Care and protection of children a relevant consideration in granting bail or sentencing a parent

Aldridge v R [2011] ACTCA 20 (22 September 2011)

Summary

The ACT Court of Appeal has held that, by operation of s 11(2) of the Human Rights Act 2004 (ACT), the arrangements for care of children is a relevant factor to be taken into account in the grant of bail, sentencing, and the grant of bail pending appeal against sentence.

Facts

Edward Aldridge was sentenced on seven counts involving burglary and aggravated burglary to a term of imprisonment of three years and six months, with a non-parole period of two years. He lodged an appeal against sentence and applied for bail pending determination of that appeal. Due to a range of delays attributable to the prosecution, the court and Mr Aldridge, the appeal against sentence was scheduled to be heard just two months before expiration of the non-parole period.

In applying for bail pending appeal, Mr Aldridge relied, among other matters, on the fact that his partner had recently given birth to their second child, was suffering from post-natal depression and that Mr Aldridge needed to support them.

Decision

The application was allowed and Mr Aldridge was granted bail.

Justice Refshauge reiterated that bail pending appeal against sentence should only be granted in special or exceptional circumstances (see also Sherd v The Queen [2011] ACTCA 17), but stated that there were a range of matters in the present case which, together, amounted to such circumstances. In particular, the Court noted that:

Mr Aldridge’s partner…has been sentenced to three months periodic detention. That leaves her new-born and their other child, a two-year-old, without proper care over the time she must be in detention. His partner has no close family to assist.

The proper arrangements for care of children is a relevant factor where, as here, the Human Rights Act 2004 (ACT) in s 11(2) mandates that “every child has the right to the protection needed by the child”. This right has been construed by the Constitutional Court of South Africa to be a relevant matter to be taken into account in sentencing. See S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18, as refined by S v The State [2011] ZACC 7.

The decision can be found online at: http://www.austlii.edu.au/au/cases/act/ACTCA/2011/20.html

Phil Lynch is former Executive Director of the Human Rights Law Centre