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Supreme Court 6 July 2022

R v ET

[2022] NSWSC 905

Public order & justice offences
CRIME BAIL WHERE NON

Citation: R v ET [2022] NSWSC 905
Court: Supreme Court of New South Wales
Date: 6 July 2022
Judge: Davies J

Background

The applicant was a young person charged with murder (and the alternatives of manslaughter and affray) arising from a fatal assault at a party on 24 May 2019. A co-accused was separately convicted of murder for that killing. On 1 July 2022, the Crown accepted a plea of guilty to affray from the applicant, with that plea taken as a full answer to the entire indictment.

The agreed facts established that the applicant had arrived at the party after receiving a phone call, retrieved a baseball bat from a car boot, and swung it at the crowd while making threatening statements. He was not shown to have struck the deceased. He was arrested on 20 March 2020 and had spent two years, three months and sixteen days in custody by the time of the bail application. He was seventeen years old at the time of the offence.

Following the entry of his guilty plea but before sentencing, the applicant applied for bail. His criminal record, though concerning for his age, consisted of offences dealt with by the Children's Court and community-based orders.

  • Whether s 22B(1)(a) of the Bail Act 2013 (NSW) applied, given the applicant had been convicted of an offence for which he would be sentenced to full-time detention
  • Whether "special or exceptional circumstances" existed to justify granting bail under s 22B(1)(a)
  • Whether the bail concern of further offending constituted an unacceptable risk

Decision

Davies J accepted that the conviction for affray would result in a sentence of imprisonment by full-time detention, thereby engaging s 22B(1)(a). The threshold question was whether special or exceptional circumstances had been established.

Drawing on the Court of Criminal Appeal's reasoning in El-Hilli and Melville v R [2015] NSWCCA 146, Davies J applied the principle that circumstances are special or exceptional where the time already served equals or may exceed any sentence or non-parole period likely to be imposed. The judge noted that s 22B does not require a full sentencing hearing, but some assessment of the likely sentence is necessary.

Taking into account statistical data on non-parole periods for affray (which showed periods not exceeding two years in adult cases), the applicant's youth at the time of the offence, and the fact that this was his first time in custody, Davies J found a reasonably strong prospect that any non-parole period would not exceed the time already served. Special or exceptional circumstances were made out on that basis.

On the bail concern of further serious offending, the judge noted the relatively short period until sentencing and the likely salutary effect of the applicant's period in custody. The risk was found to not rise to an unacceptable level. Bail was granted on conditions including residence with parents, daily reporting to Campbelltown Police Station, and a $500 surety undertaking by the applicant's mother.

Orders Made

  • Bail granted on the following conditions:
  • The applicant to reside with his parents
  • The applicant to report to Campbelltown Police Station between 8:00am and 8:00pm each day
  • The applicant's mother to undertake a forfeiture of $500 to ensure court attendance

Key Takeaways

  • Section 22B(1)(a) of the Bail Act 2013 (NSW) imposes a strict threshold after conviction but before sentencing: bail must not be granted unless special or exceptional circumstances are established.
  • The principle from El-Hilli and Melville v R [2015] NSWCCA 146, developed in the context of s 22 bail pending appeal, was applied by analogy to s 22B: a prospect that time served will equal or exceed the likely non-parole period can constitute a special or exceptional circumstance.
  • Section 22B does not require a full sentencing hearing, but the court must undertake some assessment of the probable sentence in order to evaluate whether the circumstances threshold is met.
  • Statistical sentencing data, while described as a "blunt instrument," may assist that assessment alongside factors such as the offender's age at the time of the offence and first-time custody status.
  • A bail concern about continued serious offending may still fall short of an unacceptable risk where the period until sentencing is short and the applicant's time in custody is considered likely to have had a moderating effect on future conduct.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 18, 22, 22B

Cases
- El-Hilli and Melville v R [2015] NSWCCA 146