Citation: R v Kelu; R v Millner (No 7) [2023] NSWSC 1543
Court: Supreme Court of NSW
Date: 13 July 2023
Judge(s): Cavanagh J
Background
The offender was convicted on 11 July 2023 of two counts of conspiracy to defraud the Commonwealth, contrary to s 135.4 of the Criminal Code Act 1995 (Cth). The offending related to a GST fraud scheme operated through a company called Investrix between 2012 and 2013, in which the offender and a co-offender dishonestly arranged for approximately $40 million in GST received from a gold purchaser to be offset by false Input Tax Credit claims, resulting in that amount never reaching the Commonwealth.
Following conviction, the Crown made a detention application under s 22B of the Bail Act 2013 (NSW), seeking that the offender be taken into custody immediately rather than remain on bail pending sentence. The offender conceded that a full-time custodial sentence was inevitable, but opposed immediate detention on the basis that special or exceptional circumstances existed.
In support of his position, the offender relied on his work as a Complex Care worker supporting people with disabilities, the needs of vulnerable people who depended on him, and an asserted need to obtain a psychiatric opinion before entering custody.
Legal Issues
- Whether the offender had established "special or exceptional circumstances" under s 22B of the Bail Act 2013 (NSW) sufficient to resist the Crown's detention application following conviction
- Whether the combination of employment as a care worker, the needs of dependent persons, and the asserted need to obtain a psychiatric opinion could collectively satisfy that test
Decision
Issue 1: The applicable legal framework
Section 22B of the Bail Act 2013 (NSW) applies where an offender has been convicted and will be sentenced to full-time imprisonment. The offender accepted that threshold was met (at [9]). As confirmed in DPP (NSW) v Van Gestel [2022] NSWCCA 171, whether special or exceptional circumstances exist is a question of fact, the onus lies on the person asserting those circumstances, and the test is to be given the same meaning as under s 22(1) of the Bail Act (at [11]).
Issue 2: The care worker and dependants argument
The offender worked as a Complex Care worker supporting at least three clients with challenging behaviours, and also voluntarily supported a partner with multiple mental illnesses and another individual requiring wheelchair assistance (at [13]-[15]). Cavanagh J acknowledged the genuine value of this work but observed that the employer had provided no letter indicating the offender could not be replaced, and that it would be surprising if he could not be (at [19]). The court noted that the hardship caused to those left behind is a consistent and unfortunate consequence of serious offending, not a distinguishing feature sufficient to meet the statutory threshold (at [18], [20]).
Issue 3: The psychiatric opinion argument
The offender also submitted that he needed time to obtain a psychiatric opinion before entering custody. Cavanagh J gave this submission no weight. There was no evidence the offender had been receiving psychiatric treatment or that any psychiatric assessment was needed before he entered custody (at [21]).
Issue 4: The overall assessment
Considering all the matters in combination, the court was not satisfied that special or exceptional circumstances had been established (at [22]). The detention application was granted.
Orders Made
- The detention application in respect of the offender is granted; he is to be taken into custody.
Key Takeaways
- Under s 22B of the Bail Act 2013 (NSW), the onus of establishing special or exceptional circumstances rests on the convicted person, and the test requires a case-by-case factual assessment, consistent with the meaning given in s 22(1) (at [11]).
- Employment in valuable community or care work, while commendable, does not of itself establish special or exceptional circumstances, particularly where no evidence suggests the role cannot be filled by another person (at [19]-[20]).
- Hardship to family members, dependants, or clients left behind when an offender enters custody is a recognised but ordinary consequence of serious offending and does not, on its own, satisfy the statutory threshold (at [18]).
- An asserted need to obtain a psychiatric opinion before entering custody carries no weight where there is no evidence of existing psychiatric treatment or demonstrated clinical need (at [21]).
- The court assessed the combination of all factors together rather than in isolation, and found that even cumulatively they fell short of the special or exceptional circumstances required to resist the Crown's detention application (at [22]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW) , ss 22(1), 22B
- 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