

File Number: ACTCA 20 of 2016

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 25 May 2016 Case Title: R v Le Clair; R v Yeboah Citation: [2016] ACTSC 126

REFSHAUGE ACJ:

1. The applicant, David Achanfuo-Yeboah, was involved in a serious and nasty incident on 28 December 2013 arising out of his dealing in a traffickable quantity of cannabis with a co-offender, Michael Aaron Le Clair.

2. The facts are set out in the decision of a disputed facts hearing. See R v Le Clair [2016] ACTSC 79.

3. Mr Achanfuo-Yeboah and Mr Le Clair had arranged to have the complainant, Toby Leatham, purchase for them about 10 pounds of cannabis for $26 000, a serious offence in itself.

2 4. On 28 December 2013, Mr Achanfuo-Yeboah and Mr Le Clair went to Mr Leatham’s apartment, bringing with them the money for the purchase. Mr Leatham took the money and went to give it to his drug dealer contact who, however, drove off with the money before delivering the drugs.

5. As a result, Mr Achanfuo-Yeboah and Mr Le Clair, understandably very angry at the loss of their money without securing any drugs, then forced him into their car by holding a knife at his throat and drove away. During the drive, they made numerous serious threats to him for about 45 minutes. Mr Leatham managed to escape, but they caught him and hit him with a baseball bat. He was taken back to the car and driven to a remote location in New South Wales where he was again assaulted and finally abandoned.

6. As a result, Mr Achanfuo-Yeboah and Mr Le Clair were later arrested and charged with unlawful confinement and trafficking in a traffickable quantity of cannabis. Both offences are punishable by a maximum term of imprisonment for 10 years. In addition, the trafficking charge attracts, as part of the maximum penalty, a fine of $140 000.

7. Mr Achanfuo-Yeboah pleaded guilty to both charges.

8. On 25 May 2016, Mr Achanfuo-Yeboah was sentenced to two years and 11 months imprisonment on the charge of unlawful confinement and to 12 months imprisonment on the drug trafficking offence, cumulative as to six months, on the earlier sentence. The total sentence was thus for three years and five months with a non parole period from 25 May 2016 to 24 May 2018. See R v Le Clair; R v Yeboah [2016] ACTSC 126.

9. On 21 June 2016, Mr Achanfuo-Yeboah commenced an appeal against the sentence for forcible confinement. He claimed that it was manifestly excessive and claimed that there were compassionate grounds for a less severe sentence.

10. Mr Achanfuo-Yeboah has now applied for a stay of his sentence and bail until his appeal can be heard.

Grant of bail pending appeal – the law

11. This Court has power to stay a sentence pending the hearing of an appeal and, in aid of that stay, to grant bail: Sherd v The Queen (2011) 5 ACTLR 290; Quzag v The Queen (No 3) [2015] ACTCA 37.

12. In Samani v The Queen [2016] ACTCA 48 at [8]-[11], I set out the principles on which a court will act when considering whether to grant a stay. These are similar to, and no more stringent than, those applicable to the grant of bail pending appeal as set out in Sherd v The Queen.

13. There must be special or exceptional circumstances favouring the grant of bail. Thus, if there are no such circumstances, then a stay would ordinarily be futile and, in many cases, a prejudice to the incarcerated appellant.

14. Whether there are special or exceptional circumstances may involve consideration of the length of the sentence having regard to when the appeal may be able to be heard, however, that is not a relevant consideration here. The prospect of success of the appeal is also an important consideration.

3 15. For the prospects of success in the appeal to be the sole special or exceptional circumstance, however, I pointed out in Sherd v The Queen at 301; [60], that it must be shown that the appeal is “most likely to succeed”.

The grounds of the application

16. Mr Achanfuo-Yeboah claims that he should be granted a stay of his sentence and granted on bail on compassionate grounds. His circumstances are such, he says, that he and his partner will suffer severe hardship unless the stay is granted.

