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Supreme Court 28 May 2014

R v Paul

[2014] NSWSC 1971

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW BAIL APPLICATION FOR BAIL BAIL GRANTED WITH CONDITIONS

Citation: R v Paul [2014] NSWSC 1971
Court: Supreme Court of New South Wales
Date: 28 May 2014
Judge(s): Schmidt J

Background

The applicant had been in custody since 3 February 2014, facing a range of serious charges. These included contravening a prohibition or restriction under an AVO, multiple counts of dishonestly obtaining financial advantage by deception (involving identity theft and substantial sums of money), and failing to appear.

The bail application had previously been adjourned to allow the applicant to obtain a drug and alcohol assessment. By the time of the hearing, he had been accepted into a residential family recovery program at Canton Beach. He was also due to appear before Sutherland Local Court on 16 June 2014 for sentencing, having entered pleas to all charges.

The Crown opposed bail, arguing the applicant posed unacceptable risks that could not be sufficiently mitigated by conditions. The applicant contended that participation in the residential program would adequately address those risks.

  • Whether the applicant posed an unacceptable risk of failing to appear, committing a serious offence, or endangering the safety of victims or the community, under s 17(3) of the Bail Act 2013 (NSW)
  • Whether proposed bail conditions could sufficiently mitigate any identified unacceptable risks
  • Whether conclusions reached in a bail risk assessment could influence the forthcoming sentencing exercise in the Local Court

Decision

Schmidt J accepted the Crown's submission that the applicant posed unacceptable risks under s 17(3) of the Bail Act 2013. The court noted his history of breaches, failures to appear, and warrants issued, alongside the seriousness of the charges involving identity theft and significant financial harm.

Despite that finding, the court proceeded to consider whether the proposed bail conditions could sufficiently mitigate those risks. The Bail Act 2013 requires this assessment to be conducted on the balance of probabilities, having regard to credible or trustworthy information. Schmidt J found that, taking into account the applicant's age, personal circumstances, and genuine need for the residential drug and alcohol program, the risks could be sufficiently mitigated by conditions.

The Crown also raised a concern that granting bail and imposing conditions might somehow affect the sentencing exercise scheduled for 16 June. Schmidt J rejected this, reasoning that the bail framework is concerned with risk assessment and risk mitigation, and that any conclusions reached under it could not influence a sentencing hearing, which must be determined on the evidence led in those separate proceedings.

Bail was granted subject to conditions.

Orders Made

• Bail granted
• Applicant to be released on bail conditions as imposed by the court
• Applicant to participate in the Canton Beach Family Recovery Centre program
• Applicant to appear before Sutherland Local Court on 16 June for sentence

Key Takeaways

  • The Supreme Court confirmed that under the Bail Act 2013 (NSW), a court may grant bail even after finding an unacceptable risk exists, provided proposed conditions sufficiently mitigate that risk on the balance of probabilities.
  • A finding of unacceptable risk under s 17(3) does not automatically preclude bail. The statutory framework requires a two-stage analysis: first, identifying the risk; second, assessing whether conditions adequately address it.
  • Acceptance into a residential rehabilitation program can constitute relevant and weighty information in a bail risk-mitigation assessment, particularly when combined with the applicant's personal circumstances.
  • The court expressly distinguished bail risk assessments from sentencing exercises, holding that conclusions about risk and its mitigation under the Bail Act 2013 have no bearing on the sentencing discretion to be exercised in separate proceedings.
  • Under s 3 of the Bail Act 2013, the purpose of the legislation includes requiring courts to have regard to the presumption of innocence and the general right to liberty, framing bail decisions within those foundational principles.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 3, 17(3)
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases cited: None cited in the judgment.