Citation: [2019] NSWSC 359
Court: Supreme Court of New South Wales
Date: 2 April 2019
Judge(s): Fullerton J
Background
On 2 April 2019, Fullerton J made final orders under the Crimes (High Risk Offenders) Act 2006 (NSW) for the extended supervision of an applicant (referred to here as the applicant). Shortly after those orders were made, the Court heard a bail application arising from the applicant's arrest on 26 March 2019 on a charge of breaching a condition of an interim supervision order originally imposed in December 2018. Police had refused bail, and the applicant was in custody.
The release application was brought under s 66(1) of the Bail Act 2013 (NSW). By the time the application was heard, the State of New South Wales (which had appeared in the related supervision proceedings) indicated it no longer opposed release, subject to conditions including compliance with the extended supervision order and appearance at the Local Court the following day.
Legal Issues
- Whether the applicant had shown cause under s 16B(1)(i) of the Bail Act 2013 why his continued detention was not justified (the "show cause" requirement applicable to alleged breaches of supervision order conditions under s 12 of the Act)
- Whether, if cause was shown, the applicant satisfied the unacceptable risk test in s 17 of the Bail Act 2013
Decision
Issue 1: Show cause
Fullerton J was satisfied that the applicant's continued detention was not justified (at [7]). Even accepting that the alleged breach grounding the arrest was lawful and reasonable (a matter about which the Court expressed some doubt, having regard to reasons given in the related supervision proceedings), any sentence a Local Court might impose upon a proven breach would be highly unlikely to be custodial (at [7]).
Issue 2: Unacceptable risk
The Court found no unacceptable risk that the applicant would fail to appear at court. This conclusion was supported by the applicant's substantial compliance with interim supervision orders and his voluntary attendance at the related High Risk Offenders proceedings, where he had no obligation to appear (at [8]). The Court also noted that both of the applicant's parents attended the proceedings and intended to collect him from custody and accompany him to court the next day (at [8]).
The Court was equally satisfied that the applicant presented no risk of committing a serious offence or any offence punishable by imprisonment while on bail. The Court pointed to the applicant's genuine commitment to complying with the terms of the extended supervision order made that day, together with the bail conditions requiring him to reside with his parents and observe a curfew (at [9]).
Orders Made
- Conditional bail granted
Key Takeaways
- A charge of breaching an interim supervision order condition under s 12 of the Bail Act 2013 is a show cause offence under s 16B(1)(i), requiring the applicant to demonstrate why continued detention is not justified before the unacceptable risk test is engaged (at [6]).
- Fullerton J held that show cause was satisfied where any sentence likely to result from a proven breach would not be custodial, making continued pre-sentence detention disproportionate (at [7]).
- Evidence of substantial compliance with supervision conditions and voluntary participation in related court proceedings were treated as significant indicators that an applicant presents no unacceptable risk of failing to appear (at [8]).
- Under s 17 of the Bail Act 2013, a court must assess all unacceptable risks, including the risk of committing further offences; here, the applicant's demonstrated commitment to supervision and the imposition of residence and curfew conditions addressed that risk (at [9]).
- The Supreme Court exercised its power under s 66(1) of the Bail Act 2013 to hear the release application on the same day as the final extended supervision order was made, granting leave to file instanter and waiving the relevant practice note requirements (at [3]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Crimes (High Risk Offenders Act 2006 (NSW)
Cases
- State of New South Wales v Grooms (Final) [2019] NSWSC 353