Bail Granted Under Tough New Law When ‘Special Circumstances’ Found

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By Paul Gregoire and Ugur Nedim

Referred to as ET in the NSW court system, as he was 17 at the time of his offending, a member of the gang the Claymore Boys has just been released on conditional bail over the death of 18-year-old Alex Ioane at a house party, which turned into an all-in brawl, in Ingleburn on 24 May 2019.

ET and his six co-accussed had been charged with murder and in the alternative manslaughter and alternative to that affray.

Police often charge an accused implicated in a serious crime with several offences if there’s a likelihood that they may not be found guilty of the more serious one.

Tafuna Taumalolo and five other co-accused, also members of the Claymore Boys, pleaded guilty to lesser charges on 1 July.

After pleading guilty to affray, ET appeared in the NSW Supreme Court on 6 July seeking bail after having spent the last two years and three months in prison.

On the night Ioane was killed, ET arrived at the party after receiving a phone call saying, “Come asap because Funa’s gonna have a go with some guys from Cabra.” On arrival, the then 17-year-old took a baseball bat out of the boot of a car and started swinging.

The agreed facts pertaining to the case outline that ET never actually struck Ioane with the bat, which was later found by police discarded, and a resulting forensic examination found the young man’s fingerprints on its handle.

New bail stipulations

At the Supreme Court bail hearing last week, Justice David Davies outlined that controversial amendments had recently been made to the Bail Act 2013 (NSW). Indeed, the NSW government passed the Bail Amendment Bill 2022 on 23 June.

New section 22B of the Bail Act is the reform raising eyebrows. It stipulates that an accused who has been convicted of a crime and further established they will be sentenced to full time prison should not be released on bail prior to sentencing, unless special or exceptional circumstances are found.

“I am satisfied that the conviction for the offence of affray in the present case means that the applicant will be sentenced to imprisonment to be served by full-time detention,” his Honour said. “The question is, however, whether special or exceptional circumstances are established.”

ET’s lawyer put forward to the court that these circumstances should be found, as the more than two years spent behind bars by the young man, “is equal to or exceeds any period of time he would be ordered to serve for the offence when sentenced”.

Section 93C of the Crimes Act 1900 (NSW) contains the crime of affray, which involves an individual threatening to use violence on another. The conduct must be considered to cause a normal person to fear for their safety. And the maximum penalty for this offence is 10 years in prison.

The court outlined that the authority for the new section 22B bail refusal law is the 2015 NSW Court of Criminal Appeal case El-Hilli and Melville versus R.

This case established that after conviction and prior to an appeal, special circumstances for bail are established if it’s likely the offender would have served their sentence or non-parole period prior to appeal.

A heavy record

Justice Davies set out that ET’s “criminal record for one so young is most unsatisfactory”. Only two months before the killing of Ioane, he was involved in another incident, where he was subsequently charged with affray and given six months probation by the Children’s Court.

Four months after the Ingleburn party, the Claymore Boy was further charged with a number of offences, which translated to sentencing in December 2019.

The crimes he was convicted of were one count of riot, and several of throwing missiles at police at a public disorder. For these offences, ET was sentenced to 12 months probation and placed on a community service order.

And it doesn’t stop there, two months after the Ioane killing, an incident on 13 July 2019 saw ET charged with the offence of robbery in company, of which he was convicted on 11 March 2021.

On noting the offender’s criminal record, Justice Davies outlined that the crimes that occurred after the Ioane incident would be taken into account on sentencing in relation to specific deterrence, while the prior offences would be considered part of his criminal record.

The Common Law Division judge outlined that he’d also been provided with sentencing statistics relating to adults convicted of affray. And in admitting they were “a very blunt instrument”, his Honour said they did reveal that none of the non-parole periods for the offence was over two years.

Bail granted

“Section 22B does not require me to conduct a mini-sentence hearing,” his Honour said at the bail proceedings, adding that it was necessary to reach an assessment as to how ET’s time spent on remand might relate to the sentence yet to be handed down.

Justice Davies further outlined that in having considered the statistics, the offender’s age when committing the offence, and the fact that it is his first time in custody, there’s a “reasonably strong prospect”, even despite his record, that any non-parole period would not exceed time in custody.

His Honour then ordered, in accordance with this finding, that bail would be granted on conditions, which included ET residing with his parents, that he report to Campbelltown Police Station daily, and that his mother put down a $500 bond to ensure he shows up to his court date.

However, the justice did outline that he’s concerned the young man will commit more serious crimes in the nature of public order offences. But the time between bail being granted and ET’s sentencing hearing is not long, so this concern was not at an “unacceptable level”.

“I cannot ignore the fact that the applicant’s period in custody to date is likely to have had a salutary effect on his behaviour, to make it less likely that he would continue to commit the sort of offences he was committing before he went into custody in March 2020,” his Honour said on granting bail.

“I find that the bail concern is not an unacceptable risk.”

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