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Bail After a Finding of Guilt

Bail can be granted at any stage in a New South Wales criminal proceeding prior to sentencing. It is often granted when a person is first charged with an offence, or when a matter is listed for a contested hearing. However, it is also possible for a court to grant a defendant bail after a finding of guilt has been recorded against them but before they have been sentenced. However, the power of courts to grant bail following a conviction was severely limited in 2022 by the introduction of a new provision into the Bail Act. This article deals with the grant of bail after a finding of guilt but prior to sentencing

Section 11 applications

Section 11 of the Crimes (Sentencing Procedure) Act empowers courts to adjourn a matter for certain purposes after a defendant has been found guilty. This may be done for any of the following purposes:

  • to assess the defendant’s capacity and prospects of rehabilitation;
  • to allow the defendant to demonstrate that rehabilitation has occurred;
  • to assess the defendant’s suitability to take part in an intervention program or to allow them to participate in an intervention program;
  • for any other purpose that the court considers appropriate.

Bail conditions after a finding of guilt

If a person has been found guilty of criminal offences but not yet sentenced and the court is not going to impose a term of actual imprisonment, the court may grant them bail if the circumstances mean that this is appropriate. In this situation, bail conditions may be imposed including that:

  • the person be assessed for participation in an intervention, treatment or rehabilitation program
  • the person must participate in an intervention or treatment program and comply with any plan arising out of the program

Bail after a finding of guilt where imprisonment will be ordered

Under section 22A of the Bail Act, where a person has been convicted or has pleaded guilty to offences and will be sentenced to a term of actual imprisonment, the court must not grant or continue bail unless satisfied that there are special or exceptional circumstances that justify doing so. In all other cases where a person has been convicted and will be sentenced to jail, the court must revoke bail (if the person is on bail) or refuse bail (if they are in custody).

What are the benefits of getting bail after a finding of guilt?

The purpose of section 11 of the Crimes (Sentencing Procedure) Act is to allow defendants to pursue rehabilitative options that may place the court in a position to deal with them more leniently than it would be able to do otherwise. The successful completion of a rehabilitation program that addresses issues that were a significant contributor to the offending may allow the court to sentence the defendant in a way that takes into account the actions they have taken towards addressing risk factors in their life.

The fact that a defendant has taken positive steps towards their rehabilitation may also cause the court to view the defendant as a person with good prospects of rehabilitation and therefore impose a sentence where the sentencing principle of rehabilitation is given more importance than other sentencing purposes, such as deterrence. The result may be a sentence that is less punitive in nature.

When it comes to matters where the person is going to be sentenced to imprisonment, the court’s power to grant bail is now limited. This means that in a lot of serious matters, where imprisonment is to be imposed, accused persons no longer have the option of pursuing rehabilitative options in the community after being found guilty.

Should I apply for bail after a finding of guilt?

If you are expecting to be found guilty of criminal offences that will not attract a term of actual imprisonment, it may be in your interests to apply for bail so that you can pursue rehabilitative options. However, depending on your circumstances and the circumstances of the offences, this may not be appropriate or relevant. It is important to talk to a lawyer about your situation so that they can advise you on all the steps you can take to ensure you receive a fair sentence that takes into account your circumstances.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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