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Supreme Court 21 July 2015

R v Badger

[2015] NSWSC 985

Assault & violenceDrugsTheft & property
CRIMINAL LAW BAIL

Citation: R v Badger [2015] NSWSC 985
Court: Supreme Court of New South Wales
Date: 21 July 2015
Judge: Hamill J

Background

The applicant faced two distinct sets of charges. The first was a receiving charge from March 2013, for which the Local Court had imposed a three-month fixed term. A severity appeal against that sentence was listed in the District Court at Gosford in August 2015. The second, and far more serious, set of charges arose from an incident in October 2014 and included two counts of armed robbery (with a knife), stealing from a dwelling, larceny of a motor vehicle, and two counts of possessing prohibited drugs.

The applicant had been in custody since 8 November 2014. On two earlier occasions in 2015, judges of the Supreme Court had adjourned the bail application and ordered drug and alcohol reports. Those delays meant the matter ultimately came before Hamill J in July 2015, with the applicant still unheard on the merits of his release application.

The applicant proposed entering a full-time residential rehabilitation program at the Canton Beach Family Addictions Recovery Centre, and his mother offered to act as surety. The Crown opposed bail, principally on the grounds that a custodial sentence on the robbery charges was near-certain and that the risk of reoffending, driven by a long-standing and serious drug problem, remained significant.

  • Whether the bail concerns identified under the Bail Act 2013 (NSW), as amended by the Bail Amendment Act 2014, could be sufficiently mitigated by proposed bail conditions, including entry into a residential rehabilitation program.
  • Whether granting bail to allow participation in a rehabilitation program would impermissibly fetter the discretion of the future sentencing judge.
  • Whether the applicant's risk of failing to appear and risk of reoffending were unacceptable in circumstances where a further custodial sentence was near-inevitable.
  • Whether, in relation to the Local Court sentence for receiving, the prospects of success on the severity appeal were relevant to the bail determination.

Decision

Hamill J acknowledged the genuine tension in the authorities on whether bail for rehabilitation purposes risks fettering the sentencing court's discretion. In R v McLeod, Mathews J had expressed concern that sending an offender to a lengthy rehabilitation program before sentence could effectively constrain the sentencing judge. More recently, the Court of Criminal Appeal in DPP v Campbell raised similar concerns, noting that allowing bail to enter residential rehabilitation shortly before a sentence date could be perceived as fettering the sentencing judge's discretion.

Schmidt J in R v Aaron Paul, decided under the pre-amendment Bail Act 2013, had taken a different view, concluding that bail conditions based on risk assessment and mitigation could not, as a matter of principle, improperly influence the separate sentencing exercise. Hamill J acknowledged the difficulty in reconciling these positions but declined to treat the observations in Campbell as binding, regarding the question as one requiring case-by-case analysis.

On the facts, his Honour was notably impressed by the applicant's candid acknowledgment in open court that he had used drugs for a brief period after first entering custody. That admission, made knowing the judge was listening, was treated as a credible indicator of genuine insight into his addiction and rehabilitation prospects. The letter from the applicant's mother, realistic in its acknowledgment of past failures but supportive of his current resolve, also weighed in his favour.

Hamill J found that the bail concerns, including risks of failure to appear and reoffending, could be adequately mitigated by the conditions proposed. He also observed that a three-month fixed term for receiving, imposed on a person with a short criminal history, appeared on its face to be a stern sentence, and that the severity appeal had reasonable prospects of success. Taking all factors into account, conditional bail was granted.

Orders Made

• Grant the applicant conditional bail

Key Takeaways

  • Granting bail to permit entry into a rehabilitation program does not automatically fetter a sentencing judge's discretion, though this remains a live and unresolved tension in the authorities, with the Court of Criminal Appeal in DPP v Campbell and the Supreme Court in R v Aaron Paul taking divergent approaches.
  • The near-certainty of a future custodial sentence is a weighty factor against bail but is not, by itself, determinative. Hamill J treated the cumulative period already spent in custody and the applicant's twice-frustrated earlier applications as relevant countervailing considerations.
  • Candour by an applicant in bail proceedings, including admissions against apparent self-interest, may carry significant weight in the court's assessment of credibility and genuine rehabilitation prospects.
  • Under the Bail Act 2013 (NSW) as amended, the court's task is risk identification and risk mitigation. Where proposed conditions are capable of adequately addressing identified risks, bail may be appropriate even in serious matters.
  • A sentence that appears disproportionate on its face, assessed against the requirements of s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), may support a finding of reasonable prospects on a severity appeal, which in turn can be relevant to the overall bail calculus.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW)
- Bail Act 2013 (NSW)
- Bail Amendment Act 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1)

Cases
- DPP v Campbell [2015] NSWCCA 173
- R v Aaron Paul (Supreme Court (NSW), Schmidt J, 28 May 2014, unrep)
- R v Henry [1999] NSWCCA 11; 46 NSWLR 346
- R v McLeod (Supreme Court (NSW), Mathews J, 13 April 1994, unrep)