AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 September 2022

R v McGee

[2022] NSWDC 426

Sexual offences
CRIMINAL LAW BAIL DETENTION APPLICATION S 22B OF THE BAIL ACT 2013 (NSW) PRESCRIBED SEXUAL OFFENCE

Citation: R v McGee [2022] NSWDC 426
Court: District Court of New South Wales
Date: 26 September 2022
Judge: Abadee DCJ

Background

The offender pleaded guilty on the day of hearing to a charge of sexual assault under s 61I of the Crimes Act 1900 (NSW), relating to an incident on 9 November 2020. Prior to the guilty plea, he had been on bail. The agreed facts established that the offender digitally penetrated the victim while she was asleep, without her consent.

Immediately following the guilty plea, the Crown made a detention application under s 22B(1)(b) of the Bail Act 2013 (NSW). That provision applies after conviction but before sentencing. The offender initially opposed the application but ultimately withdrew that opposition and did not rely on any special or exceptional circumstances.

  • Whether the court was satisfied, under s 22B(1)(b), that the offender "will" be sentenced to full-time imprisonment, making bail refusal mandatory unless an exception applies
  • Whether any "special or exceptional circumstances" existed to justify the grant of bail despite that threshold being met

Decision

Abadee DCJ applied the interpretation of s 22B(1) established by the Court of Criminal Appeal in DPP (NSW) v Van Gestel [2022] NSWCCA 171 and DPP (NSW) v Day [2022] NSWCCA 173. Those authorities confirm that the requirement for the offender "will" be sentenced to full-time imprisonment calls for a judicial opinion, not a finding of fact. The standard is whether full-time imprisonment is "realistically inevitable," assessed on the limited material available at the bail stage, without requiring absolute certainty.

In forming that opinion, the court considered the maximum penalty of 14 years' imprisonment and the statutory non-parole period of 7 years for the index offence. The court also weighed the grave objective seriousness of the offending: the victim was asleep and therefore unable to defend herself, and the agreed facts made it apparent that the offender must have known she did not consent. The victim's distress was significant, and the circumstances arguably involved a breach of trust, given the victim's relationship with the offender's son.

The court further noted that an Intensive Correction Order (ICO) is not available for this category of offence under s 67(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Having regard to all these matters, the court was satisfied that full-time imprisonment was realistically inevitable.

On the question of special or exceptional circumstances, the offender's criminal history identified him as an Indigenous Australian. However, no special or exceptional circumstances were actually relied upon by the offender, and none were established. The onus rests on the convicted person to prove such circumstances exist.

Orders Made

  • The Crown's detention application was granted.
  • The offender was ordered to be taken into custody forthwith.

Key Takeaways

  • Under s 22B(1)(b) of the Bail Act 2013 (NSW), a court must refuse bail after conviction but before sentencing where the offender "will" be sentenced to full-time imprisonment, unless special or exceptional circumstances justify otherwise.
  • The "will be sentenced" threshold requires the court to form an opinion that full-time imprisonment is "realistically inevitable," based on the limited material available at the detention application stage. Absolute certainty is not required.
  • Factors relevant to that opinion include the nature of the conviction, the applicable maximum penalty and non-parole period, available sentencing alternatives, and the objective seriousness of the offending assessed against sentencing principles.
  • Where an ICO is statutorily unavailable, that fact is a relevant consideration in assessing whether full-time imprisonment is realistically inevitable.
  • The onus of proving special or exceptional circumstances lies with the convicted person seeking bail; in this case, no such circumstances were advanced or established.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW) s 22B
- Crimes Act 1900 (NSW) s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 67

Cases:
- DPP (NSW) v Van Gestel [2022] NSWCCA 171
- DPP (NSW) v Day [2022] NSWCCA 173