Citation: R v Michael John Christian [2009] NSWDC 375
Court: District Court of New South Wales
Date: 19 May 2009
Judge(s): Cogswell SC DCJ
Background
The accused was found guilty by a jury of break and enter and commit a serious indictable offence in company, an offence carrying a maximum of 20 years imprisonment and a standard non-parole period of five years. Following the verdict, his counsel applied for an adjournment to prepare for sentencing, including obtaining a presentence report. That application was granted.
Counsel also applied for bail in the intervening period. The accused's criminal record included a conviction for armed robbery on 5 September 2003, for which he had served a custodial sentence.
The sole ground put forward in support of bail was that Family Court proceedings concerning one of the accused's daughters were listed for 3 and 4 June 2009, and the accused wished to attend.
Legal Issues
- Whether the accused was a "repeat offender" for the purposes of section 9D(4) of the Bail Act 1978 (NSW), such that the elevated "exceptional circumstances" threshold applied
- Whether pending Family Court proceedings constituted "exceptional circumstances" justifying the grant of bail under section 9D
Decision
The court first addressed whether section 9D applied at all. The offence of break and enter and commit a serious indictable offence in company is classified as a "serious personal violence offence" under section 9D(4). The accused's prior armed robbery conviction was also a serious personal violence offence, making him a repeat offender within the meaning of the provision. As a result, the standard bail criteria under section 32 of the Bail Act did not apply. Instead, bail could only be granted if exceptional circumstances were established.
Cogswell SC DCJ observed that the legislative intention behind section 9D is clear: Parliament considered that repeat serious personal violence offenders should generally not remain in the community while awaiting sentence. That policy context informed the court's approach to what could qualify as exceptional circumstances.
The only circumstance advanced was the accused's desire to attend Family Court proceedings regarding his daughter. The court accepted that this was an understandable personal concern. However, it found that the inability to attend those proceedings was simply an unfortunate consequence of the conviction for a serious crime, and did not rise to the level of exceptional circumstances required to displace the statutory presumption against bail.
Orders Made
- The application for bail is refused.
Key Takeaways
- Under section 9D of the Bail Act 1978 (NSW), a person convicted of a serious personal violence offence who has a prior conviction for such an offence is a "repeat offender", and bail may only be granted if exceptional circumstances are established.
- A prior armed robbery conviction qualifies as a conviction for a serious personal violence offence for the purposes of the repeat offender classification in section 9D(4).
- The elevated "exceptional circumstances" threshold displaces the detailed criteria ordinarily applicable under section 32 of the Bail Act.
- Pending Family Court proceedings, even those directly involving the accused's child, do not constitute exceptional circumstances justifying bail. The District Court characterised the inability to attend as an unfortunate but foreseeable consequence of serious offending.
- Cogswell SC DCJ affirmed that the legislative purpose of section 9D is to keep repeat serious personal violence offenders out of the community pending sentence, reflecting a deliberate parliamentary policy choice.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), sections 9D and 32
Cases
No cases were cited in the judgment.