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Supreme Court 14 October 2025

Bunyan v R

[2025] NSWSC 1216

Assault & violenceDomestic & family violencePublic order & justice offences
TIME DETENTION IS FORWARD

Citation: Bunyan v R [2025] NSWSC 1216
Court: Supreme Court of New South Wales
Date: 14 October 2025
Judge: Kirk J

Background

The applicant, a 44-year-old Aboriginal man, sought release on bail under s 49 of the Bail Act 2013 (NSW) after spending approximately six and a half months in custody. He faced three separate sets of charges: two sets to which he had pleaded guilty and which were awaiting sentence, and a third set on which he had pleaded not guilty and was awaiting hearing.

The most serious matters involved an incident on 17 June 2024 in which the applicant punched a male complainant multiple times and partially dangled him over a balcony railing. The complainant was hospitalised in critical care for a week. The other guilty pleas related to assaulting a female partner while armed with a blade and threatening messages sent via carriage service. The third set alleged a further assault on a different complainant in the early hours of 23 March 2025.

A complicating factor arose shortly before the bail hearing: the applicant's new legal representatives had indicated to the District Court that he might seek to withdraw his guilty plea on the second set of offences. No formal motion had been filed, but the issue directly affected whether certain provisions of the Bail Act applied.

  • Whether s 22B of the Bail Act 2013 applied to the second set of offences, given the applicant's indication that he may seek to withdraw his guilty plea
  • Whether the phrase "will be sentenced to imprisonment to be served by full-time detention" in s 22B requires the bail court to assess whether continued full-time detention is realistically inevitable at the time of sentencing, including consideration of time already served on remand
  • Whether special or exceptional circumstances existed to justify release under s 22B, with particular focus on the applicant's offer of a place in a residential drug rehabilitation program
  • Whether the show cause test under s 16A was satisfied in relation to the third set of offences
  • Whether any unacceptable risks existed under s 19, and whether bail conditions could adequately address those risks

Decision

Application of s 22B and the guilty plea issue

Kirk J rejected the submission that s 22B was not engaged simply because the applicant had signalled a possible intention to withdraw his guilty plea. Until a court actually permits a plea to be withdrawn, the conviction (which includes a plea of guilty under s 4(1) of the Act) remains on foot. The first criterion of s 22B was therefore satisfied.

The "will be sentenced to full-time detention" criterion

The court grappled with the forward-looking nature of s 22B's second criterion, drawing on the Court of Criminal Appeal's analysis in DPP (NSW) v van Gestel (2022) 109 NSWLR 136. Kirk J concluded that this criterion requires realistic inevitability of continued full-time detention at the time of sentencing, not merely that a term of imprisonment will be imposed. Relevant to this assessment is whether any non-parole period is likely to extend beyond time already served on remand. The court found that, on the facts, the criterion was satisfied in relation to the first set of offences but expressed reservations about whether it was clearly satisfied in relation to the second set, given the time already served and uncertainties about the plea.

Special or exceptional circumstances

On the assumption that s 22B applied, Kirk J found that the applicant's acceptance into a residential drug rehabilitation program (the Wayback facility) constituted a significant factor in establishing special or exceptional circumstances. The court acknowledged this required careful assessment: mere availability of a rehabilitation place does not automatically meet the threshold, but the particular circumstances here, including the applicant's vulnerability as an Aboriginal man with significant anxiety issues and blindness in one eye, his lack of any prior custodial sentence, and the rehabilitative opportunity presented, collectively satisfied the requirement.

Show cause and unacceptable risk

The court found that the show cause requirement for the third set of offences was satisfied by the same circumstances that established special or exceptional circumstances. On unacceptable risk, Kirk J accepted that all four bail concerns under s 17 existed but concluded that they could be sufficiently mitigated by a combination of residence at the Wayback facility, home detention conditions, reporting requirements, and restrictions on access to communication devices. Bail was accordingly granted on conditions.

Orders Made

• Bail is granted on conditions

Key Takeaways

  • Under s 22B of the Bail Act 2013, a guilty plea constitutes a "conviction" for the purposes of the section, and that status remains unless and until a court formally permits the plea to be withdrawn. A mere indication of intention to seek withdrawal does not displace the section's operation.

  • The phrase "will be sentenced to imprisonment to be served by full-time detention" in s 22B requires a forward-looking evaluative judgment about realistic inevitability of continued full-time detention at the time of sentencing, including whether any non-parole period would extend beyond time already served on remand. This goes beyond asking simply whether a custodial sentence will be imposed.

  • Acceptance into a residential drug rehabilitation program can contribute to establishing special or exceptional circumstances under s 22B, but Kirk J's analysis confirms this must be assessed in the context of the applicant's overall personal circumstances rather than treated as a standalone trigger.

  • Aboriginal identity, mental health vulnerabilities, and physical disability are matters expressly relevant to the unacceptable risk assessment under s 18(1)(k) of the Act, as the court noted in treating the applicant as a "vulnerable person."

  • Refusing bail as a form of interim punishment, or as a means of imposing a custodial sentence in advance of it being formally imposed, is impermissible. Kirk J reiterated the principle that bail is not to function as pre-sentence punishment.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), ss 4(1), 16A, 16B, 17, 18, 19, 20, 22B, 49
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases
- Director of Public Prosecution (DPP) (NSW) v van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171
- Chau v Director of Public Prosecutions (1995) 37 NSWLR 639
- A1 v R; A2 v R [2016] NSWSC 1288
- Edwards v R (No 2) [2022] NSWSC 1344
- DPP (NSW) v Campbell [2015] NSWCCA 173
- DPP (NSW) v Day [2022] NSWCCA 173
- Nikollaj v R [2025] NSWCCA 31
- R v ET [2022] NSWSC 905
- R v Isaac [2023] NSWSC 22