Citation: Gray (a pseudonym) v R [2020] NSWSC 390
Court: Supreme Court of New South Wales
Date: 1 April 2020
Judge(s): Rothman J
Background
The applicant, referred to by the pseudonym John Gray, was a young person of Aboriginal descent who had been convicted by a jury in the District Court of sexual intercourse with a child under the age of ten. He was acquitted of a separate charge relating to exposure or indecency against the same victim. A pseudonym was used because the applicant was a juvenile at the time of the offending.
The applicant had been sentenced to a term of imprisonment with a non-parole period due to expire in October 2020. He filed an appeal to the Court of Criminal Appeal against his conviction, relying on, among other grounds, the alleged unreasonableness of the verdict in light of the victim's age and certain medical evidence adduced at trial.
The applicant sought bail pending determination of that appeal. He proposed to reside on house arrest with his grandmother, with no access to any child under the age of sixteen.
Legal Issues
- Whether the applicant had established "special or exceptional circumstances" under section 22 of the Bail Act 2013 (NSW) to justify bail pending appeal against a conviction on indictment
- Whether any of the concerns under sections 17 and 18 of the Bail Act 2013 (NSW), including risk of flight, risk of reoffending, and risk to community safety, amounted to an unacceptable risk
- Whether any unacceptable risks could be appropriately ameliorated by strict bail conditions
Decision
Special or Exceptional Circumstances:
Under section 22 of the Bail Act 2013 (NSW), a convicted person seeking bail pending appeal must establish special or exceptional circumstances (at [13]). Rothman J confirmed that this requirement does not constitute a prohibition on bail, but rather a threshold the applicant must meet (at [16]). The court identified two paths to satisfying that threshold: through the combination of circumstances already considered under sections 17 and 18, or through some particular matter applying specifically to the applicant (at [17]).
The determinative special circumstance here was that the applicant's non-parole period was due to expire in October 2020 and the appeal was unlikely to be heard before June 2020, with the possibility of further delay due to the COVID-19 pandemic. The court found it likely the applicant would serve most, if not all, of his non-parole period before the appeal could be determined (at [19]). That combination, together with an arguable appeal, was sufficient to satisfy the threshold (at [19], [21]).
Risk of Flight:
The court found no serious and unacceptable risk that the applicant would fail to appear. He had spent approximately twenty months on bail previously without major incident, with only a technical breach involving a single missed reporting day (at [9]). His ties to the community as an Aboriginal person also weighed against any significant flight risk (at [22]).
Risk of Reoffending and Community Safety:
Expert evidence before the court indicated that in cases of this nature, subsequent offending, if it occurs, is typically directed at the same victim or a person of similar age within the same family relationship (at [10]). The proposed house arrest conditions, with the applicant residing with his grandmother and having no contact with any child under sixteen, were found capable of appropriately ameliorating any unacceptable risk (at [21]). The court was also satisfied there was no risk of interference with witnesses or evidence, given the trial had concluded and the victim's evidence was already recorded (at [8]).
Grant of Bail:
Conditional bail was granted for the charge of sexual intercourse with a child under the age of ten contrary to section 66A(1) of the Crimes Act (at [23]).
Orders Made
- Conditional bail granted to the applicant for the charge of sexual intercourse with a child under the age of ten.
Key Takeaways
- Under section 22 of the Bail Act 2013 (NSW), an applicant convicted on indictment must establish special or exceptional circumstances to obtain bail pending appeal, but that requirement does not amount to a prohibition on bail (at [13], [16]).
- A near-expiring non-parole period, combined with an arguable appeal and likely delay caused by the COVID-19 pandemic, was sufficient to constitute special or exceptional circumstances justifying bail pending appeal (at [19], [21]).
- Special or exceptional circumstances may arise either from the combination of factors assessed under sections 17 and 18 of the Bail Act 2013 (NSW), or from some particular matter applying specifically to the applicant before the court (at [17]).
- An unacceptable risk of reoffending or harm to the community is not necessarily established simply by the nature of the original offence. Expert evidence as to the pattern of reoffending in such cases, together with appropriately strict conditions, can reduce risk to an acceptable level (at [10], [21]).
- Previous compliance with bail over an extended period, with only a technical breach, weighed significantly in favour of finding no unacceptable risk of non-appearance (at [9], [22]).
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), s 9D
- Bail Act 2013 (NSW), s 17, 18, 22, 66A(1)
Cases
- Darby v R [2016] NSWCCA 164
- R v Brown [2013] NSWCCA 178
- R v Chehab [2013] NSWCCA 62
- R v Daron John Wright (Supreme Court (NSW), Rothman J, 7 June 2005, unrep)
- R v Medich [2010] NSWSC 1488
- R v Pirini (Supreme Court (NSW), McClellan CJ at CL, 8 September 2009, unrep),