Citation: RCW v R [2014] NSWCCA 169
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 2014
Judge(s): Bathurst CJ; Adams J; R A Hulme J
Background
The applicant, a 57-year-old man with no relevant prior convictions, had been sentenced in the District Court in October 2013 for aiding and abetting an attempt to import commercial quantities of border controlled drugs. He received a term of five years and six months imprisonment, with a non-parole period of three years, backdated to July 2013 to account for presentence custody.
The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal. While that appeal was pending, he applied for bail under the Bail Act 2013 (NSW).
Legal Issues
- Whether "special or exceptional circumstances" existed under s 22 of the Bail Act 2013 to justify granting bail while a sentence appeal was pending before the Court of Criminal Appeal
- Whether the applicant posed any "unacceptable risk" within the meaning of s 17 of the Act, including risks of failing to appear, committing a serious offence, endangering community safety, or interfering with witnesses or evidence
Decision
On the question of unacceptable risk, the Court found none to exist. The applicant had complied with all bail conditions throughout the period leading to his sentencing, had no relevant criminal history, and had spent most of his pre-sentence period on bail without incident. Those factors collectively satisfied the Court that s 17 posed no obstacle to release.
The more significant threshold was s 22, which prohibits bail being granted where an appeal against sentence is pending unless special or exceptional circumstances are established. The Court found that threshold met on the particular facts. Earlier the same day, after considering extensive written and oral submissions, the Court had indicated it would grant leave to appeal, allow the appeal, and re-sentence the applicant in terms that would not require him to serve any further period in mandatory custody.
That prospective re-sentencing outcome was the decisive consideration. Where a court has indicated that an appeal will succeed and that no further mandatory custody will be required, continued detention pending the formal pronouncement of orders would be difficult to justify. The Crown did not oppose unconditional bail, which the Court duly granted.
Orders Made
- Bail granted unconditionally
- The applicant to be released upon signing an acknowledgement to appear before the Court on a date to be fixed
Key Takeaways
- Under s 22 of the Bail Act 2013, bail is not available to a person whose sentence appeal is pending before the Court of Criminal Appeal unless special or exceptional circumstances are established.
- Special or exceptional circumstances were found to exist where the Court had already indicated, on the same day, that it would allow the appeal and re-sentence the applicant in terms requiring no further mandatory custody.
- The absence of relevant prior convictions, full compliance with prior bail conditions, and the largely uninterrupted period on bail before sentencing are all factors relevant to whether an unacceptable risk exists under s 17 of the Act.
- Granting unconditional bail, rather than imposing conditions, was appropriate where the Crown raised no opposition and the applicant's compliance history was unblemished.
- The decision illustrates the interaction between a pending appellate re-sentencing outcome and the statutory threshold for bail under the 2013 Act, though it turns closely on its own facts.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 17 and 22
Cases cited: No cases were cited in the judgment.