Harsh new bail laws

On 27 June 2022, the NSW Parliament assented (passed 23 June 2022, Act 27/2022) to the Bail Amendment Bill 2022 which introduced a new incentive said to “strengthen” the Bail Act 2013.

This new Section, 22B, provides that:-

A court is not to grant bail or dispense with bail, including in the course of considering a detention application, during the period following conviction and before sentencing for an offence for which an offender will be sentenced to a full-time detention, unless it is established that special or exceptional circumstances exist that justify that bail decision.

For the purposes of the provision ‘conviction’ is to be defined in Subsection (5) to include a plea of guilty.

It was stated in the second reading speech by The Honourable Melinda Pavey MP, that “bail exists to keep victims and our communities safe before and during a trial and to protect every person’s right to the presumption of innocence and the general right to be at liberty until they can have their day in court and their matter determined…. the presumption of innocence does not apply after a conviction or guilty plea”.

Currently, when an accused person has plead guilty after the EAGP process, their bail is usually continued until sentencing in the District Court. Given the backlog of COVID and access to reports, this process can take anywhere between 1 to 4 months. Under this new provision, a person who pleads guilty in the local court will then be exposed to a detention application by the Director of Public Prosecutions and provided they will be sentenced to fulltime detention, will need to be establish special or exceptional circumstances that justify their release until sentence.

Provided the offender will (first leg) be sentenced to full time imprisonment, this amendment appears to follow a similar process to “show cause” considerations.

The provision does acknowledge that special or exceptional circumstances may arise from time to time and while the courts have declined to set an exhaustive list of factors that may constitute ‘special or exceptional’ the first reading speech makes reference to El‑Hilli and Melville v R [2015] NSWCCA 146 at [29] where Justice Hamill said, their Honours Simpson and Davies agreeing:

‘Special or exceptional circumstances’ may exist in the combination of factors or in ‘the coincidence of a number of features … It is not possible to determine or predict in advance what those features may be’

What is clear however, is that Parliament has intended that special or exceptional circumstances be a high bar to be met which would be determined on an individual case by case basis.

While the purpose of these new amendments is to keep communities safe, the question must be asked … what will it do to the EAGP process? (the process followed for more serious “strictly indictable” matters which are normally heard in the District Court as opposed to the summary jurisdiction “local court”)

While it is accepted that offenders would have a reasonable expectation of fulltime detention on a plea of guilty given the nature of their offences/criminal history, it is yet to be seen if offenders would be willing to forgo the full 25% discount in order to maintain their liberty for an extended period.

It is also yet to be seen whether this new bill will effect the sentencing procedure, as court would making a determination prior to submissions from the defence or prosecution. This raises issues in relation to matters which have a real possibility of an Intensive Corrections Order (ICO) which require a close examination of subjective and mitigating factors.

Finally, concerns are also raised in relation to the additional workload on the Local Court which would turn a majority of relatively short committals for sentence into lengthy bail applications.

Cases (at the time of writing this article)

1) R v LM [2022]_ NSWSC_ His Honour Justice Dhanji SC endorsed the principle of Section 22B does not apply unless the court is satisfied that the accused will be sentenced to a term of fulltime imprisonment.

If the court is not satisfied of this “first leg” to the requisite standard, then the court is to embark on the usual bail considerations as to unacceptable risk and the matters of Section 18 of the Bail Act.



2) R v ET [2022] NSWSC 905, where bail was sought after conviction but before sentence.

In this case, His Honour Davies was satisfied the conviction for the offence (affray) meant that the applicants would be sentenced to imprisonment to be served by way of fulltime detention (first leg).

Therefore, the primary question being whether or not special or exceptional circumstances are established.

In order to overcome this hurdle, it was put forward principally for the applicant that the time served to the present would be a period that was equal to or exceed any period of time he would be ordered to serve the offence sentence.

His Honour applied the principle concerning bail after a conviction and pending an appeal to the Court of Criminal Appeal which under Section 22 held that a matter which can constitute special or exceptional circumstances is the possibility that the applicant will have served their sentence or non-parole period before the appeal is dismissed.

Therefore, applying those principles to Section 22B the applicant would show special or exceptional circumstances if the time he has presently served will or might not be less than the sentence that might be imposed upon him when he comes to be sentenced.

His Honour found that special or exceptional circumstances would be made out and therefore it was then necessary to consider the bail concerns and the matters in Section 18 of the Bail Act 2003.

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