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Bail Following A Conviction (NSW)

In 2022 the New South Wales Bail Act 2013 was amended. One of the changes is that it is now significantly harder for a person to obtain bail following a conviction in certain situations. This article explores that change and some of its likely effects.

Bail following a conviction where imprisonment will be ordered

The Bail Act now states that where a defendant has been convicted of an offence or has entered a plea of guilty and is going to receive a full-time custodial sentence, bail must only be granted or continued if special or exceptional circumstances can be established. The new section requires bail to be revoked (in the case of a detention application) or refused (in the case of a release application), in all other cases.

Other requirements under the Bail Act

Any detention or release application where an offender has been convicted or found guilty of an offence is subject to the relevant tests as set out in the Bail Act 2013. The tests are:

  1. The ‘show cause’ test (where applicable), and
  2. The ‘unacceptable risk’ test.

Show cause

The show cause test only applies to offences deemed as ‘show cause’ offences under Section 16B of the Bail Act 2013.

Where a defendant has been charged with a show cause offence, the defence is required to show cause (provide reasons to the court) as to why their detention is not justified. If a person fails to show cause, they will be refused bail. If a person establishes that their detention is not justified, the unacceptable risk test will apply to assess any concerns the court has regarding the granting of bail (known as ‘bail concerns’).

If a defendant has not been charged with a show cause offence, they are not required to show cause as to why their detention is not justified and need only address the court on whether there is an unacceptable risk present should bail be granted.

Unacceptable risk

The court must determine whether there are any concerns in granting bail to the defendant, and whether these concerns create an unacceptable risk, or whether such concerns can be addressed through imposing bail conditions.

In determining bail concerns, the court is required to only consider the factors as listed in Section 18(1) of the Bail Act 2013. One of these factors is the likelihood of a custodial sentence being imposed if convicted, with others including whether the defendant has any criminal associations, the nature and seriousness of the offence, whether there is any history of violence and any special vulnerability of the defendant (to name a few).

If any bail concerns are present, the court is then required to determine whether such concerns create an unacceptable risk of one or more of the bail concerns or whether these risks can be addressed and mitigated by imposing bail conditions. Bail is only to be refused if the risk involved in granting bail is deemed unacceptable.

Bail after a person has been convicted

Section 22B of the Bail Act introduces a different test for a defendant who has been convicted of an offence and will get a term of imprisonment. Where a detention or release application is made after a conviction and the defendant will be sentenced to full time imprisonment, bail is not to be granted or continued unless special or exceptional circumstances exist to justify the decision to grant bail.

Previously, a defendant applying for bail only needed to establish that ‘special or exceptional circumstances’ existed where their conviction or sentence appeal was pending in the Supreme Court of Criminal Appeal. The ‘special or exceptional circumstances’ test now applies in all courts to defendants who have been convicted or have pleaded guilty to an offence and will be sentenced to full time imprisonment.

The new process for applying for bail where a person has been convicted and will be sentenced to full time imprisonment will require the defence to establish whether any special or exceptional circumstances exist before addressing the court on the application of the unacceptable risk test.

Special or exceptional circumstances are not exhaustively defined by the legislation and are to be determined on a case-by-case basis. An example of special or exceptional circumstances may include where the person needs to make arrangements for children to be placed in someone else’s care; however, it is unclear what will circumstances will be found to fulfil this test

The new provision only applies where a defendant “will” be sentenced to full time imprisonment. The section will not be enlivened where a magistrate or judge considers that full time imprisonment is likely or possible, but only where it is certain that a defendant will definitely be sentenced to full time custody.

What are the practical implications of the changes?

The changes to the Bail Act have a number of practical implications.

Negative impact on ability to engage with rehabilitation

Where a person is refused bail, they are unable to participate in any in-patient drug and alcohol rehabilitation, or other behaviour programs like anger management which are usually only available to those in the community. The proposed changes may negatively impact a defendant who, under the current system, would be able to engage with these important rehabilitative programs to address the roots of their offending behaviour. Under the new system, such a person will be held in custody until sentence with their issues unaddressed.

Offenders may resist entering an early guilty plea

Where a defendant enters a guilty plea to offences at an early opportunity, they are afforded a utilitarian discount or reduction on their sentence of up to 25%. The prohibition on granting bail to a person who has been convicted may dissuade accused persons from entering a plea of guilty at an early opportunity. It may be seen as preferable not to enter a plea in order to remain on bail in the community.

The changes may also mean that accused persons have to balance whether the discount on sentence is more beneficial than remaining in the community and participating in rehabilitative programs. Under the current system they are afforded the benefit of both.

Delays in finalising matters

As the changes may result in accused persons not entering an early guilty plea, the courts may experience a larger backlog of matters and decreased efficiency because of the additional work involved with a running a defended matter.

Further, and most problematically, the proposed amendments require a consideration of whether the defendant will serve a period of full-time custody upon sentence.

Assessing whether full-time imprisonment will be imposed

For a court to accurately determine whether a term of full-time imprisonment will be imposed in a matter, it will generally need to consider the facts and subjective circumstances and apply the requisite tests under the legislation before forming a view as to whether the defendant will receive a sentence of full-time custody.

In practice, a detention or release application could be made immediately after entering a guilty plea. This could require the court to undergo a quasi-sentence hearing some months or years before the actual sentence without having important material such as psychiatric reports, character references, letters of assistance to police, drug and alcohol rehabilitation reports or financial surety prepared.

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

Sophie Ogborne

This article was written by Sophie Ogborne

Sophie Ogborne has a Bachelor of Laws from University of Wollongong and a Graduate Diploma of Legal Practice from the College of Law. She was admitted to practice in New South Wales in 2020. Sophie has experience in criminal law, civil law, family law and in the criminal and equity divisions of the Supreme Court. Sophie now practices exclusively in...

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