Citation: Hickey v Director of Public Prosecutions (NSW) [2024] NSWSC 191
Court: Supreme Court of New South Wales
Date: 27 February 2024
Judge: Hamill J
Background
The applicant had pleaded guilty to aggravated break, enter and steal with intent to commit a serious indictable offence (intimidation), and was awaiting sentence in the District Court, listed part-heard before Judge Tupman on 8 March 2024. He applied for release under the Bail Act 2013 (NSW) across two separate groups of matters.
The second group of offences, allegedly committed while the applicant was on bail for the first matter, included possession of a shortened firearm, carrying an offensive implement in public, supplying a prohibited drug (methylamphetamine), and receiving stolen property. Because these offences were committed while on bail, they attracted the "show cause" requirement, meaning the applicant bore the burden of showing why his detention was not justified.
The two groups of matters raised distinct bail considerations, and the court ultimately reached different conclusions on each.
Legal Issues
- Whether bail should be granted or refused in relation to the aggravated break and enter offence, given that sentencing proceedings in the District Court were only days away
- Whether the applicant could show cause why his continued detention was not justified in relation to the second series of offences, which carried the statutory show cause requirement
- Whether an unacceptable risk of flight or other bail concern existed in respect of either group of offences
- Whether a bail court's decision could or should influence the exercise of the sentencing judge's discretion
Decision
On the second series of offences, Hamill J was satisfied the applicant had shown cause why his detention was not justified. The court noted real evidentiary difficulties in two of the charges: the firearm possession allegation rested solely on a photograph of the applicant holding what appeared to be a shortened firearm, with the weapon itself never located; and the drug supply charge involved only 5 to 6 grams of methylamphetamine, an amount where a personal use defence could not be dismissed as implausible. The court also found no unacceptable risks associated with release, noting that the applicant had previously been granted a short compassionate bail to attend a family funeral and had voluntarily surrendered himself to police afterwards as required.
On the aggravated break and enter matter, bail was refused. With sentencing listed in approximately ten days, Hamill J identified an unacceptable risk of flight, notwithstanding the applicant's prior compliance with bail conditions. The court noted the practical problem that granting bail only to have a full-time custodial sentence imposed days later would place the applicant in an invidious position. The possibility of an intensive correction order (ICO) being imposed by Judge Tupman did not eliminate that risk sufficiently to justify release at this stage.
Hamill J was emphatic that neither decision was intended to, or should, influence the sentencing judge's discretion. The court drew a clear distinction between the bail court's function, which is to assess risk and consider show cause matters, and the sentencing court's function, which involves the instinctive synthesis of punishment objectives and subjective material. As a practical consequence, the bail granted on the second series of offences would have no operative effect unless and until the applicant received a non-custodial or non-full-time custodial sentence on the break and enter matter.
Orders Made
• Bail granted in relation to offences H97600486
• Bail application dismissed in relation to aggravated break and enter (H90583346)
• Bail on H97600486 offences has no practical effect unless or until a non-full-time custodial alternative is imposed at sentencing
Key Takeaways
- A bail court may reach different conclusions on different groups of charges arising from the same applicant, where the circumstances of those charges are materially distinct.
- Hamill J drew an explicit distinction between the risk-assessment function of a bail court and the sentencing court's broader discretionary task, holding that a bail decision neither should, nor in this case would, fetter the sentencing judge's discretion.
- Under the Bail Act 2013 (NSW), the show cause requirement applies where offences are allegedly committed while the accused is on bail; the applicant bears the burden of demonstrating why continued detention is not justified.
- Prior voluntary compliance with bail conditions, including surrendering to police after compassionate bail to attend a funeral, was treated as a materially comforting factor in the risk assessment.
- Evidentiary weaknesses in individual charges, including reliance solely on a photograph for a firearm possession allegation and a small quantity of drugs arguably consistent with personal use, were relevant considerations in the show cause analysis.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW)
Cases cited: None identified in the judgment text or metadata.