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Supreme Court 31 January 2023

R v Isaac

[2023] NSWSC 22

DrugsFirearms & weapons

Citation: R v Isaac [2023] NSWSC 22
Court: Supreme Court of New South Wales
Date: 31 January 2023
Judge(s): Yehia J

Background

The applicant had pleaded guilty in the Local Court to a series of serious offences, including supplying cocaine above the large commercial quantity, directing the activity of a criminal group, supplying a firearm without a licence, and supplying a large quantity of cannabis. He had been in custody since his arrest in March 2021 and, accepting that a lengthy full-time custodial sentence was inevitable, had not previously sought bail.

On 16 January 2023, while still awaiting sentencing, the applicant's wife was murdered. The couple had two young children together, aged 18 months and three years, who were in the temporary care of their maternal grandfather. The applicant also had two older children from a previous relationship, who had been close to the deceased and were in acute distress.

Against that background, the applicant applied for bail on 23 January 2023. The Crown opposed the application. The matter turned on whether the applicant could satisfy the elevated threshold under s 22B of the Bail Act 2013 (NSW), which applies to persons who have been convicted but not yet sentenced and who face full-time imprisonment.

  • Whether the applicant could establish "special or exceptional circumstances" under s 22B of the Bail Act 2013 (NSW) so as to justify the grant of bail following conviction but before sentencing
  • Whether, if the threshold was satisfied, the applicant presented an unacceptable risk that would nonetheless preclude a grant of bail
  • What bail conditions were appropriate given the nature of the offending and the circumstances of the application

Decision

Yehia J found that the applicant had established "special or exceptional circumstances" within the meaning of s 22B. The threshold under that provision is described in the authorities as a "significant hurdle," requiring circumstances that are unusual, uncommon, or out of the ordinary when compared with the generality of cases. The concept is flexible and may be made out by a combination of factors, including subjective matters personal to the applicant.

The central exceptional circumstance here was the brutal murder of the applicant's wife on 16 January 2023. The graphic circumstances of her death were detailed in the judgment. Her two very young children with the applicant had not yet had long-term care arrangements made, and his two older children from a prior relationship were in deep grief. The applicant's inability to attend the funeral and provide parental support to four grieving children distinguished his situation markedly from the ordinary post-conviction bail application.

Yehia J accepted that the applicant was in extreme distress and grief. The evidence from the applicant's former partner, which was unchallenged, confirmed the depth of the children's bond with the deceased and their urgent need for their father's support. The combination of circumstances, including the violent nature of the murder, the unresolved care arrangements for the young children, and the impending funeral, was found to constitute circumstances that were genuinely atypical and abnormal.

The court was satisfied that, subject to strict conditions, the applicant did not present an unacceptable risk. Sentencing proceedings were listed for late July 2023, creating a defined period during which bail would operate. Bail was granted subject to extensive conditions.

Orders Made

  • Bail granted subject to strict conditions, including:
  • Home detention at a specified residential address
  • Curfew restrictions, with limited exemptions for medical appointments, legal conferences, the funeral, and certain other matters, only when accompanied by a nominated family member (grandmother or uncle)
  • Surrender of passport within 48 hours of release; no application for a replacement travel document
  • Prohibition on approaching any international departure point within 500 metres
  • Restriction to one mobile phone and one SIM card, with the device's password, IMEI number, and service details to be provided to police within 24 hours
  • Prohibition on using or possessing any encrypted communication device or application (including WhatsApp, Snapchat, Wickr, Viber, and similar platforms)
  • Prohibition on possessing or consuming illegal or unprescribed drugs
  • Prohibition on consuming alcohol or entering any licensed premises
  • A $500,000 security deposit by mortgage, to be forfeited if the applicant fails to appear
  • Obligation to present at the front door of the specified address at the direction of any police officer
  • Obligation to submit to non-invasive drug and alcohol testing at the direction of police
  • Obligation to make his mobile phone available for police inspection to confirm compliance with communications conditions

Key Takeaways

  • Section 22B of the Bail Act 2013 (NSW) imposes a significant hurdle on persons seeking bail after conviction but before sentencing where full-time imprisonment is anticipated: the applicant must demonstrate circumstances that are genuinely unusual, atypical, or uncommon, not merely sympathetic.

  • The "special or exceptional circumstances" test is flexible and can be satisfied by a combination of factors, including deeply personal or subjective matters, provided they collectively distinguish the case from the ordinary run of post-conviction bail applications.

  • In this case, the violent murder of the applicant's wife, the absence of settled care arrangements for two very young children, and four children's acute grief and need for parental support were together found sufficient to clear the threshold under s 22B.

  • Satisfying the "special or exceptional circumstances" test does not automatically lead to bail: the unacceptable risk test under the general provisions of the Bail Act continues to apply and must also be addressed.

  • Where bail is granted in high-threshold circumstances involving serious drug, firearms, and organised crime offending, extensive conditions, including home detention, communications restrictions, a substantial financial security, and police compliance checks, are apt to address ongoing risk concerns.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 17, 18, 22B
- Crimes Act 1900 (NSW), s 93T(4A)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Firearms Act 1996 (NSW), s 51(2A)

Cases
- Bobbi v R [2021] NSWCCA 44
- Director of Public Prosecutions (NSW) v Van Gestal [2022] NSWSC 973
- Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247
- El-Hilli and Melville v R [2015] NSWCCA 146
- Gould v R (Cth) [2021] NSWCCA 27
- R v Khayat (No 11) [2019] NSWSC 1320
- R v Lago [2014] NSWSC 660
- R v Naizmand [2016] NSWSC 836
- R v Peter Tsallas [2017] NSWSC 64
- R v Tsintzas [2017] NSWCCA 172
- R v Watson [2017] ACTSC 311
- Raad v R [2015] NSWSC 532