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Local Court 15 September 2022

R v Sturmann

[2022] NSWLC 3

Public order & justice offences

Citation: [2022] NSWLC 3
Court: Local Court of NSW
Date: 15 September 2022
Judge(s): Barnett SC LCM

Background

A defendant sentenced by the Local Court to 16 months imprisonment with a non-parole period of six months applied for bail pending an appeal to the District Court. The appeal was against the sentence only, not against the conviction. The non-parole period was due to expire on 15 February 2023.

The central preliminary question was whether s 22B of the Bail Act 2013 (NSW) applied to this bail application at all. Defence counsel argued it did not, because the defendant was already under sentence rather than awaiting sentence.

The significance of the argument was practical: if s 22B applied, the defendant would need to establish special or exceptional circumstances to obtain bail. If it did not apply, the ordinary bail framework would govern the application.

  • Whether s 22B of the Bail Act 2013 (NSW), which restricts bail in the period between conviction and sentencing for offences attracting full-time detention, applies where the Local Court has already imposed a sentence and the defendant has lodged an appeal to the District Court for a de novo sentencing hearing.
  • How the court should approach the statutory interpretation of s 22B, including the relevance of the legislative purpose disclosed in the second reading speech and the operation of s 33 of the Interpretation Act 1987 (NSW).

Decision

The defence submitted that s 22B was directed only at the period between conviction and the initial imposition of sentence. Because a sentence had already been passed by the Local Court, counsel argued the defendant was now "under sentence" rather than awaiting it. Counsel also submitted that if bail were granted and the Local Court sentence stayed, any prosecution response would need to be brought by way of a review application rather than under s 22B.

Barnett SC LCM rejected that construction. The District Court appeal operates as a fresh hearing in which the District Court imposes whatever sentence it considers appropriate to the offending and the offender. It is not a review for legal error. The Magistrate found that the defendant was therefore effectively in the position of a person who had been convicted or pleaded guilty and was awaiting the imposition of a sentence by the District Court, notwithstanding that a Local Court sentence remained on foot.

The Magistrate applied s 33 of the Interpretation Act 1987, which requires a court to prefer a construction that promotes the underlying purpose of the legislation. Referring to the second reading speech, the court identified Parliament's clear intent: persons convicted or who have pleaded guilty and who are heading to full-time imprisonment should not be at liberty in the community while awaiting that sentence.

The court also noted an internal inconsistency in the defence argument. If bail were granted, the Local Court sentence would be stayed. On the defence's own analysis, that would permit the prosecution to immediately bring a detention application under the ordinary bail provisions to achieve the very result s 22B was designed to produce automatically. That outcome itself demonstrated the defence construction did not promote the purpose of the provision. The court held that s 22B applied.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Section 22B of the Bail Act 2013 (NSW) applies in circumstances where a defendant sentenced by the Local Court to full-time imprisonment lodges a sentence appeal to the District Court, which will conduct a de novo sentencing hearing.
  • A construction that excluded the post-conviction, pre-District Court sentencing period from s 22B would undermine Parliament's stated intention that convicted persons heading to full-time imprisonment not be at liberty in the community while awaiting that sentence.
  • Under s 33 of the Interpretation Act 1987 (NSW), a court must prefer a construction that promotes the purpose of the legislation, and the second reading speech is a legitimate tool for identifying that purpose.
  • Where bail is granted on a sentence appeal, the Local Court sentence is stayed, meaning the defendant is no longer "under sentence" in any operational sense and is effectively awaiting a fresh sentencing decision by the District Court.
  • The logical consequence of the defence argument, that granting bail would immediately trigger a prosecution detention application, reinforced the court's conclusion that the defence construction was inconsistent with the legislative object of s 22B.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22B
- Interpretation Act 1987 (NSW), s 33

Cases:
- No cases cited in the provided text (the judgment references a "Parker warning" as a term of practice but does not formally cite the underlying decision).