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Supreme Court 26 March 2026

R v Hooker (No 3) – Detention application

[2026] NSWSC 324

Homicide
DETENTION APPLICATION BAIL ACT 2013 S 22B REALISTIC INEVITABLY OF A FULL TIME CUSTODIAL SENTENCE

Citation: [2026] NSWSC 324
Court: Supreme Court of New South Wales
Date: 26 March 2026
Judge(s): Dhanji J

Background

This decision concerns a Crown detention application made under s 50(1) of the Bail Act 2013 (NSW), seeking to revoke bail granted to the offender, Ms Hooker, following her conviction for manslaughter. On 19 March 2026, a jury found Ms Hooker not guilty of murder but guilty of the alternative offence of manslaughter in relation to the death of her husband, Peter Hooker. Sentencing proceedings were listed before Dhanji J — who had presided over the trial — for 29 April 2026.

The offence arose from events on 8 August 2023, when the offender drove her work vehicle directly at the deceased, striking him and also colliding with the corner of a nearby residential dwelling. The deceased was hospitalised and underwent emergency surgery but was discharged. He subsequently died on 31 August 2023 due to complications arising from his injuries. The offender was initially charged with causing grievous bodily harm with intent to murder, and following the deceased's death, with murder.

At trial, Ms Hooker had pleaded guilty to manslaughter, but the Crown did not accept this plea, necessitating a trial. She relied on two partial defences: extreme provocation (based on alleged continuing intimidation by the deceased, including assault, sexual assault and harassment) and substantial impairment by mental health impairment (post-traumatic stress disorder or, alternatively, an adjustment disorder involving depression and anxiety). The jury's verdict of manslaughter necessarily meant they accepted at least one of these partial defences. The offender had spent approximately four months and four days in custody following her arrest before being released on strict bail conditions in December 2023, including home detention with very limited exceptions for leaving the premises.

  • Whether s 22B of the Bail Act 2013 applied — specifically, whether it was "realistically inevitable" that the offender would be sentenced to imprisonment to be served by full-time detention, thereby engaging the requirement that bail be refused unless special or exceptional circumstances were established.

  • Whether the trial judge, who would also be the sentencing judge, should express a view on the inevitability of a full-time custodial sentence at the bail stage, and the propriety of doing so.

  • Whether special or exceptional circumstances existed that would justify the continued grant of bail notwithstanding s 22B, if it applied.

Decision

Dhanji J noted the guidance provided by the Court of Criminal Appeal in DPP (NSW) v Van Gestel (2022) 109 NSWLR 136, which held that the word "will" in s 22B requires a finding that a full-time custodial sentence is "realistically inevitable" — not merely likely, but also not requiring absolute certainty. The court acknowledged contextual factors relevant to this assessment: that the bail authority is ordinarily not the sentencing court, may not have all trial evidence, and should not conduct a "pseudo or abridged sentencing hearing."

The Crown submitted that a full-time custodial sentence was realistically inevitable, pointing to the seriousness of an offence involving a deliberate act with intention to cause at least grievous bodily harm resulting in death. The Crown relied on sentencing statistics for manslaughter showing that 98.2 per cent of offenders across 171 cases received full-time sentences, with only 1.8 per cent receiving a non-parole period of less than two years. The offender's counsel countered by relying on the time already spent in custody, the stringent quasi-custodial bail conditions (home detention with extremely limited exceptions), the absence of a criminal record, anticipated favourable findings regarding rehabilitation prospects, and the mitigating weight of the partial defences.

His Honour expressed a strong preference not to express a concluded view on whether a full-time custodial sentence was realistically inevitable. This reticence was grounded in a significant feature of the case: that the judge determining the detention application was also the trial judge and would be the sentencing judge. His Honour was alive to the concern — consistent with the observations in Van Gestel — that the bail authority should not prejudge sentencing outcomes. Where the same judge occupies both roles, expressing a view on the inevitability of full-time detention could give rise to an apprehension that the sentencing exercise had been prejudged, or at least constrained.

His Honour ultimately determined that, even assuming s 22B was engaged, the offender had established that special or exceptional circumstances existed justifying the continuation of bail. Among the matters contributing to this finding were the particular circumstances of the offence (including the partial defences), the offender's personal circumstances and lack of criminal history, the Crown's concession that the offender did not present an unacceptable risk, the time already spent in custody, and the significant restrictiveness of the bail conditions to which she had been subject for over two years. His Honour referred to R v White [2024] NSWSC 1527 and the broad discretionary nature of the assessment. Bail was accordingly continued on the existing conditions.

Orders Made

  • The Crown's detention application was refused.
  • Bail was continued on existing conditions pending sentencing on 29 April 2026.

Key Takeaways

  • Under s 22B of the Bail Act 2013 (NSW), a post-conviction, pre-sentence bail assessment requires the court to determine whether a full-time custodial sentence is "realistically inevitable." The Supreme Court applied the threshold established in Van Gestel, confirming that this is a forward-looking inquiry demanding more than mere likelihood but not absolute certainty.

  • A particular tension arises when the bail judge is also the sentencing judge. Dhanji J's reluctance to express a view on the inevitability of full-time detention illustrated the difficulty of making both determinations, given the risk of appearing to prejudge the sentencing outcome.

  • Stringent bail conditions were treated as relevant to the s 22B analysis. The offender's extended period of quasi-custodial home detention (with minimal exceptions for leaving the premises) was considered a factor bearing on both whether a full-time sentence beyond time served was realistically inevitable and whether special or exceptional circumstances existed.

  • The protean nature of manslaughter, as recognised in Blacklidge, was found to complicate the s 22B assessment. The extremely wide range of circumstances and culpability across manslaughter cases made it particularly difficult to conclude with confidence that a full-time custodial sentence was realistically inevitable, especially where the jury had accepted an alternative verdict rather than the primary charge of murder.

  • Because the Crown conceded the offender posed no unacceptable risk, the detention application turned entirely on s 22B. This narrowing confirmed that the provision operates as a distinct and additional hurdle to bail following conviction, independent of any risk-based considerations.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 22B, 50

Cases:
- Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v White [2024] NSWSC 1527