New bail laws in NSW create a presumption not to grant bail if an accused person pleads guilty or gets convicted where the court is satisfied full-time jail will be ordered. The new laws are an Australian first to also introduce prescribed minimum standards for use of electronic monitoring as a bail condition.
The new bail laws in NSW commenced on 27 June 2022.
What is new with the new bail laws? Basically, the new bail laws:
(1) now require that any electronic monitoring bail condition imposed is required to first satisfy the minimum standards prescribed by the regulations; and
(2) create a presumption that bail should be denied if a plea of guilty is entered in court or once convicted for a criminal offence if full-time jail will be ordered unless special or exceptional circumstances can be shown. This is the most significant bail update.
What is the purpose of making bail tougher than it already is in NSW? The purpose of toughening our already tough bail laws is the Governments commitment for community safety and to ensure that these bail laws remain amongst the toughest in our country.
New Bail Laws Change #1
The first of the new bail laws tells the court to NOT grant bail during the period after the person is convicted (even after pleading guilty in court) and before being sentenced for an offence where the offender will be getting a full time imprisonment sentence (unless special or exceptional circumstances are shown). If special or exceptional circumstances are shown, then bail can be granted. This is reflected in the new section 22B Bail Act.
This is meant to reflect the notion that bail is there to maintain safety for victims and communities before and during a trial in order to protect each person’s right to the presumption of innocence and general right to be free at until their day in court to finality of the case in court.
Bail isn’t meant to be a prejudgment of a person’s guilt or punishment before being convicted. But, this doesn’t mean that offenders should be allowed to walk free in the community while waiting to be sentenced in circumstances they have been convicted or pleaded guilty to a criminal offence where the court is confident that full time imprisonment will be imposed upon sentence.
That presumption of innocence doesn’t apply after an offender is convicted or after having pleaded guilty to the criminal charge.
While the new bail laws are not meant to increase the prison population, in reality, that is what the effect will end up being.
One big criticism of this new bail law is that it encourages people who would otherwise enter a guilty plea early, to do so later in the court proceedings to draw it out due to the fear of being refused bail. This potentially impacts the early guilty plea reforms. Being out on bail has many other advantages including, the opportunity of someone who is likely to plead guilty to address any contributing factors to the offending behaviour such as drug addiction, anger management safely in the community with support from family and friends. Arguably, being able to address these things while on bail addresses rehabilitation more effectively which reduces the risk of reoffending, and this is directly related to community safety.
The Government on the other hand take the view that, if a person pleads guilty under the early guilty plea scheme, they will already have a good idea and expectation of the type of sentence to expect. If that sentence is full time imprisonment, it should not come as a surprise if these new bail laws (section 22B Bail Act 2013) is enlivened in the period leading up to sentence and after pleading guilty.
From the writers experience as a criminal lawyer practicing in Sydney, there are also many cases where time out on bail after pleading guilty and before being sentenced increases the prospects of rehabilitation which increase the chances of getting a jail sentence other than full time jail, such as an intensive correction order in the community. The new section 22B potentially removes that opportunity for such types of cases.
What are exceptional or special circumstances? There’s no exhaustive list of what this is, but the courts have said, “special or exceptional circumstances” may exist in the combination of factors or in “the coincidence of a number of features”… it is not possible to determine or predict in advance what those features may be (Eli-Hilli and Melville v R  NSWCCA 146).
Exceptional or special circumstances is a high bar to meet. Examples could includes the need for an offender to make arrangements before starting the jail term to avoid hardship to other people such as dependants. The court will determine it on a case by case basis.
New Bail Laws Change #2
The new section 30A Bail Act now provides that if bail conditions impose the requirement for an accused person to be subject to electronic monitoring, it must be of a certain minimum standard prescribed in the Regulations. See section 30A Bail Act 2013 (NSW).
This basically improves the quality and effectiveness of ensuring people granted bail on electronic monitoring conditions are adequately monitored to secure community safety.
This allows for the law via the Regulations to update the standards of electronic monitoring as technology continues to advance and better improve current standards. These standards will align with industry best practices.
How does bail work in relation to an electronic monitoring condition? In a nutshell, the Bail Act outlines circumstances in which a person accused can be granted bail with or without bail conditions.
While determining whether or not to grant an accused person bail, the court has to comply with the Bail Act laws.
If the alleged crime is a “show cause” offence (serious offences), the court must be convince by the accused person as to why continued detention is not justified. If this first step fails, the court must refuse bail. If this step is satisfied, the court must next consider the “unacceptable risk” test, namely, is there an unacceptable risk that the accused will, if released on bail, fail to appear at court, interfere with witnesses or evidence, endanger the safety of victims, individuals or community, or commit a serious offence. The court must consider over 20 factors in considering this.
If the court finds there to be no unacceptable risk, it must grant bail. It may do so with or without bail conditions.
Bail conditions must only be imposed is reasonably necessary, proportionate, and appropriate.
One type of bail condition may include electronic monitoring. Electronic monitoring conditions are directly arranged with a private provider. This is funded by the accused person pays for installation and maintenance costs.
In contrast, electronic monitoring imposed by parole or sentence condition is arranged and supervised by Corrective Services NSW.
When considering an electronic monitoring bail condition for an accused person, the court will assess how suitable it will be. Evidence needs to be produced to the court to help it make that assessment. Such evidence may include evidence from the electronic monitoring provider outlining the equipment and monitoring services it provides. The court will consider how reliable it will be, its quality, and now with the introduction of these new bail laws, it can also now consider whether it lives up to the industry standards to better ensure quality and community safety.
The court is more likely to grant electronic monitoring conditions for bail if satisfied that it sufficiently mitigates the risks of an accused person remaining in the community while facing serious criminal charge(s).
NSW has now become the first ever to introduce prescribed minimum standards for use of electronic monitoring as a bail condition. There was none before this. Perhaps the remainder of the States and Territories will follow.
No laws can completely remove the possibility of an accused person trying to remove or interfere with an electronic monitoring device, but minimum standards will ensure appropriate standard of service delivery, notification and prompt response expected of providers if an accused interferes or tries to remove it.
Here is the second reaching speech to the amendment Bail laws.