New Bail Law Requiring Detention Upon Guilty Plea is Impossible to Apply

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By Paul Gregoire and Ugur Nedim

In reaching a decision as to why Titus Day should not be refused bail following conviction, NSW Supreme Court Justice Peter Garling analysed a provision requiring bail to be refused unless there are exceptional or special circumstances in his final findings of 18 July2022, which pointed to the deficiencies of the provision.

On 30 June this year, a NSW District Court jury found Day guilty of 34 counts of fraudulent embezzlement, contrary to section 157 of the Crimes Act 1900 (NSW), which is an offence that carries a maximum of 10 years imprisonment.

The former manager of singer Guy Sebastian, Day was initially charged with 50 counts of embezzlement on 1 July 2020. And the accused also had a count of larceny laid beside each embezzlement charge to act as an alternative lesser offence. Larceny carries a maximum of 5 years.

Following the return of the verdicts, the Crown made a bail detention application. However, District Court Judge Timothy Gartelmann released Day until the September sentencing hearing. And a few minor changes were made to the conditions of his bail, which he’d been on since mid-2020.

The Director of Public Prosecutions (DPP) then filed a 5 July bail detention application, under section 50 of the Bail Act 2013 (NSW) (the Act), calling on the Supreme Court to revoke the original decision to grant bail, citing newly inserted section 22B of the Act as necessitating the reversal.

The case for revoking bail

The NSW government inserted section 22B into the Act in June. It requires that following conviction of an offence an individual “will be sentenced” to full-time imprisonment for, bail should be refused “unless it is established that special or exceptional circumstances exist”.

The DPP submitted that the Supreme Court ought to be persuaded that Day “will be sentenced to… full-time imprisonment”, and in accordance with section 22B, it’s then required that “special or exceptional circumstances” be shown if the former manager be allowed to remain on bail.

The director further set out that due to the 34 convictions, and regardless of any subjective considerations, there would be no alternative to time inside, and in following that, it was asserted that general deterrence would trump any other concerns on handing down punishment.

Legislative considerations

In his findings, Justice Garling explained that section 18 of the Act provides a list of matters to be considered in assessing the granting of bail, and his Honour made special note of subsection 18(i1), which stipulates “likelihood of a custodial sentence being imposed” as one such consideration.

The justice then points to section 22A of the Act, which provides that bail be refused for terrorism offences or for “any other offence for which a custodial sentence may be imposed” if the individual is also charged with a terrorism offence. And his Honour highlighted the words “may be imposed”.

Then Justice Garling advised that section 31 of the Act requires that the rules of evidence – including that facts needed to be proven beyond reasonable doubt – do not apply to an authority deciding bail, while section 32 provides that bail decisions should be made on the balance of probabilities.

His Honour then referred to the “relevant principles of statutory construction” outlined in this year’s NSW Court of Appeal case State of NSW versus Kaiser, which provide that statute interpretations should correspond with the purpose of an Act and be taken in context of the overall legislation.

Parliamentary intentions

Justice Garling pointed to the NSW attorney general’s 21 June lower house second reading speech on the bill containing the section 22B amendment, and he noted that it outlined the new law applies to those “who the court is confident will be sentenced to imprisonment by full-time detention”.

His Honour then made note of the assertion during the altered 23 June upper house second reading speech, in which it was stated that the provisions within section 22B “would not be enlivened where there is doubt whether the offender will be sentenced” to full-time imprisonment.

The “instinctive synthesis”

“The context for the proper interpretation of these provisions requires consideration of what is involved in the process of sentencing,” said Justice Garling, adding that the first step required under section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is to consider alternatives to gaol.

Further relevant factors to be considered, his Honour explained, are the provisions in the statute, as well as matters relating to both the particular offence and the particular offender, including victim impact statements, maximum penalties and any standard non-parole periods.

Common law sentencing principles, such as “proportionality, parity, totality and the avoidance of double punishment” should be applied during the process, along with other such considerations, including the burden of incarceration on the offender, in particular when relating to mental health.

Subjective factors influencing sentencing involve early childhood deprivation, existing mental illness or intellectual incapacity, moral culpability, along with both specific and general deterrence. And another “essential ingredient” are the facts surrounding the perpetration of the crime.

His Honour made clear that it is “an impermissible path of reasoning” to consider that a judge is supposed to undertake the lengthy process of coming to a sentence based on the objective facts without proper consideration of further subjective matters at the point of bail decision.

Justice Garling explained that on conviction and prior to sentencing, a judge is involved in making a bail decision, and not pre-judging whether a sentence will later be imposed. So, it is not open for them to make a preemptive sentencing decision based on what’s then before them.

An impossible task

Justice Garling outlined that the operative words in section 22B are whether an offender “will be sentenced” to prison, as opposed to other parts of the Act, which refer to a “likelihood” of custodial sentence or that such a sanction “may be imposed”. And “’will’ connotes a degree of certainty”.

However, in Day’s case, the DPP was asking the Supreme Court to determine whether the offender will be sentenced to prison based on convictions alone, without any of the other matters that his Honour explained are essential in determining whether full-time gaol is warranted.

Justice Garling added that he had it on advice that whilst the sentencing judge considered it was highly likely Day would be sent to prison, he could not be certain that such a penalty would be imposed.

“Persuasion on the balance of probabilities that there is a high likelihood of a sentence of the requisite kind being imposed on the offender, which was my conclusion in this case, is not sufficient to satisfy the qualification required” under section 22B of the Act, his Honour found on 13 July.

Justice Garling explained that the qualification can’t be satisfied in these circumstances, as such a finding is not equivalent to concluding that Day “will be sentenced to” full-time prison, and it “is for these reasons that the detention application by the DPP was dismissed”.

The impossibility problem is glaringly obvious to those in the know

Justice Garling’s criticism is consistent with ours published on 28 June 2022, wherein we state:

“A glaring problem with the section – one which politicians and other bureaucrats may not understand – is that the period between a guilty plea being entered (or a finding of guilt being made) and the sentencing hearing itself can be substantial – often measured in months. 

Materials and evidence relating to treatment programs aimed at addressing underlying causes of offending (such as addiction or mental health issues), efforts to make reparations or pay compensation, moves to enter gainful employment and/or otherwise engage in conduct to demonstrate acceptance of responsibility, remorse and the unlikelihood of re-offending are often gathered while at liberty during that time-period, whether or not the engagement in such efforts commenced before the plea being entered.

Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 makes clear that these matters are relevant to the sentencing process, and the materials are normally presented at the sentencing hearing itself.

It is therefore often the case that a magistrate or judge who – based on the police ‘facts’ and criminal history – initially forms the view that a full-time custodial sentence is warranted will change that view upon consideration of subjective material and/or evidence presented during sentencing as well, of course, as the verbal and/or written submissions of a good criminal defence lawyer.

For this important reason, the inclusion of the words ‘will be sentenced to imprisonment’ demonstrates the legislature’s ignorance of criminal justice process, while also being counterproductive to the objective of encouraging defendants to seek help to overcome underlying issues and prove themselves to be productive members of society – something which ultimately benefits the community as a whole.”

It is indeed unfortunate that these types of laws are drafted and enacted by those with little understanding of, let alone experience in, the criminal justice system.

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