Citation: Police v Hawkins [2023] NSWLC 3
Court: Local Court of New South Wales
Date: 11 May 2023
Judge(s): Olischlager LCM
Background
The defendant was convicted of several offences in the Local Court at Wyong and sentenced on 26 April 2023 to an aggregate term of 18 months imprisonment, commencing 1 March 2023, with a non-parole period of 10 months. He lodged a severity appeal to the District Court within the required 28-day window, seeking a less severe sentence. He then brought a release application in the Local Court, seeking bail pending the determination of that appeal.
The central issue that arose during the release application was whether section 22B of the Bail Act 2013 (NSW), which restricts the grant of bail to persons who have been convicted, applied to bail applications made after sentencing while an appeal against the severity of that sentence remained pending. The defendant argued it did not; the prosecution contended it did.
Legal Issues
- Whether section 22B of the Bail Act 2013 (NSW) applies to a release application made after sentencing, where a severity appeal to the District Court is pending.
- If section 22B applies, whether it is realistically inevitable that the defendant will be sentenced to full-time imprisonment in the District Court.
- In the alternative, whether bail should be refused under section 18 of the Bail Act on the grounds of unacceptable risks of failure to appear and commission of a serious offence on bail.
Decision
Issue 1: Whether section 22B applies to appeal bail
The court held that section 22B applies to release applications made while a severity appeal to the District Court remains pending (at [19]). The key textual reason was that section 22B operates between "conviction and sentencing," rather than between "conviction and until a sentence is imposed." The legislature's choice of language indicated that the provision extends beyond the initial sentencing date in the Local Court (at [15]-[16]). The court rejected the argument that this construction would render section 22 of the Bail Act redundant, noting that the specific provision would prevail over the general, and that severity appeals to the District Court are de novo rehearings rather than law-based appeals to the Court of Criminal Appeal (at [20]).
The court also rejected the defendant's submission that section 18(2)(j), which requires consideration of whether an appeal has a reasonably arguable prospect of success, made section 22B unnecessary. Section 22B operates as an additional step in the bail consideration process, just as it applies in addition to the likelihood-of-custodial-sentence consideration in section 18(1)(i1) (at [21]).
Issue 2: Application of section 22B to the defendant's circumstances
Applying the principles from Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171, the court considered whether it was realistically inevitable that the defendant would receive a full-time custodial sentence in the District Court (at [23]-[24]). The court noted his lengthy criminal record dating from 2008, including 12 prior charges of driving whilst disqualified, some attracting full-time imprisonment, non-compliance with previous community-based orders, and a sentencing assessment report placing the risk of reoffending at medium to high. Unresolved mental health and drug issues left prospects of rehabilitation guarded at best (at [24]). The court found it realistically inevitable that the defendant would be sentenced to full-time imprisonment, and refused bail on that basis (at [24], [26]).
Issue 3: Alternative refusal under section 18
In the alternative, and in case the section 22B finding was wrong, the court also refused bail under section 18 of the Bail Act. It found unacceptable risks of both failure to appear, given a history of warrants being issued for the defendant's attendance at court, and commission of a serious offence on bail, given the lengthy criminal record, the established offending, and unresolved drug and mental health issues. The court was satisfied those risks could not be adequately mitigated by bail conditions (at [27]).
Orders Made
- Bail refused.
Key Takeaways
- Section 22B of the Bail Act 2013 (NSW) applies to release applications made after sentencing in the Local Court while a severity appeal to the District Court remains pending. The provision's reference to the period "between conviction and sentencing" extends beyond the initial sentencing date because sentencing is not finalised until any pending appeal is determined (at [15]-[16], [19]).
- A narrow construction of section 22B, limiting it to the period before the Local Court imposes sentence, would produce an absurd result: the restriction would apply immediately before sentencing but fall away immediately after, despite the defendant commencing a term of full-time imprisonment (at [18]).
- Section 22B operates as an additional and distinct step in the bail assessment process. It is not displaced by the obligation in section 18(2)(j) to consider whether an appeal has a reasonably arguable prospect of success (at [21]).
- Where a severity appeal to the District Court is characterised as a de novo rehearing rather than an error-based appeal, that practical reality supports treating the process as ongoing "sentencing" for the purposes of section 22B, and distinguishes it from indictable appeals to the Court of Criminal Appeal governed by section 22 (at [20]).
- In refusing bail under the alternative section 18 grounds, the court found that a combination of a history of warrant-based enforcement, high reoffending risk, and unresolved drug and mental health issues can amount to unacceptable bail risks that no conditions can adequately address (at [27]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 18, 20, 22B
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 20, 63
- Bail Amendment Act 2022 (NSW)
Cases
- Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171
- R v Sturmann [2022] NSWLC 3
- Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290