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District Court 15 September 2023

R v Hall

[2023] NSWDC 399

Sexual offences
DETENTION APPLICATION STANDARD OF PROOF DETENTION APPLICATION REFUSED

Citation: R v Hall [2023] NSWDC 399
Court: District Court of New South Wales
Date: 15 September 2023
Judge: Grant DCJ

Background

The respondent pleaded guilty to two serious sexual offences: sexual assault of a person under 16 (contrary to s 66C of the Crimes Act 1900, maximum 16 years) and sexual intercourse without consent (contrary to s 61I, maximum 14 years). Both charges were committed for sentence to the District Court, with the sentence hearing listed for 9 November 2023.

Following the respondent's confirmation of his pleas, the Director of Public Prosecutions made a detention application under s 22B(1)(b) of the Bail Act 2013, seeking to have bail revoked before sentencing. The respondent had previously been remanded in custody for approximately six weeks after his arrest, during which time he was assaulted, found unresponsive, and engaged in self-harming behaviour.

The respondent is a person with a mild intellectual disability. His defence solicitor filed an affidavit detailing his client's significant difficulties in custody, his very low intellectual functioning, his poor coping skills, and an expert forensic neuropsychologist's assessment that he was at high risk of self-harm in a custodial setting.

  • Whether the offending was of a kind that made it realistically inevitable the respondent would be sentenced to imprisonment served by full-time detention, triggering s 22B(1)(b).
  • Whether the respondent had established "special or exceptional circumstances" on the balance of probabilities, sufficient to justify refusal of the detention application.
  • What the phrases "special" and "exceptional" circumstances mean in the context of s 22B of the Bail Act 2013.
  • Whether personal and subjective circumstances, including intellectual disability and custodial vulnerability, can constitute special or exceptional circumstances.

Decision

On the s 66C charge, Grant DCJ accepted that Ms Mendes' submissions had "some force." Because the offender was 17 at the time of that offence, rehabilitation is the primary sentencing consideration; the victim had been a willing participant (a relevant factor in assessing objective seriousness per Dawkins, Wakeling, and Hogan); and statistical evidence indicated a meaningful proportion of offenders receive community correction orders for this offence. The Court was not satisfied that a term of full-time detention was realistically inevitable for that count alone.

On the s 61I charge, however, the Court found it was realistically inevitable the respondent would receive a sentence of imprisonment served by full-time detention, bringing s 22B(1)(b) into operation.

The Court then turned to whether special or exceptional circumstances had been established. Grant DCJ confirmed that "special" means better, greater, or otherwise different from what is usual, while "exceptional" means unusual or not typical. The onus rests on the respondent to establish those circumstances on the balance of probabilities. Consistent with DPP v Van Gestel [2022] NSWCCA 171, the same meaning applies under s 22B as under s 22(1). Exceptional circumstances can be constituted by a combination of matters which, taken together, render the case out of the ordinary.

Having regard to the solicitor's affidavit in its entirety, including the respondent's mild intellectual disability, his prior assault and self-harm while on remand, the absence of a specialist disability unit at Junee Correctional Centre, and the forensic neuropsychologist's opinion that he would struggle to cope and was at high risk of self-harm, Grant DCJ was satisfied on the balance of probabilities that the combination of circumstances was special and/or exceptional. The detention application was refused.

Orders Made

  • Detention application refused.

Key Takeaways

  • Under s 22B(1)(b) of the Bail Act 2013, a court must refuse bail after a plea or finding of guilt unless the respondent establishes special or exceptional circumstances on the balance of probabilities. The onus falls on the respondent, not the prosecution.
  • "Special" and "exceptional" are disjunctive: satisfying either standard is sufficient to justify refusal of a detention application. "Special" means different from what is usual; "exceptional" means unusual or not typical.
  • A combination of circumstances can collectively amount to special or exceptional circumstances, even where no single factor would suffice alone. The concept is flexible and assessed case by case.
  • Personal and subjective circumstances, including intellectual disability, documented custodial vulnerability, a history of assault and self-harm in custody, and the absence of appropriate support at the likely place of remand, can together constitute the necessary exceptional circumstances.
  • The District Court assessed the two charges separately in determining whether full-time detention was "realistically inevitable," reaching different conclusions on each count, before proceeding to the special or exceptional circumstances inquiry only in respect of the count where that threshold was met.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 22B, 22(1), 50
- Crimes Act 1900 (NSW), ss 61I, 66C

Cases
- Dawkins v R [2018] NSWCCA 278
- DPP v Van Gestel [2022] NSWCCA 171
- Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8
- Hogan v R [2008] NSWCCA 150
- R v Naizmand [2016] NSWSC 836
- R v NK [2016] NSWSC 498
- Wakeling v R [2016] NSWCCA 33