17. His partner, who already has a nine year old daughter, was, at the time of his sentencing, pregnant and gave birth to their child on 29 September 2016. She experienced complications, though I was not informed of every detail.

18. Her health declined during the pregnancy to the point where she suffers from severe migraine headaches, requiring emergency hospital treatment on more than one occasion. Mr Achanfuo-Yeboah’s imprisonment has also led to her suffering severe anxiety.

19. She found it very difficult to look after her daughter as well as to meet her own work schedule. She has no family support in Canberra. Her daughter has had to stay in hospital during the confinement. His partner is not able to drive a car.

20. The house in which she lives in is public affordable housing rented to Mr Achanfuo- Yeboah and, because of his imprisonment, he was, on 2 June 2016, given the required 26 weeks notice to vacate the premises. That would have required his partner to leave the premises on 6 December 2016. She says that, without, the income from Mr Achanfuo-Yeboah’s business, she will be unable to compete on the private rental market. I have no current information about that situation.

21. It was not explained why his partner could not, in the circumstances, take over the lease nor whether she had sought assistance from an agency such as the highly respected Canberra Community Law, which is available to assist vulnerable members of our community and could probably help her with securing such a transfer or other arrangements.

22. Mr Achanfuo-Yeboah also relies on problems he is experiencing in custody. He has a chronic eye condition, open angle glaucoma. He is required to maintain the stability of his eyes by the use of eye drops, Xalacom, each day. The prognosis with treatment is that, according to his ophthalmologist, he will not go blind but only with proper eye management, including six monthly reviews; though over the next decade he will require more aggressive glaucoma treatment.

23. Initially, he said that he had exhausted the medication which he brought with him into the Alexander Maconochie Centre. He said that he was not permitted any further medication until he is examined by a doctor and that no consultation could be arranged for 12 weeks. He said that he needed urgently to see an ophthalmologist to assess any damage caused by the lack of treatment.

24. I received evidence from Professor Michael Levy, Clinical Director of Justice Health Services. He advised that Mr Achanfuo-Yeboah has been “regularly” prescribed with eye drops and that stock of them is “re-ordered” to assure continuity of treatment. He noted that there was “a degree of self-management built into his ongoing care”.

4 25. Professor Levy also noted that Mr Achanfuo-Yeboah has an “active referral” with the ACT Health Ophthalmology clinic with a triage level of category 2. I am told that requires attention within 60 days.

26. Further exploration of the issue with Mr Achanfuo-Yeboah revealed a somewhat less dramatic situation than had been first suggested. The eye drops required are self administered. That is, no doubt, part of the meaning of “self-management” in the evidence of Professor Levy. Mr Achanfuo-Yeboah advised me that he received a little in early August 2016 and then one monthly supply on 10 September 2016. At the date of the first appearance in Court on 13 October 2016, he said, however, that he had not received the new bottle and the old bottle had been completely used up. He also complained that the bottle provided on 10 September 2016 had not been the correct medicine. It seems, as I understand it, this has since rectified.

27. Mr Achanfuo-Yeboah made a complaint to the Human Rights Commission about the health services provided to him and a response was expected from Justice Health Services by 19 October 2016. I was not provided with any response he has received.

28. Finally, he says that he has been experiencing trouble also in obtaining legal representation while imprisoned. He was represented at the sentencing proceedings by a private firm, but he can no longer afford its services.

29. He told me that he applied for legal assistance from Legal Aid ACT but was refused aid. He sought a review but that had been unsuccessful. He has presently no funds with which to employ a private practitioner.

30. With Mr Achanfuo-Yeboah’s consent, I obtained a copy of the letter from Legal Aid ACT advising of the outcome of his applications. The letters confirmed that Legal Aid ACT had refused to grant him aid and that the review committee had confirmed that decision. The letter set out the reasons and I note them, but do not consider it necessary to set them out here. It is, however, clear, that Mr Achanfuo-Yeboah is not to be funded by Legal Aid ACT for the appeal.

