Citation: R v Hawi & ors (No 33) [2011] NSWSC 1679
Court: Supreme Court of New South Wales
Date: 3 November 2011
Judge: R A Hulme J
Background
A jury found the applicant guilty of riot under s 93B of the Crimes Act 1900, an offence carrying a maximum penalty of 15 years imprisonment. The conviction arose from events at Sydney Airport on 22 March 2009, meaning more than two and a half years had elapsed between the offence and the bail application.
Following the verdict, the applicant applied for bail to cover the period between conviction and finalisation of sentence proceedings. He had been in custody for almost two years and four months at the time of the application.
The applicant presented a substantial range of personal circumstances in support of bail, including no prior convictions, no prior failures to appear, family and community support, available accommodation and employment, willingness to surrender his passport, and the availability of security from himself and his family.
Legal Issues
- Whether the applicant could displace the statutory presumption against bail under s 8D of the Bail Act 1978 for riot and related offences
- What weight should be given to the applicant's personal circumstances and the time already spent in custody
- What relevance the likely sentence outcome had to the bail determination at this stage
Decision
Section 8D of the Bail Act 1978 creates a presumption against bail for riot and related offences, placing the onus squarely on the applicant to satisfy the court that bail should not be refused. Consistent with authority in R v Masters and R v Kissner, Hulme J confirmed that such presumptions should be read as meaning bail would normally or ordinarily be refused.
Hulme J accepted that the rationale for the presumption, addressing concerns about public disorder in the immediate aftermath of riots, had reduced force given the passage of more than two and a half years since the offence. He also accepted that the applicant's time in custody had been spent in conditions harsher than ordinarily encountered by an unsentenced person.
The court noted the applicant's many favourable personal circumstances and the submission that a guilty plea had been offered in writing to the Crown in November 2010, though the applicant had ultimately pleaded not guilty before the jury. Hulme J observed that this offer to plead might mitigate sentence, but declined to form any concluded view on the likely sentence at that stage.
The critical consideration was the prospect of the applicant being required to serve a further period of custody of some substance. Hulme J was not persuaded that the sentence would result in only trivial further time in custody, and on balance the weight of the statutory presumption and this prospect outweighed the considerable factors favouring the applicant. Bail was refused.
Orders Made
- Bail application refused.
Key Takeaways
- Under s 8D of the Bail Act 1978, a presumption against bail applies to riot offences, and courts have consistently interpreted equivalent provisions as meaning bail will normally or ordinarily be refused.
- Refusing bail post-conviction, the Supreme Court held that a strong suite of favourable personal circumstances, including no prior convictions, community support, available accommodation and employment, and an offer of security, was insufficient on its own to displace the statutory presumption.
- The passage of significant time between the offence and the bail application can reduce the force of the rationale underpinning the presumption, but does not eliminate the presumption itself.
- Where there remains a real prospect of a further custodial term of substance following sentence, that prospect weighs against granting post-conviction bail even when personal circumstances are compelling.
- The harshness of conditions experienced during pre-sentence custody is a relevant consideration in a post-conviction bail application, though it did not prove decisive here.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), s 8D
- Crimes Act 1900 (NSW), s 93B
Cases
- R v Masters (1992) NSWLR 450
- R v Kissner (Supreme Court of New South Wales, Hunt CJ at CL, 17 January 1992, unreported)