Citation: R v Kelu; R v Millner (No 6) [2023] NSWSC 1542
Court: Supreme Court of New South Wales
Date: 13 July 2023
Judge: Cavanagh J
Background
Following an approximately seven-week trial, an offender was convicted of two counts of conspiracy to defraud the Commonwealth under s 135.4 of the Criminal Code Act 1995 (Cth). The convictions arose from a scheme operating in 2012 and 2013 involving the purchase, melting and sale of gold, through which approximately $40 million in GST received from a purchaser was retained rather than paid to the Australian Taxation Office, by way of claimed input tax credits.
After the verdict was returned, the Crown Prosecutor made a detention application under s 22B of the Bail Act 2013 (NSW), seeking that the offender be taken into custody immediately. It was not disputed that the offender would receive a sentence of full-time imprisonment, satisfying the threshold requirement of s 22B.
The offender resisted immediate detention on the basis that special or exceptional circumstances existed, relying principally on his health conditions, including autism spectrum disorder (ASD) and long-standing physical health problems including heavy metal poisoning.
Legal Issues
- Whether the offender established, on the balance of probabilities, that special or exceptional circumstances existed under s 22B of the Bail Act 2013 (NSW) so as to warrant refusal of the detention application
- What weight to give each of the circumstances raised, including health conditions, pending medical testing and appointments, accommodation arrangements, and the absence of any flight risk
Decision
The applicable legal framework: Under s 22B of the Bail Act, a convicted person who will be sentenced to full-time imprisonment bears the onus of establishing, on the balance of probabilities, that special or exceptional circumstances exist to justify the court declining to order immediate detention (at [9]). Whether such circumstances exist is a question of fact and an evaluative exercise, with no statutory definition of what qualifies (at [10]). Cavanagh J confirmed that the correct approach is to consider all circumstances together rather than assessing each in isolation (at [20]).
Issue: Whether special or exceptional circumstances were established: Cavanagh J was satisfied that the offender had discharged the onus (at [25]). The critical factors were his significant physical health conditions, including the need for heavy metal testing that had been deferred due to the trial, and the forthcoming appointment with a neuropsychologist to obtain recommendations on how best to manage his transition into custody given his ASD diagnosis (at [22]). His Honour described the ASD-related appointment as a "powerful factor," emphasising that concrete steps remained to be taken to assist the offender's entry into custody (at [22]-[23]).
Circumstances afforded limited or no weight: Little weight was given to the offender's desire to organise his accommodation and lease (at [21]). The absence of a flight risk was also given little weight, with his Honour declining to decide whether that factor alone could ever constitute special or exceptional circumstances (at [21]).
Limits of the finding: Cavanagh J took care to state that health problems alone do not automatically establish special or exceptional circumstances (at [23]-[24]). The determinative feature here was that specific steps, deferred because of the trial, could be taken over a short further period to meaningfully improve the offender's physical and mental health before he entered custody (at [24]-[25]).
Orders Made
- The detention application in respect of the offender is refused.
Key Takeaways
- Under s 22B of the Bail Act 2013 (NSW), a convicted person facing full-time imprisonment bears the onus of establishing special or exceptional circumstances on the balance of probabilities; the Supreme Court confirmed this is an evaluative exercise considering all circumstances together, not each factor in isolation (at [9]-[10], [20]).
- Suffering from a physical or mental health condition, including ASD, does not of itself constitute special or exceptional circumstances; what mattered here was the existence of specific, pending steps that would materially improve the offender's health and readiness for custody (at [23]-[24]).
- Where concrete medical steps had been deferred specifically because of the demands of a lengthy trial, the court treated that deferral as a relevant contextual factor supporting the finding of special or exceptional circumstances (at [25]).
- A pending appointment to obtain expert recommendations on managing an ASD diagnosis during the transition to custody was treated as a weighty consideration, distinct from a generalised assertion of health difficulties (at [22]).
- Practical personal matters such as organising accommodation received little weight in the special or exceptional circumstances analysis, and the absence of a flight risk was also treated as a factor of minimal significance in this context (at [21]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW) , ss 22B , 32(1)
- Criminal Code Act 1995 (Cth), s 135.4
Cases
- Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173
- Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171