Citation: Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
Court: Court of Criminal Appeal, NSW
Date: 29 June 2015
Judge(s): Hoeben CJ at CL; R A Hulme J; Campbell J
Background
The respondent, a 21-year-old man, was arrested on 24 January 2015 and charged with a series of serious offences committed over two nights in coastal NSW. The offences included two counts of armed robbery, three counts of assault occasioning actual bodily harm, aggravated break and enter, and taking a vehicle without consent. All offences were committed while the respondent was on parole. He was 13 when his criminal history began, and his record included repeated break and enters, assault with intent to rob, bail breaches on at least eight occasions, and two prior parole revocations.
The respondent pleaded guilty in the Local Court and was committed to the District Court at Bega for sentencing on 10 August 2015. Conditional bail was granted by a Supreme Court judge on 22 June 2015, and the respondent entered a residential drug and alcohol rehabilitation program at Nowra shortly afterwards. The Crown brought a detention application in the Court of Criminal Appeal under s 50 of the Bail Act 2013 (NSW).
The Court of Criminal Appeal conducted a fresh (de novo) consideration of bail rather than a review of the Supreme Court judge's decision, as required by s 67(1)(e) of the Bail Act.
Legal Issues
- Whether the respondent satisfied the "show cause" requirement under s 16A of the Bail Act 2013 (NSW), which applies because he committed the offences while on parole (s 16B(1)(h)(ii))
- Whether acceptance into a residential rehabilitation program was sufficient to establish, on the balance of probabilities, that detention was not justified
- Whether granting bail to allow participation in rehabilitation could improperly fetter the discretion of the sentencing judge
Decision
Under s 16A of the Bail Act, a person who is a "show cause" offender must establish on the balance of probabilities why their detention is not justified. Because the respondent committed the charged offences while on parole, the show cause requirement applied. The burden fell on the respondent to discharge it.
The court acknowledged that acceptance into a residential rehabilitation program counted in the respondent's favour. However, this was substantially outweighed by the gravity of the offences, the respondent's extensive criminal history at a young age, his repeated failures to comply with bail and parole conditions, and the fact that sentencing was only approximately six weeks away.
R A Hulme J found that, given the short time before sentencing, little progress in the rehabilitation program could realistically be assessed in a way that would assist the sentencing judge. The court also accepted the Crown's submission that granting bail to enable rehabilitation at that stage risked being perceived as fettering the sentencing judge's discretion, for example by influencing any application to defer sentencing under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The court was not persuaded that the respondent had established his case on the balance of probabilities. R A Hulme J described the detention as "amply justified" and all three judges agreed that bail should be refused.
Orders Made
- Bail refused.
Key Takeaways
- Under s 16A of the Bail Act 2013 (NSW), a person on parole at the time of offending is a "show cause" offender and must establish on the balance of probabilities that detention is not justified; the burden does not fall on the Crown.
- Acceptance into a residential rehabilitation program can weigh in favour of a bail applicant meeting the show cause threshold, but it does not automatically satisfy it and must be weighed against countervailing factors.
- A serious criminal history, repeated non-compliance with bail and parole, and the gravity of the offences collectively formed a substantial basis for finding that detention was amply justified.
- Where sentencing is imminent, a court may take into account that granting bail to enable rehabilitation could be perceived as improperly influencing the sentencing judge's discretion, including on questions such as deferral of sentencing under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- The Court of Criminal Appeal confirmed that a Crown detention application under s 50 of the Bail Act is determined de novo rather than as a review of any earlier bail decision: consistent with R v Kugor [2015] NSWCCA 14.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 32(1), 50, 67(1)(e)
- Crimes Act 1900 (NSW), ss 59, 97, 112, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Cases:
- R v Kugor [2015] NSWCCA 14