Citation: R v Pratten (No 10) [2012] NSWSC 1673
Court: Supreme Court of New South Wales
Date: 6 July 2012
Judge: Rothman J
Background
The accused had been found guilty by a jury on 13 June 2012 of seven counts of dishonestly obtaining a financial advantage by deception, contrary to s 134.2 of the Criminal Code Act 1995 (Cth), following a trial of approximately 52 days. At the conclusion of the trial, Rothman J continued bail pending the outcome of sentence proceedings. The sentencing hearing was expected to involve significant factual complexity, including contested questions about the financial advantage obtained.
Before sentencing could proceed, the Crown applied to revoke bail on the basis of conduct that had occurred in May and June 2012, both before and after the jury verdict. Specifically, the Crown alleged that the accused had sought to arrange for a vessel called "Los Lobos" to be transported out of the jurisdiction to Vanuatu, in contravention of a restraining order made by the Court on 21 November 2011 under the Proceeds of Crime Act 2002 (Cth). The accused had since been charged in the Local Court with contravening that restraining order.
The Crown did not seek immediate punishment for the breach in these proceedings but argued the conduct demonstrated a disregard for court orders and, more significantly, a willingness or capacity to flee the jurisdiction.
Legal Issues
- Whether the accused's conduct in allegedly arranging for the vessel to leave the jurisdiction amounted to a sufficient basis to revoke bail under the Bail Act 1978 (NSW)
- Whether the accused posed a flight risk warranting revocation, having regard to the factors in s 32 of the Bail Act
- Whether the risk to the community or the welfare of the community required refusal of bail
- What conditions, if any, were appropriate if bail were continued
Decision
Rothman J identified the two primary criteria under s 32 of the Bail Act as the risk of flight and the protection of the community. His Honour accepted for the purposes of the application that organising for the vessel to be transported out of the jurisdiction constituted dealing with restrained property in breach of the court order, and acknowledged this conduct was a matter of genuine concern reflecting disregard for court orders.
On the question of community protection, his Honour found the risk of repetition to be limited. The vessel had since been transferred to the Public Trustee by order of Schmidt J on 28 June 2012, and the remaining restrained property consisted of fixed or registered Australian assets. The underlying offences, involving non-declaration of income, were also considered unlikely to be repeated in the circumstances.
On flight risk, Rothman J weighed the concerning conduct against several countervailing factors: the accused had attended court on each of the 52 trial days, appeared for the current application, had been subject to charges since 2010 without fleeing, held care of a 16-year-old daughter, had financial ties to the community, his passport was in the possession of law enforcement, and he was subject to daily reporting conditions. While there had been two bail-related breaches, including the alleged contravention of the restraining order, those factors did not, in his Honour's assessment, outweigh the evidence of consistent court attendance.
Rothman J concluded that the countervailing factors outweighed the flight risk presented by the alleged breach and declined to revoke bail. However, his Honour varied the bail conditions to reflect the elevated, though not determinative, risk of flight disclosed by the conduct. The specific amended conditions were noted as being recorded on the court file rather than set out in the judgment text.
Orders Made
• Continue bail subject to varied bail conditions (see court file for details)
Key Takeaways
- Continuing bail after a guilty verdict and prior to sentencing is unusual, but may be appropriate where the sentencing proceedings are expected to involve significant factual complexity.
- Under s 32 of the Bail Act 1978 (NSW), the two most significant criteria are the probability of the accused appearing in court and the protection of the community; all relevant factors must be weighed together rather than applied in isolation.
- Alleged breach of a restraining order made under the Proceeds of Crime Act 2002 (Cth), while serious and a matter of genuine concern to the court, did not automatically mandate bail revocation where other factors pointed strongly against flight risk.
- A consistent history of court attendance across lengthy proceedings carried significant weight in favour of continuing bail, even where other conduct raised concerns.
- Where conduct elevates but does not reach the threshold for bail refusal, the appropriate response may be variation of existing bail conditions rather than revocation.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), particularly s 32
- Criminal Code Act 1995 (Cth), s 134.2
- Proceeds of Crime Act 2002 (Cth), s 37
Cases cited: None identified in the judgment text.