Citation: R v Lawrence [2019] NSWSC 787
Court: Supreme Court of New South Wales
Date: 18 June 2019
Judge(s): Hamill J
Background
The applicant, a woman facing multiple serious charges, applied for release on bail under the Bail Act 2013 (NSW). The charges arose from a series of related incidents on 3 March 2019 in Wollongong, involving two home invasions, assault occasioning actual bodily harm, intimidation, and assaulting and resisting police. The prosecution alleged the applicant orchestrated the attacks as revenge for an earlier assault on her, bringing her boyfriend to a unit block and directing him toward the perceived perpetrator.
The targeting proved indiscriminate. Three people were attacked in their own homes, punches were thrown, and threats to kill were made, at least one of which the prosecution attributed directly to the applicant. The applicant had been in continuous custody since her arrest, a period exceeding three months at the time of the application.
The applicant had not previously served full-time imprisonment despite a criminal history that included offences of violence and a history of breaching court orders. Her solicitor from the Aboriginal Legal Service presented rehabilitation evidence and proposed a comprehensive set of stringent bail conditions.
Legal Issues
- Whether the applicant posed an unacceptable risk of committing a serious offence if released on bail, under the Bail Act 2013 (NSW)
- Whether that risk, if present, could be mitigated to an acceptable level by the imposition of bail conditions
- Whether the applicant posed an unacceptable risk of failing to appear
Decision
Hamill J accepted that the applicant had used her time in custody constructively. She had completed multiple certificate courses, made efforts toward personal development, impressed the prison chaplain, and had the genuine and credible support of her mother, who offered accommodation and undertook to supervise and report any breach. The proposed bail conditions were extensive, including a curfew, reporting obligations, residence requirements, alcohol and drug prohibitions, non-association conditions, and geographical restrictions.
Despite this, the court found the prosecution case to be very strong, resting on personal identification by multiple witnesses, the naming of the applicant by her first name by a witness who appeared to know her, and the discovery of the applicant and her co-accused in a nearby backyard with fresh blood on their faces shortly after the offences. The court noted, consistent with established principle, that identification and circumstantial evidence can fail at trial, but it was unable to discount the strength of the case at this stage.
The court found the applicant's criminal history of violence, combined with her history of breaching court orders, meant that no available set of conditions could reduce the risk of her committing further serious offences to an acceptable level. The risk of failing to appear was considered manageable through conditions, but the risk of serious violence was not. A more structured rehabilitation program might have altered the outcome, but none was available.
Bail was refused on the basis that the applicant posed an unacceptable risk of committing a serious offence, and in particular a serious offence of violence.
Orders Made
- Bail refused; the release application was dismissed.
Key Takeaways
- Refusing bail under the Bail Act 2013 (NSW), the Supreme Court held that where an applicant has a criminal history of violence and of breaching court orders, positive rehabilitation steps taken in custody may not be sufficient on their own to reduce an unacceptable risk of further serious offending to an acceptable level.
- An unacceptable risk of failing to appear and an unacceptable risk of committing a serious offence are assessed separately; the court found conditions could address the former but not the latter.
- The absence of a structured, formal rehabilitation program outside custody was a material factor. Hamill J observed that a more structured proposal may have supported a different outcome.
- Under the Bail Act 2013 (NSW), even a comprehensive package of stringent bail conditions will not necessarily neutralise an unacceptable risk where the underlying risk factors, particularly a history of violent offending and non-compliance with orders, remain inadequately addressed.
- Genuine family support, good conduct in custody, and an absence of prior full-time custodial sentences are relevant considerations, but they do not automatically displace a finding of unacceptable risk where the charged offending is serious and the history of violence is significant.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 18, 19
Cases cited:
None cited in the judgment.