Citation: R v Maguire (No. 2) [2022] NSWDC 88
Court: District Court of New South Wales
Date: 24 February 2022
Judge: Bennett SC DCJ
Background
Following a judge-alone trial, a male offender was convicted of 15 counts of child sexual and pornography offences involving multiple child complainants. The offences included producing child pornography, producing child abuse material, multiple counts of sexual intercourse with children aged between 10 and 14 years while in a position of authority over them, inciting children to commit acts of indecency, and exposing a child under 10 to an act of indecency.
The offender had been on bail for approximately four years during the pre-trial and trial period without any recorded breach. Six days after verdicts were delivered on 18 February 2022, the Crown applied under s 50 of the Bail Act 2013 to revoke bail and detain the offender pending sentencing.
The offender opposed the application, relying on evidence of psychological difficulties, his unblemished bail history, the impact of COVID-19 on the custodial environment, and the absence of unacceptable risk factors that had previously supported the grant of bail.
Legal Issues
- Whether the offences of which the offender was convicted were "show cause" offences under the Bail Act 2013
- Whether the offender discharged the burden, on the balance of probabilities, of showing cause why his detention was not justified under s 16A of the Bail Act 2013
- Whether, if cause had been shown, there remained an unacceptable risk requiring refusal of bail under s 17 and s 18 of the Bail Act 2013
Decision
Issue 1: Show cause offences
Several of the offences of which the offender was convicted, including those contrary to ss 91A(2), 66C(2), and 66C(4) of the Crimes Act 1900, are designated "show cause" offences under the Bail Act 2013 (at [18]). This means the burden falls on the offender to demonstrate, on the balance of probabilities, why his detention is not justified. Failure to discharge that burden mandates refusal of bail under s 16A (at [52]).
Issue 2: Whether cause was shown
The court found the offender did not show cause why his detention was not justified (at [53]). The psychological evidence consisted of a single-page letter from a psychologist, prepared originally for a different purpose, which noted depression, anxiety and stress requiring medium to long-term treatment (at [40]-[42]). His Honour found this material provided insufficient detail to demonstrate special vulnerability warranting release (at [54], [57]). While the court accepted the real challenges presented by COVID-19 in custodial settings, that factor was not sufficient to meet the test (at [54]). The court also noted that the offender will face a significant custodial sentence and that sentence proceedings were expected to be resolved within approximately six weeks (at [56]-[57]).
Issue 3: Unacceptable risk (alternative finding)
The court addressed the s 18 considerations as an alternative in case the finding on show cause was wrong (at [56]). Even on that basis, bail would have been refused. The court accepted the offender had no criminal history, no criminal associations, a history of compliance with bail conditions, and that the risk of flight was minimal (at [55]-[56]). However, the court found no lawful reason requiring the offender to remain at liberty and no material demonstrating special vulnerability sufficient to justify bail (at [57]). The court gave limited weight to the Crown's submission that the offender posed a future risk of similar offending, noting some years had passed since the last offence (at [58]).
Orders Made
- The Crown's application for detention is granted.
- Bail is revoked and the offender is to go into custody forthwith.
Key Takeaways
- Under s 16A of the Bail Act 2013, where an offender is convicted of a "show cause" offence, the burden rests on the offender to establish on the balance of probabilities that detention is not justified; failure to discharge that burden mandates refusal of bail (at [33], [52]).
- A brief psychological report identifying depression, anxiety and stress, prepared originally for a different purpose and lacking detailed clinical background, was insufficient to demonstrate the level of vulnerability needed to show cause why detention was not justified (at [54], [57]).
- The impact of COVID-19 on the custodial environment, while acknowledged, was not treated by the District Court as a freestanding or conclusive basis for satisfying the show cause requirement (at [54]).
- An unblemished bail record of approximately four years and the absence of flight risk, while relevant, did not in themselves discharge the show cause burden when weighed against the serious nature of the offences and the inevitability of a significant custodial sentence (at [36], [53]-[55]).
- Consistent with the approach in Moukhallaletti v DPP NSW [2016] NSWCCA 314, the court treated the show cause question as distinct from, though overlapping with, the unacceptable risk assessment under s 17 and s 18 of the Bail Act 2013, and addressed both separately (at [33]-[35], [56]-[57]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013
- Crimes Act 1900
Cases
- Director of Public Prosecutions NSW v Campbell [2015] NSWCCA 173
- DPP of New South Wales v Zaiter [2016] NSWCCA 247
- Moukhallaletti v DPP NSW [2016] NSWCCA 314
- R v Farrell [2015] NSWSC 1082
- Simpson v R [2021] NSWCCA 264
- Zoneff v R [2000] HCA 28