31. He says that he conducted a painting business before he was imprisoned and that he still had a contract available from which he could use sufficient funds in the weeks to pay for a private lawyer.

32. I had a letter from a painter who confirmed that he had known Mr Achanfuo-Yeboah for a year and had been “very happy with the painting work he had provided”. He reports that he has plenty of work available for which Mr Achanfuo-Yeboah can commence immediately.

33. The letter was provided to the Respondent in time to make relevant inquiries. Its tender was not challenged. No evidence contrary to the contents of the letter was adduced. I am prepared to accept that Mr Achanfuo-Yeboah has actual remunerated work available to him.

34. Mr Achanfuo-Yeboah had trouble also in receiving and sending documents while in the Alexander Maconochie Centre. He says he will seek to put further evidence before the Court of Appeal but is having difficulty in assembling the material. In particular, he says that material relating to a prior assault he suffered while in custody on a previous occasion is proving very difficult to access while he remains in prison.

5 35. Some of that documentation has been provided and I received the record from Alexander Machonochie Centre of an event on 28 August 2010 when Mr Achanfuo- Yeboah was found in his cell in a coma with blood next to his head. He was transported by ambulance to the Canberra Hospital where he was admitted. The discharge summary showed a diagnosis on admission of a right frontoparietal scalp hematoma with no underlying fracture or intracranial injury, an un-displaced fracture of the nasal bone extending into the anterior ethmoidal air cells and a traumatic subconjunctival haemorrhage. He was concussed and confused on admission but that resolved and his post-traumatic amnesia cleared by day four. He was discharged on 2 September 2010.

36. Mr Achanfuo-Yeboah also wanted to obtain documents in relation to the four and seven-year-old children of an earlier relationship of whom he had custody at the time of the sentencing. He said that the documents were not permitted to him due to the Alexander Maconochie Centre “notices [sic] and security reasons”. He says also that he is “not allowed access to other cases or legal material [sic] to comparative sentencing purposes whilst I am at AMC for security reasons.”

Consideration

37. It would be unreasonable not to be sympathetic to the difficulties that Mr Achanfuo- Yeboah and his family are suffering as a result of his imprisonment. It is accurate but not helpful to observe that he has brought these problems on himself because of the serious crimes he has committed and to which he pleaded guilty. To engage in such crimes is to expose his family to the hardships they are now suffering.

38. That, in itself, however, is not sufficient to justify the grant of a stay and bail. In particular circumstances, a temporary stay may be appropriate where there is loss and hardship that can be rectified in a short period of time, as I accepted in Stott v The Queen [2016] ACTCA 36. That, however, is not the case here so far as these matters of hardship are concerned.

39. Hardship to the family of an appellant is, while evoking the sympathy to which I have referred, rarely be able to justify a stay and a grant of bail pending appeal as pointed out in Re Pennant [1997] 2 VR 85 at 87. Such hardship is to be taken into account but would not justify alone the relief sought other than in rare circumstances. See Aldridge v The Queen [2011] ACTCA 20 at [34].

40. Certainly a short period of liberty to Mr Achanfuo-Yeboah will not resolve the issues faced by his partner, though that would give her some respite. That, however, is not a special or exceptional circumstance. Indeed, it is, regrettably, the common experience of the families of those imprisoned who have vulnerable dependants.

41. Mr Achanfuo-Yeboah submits that the sentence failed to give weight to the hardship and was, thus, too severe. I did not have details of what evidence about this was put before the learned sentencing Judge. Ordinarily, family hardship must be exceptional to justify a reduction in sentence. See, for example, Edwards (1996) 90 A Crim R 510 at 515; R v Wirth (1976) 14 SASR 291 at 296.

42. That approach, however, may be too harsh. Section 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) expressly requires the effect of a sentence on an offender’s family to be taken into account. In Director of Public Prosecutions v Ip [2005] ACTCA 24 at [60]-[61], the Court of Appeal did expressly reject the requirement that

6 such hardship be exceptional before being taken into account. Nevertheless, the Court did accept that the weight to be accorded to such a factor was a matter of discretion.

