Citation: R v Seguel (No 1) [2024] NSWDC 690
Court: District Court of NSW
Date: 27 November 2024
Judge(s): Neilson DCJ
Background
The accused was found guilty by jury of attempting to possess a marketable quantity of heroin (239.7 grams of pure heroin) that had been unlawfully imported. The offence carried a maximum penalty of 25 years' imprisonment. The heroin had an estimated street value of up to $350,000 if mixed for sale.
The accused had been on bail since 5 May 2021, following an earlier period of custody. He lived with his elderly parents, whom he cared for, and had himself undergone significant brain surgery in 2020 for a cancerous meningioma. No current comprehensive medical report was before the court at the time of the application.
Following the guilty verdict, the Crown brought a detention application under section 22B of the Bail Act 2013, seeking revocation of the accused's bail on the basis that a full-time custodial sentence of more than three years would inevitably be imposed.
Legal Issues
- Whether the court was satisfied, within the meaning of section 22B of the Bail Act 2013, that the accused "will" be sentenced to full-time imprisonment for a term exceeding three years
- Whether, if that threshold was not met, special or exceptional circumstances existed to justify the continuation of bail
- What bail conditions were appropriate in light of the jury's verdict
Decision
Issue 1: The section 22B threshold
The court applied the Court of Criminal Appeal's analysis in DPP (NSW) v Van Gestel [2022] NSWCCA 171, which confirmed that the word "will" in section 22B(1) requires an evaluative judgment about a future matter rather than proof on the balance of probabilities (at [8]). The threshold is a high one: the court must be satisfied that a full-time custodial sentence of more than three years is realistically inevitable, not merely likely (at [8]-[9]).
His Honour considered it probable that a full-time custodial sentence of more than three years would be imposed, given the serious nature of the offence and the quantity of drug involved. However, the court was unable to conclude that such an outcome was "inevitable" or absolutely certain at this stage, particularly in the absence of complete sentencing materials and up-to-date medical evidence (at [9]-[10]).
Issue 2: Special circumstances
His Honour found that special circumstances existed, including the accused's own health following brain surgery, the absence of current medical evidence, the care he provided to his elderly and potentially dementia-affected parents, and the need to make alternative arrangements for his parents' care if full-time imprisonment were ultimately imposed (at [10]). These factors supported the continuation of bail.
Issue 3: Bail conditions
While bail was not revoked, the court considered that stricter reporting conditions were warranted in light of the verdict (at [11]). The accused's reporting obligation was increased from once to three times per week, and a residential condition was maintained pending sentence.
Orders Made
- The application for revocation of bail was refused.
- The requirement to report to Mascot Police Station each Wednesday between 8am and 8pm was revoked.
- The accused was required to report to Mascot Police Station every Monday, Wednesday, and Friday between 8am and 8pm.
- The accused was required to continue to reside at his address in Botany until appearing for sentence on 7 February 2025.
Key Takeaways
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Under section 22B of the Bail Act 2013, the court must be satisfied that a full-time custodial sentence exceeding three years is "realistically inevitable," not merely probable; this is a high bar, as confirmed in DPP (NSW) v Van Gestel (at [8]-[9]).
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A finding of likelihood is insufficient to engage the section 22B limitation: the District Court distinguished between what is likely and what is inevitable, and declined to revoke bail even where it considered a sentence of more than three years probable (at [10]).
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Special circumstances capable of supporting continued bail can include the accused's own serious medical history, the absence of current medical evidence, and the accused's role as carer for elderly dependants where alternative care arrangements have not yet been identified (at [10]).
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A post-conviction detention application under section 22B is not an abridged sentencing hearing; the bail authority will generally lack the full sentencing materials, and that gap in the record is a legitimate factor in assessing inevitability (at [9]).
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Refusing a revocation application does not preclude the court from imposing stricter bail conditions in response to a guilty verdict; reporting frequency was tripled here as a proportionate response to the changed circumstances (at [11]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 , s 22B
Cases
- DPP (NSW) v Van Gestel [2022] NSWCCA 171