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Supreme Court 11 July 2022

Director of Public Prosecutions (NSW) v AP

[2022] NSWSC 928

Sexual offences
CRIMINAL LAW BAIL “SPECIAL” “ EXCEPTIONAL” ““FRIVOLOUS” “VEXATIOUS”

Citation: Director of Public Prosecutions (NSW) v AP [2022] NSWSC 928
Court: Supreme Court of New South Wales
Date: 11 July 2022
Judge(s): Bellew J

Background

The respondent was convicted by a jury in the District Court of sexual offences against a child, including one count of sexual intercourse with a child aged 10 to 14 years and three counts of sexually touching a child. Following the jury's verdicts in March 2022, the sentencing judge dismissed two separate Crown detention applications and the respondent remained on bail pending sentencing, which was listed for 29 July 2022.

On 27 June 2022, section 22B of the Bail Act 2013 (NSW) came into force. That provision introduced a presumption against bail in the period between conviction and sentencing where the offender will receive a full-time custodial sentence, unless "special or exceptional circumstances" are established. The Director of Public Prosecutions then applied to the Supreme Court for the respondent's detention under that new provision.

The respondent opposed the application on several grounds, including that the Court should decline to hear it at all, that section 22B did not apply, and that special or exceptional circumstances existed in any event.

  • Whether the Court should exercise its discretion under section 73 of the Bail Act to refuse to hear the application on the basis that it was frivolous, vexatious, without substance, or had no reasonable prospects of success
  • Whether section 22B of the Bail Act applied to the Director's detention application, having regard to when the provision commenced
  • Whether the respondent would be sentenced to full-time imprisonment, a prerequisite for section 22B to operate
  • Whether special or exceptional circumstances existed that would justify dismissing the detention application

Decision

Discretionary refusal to hear the application: Bellew J declined to exercise the discretion under section 73 to refuse to hear the application. His Honour found that "frivolous" and "vexatious" carry well-understood meanings requiring either a lack of seriousness or an absence of proper grounds, and neither applied here. The fact that section 22B was newly enacted, that the respondent had been on bail for some months, or that the application raised complex legal questions did not render it frivolous or vexatious.

Application of section 22B: His Honour held that section 22B applied to the Director's application. Clause 45 of the Bail Regulation 2021 (NSW), introduced as a transitional provision alongside the amendment, expressly stated that the Bail Amendment Act 2022 applies to any bail decision made after its commencement. The Court was satisfied that this provision governed the application, which was made and heard after 27 June 2022.

Full-time imprisonment: The Court found, on the balance of probabilities, that the respondent would be sentenced to full-time imprisonment. This finding was considerably assisted by the fact that the respondent's own senior counsel, in written submissions on sentence, had effectively conceded that a full-time custodial term would be imposed.

Special or exceptional circumstances: The respondent advanced two arguments. First, that the enactment of section 22B itself constituted a special or exceptional circumstance. Bellew J rejected this as impermissibly circular. Second, the respondent submitted that he wished to arrange his personal affairs before commencing his sentence. His Honour rejected this too, finding that such a desire would be common to the overwhelming majority of offenders in the same position and was therefore the antithesis of what is "special" or "exceptional." No basis for dismissing the detention application was established.

Orders Made

  • The Crown detention application is granted
  • The respondent's bail is revoked
  • The respondent is to be taken into custody forthwith

Key Takeaways

  • Section 22B of the Bail Act 2013 (NSW), which commenced on 27 June 2022, applies to detention applications made after that date, including where a person was convicted and released on bail before the provision came into force.
  • Under section 22B, where a person has been convicted and will be sentenced to full-time imprisonment, a court hearing a detention application must refuse bail unless special or exceptional circumstances are established by the accused.
  • An offender's desire to arrange personal affairs before commencing a custodial sentence does not constitute a "special or exceptional circumstance" within the meaning of section 22B; such a desire is, by its nature, common to most offenders in that position.
  • The mere fact that a new statutory provision has altered the legal landscape does not itself give rise to a special or exceptional circumstance for the purposes of that same provision; such reasoning is circular.
  • A Crown detention application brought under a newly enacted bail provision is not rendered frivolous or vexatious simply because the prior sentencing court had dismissed earlier detention applications under the previous legal framework.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), including ss 3, 4, 7, 22B, 49, 66, 73, 98
- Bail Amendment Act 2022 (NSW)
- Bail Regulation 2021 (NSW), cl 45
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1), 66C(3), 66DB(a)
- Interpretation Act 1987 (NSW)

Cases:
- Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927
- Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938