43. That decision, however, may be inconsistent with authorities in other intermediate courts of appeal. See R v Zerafa (2013) 235 A Crim R 265 at 297; [134]-[138].

44. I do not need to resolve this issue, save to say that the prospects of success of this ground of the appeal are arguable but not overwhelming.

45. Similarly, Mr Achanfuo-Yeboah submitted that his Honour should have considered making an Intensive Correction Order. See Samani v The Queen at [29]-[37]. That relatively new sentencing disposition has been described in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]-[27]. Such an order, as I pointed out in R v Carmody [2016] ACTSC 382 at [160] is still, and while more lenient than full-time imprisonment, a deterrent sentence.

46. Certainly, his Honour did not appear to refer to that option, but I was not aware as to whether it was submitted to his Honour that it should be considered. Of course, for a sentence of between two and four years, which this was, s 11(2) and (3) of the Crimes (Sentencing) Act required certain matters to be considered and these may well have justified the learned sentencing Judge declining to make the order. On this ground, again, the prospects of success of the appeal are arguable but not overwhelming.

47. The question of Mr Achanfuo-Yeboah’s eye health is a matter of concern. The authorities in charge of Alexander Maconochie Centre have a duty to ensure Mr Achanfuo-Yeboah’s health is of a standard that is reasonably equivalent to that of the community. See s 53 of the Corrections Management Act 2007 (ACT) and R v Al- Harazi (No 4) [2016] ACTSC 298. The failure to provide proper treatment may justify some action, such as day bail, but would not justify bail pending appeal.

48. The difficulty that Mr Achanfuo-Yeboah is having with legal representation is more problematic. On the one hand, he has been refused a grant of legal aid. On the other hand, he apparently has work available which will provide him with funds that he can use to retain a private lawyer. I am mindful of what Cross Ch QS said in R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325 at 332:

A sizable minority of all crimes of dishonesty committed in this state are committed by persons who are currently on bail. Accused persons have in fact claimed at quarter sessions that they committed these crimes to raise money for legal representation. 49. There is no right to legal representation or appeal. See the careful analysis in Bruce Macfarlane QC, “The Right to Counsel at Trial and on Appeal” (1989-90) 32 Criminal Law Quarterly 440. Relying on decisions such as R v. Robinson (1989) 51 CCC(3d) 452 and Panacui v. Legal Aid Society of Alberta (1989) 40 CCC(3d) 459, Mr MacFarlane concluded that the Canadian Charter of Rights and Freedoms did not provide a right to counsel at the public expense of an appeal.

50. Contrary views have been expressed in the literature. For example Max H. Epstein “The Guiding Hand of Counsel: The Charter and the Right to Counsel on Appeal” (1987) 30 Criminal Law Quarterly 35.

51. Similarly, R Moon argued in “The Constitutional Right to State Funded Counsel on Appeal” (1989) 14 Queen’s Law Journal 171, that ss 7, 10(b) and 15 of the Canadian Charter of Rights and Freedoms were a solid basis for the judiciary to find a positive right to counsel in Canada. I note that s 7 is similar to s 18(1) of the Human

7 Rights Act 2004 (ACT), s 10(b) is similar to s 22(2)(d) of the Human Rights Act and s 15 is similar to s 8(3) of the Human Rights Act.

52. Neither the article by Mr Epstein nor that by Assistant Professor Moon, however, made reference to R v. Robinson which, however, stands in the way of their interpretation.

53. The right to be heard is a part of fundamental justice: Duke v. The Queen (1972) 7 CCC(2d) 474 at 479. It was argued that this required access to counsel. Reliance was placed on in what Sutherland J had said in Powell v. State of Alabama 287 US 45 (1932) at 64:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. ... He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in proceedings against him. 54. While this may not require publicly funded counsel but only the right to have counsel, if obtained, appear for the accused, it is relevant to an understanding of the importance of counsel.

