New Changes to NSW Bail Legislation| Following Conviction & Before Sentencing | s22B of Bail Act 2013
On 23 June 2022, the Bail Amendment Bill was passed by Parliament and the new section 22B commenced on 27 June 2022.
Section 22B of Bail Act 2013 reads as follows: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences
(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full[1]time detention, a court—
- (a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or
- (b) on a detention application made in relation to the accused person— must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.
(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.
(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.
(4) This section applies despite anything to the contrary in this Act.
(5) In this section—
Conviction also includes a plea of guilty.
Note— Conviction is defined in section 4(1) to include a finding of guilt.
In broad terms, s 22B could only be exercised if the following facts are satisfied:
a. That the accused person has either:
- been found guilty, or
- has entered a plea of guilty;
b. That the accused person will be sentenced to imprisonment to be served by way of full-time imprisonment.
How Does this Affect You?
This new change affects an accused who pleads guilty or is found guilty (whether or not they are convicted at the time of the finding of guilt).
If the accused is charged with a strictly indictable offence but enters a plea in the Local Court, the Magistrate dealing with the committal of the matter consider a detention application and the applicability of the new section s 22B.
If the prosecution makes a detention application after conviction (including the period after a plea of guilty is entered), the court will refuse bail unless you can show there are special or exceptional circumstances which applies.
In the event you make a bail application, the court will not grant or dispense with bail unless there are special or exceptional circumstances.
The above will only apply to those accused person who will be sentenced to full-time jail sentence.
Full-Time Jail Sentence
Imprisonment is the sentence of last resort. A jail sentence can be served in community such as Intensive Correction Order. A court should only sentence an offender to imprisonment if it is satisfied that none of the alternative penalties are appropriate.
Unlike the bail consideration in s18 of the Bail Act, being the “likelihood of a custodial sentence being imposed”, section 22B provides for a higher threshold test.
When determining s22B, the Court has to overcome the test to be satisfied that the accused person “will be” sentenced to imprisonment to be served full-time detention. This is an extremely high threshold test that must be overcome before the jurisdiction of the court is enlivened. It is not a test that the accused person “might”, “may”, “could” or “most likely” will be sentenced to full-time
In circumstances where the accused person is being considered for an ICO or it is possible that a lesser penalty is not within out of the realms of the sentencing court, then the accused person will not be taken into custody.
Broadly speaking, the new section 22B should have no application if the court is not first satisfied that the person “will be” sentenced to full-time imprisonment.
What are Special and Exceptional Circumstances
Once the court is satisfied that the accused person will be sentenced to full-time imprisonment, it then goes on to consider the special and exceptional circumstances test.
Some examples of cases as follows:
In the case of Gregg v Director of Public Prosecutions (Cth) [2019] NSWCCA 254, the applicant contended that special and exceptional circumstances were made out by virtue of a number of reasons, being the likelihood of the term of the sentence expiring by the time of determination of the appeal; the appeal having reasonable prospects of success; the applicant not posing any unacceptable risk; the applicant faced isolation on home detention which would be unremedied on appeal; there was no prejudice to a “victim”; the preparation of the appeal has been expeditious. The Court (Brereton JA, Simpson AJA, R A Hulme J) found special and exceptional circumstances on three bases: the appeal on sentence was “reasonably arguable”, the sentences would have largely been served by the time the appeal was determined and the Crown did not contend there were any unacceptable risks.
Further, in the case of R v Paul Campbell (a pseudonym) [2017] NSWSC 1844, Hamill J found special and exceptional circumstances as a result of a “combination of factors”, those factors being “the prospects of success on appeal, so far as they can be considered at this distance, and the relatively short sentence imposed, along with the applicant’s age, lack of criminal convictions, good efforts at rehabilitation and the undesirability of delaying his commencement at the new school”.
Lastly, in R v Vaziri [2016] NSWSC 1283, Garling J found special and exceptional circumstances were made out on the basis that one ground of appeal had reasonable prospects of success, at all times up until imposition of the final sentence the applicant complied with his bail conditions, at all times the applicant appeared at Court when required; a substantial part of the non-parole period would be served at the time of the appeal being heard; and a grant of bail would not adversely impact the public interest, and his personal circumstances (including ill health and communication difficulties) point to there being no public interest in his being incarcerated prior to appeal.
An experienced criminal defence lawyer will also be aware of a deferral of sentencing pursuant to s 11 Crimes (Sentencing Procedure) Act 1999. Such a deferral might lead to a sentencing outcome other than full-time imprisonment, even for serious offences. Orders under s 11 can be made even if a custodial sentence is inevitable. This may be relevant to special and exceptional circumstances.
If you want to speak to a Senior Lawyer and how the new bail changes in NSW may affect you or anyone you know, call our 24-hour line on 0449 593 845 to discuss your case in confidence.
What Happens After You Plead Guilty
If, for an example you have been charged and pleaded guilty to certain serious offences as follows-but not limited to-
- Murder or Manslaughter
- Prescribed Sexual Offence
- Terrorism Offence
- Offence involving the Discharge of Firearms
- Offences Relating to Contravention of a Serious Crime Prevention
- Offences Relating to Contravention of a Serious Crime Prevention
- Offence of Attempting, or of Conspiracy of Incitement, to Commit and Offence
The Court will determine the following:
Has the person pleaded guilty or been found guilty?
If the answer is no then section 22B does not apply.
If yes- is the Court satisfied that the person will be sentenced to imprisonment to be served by way of full-time detention?
If the answer is no, then section 22B does not apply.
If yes- are there special or exceptional circumstances?
If yes for a bail application, then bail can be granted or dispensed with (subject to the other provisions of the Bail Act, except show cause).
If the answer is no, then bail must be not granted.
If yes for a detention application, then bail can be granted or dispensed with (subject to the other provisions of the Bail Act, except show cause).
If no for a detention application, bail will be refused.
At Criminal Lawyers Sydney, our expert lawyers will formulate and implement strategies to prepare the best case for you.
In addition, we obtain psychologist or psychiatrist report, evidence or character references from family members or other supporters and we also obtain relevant educational or work documents, provide the court with relevant statistics and comparative cases and make strong submissions to the court regarding special or exceptional circumstances that may apply in each case.
Our lawyers focus on if the Court determining the s22B question has reached a state of satisfaction, that the accused person will be sentenced to imprisonment by way of full-time imprisonment and whether the Court making the bail decision is truly satisfied that no trier of fact, acting reasonably, could reach a conclusion that a sentence other than one of full-time imprisonment was warranted.
Call us now on our 24-hour line on 0449 593 845 to book a free first consultation with an experienced Sydney Bail lawyer.
