NSW Bail Laws Case Update

Following the new bail laws in New South Wales on the section 22B provisions, multiple cases have emerged giving it clearer meaning and guidance in order for it to be fairly applied.

For a more detailed discussion and recap on the main changes, here is our previous article on the new bail act section 22B laws.

More on making a bail application in NSW can be found here.

Quick Recap on New s22B Bail Laws

Ordinarily, after being arrested and charged, an accused person will either be granted bail and released pending his/her court proceedings, or bail will be refused pending the court proceedings. Cases, can take from weeks to years to finalise.

Hence why it is understandable why a person will want to be granted bail to get on with their existing life for all sorts of legitimate reasons pending the final court outcome. This also so, when one has in mind that when charged, the presumption of innocence until proven guilty remains.

But what if a person facing very serious charge(s), decides to plead guilty or is found guilty at court, yet is waiting to be sentenced by the court? The gap between pleading guilty/being found guilty and being sentenced by the court can be weeks to months, and in some cases over a year.

The interim period, between finding of guilt and being sentenced in court gives time, if on bail, for an offender to attend to sorting out his or her life and prepare for sentence. This may include making arrangements to ensure any dependants are looked after, getting better available medical and/or mental health treatment in the community that can never be provided to the same extent behind bars, and better prepare the case on sentence to address issues of prospects of rehabilitation which can significantly reduce the penalty on sentence.

Under the new section 22B, there is now a presumption that bail be refused to a person who pleads guilty or is found guilty by a court, pending sentence (but before being sentence) if full time custody as a sentence will be made on sentence. The only exception to this presumption is if the offender can show that there are special or exceptional circumstances to grant bail.

The section 22B only applies or is engaged if the person is found guilty or pleads guilty and if the Magistrate or Judge hearing the bail application forms the view that Full Time Imprisonment will be ordered against that individual.

One of the most concerning issues with this is that it is extremely difficult if not impossible to know whether Full time jail will definitely be imposed later down the track on sentence in the absence of all relevant sentencing materials being available earlier than when otherwise required to be available on the subsequent sentence date. Sentencing materials may include the agreed facts outlining the details of the offence for the sentencing Judge to read, and any psychological reports that may be significantly important for a Judge to decide on an appropriate punishment. By the time the sentence date approaches, the offender may have demonstrated excellent prospects of rehabilitation by being able to get treatment in the community which in some cases require a sentencing Judge to consider an alternative to full time custody, such as an Intensive Correction Order. Unfortunately all this will often not be available at the time of the bail application, and therefore it will usually be impossible to know with any certainty whether Full time jail will be imposed later. This is the dilemma that requires clarification, usually done through case law.

Supreme Court Bail Case Study of DPP v Gestel

One such case law is the case of DPP (NSW) v Gestel heard in the NSW Court of Criminal Appeal. Let’s discuss the more recent Supreme Court case of DPP (NSW) v Gestel NSWCCA.

Robert Van Gestel was found guilty and convicted for child sex offences involving three victims that took place between 1974 and 1994. After being arrested and charged he was granted bail in February 2020.

The Director of Public Prosecutions in NSW applied for what is called a ‘detention application’ requesting that the court refuse him bail and take him into custody pending sentence, after only a few days of the jury returning with a guilty verdict. The guilty verdict came on 9 June 2022, and the case was adjourned for sentence to 21 October 2022.

The detention application was first heard and failed in the Supreme Court on 21 July 2022. The DPP then lodged another detention application in the Court of Criminal Appeal heard and successful made on 1 August 2022. This resulted in Mr. Gestel’s bail being revoked, placing him into immediate custody pending his sentence.

Important Things to Know About Gestel’s Case

The Court of Criminal Appeal clarified some important ambiguity and laid down some important new laws.

Firstly, it said that the words “will” be sentenced to Full Time Imprisonment is actually an opinion rather than a fact. Proof on the balance of probabilities that the offender will be sentenced to Full time jail is not the test to be considered and applied. It is an evaluative judgement of a future matter, not a fact to be proved.

Secondly, the court said that, acknowledging that the court will not have all the relevant sentencing material before sentence, when deciding on a bail decision under section 22B, the word “will” indicates a future likelihood suggesting what is realistically inevitable as compared to what is likely to happen. This test does not require the court to be satisfied that Full Time Imprisonment is absolutely certain.

Thirdly, the court also said that there being an alternative to full Full time jail theoretically available does not necessary mean that section 22B cannot be satisfied provided an alternative to full time custody realistically can’t be imposed in all the circumstances of the case.

In Mr Gestel’s case, the court formed the view that full time custody is realistically inevitable, and on that bases was satisfied with section 22B given considerations of the objective circumstances of the offences, their prescribed maximum punishments, the offender’s own barrister who conceded that some of the offences will require full time jail.

The offender then unsuccessfully argued that even if Full time jail will be imposed, special or exceptional circumstances should result in him being allowed to continue his bail. Here the court did not agree that the offender’s need to be on bail to address care arrangements for his partner and adult son, combined with his concern as to the more limited level of health care that can be provided in jail through justice health than outside in the community amounted to special or exceptional circumstances.

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