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Supreme Court 23 August 2022

Director of Public Prosecutions (NSW) v RS

[2022] NSWSC 1134

Sexual offencesAssault & violence
CRIMINAL LAW BAIL HEALTH ISSUES CROWN DETENTION APPLICATION GRANTED

Citation: Director of Public Prosecutions (NSW) v RS [2022] NSWSC 1134
Court: Supreme Court of New South Wales
Date: 23 August 2022
Judge: Bellew J

Background

The respondent had been found guilty by a jury of multiple serious offences including two counts of aggravated sexual assault of a child under 16 years and three counts of indecent assault of a child under 16 years, as well as a separate assault offence. He remained on bail following his convictions and was listed for sentencing in the District Court on 30 September 2022.

The Director of Public Prosecutions brought a detention application in the Supreme Court seeking to revoke the respondent's bail. The application was filed on 16 August 2022, approximately two and a half months after the jury's verdict on the child sexual offending. The respondent's counsel conceded at the hearing that a sentence of full-time imprisonment would be imposed.

The central contest was whether the respondent had established "special or exceptional circumstances" justifying the continuation of bail in the period between conviction and sentencing, as required under s 22B of the Bail Act 2013 (NSW).

  • Whether the court should exercise its discretion under s 73 of the Bail Act to refuse to hear the Crown's detention application on the grounds that it was frivolous, vexatious, or without substance
  • Whether s 22B of the Bail Act applied to the respondent's bail given the provision came into force after his original release on bail (the retrospectivity question)
  • Whether the respondent had established "special or exceptional circumstances" under s 22B sufficient to justify the continuation of bail pending sentencing

Decision

Discretionary refusal to hear the application (s 73)
Bellew J declined to exercise the discretion under s 73 to refuse to hear the application, following his own reasoning in DPP (NSW) v AP [2022] NSWSC 928. Although the judge noted the Crown's significant and unexplained delay in bringing the application, he was not persuaded that delay alone or in combination with other factors warranted dismissal or refusal to hear the matter. The delay was described as falling short of what is expected of the Director of Public Prosecutions, but it did not justify declining jurisdiction.

Retrospectivity of s 22B
The respondent argued that s 22B could not apply to him because it came into force after he had already been released on bail. Bellew J rejected this submission, following his reasoning in DPP (NSW) v Duncan [2022] NSWSC 927 and the related decisions, concluding that s 22B did apply to the present application.

Special or exceptional circumstances
The respondent advanced three principal grounds: the necessity of continuing his employment, health issues, and the need for a psychological assessment to be carried out before sentencing. The judge considered each and found that none, individually or together, rose to the level of special or exceptional circumstances. On the employment point, the court noted that the respondent himself had conceded full-time imprisonment was inevitable, making the continuation of employment a temporary and therefore insufficient consideration. On health, there was no evidence of an immediate or serious threat that could not be managed by Justice Health in custody. On the need for a psychological assessment, the court found there had been ample time since the conviction to arrange this. The judge also noted that the respondent's wife, whose dependency had been raised, had access to adult children and other support networks, and that the family had had over two months to arrange affairs given the acknowledged inevitability of a custodial sentence.

Orders Made

  • The detention application was granted
  • The respondent's bail was revoked
  • The respondent was to be taken into custody forthwith
  • An application for a stay was refused

Key Takeaways

  • Under s 22B of the Bail Act 2013 (NSW), where a sentence of full-time imprisonment is conceded, a convicted person must establish "special or exceptional circumstances" to avoid detention in the period between conviction and sentencing, and this is a high threshold assessed on a case-by-case basis.
  • Employment necessity, manageable health conditions, and the need for pre-sentence psychological assessment were each found insufficient, individually and collectively, to constitute special or exceptional circumstances.
  • Significant and unexplained Crown delay in bringing a detention application was criticised as falling short of the standard expected of the Director of Public Prosecutions, but did not itself justify refusing to hear the application under s 73 of the Bail Act.
  • The Court of Criminal Appeal's endorsement in DPP (NSW) v Van Gestel [2022] NSWCCA 171 of a case-by-case approach to "special or exceptional circumstances" was applied, reinforcing that no category of circumstance is automatically sufficient.
  • Section 22B of the Bail Act was held to apply even where bail had originally been granted before the provision came into force, consistent with the approach taken in DPP (NSW) v Duncan.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 22B, 66, 73
- Interpretation Act 1987 (NSW), s 30

Cases
- Director of Public Prosecutions (NSW) v AP [2022] NSWSC 928
- Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927
- Director of Public Prosecutions v Van Gestel [2022] NSWSC 973
- Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171