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Supreme Court 17 December 2015

R v Carlton

[2015] NSWSC 2001

Sexual offences
BAIL SHOW CAUSE OFFENCE DETENTION APPLICATION

Citation: R v Carlton [2015] NSWSC 2001
Court: Supreme Court of New South Wales
Date: 17 December 2015
Judge(s): Fagan J

Background

The offender was convicted by a District Court jury on 12 November 2015 of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW), involving digital vaginal intercourse with an 11-year-old girl. Following the verdict, the sentencing hearing was adjourned to 4 March 2016, some four months away, at the request of defence counsel and without opposition from the Crown. Bail was continued on strict conditions throughout that interval.

The Crown subsequently reversed its position on bail and brought a detention application before the Supreme Court. It argued that a sentence of full-time custody was effectively inevitable and that the offender could not show cause why his detention was not justified, as required under the Bail Act 2013 (NSW) for a show cause offence.

Fagan J heard the application on 17 December 2015, refused it on the day with brief reasons, and then published this more detailed judgment explaining that refusal.

  • Whether the offender could show cause why his detention was not justified under s 16A(1) of the Bail Act 2013 (NSW), given his conviction of a show cause offence under s 16B(1)(b)(i)
  • Whether the inevitability of a full-time custodial sentence precluded a finding that detention was not justified
  • What weight to give the Crown's acquiescence in both the length of the adjournment and the continuation of bail when the Crown later sought a detention order
  • Whether any bail concerns under s 17 of the Bail Act 2013 (NSW) gave rise to an unacceptable risk justifying refusal of bail

Decision

Fagan J accepted the Crown's submission that a full-time custodial sentence appeared, on current information, inevitable given the gravity of the offence and the offender's subjective circumstances. His Honour also agreed that the four-month adjournment of sentencing proceedings was unacceptably long, spanning ten weeks of sitting time plus the six-week summer vacation. The judge observed that the trial judge should have overridden the consensual position of the parties and fixed an earlier hearing date, and that the Crown should have pressed for a date within the five remaining weeks of the 2015 term.

However, Fagan J declined to treat the inevitability of imprisonment as automatically defeating the show cause requirement. Citing the Court of Criminal Appeal's decision in DPP v Tikomaimaleya [2015] NSWCA 83, his Honour confirmed that while the loss of the presumption of innocence after verdict is a significant factor weighing against bail, that authority did not establish that cause can never be shown where full-time custody appears inevitable.

On the specific facts, three considerations combined to justify refusing the detention application. First, the bail concerns under s 17 were either negligible or absent: the offender had complied fully with bail conditions over 13 months, had no criminal record, had no capacity or connections to facilitate flight, and the strict conditions already in place adequately managed any residual risks. Second, there was some utility in the offender remaining on bail, principally to continue earning income to support his children's school fees. Third, and importantly, the Crown's acquiescence in both the long adjournment and the continuation of bail introduced an element of unfairness: had the Crown opposed bail at the time of verdict, the offender might have sought to bring the sentencing hearing forward. The Crown's change of position deprived him of that opportunity.

Fagan J also observed, without having received formal evidence on the point, that lengthy remand after verdict but before sentencing can place an offender in less favourable conditions than would apply after classification and placement following sentence, since rehabilitation and work programs are generally unavailable until sentence length is known.

Orders Made

• The Crown's application for detention is refused
• The offender is to remain on bail until the sentence hearing

Key Takeaways

  • A conviction for a show cause offence, and the apparent inevitability of full-time imprisonment, does not automatically prevent an offender from satisfying the show cause requirement under s 16A(1) of the Bail Act 2013 (NSW). The Tikomaimaleya decision did not go that far.

  • Where the Crown acquiesces in both an adjournment of sentencing proceedings and the continuation of bail, and then reverses its position, the resulting unfairness to the offender is a material consideration in the show cause analysis.

  • A four-month adjournment from verdict to sentencing was characterised as unacceptably long in this case. Fagan J expressed the view that a trial judge should be willing to override a consensual position between the parties and fix an earlier sentencing date, particularly for serious offences.

  • Under the Bail Act 2013 (NSW), the matters constituting bail concerns under s 17 (non-attendance, reoffending, endangering others, interfering with witnesses) are inherently relevant to the show cause question under s 16A, not merely to the second-step risk assessment under s 18, even though the statute does not expressly prescribe what must be considered at the show cause stage.

  • Fagan J flagged, without evidentiary foundation, that lengthy remand after verdict but before sentencing may result in an offender serving part of their effective sentence under less favourable conditions than post-sentence custody, given that classification and access to rehabilitation programs generally await the fixing of sentence.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 5, 8, 12, 16A, 16B, 17, 18
- Crimes Act 1900 (NSW), s 61J

Cases
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83