55. This argument is reinforced by the approach that the High Court took Dietrich v The Queen (1992) 177 CLR 292, though that was in the context of the right to counsel at trial, not on appeal. Nevertheless Mason CJ and McHugh J referred in that case to what Sutherland J in Powell v State of Alabama had said, as noted above (at [53]), though accepting at 308 that “the right to retain counsel and the right to have counsel provided at the expense of the state was not the same thing”.

56. I note that the circumstances of a trial and of an appeal are different, though the comments of Deane J in Dietrich v The Queen are relevant. His Honour pointed out at 330 that it was the government’s choice as to whether an accused person should be subject of a trial. Then the trial must be fair. This necessity does not squarely fit with the appellate process which is initiated by an accused person. Though of course, preceded by the government initiated trial.

57. The High Court rejected the proposition that an accused person is afforded an enforceable right to be provided with legal representation at public expense; see Dietrich v The Queen at 311 per Mason CJ and McHugh J, at 330 per Deane J, and at 354-5 per Toohey J. It must follow that an appellant has no enforceable right to be provided with legal representation of public expense on an appeal.

58. Nevertheless, the importance of legal representation is that the proceedings are more likely to be fair and an appellant is more likely to be able to present his or her case in the best possible way.

59. I am not satisfied that Australian law provides for a right to state-provided counsel on appeal, a right that would, as presently is the case, exceed the rights of an accused person at his or her trial. I am also not satisfied, without further argument that the Human Rights Act provides for such a right.

60. The importance of legal representation was well described by Toohey J in Dietrich v The Queen at 353-4. It is obvious that proper legal representation is likely to ensure that an appellant’s case can be pleaded at its highest which would considerably

8 improve the likelihood of a case being presented on appeal which might well attract favour with the appellate court.

61. In particular, the fact that a lawyer has a much better sense of what is relevant, to ensure that the relevant material is placed before the Court, having regard to the appropriate authorities of which an unrepresented litigant is unlikely to be aware, would enhance the prospects of a represented appellant being successful on appeal.

62. I am satisfied, therefore, that the importance of legal representation is such that in appropriate circumstances the Court should make efforts to facilitate such representation where it can reasonably be done. I do bear in mind that reasonable caveat to be taken from the comments of Cross Ch QS in R v Wakefield to which I have referred above (at [48]).

63. Mr Achanfuo-Yeboah told me that he would be able to earn sufficient funds in 12 weeks to pay for his legal representation. As noted above (at [33]), that remuneration work is available to him.

64. It seems to me that, with appropriate evidence that there are legal means by which an appellant may fund the appeal which he has taken as of right, where legal aid has been declined and where there is an arguable ground of appeal the highly likely possibility that an appellant may earn sufficient to pay for legal representation is a special or exceptional circumstance.

65. Thus, the opportunity that Mr Achanfuo-Yeboah has of remunerated employment for the purpose of securing legal representation on the appeal as a special or exceptional circumstance which justifies a stay and a grant of bail.

66. While the other difficulties Mr Achanfuo-Yeboah is experiencing do not, of themselves, justify a stay or grant of bail, they do support the conclusion to which I have come that Mr Achanfuo-Yeboah has made out a case for a temporary stay. With these together, there is, in my view, a strong case of special or exceptional circumstances. See In the Matter of an Application for Bail by Massey [2008] ACTSC 145 at [28].

Conclusion

67. Accordingly, I propose to grant Mr Achanfuo-Yeboah a stay of the sentence imposed on 25 May 2016. The stay, however, is a temporary one only, for sufficient time for him to arrange to return to employment as promised and to earn the funds he says will be sufficient for his legal representation of the appeal.

68. I will grant him bail for these purposes but on strict conditions that will be discussed with him and the Crown before I make them.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.

Associate:

Date: 23 December 2016