Citation: Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 15 August 2022
Judge(s): Gleeson JA; Wright J; Cavanagh J
Background
Following a jury trial before the District Court, the respondent was convicted on 34 counts of fraudulent embezzlement as a clerk or servant under s 157 of the Crimes Act 1900 (NSW), involving a total of approximately $624,675. He had been on conditional bail throughout the proceedings since being charged in July 2020. After the verdicts were returned, the trial judge refused a Crown detention application and continued the respondent's bail with some varied conditions.
The Director of Public Prosecutions made a further detention application in the Supreme Court, relying on s 22B of the Bail Act 2013 (NSW), a provision that had only come into effect on 27 June 2022. That application was dismissed by Garling J on 18 July 2022. The Director then brought a fresh detention application in the Court of Criminal Appeal, which heard the matter on 1 and 5 August 2022.
The respondent was awaiting a sentence hearing listed for 16 September 2022. Under s 75 of the Bail Act, the Court of Criminal Appeal was required to treat the application as a new hearing, without any need to identify error in Garling J's earlier decision.
Legal Issues
- What standard of satisfaction does s 22B(1) of the Bail Act 2013 impose when a court must determine whether a convicted person "will be sentenced to imprisonment to be served by full-time detention"?
- Is that condition met on the balance of probabilities, or does it require near-certainty that no sentence short of full-time imprisonment will be imposed?
- On the facts, was the Court satisfied that the respondent would receive a full-time custodial sentence, thereby engaging s 22B's limitation on the court's bail decision-making power?
Decision
The Court approached s 22B as a threshold condition provision. Before the limitation on bail decision-making power is engaged, the court must be satisfied of two preconditions: first, that the accused has been convicted of an offence; and second, that the offence is one for which the person "will be sentenced to imprisonment to be served by full-time detention." The Court drew on its reasoning in the contemporaneous decision of Director of Public Prosecutions (NSW) v van Gestal [2022] NSWCCA 171, which had examined the same structure.
The parties advanced three competing constructions of the word "will." The Director contended it required an evaluative determination on the balance of probabilities. The respondent argued it demanded certainty, requiring the court to exclude even the slightest possibility of a non-custodial outcome. The Crown Advocate, appearing as amicus curiae for the Attorney General, submitted that the test required the court to be satisfied, on the balance of probabilities, that no sentence short of full-time detention would be imposed. The Court accepted, consistently with van Gestal, that the second condition involves a state of satisfaction rather than a bare fact, and that the demanding language of "will be" sets a higher bar than "may" or "is likely to be."
On the facts, the Court declined to resolve the competing sentencing arguments in detail. It noted that a bail application is not an abridged sentencing hearing, and that expressing views on foreshadowed sentencing arguments risked interfering with the sentencing judge's function and creating an appearance of prejudgment in the event of a later appeal. The Court had regard to the objective circumstances of the offending, the maximum penalty, applicable sentencing principles, and in particular the view expressed by the trial judge as to the likely sentencing disposition. Giving appropriate deference to that trial judge's view, the Court was not satisfied that the respondent would be sentenced to full-time imprisonment. Section 22B's limitation was therefore not engaged, and the detention application was dismissed.
The Director did not separately seek revocation of bail under the unacceptable risk test in ss 17 and 18 of the Bail Act, so that question did not arise.
Orders Made
- The detention application by the Director of Public Prosecutions was dismissed.
- The respondent's existing bail was continued (on the conditions already varied by the trial judge).
Key Takeaways
- Under s 22B(1) of the Bail Act 2013, the limitation on a court's power to make a bail decision post-conviction is only engaged if the court is satisfied that the convicted person "will be sentenced to imprisonment to be served by full-time detention." This requires more than a finding that full-time imprisonment is merely possible or likely, but the provision does not demand absolute certainty.
- The Court of Criminal Appeal confirmed, consistently with van Gestal, that the "will be sentenced" condition involves a state of satisfaction to be assessed by the bail authority, not a bare objective fact. The balance of probabilities standard in s 32(1) of the Bail Act applies to this evaluative task.
- In assessing whether the threshold condition is met, a bail authority should give deference to the view of the trial judge as to the likely sentencing outcome. The trial judge's proximity to the proceedings and the evidence makes that view a significant consideration.
- A bail application made under s 22B is not an abridged sentencing hearing. Expressing detailed views on foreshadowed sentencing arguments risks both interfering with the sentencing judge's function and creating an appearance of prejudgment ahead of any future appeal.
- Where the prosecution does not separately invoke the unacceptable risk framework in ss 17 and 18 of the Bail Act, that basis for detention remains unavailable to the court and is not considered.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 4, 17, 18, 22B, 32, 50, 67(1)(e), 75
- Crimes Act 1900 (NSW), s 157
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 67
- Criminal Appeal Act 1912 (NSW)
Cases
- Director of Public Prosecutions (NSW) v van Gestal [2022] NSWCCA 171
- Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232
- Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938
- Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
- Director of Public Prosecutions (NSW) v GX [2019] NSWCCA 84
- Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23
- Levy v State of Victoria (1997) 189 CLR 579; [1997] HCA 31