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14
Court of Criminal Appeal 12 August 2022

Director of Public Prosecutions (NSW) v Van Gestel

[2022] NSWCCA 171

Also reported as (2022) 109 NSWLR 136
Sexual offences
CRIME BAIL DETENTION APPLICATION S 22B BAIL ACT 2013 TIME IMPRISONMENT MEANING OF “WILL”

Citation: Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 12 August 2022
Judges: Gleeson JA; Wright J; Cavanagh J

Background

Following a jury trial in the District Court, the respondent was convicted on eight counts of sexual misconduct involving a child, including indecent assault and aggravated indecent assault against three young girls. The offending occurred between 1974 and 1994 in the respondent's home. After the verdicts were returned on 9 June 2022, the Crown did not make a detention application and the trial judge allowed existing conditional bail to continue, with sentencing listed for 21 October 2022.

On 17 June 2022, the Director of Public Prosecutions filed a detention application in the Supreme Court relying on s 22B of the Bail Act 2013, a provision that had recently come into force. Section 22B requires a court to refuse bail for a convicted person awaiting sentencing if the court is satisfied that person "will be sentenced to imprisonment to be served by full-time detention," unless special or exceptional circumstances justify granting bail. Garling J dismissed that application on 21 July 2022.

The Director then filed a further application in the Court of Criminal Appeal. At the conclusion of the hearing on 1 August 2022, the Court granted the detention application, revoked the respondent's bail, and ordered him taken into custody. These reasons explained that decision.

  • Whether the threshold condition in s 22B(1) was satisfied: specifically, whether the court was satisfied that the respondent "will be sentenced to imprisonment to be served by full-time detention."
  • What standard or degree of satisfaction the word "will" in s 22B(1) imposes on the court as bail authority.
  • Whether the respondent had established "special or exceptional circumstances" sufficient to justify a decision to continue bail.
  • Whether the respondent's health concerns and the care needs of his wife and adult son constituted such special or exceptional circumstances.

Decision

Issue 1: The "will be sentenced" condition

The Court held that the condition in s 22B(1) involves an evaluative judgment about a future matter rather than a fact to be proved on the balance of probabilities. Because the bail authority is not the sentencing court, and the detention application is not an abridged sentencing hearing, the court will ordinarily not have all materials that would be before the sentencing judge. The word "will" sets a high bar: it indicates what is realistically inevitable, as distinct from what is merely likely or possible, but does not require absolute certainty.

In assessing whether the condition is met, the Court will consider the offences of conviction and applicable sentencing principles (including all available alternatives to full-time imprisonment), the materials and submissions placed before it, and the abbreviated nature of the application. The theoretical availability of an alternative sentence such as an Intensive Corrections Order does not prevent the condition being satisfied if no sentence other than full-time imprisonment could realistically be imposed in all the circumstances. On the facts, having regard to the objective seriousness of the offending, the applicable maximum penalties, and the concession by the respondent's senior counsel that counts 1 to 5 would require full-time imprisonment subject to subjective considerations, the Court was satisfied that the respondent will be sentenced to full-time imprisonment.

Issue 2: Special or exceptional circumstances

The Court held that whether special or exceptional circumstances exist is a question of fact, with the onus on the convicted person. The same meaning attaches to those words in s 22B as in s 22(1) of the Bail Act, and the question is determined case by case. Dictionary definitions were noted to be of limited assistance.

The respondent relied on concerns about the adequacy of healthcare available through Justice Health, and the need to remain at liberty to arrange care for his wife and adult son. The Court rejected both grounds. On the health evidence, the Court was not satisfied that Justice Health could not adequately manage the respondent's conditions. On the care arrangements issue, the respondent had been at liberty for seven weeks since his conviction with no evidence of steps taken to put care arrangements in place; his wife had the support of an adult son living with her and a daughter living locally, and the adult son's asserted difficulty managing his own finances was unexplained. Neither ground amounted to special or exceptional circumstances under s 22B.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 22B of the Bail Act 2013, the word "will" in the phrase "will be sentenced to imprisonment to be served by full-time detention" sets a high threshold: the court must be satisfied that full-time imprisonment is realistically inevitable, not merely likely, though absolute certainty is not required.

  • The s 22B detention application is not an abridged sentencing hearing. The bail authority assesses the realistic disposition of sentence on limited materials and without the full sentencing record, applying sentencing principles and taking into account available alternatives to full-time imprisonment.

  • Where no alternative to full-time imprisonment could realistically be imposed on the facts, the theoretical availability of an alternative sentence such as an ICO does not prevent the s 22B condition from being met.

  • The onus of establishing "special or exceptional circumstances" under s 22B rests on the convicted person, and the same meaning applies to those words as in s 22(1) of the Bail Act. The determination is case-specific and dictionary definitions offer limited guidance.

  • Concerns about Justice Health's capacity to manage a convicted person's medical needs, and the need to arrange care for family members, did not amount to special or exceptional circumstances on the facts of this case, particularly where the respondent had had several weeks post-conviction to make care arrangements and family support was available.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 4, 16A, 16B, 17, 18, 22, 22B, 32, 50, 67, 75
- Bail Act 1978 (NSW), s 9C
- Crimes Act 1900 (NSW), ss 61E, 61M, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 25AA, 67

Cases
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
- State of New South Wales v Kaiser [2022] NSWCA 86
- Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927
- Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938
- El-Hilli and Melville v R [2015] NSWCCA 146
- Director of Public Prosecutions (NSW) v GX [2019] NSWCCA 84
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232
- R v Cattell [2019] NSWCCA 297
- Trinh v R [2016] NSWCCA 110
- Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55
- TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
- 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409
- The Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611; [1975] HCA 41
- Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355
- South-Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69