Amendments to Bail Laws in NSW – Section 22B of the Bail Act 2013 (NSW)
Amendments to Bail Laws in NSW – Section 22B of the Bail Act 2013 (NSW)

New Bail amendments were introduced to Parliament regarding bail options for those accused who wish to plead guilty, or who have already been found guilty by the court. Section 22B of the Bail Act 2013 of these amendments has been criticised for its lack of community consultation.

Section 22B applies to a person who has either pleaded guilty or been found guilty of an offence for which the person will be sentenced to full-time imprisonment. This means that the Court will not apply this section if the Court might sentence the person to a penalty other than full-time imprisonment, such as an Intensive Correction Order.

If the section applies, the defendant must show “special or exceptional circumstances” for the Court to grant bail or allow the person to stay on bail.

The s22B amendments will make it more difficult for accused people to be released from prison throughout the duration of their court matter. These difficulties arise for those people who decide to plead guilty or are found guilty of an offence. If the likely sentence is that of a full-time custodial punishment, it must be found that there are special or exceptional circumstances in the matter to be released on bail for sentencing hearings.

The practical implication for an accused person is that if they are entering a plea of guilty, the Prosecution or Crown are more likely to make a detention application if it is likely a full-time custodial penalty will be the ultimate penalty.

The laws have caused concern within legal circles. In a recent judgment by supreme court justice Peter Garling, he noted errors in the wording of the bill, which he warned could impact its interpretation by the courts, warning of an “infelicity of drafting”.

Justice Garling made the ruling in dismissing an application to have bail revoked against Titus Day, the former manager of singer Guy Sebastian who was found guilty of 34 counts of fraudulent embezzlement last month. Day was granted bail ahead of his sentencing, but the Director of Public Prosecutions appealed against the decision due to what it said was the likelihood of a prison sentence.

In his judgment refusing the appeal, Justice Garling said the use of the word “will” in the act meant applying it in Day’s case was not warranted.

“The court is not called upon to determine if the offender may be so sentenced, nor whether they might be so sentenced. Nor is it called upon to determine that a sentence of full-time imprisonment will on the balance of probabilities be imposed,” he wrote in his decision. “The word ‘will’ connotes a degree of certainty or confidence that the requisite term of imprisonment will be the outcome of the sentencing hearing.” Justice Garling went to say that in cases that rely on “inferences and conclusions” based on convictions for the same types of offences “it will be very difficult to persuade a court that the possibility of any other lawfully available sentencing alternatives has been excluded”.

The Law Society of NSW have also published a media release expressing their disappointment as “rushed reform can be flawed reform.” The Law Society are concerned about the “unintended consequences” that may summarised below:

  • Before any sentencing submissions or risk assessments are done, there is now a chance of misunderstanding about whether an offender “will be” sentenced to full-time incarceration. As a result, the remand rate may rise significantly.
  • Children are not excluded
  • It will discourage early guilty pleas
  • Increase the burden on a criminal justice system that is still dealing with COVID-19-related backlogs.
  • The ability to redirect offenders into treatment or rehabilitation programmes who have not committed the significant crimes that should result in a refusal of bail post-conviction may be severely affected.

About the Author

Joseph Harb
Joseph Harb

Joseph Harb is the Principal Lawyer at Australian Criminal Defence and one of Sydney’s most respected criminal lawyers. Joseph appears in matters in all jurisdictions in Australia and has consistently achieved a solid reputation in criminal and drug matters Joseph is a keen blog writer and has a focus on social justice issues and encroachment on civil liberties

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