Strong Presumptions and NSW Bail Reforms
Fremantle Prison
On 11 June 2023, a bus crash in Hunter Valley killed 10 passengers and injured 25.[1] The driver, Brett Button, was charged with multiple manslaughter and dangerous driving occasioning death offences. Despite the strength of the Crown case, Button has yet to enter a plea. Furthermore, he was granted bail. One of the reasons he has not entered a plea may have to do with the 2022 bail reforms.
The 2022 Bail Reforms
In 2022, section 22B was inserted into the Bail Act 2013. For serious offences, an accused person will usually be granted bail if a two-limbed test is satisfied:
Has the accused shown cause as to why their detention is not justified?
If so, does the accused present an unacceptable risk to the community? [2]
Bail is not limited to defendants awaiting trial. One can apply for bail following conviction and prior to sentencing.
Section 22B amends the first limb of the bail test for offenders waiting to be sentenced. Suppose a defendant is waiting to be sentenced for an offence which they will be sentenced to full-time imprisonment. In that case, the court ‘must’ not grant or dispense with bail unless the accused establishes special or exceptional circumstances justifying bail. [3] If there are, the court then follows the second limb of the bail test, the ‘unacceptable risk test’ pursuant to s 17. Section 22B defines ‘conviction’ to include a finding of guilt where an accused pleads guilty. Special or exceptional circumstances must be established by the offender on the balance of probabilities. [4]
In determining whether someone will be sentenced for an offence for which they ‘will’ be sentenced to full-time prison, the court need not be certain that the offender will receive a custodial sentence, it is enough that imprisonment is ‘realistically inevitable.’ As such, s 22B will not be enlivened if imprisonment is merely likely to happen. [5]
Why the change?
This reform was enacted by the Perrottet Government a week after the Premier was interviewed by Ray Hadley on 2GB over several ‘bail fails’. [6] These include cases like Mostafa Baluch, [7] who attempted to flee to Queensland while on bail, and convicted paedophile Neil Duncan, who allegedly breached his bail conditions while awaiting sentencing. [8] These cases, as noted by Adam Searle, were ‘extraordinary’ for their ‘shocking facts’. In Parliament, Searle said that ‘bail should never [have] been given’ to those offenders. [9]
With bipartisan support, the reforms were passed quickly. Melinda Pavey noted that the bail reforms were meant to establish a ‘high bar’ to ensure that NSW bail laws remain among the strongest in the country. [10] Walt Secord referred to the 2GB interview as giving the Government a ‘kick in the butt it deserved to get things moving’ on bail reform. [11]
In the Legislative Council, Sue Higginson and Abigail Boyd took issue with the reforms. Higginson criticised the bill for being rushed and argued that it sought to circumvent one of the most important principles in the criminal justice system, namely judicial discretion. [12] Boyd raised concerns the bill would disproportionately affect poorer individuals who could not afford legal counsel. Boyd questioned the speed in getting the Bill passed shortly after the Premier’s interview on 2GB. Indeed, the Bill was passed only seven days after being first discussed, meaning that there was little room for public consultation. [13]
Special or Exceptional Circumstances
‘Special or exceptional’ circumstances impose a high bar for defendants to satisfy. The application of this test can be illustrated with a few noteworthy cases.
In DPP (NSW) v Hayne, the Crown applied for former NRL player Jarryd Hayne to be detained after he was convicted by a jury for sexual assault. [14] Mr Hayne argued he should be given bail while awaiting sentencing to make logistical arrangements with his family and to ensure their safety after experiencing online harassment. [15] The Court stated that making logistical arrangements were not special nor exceptional when a person was preparing for imprisonment. [16] Further, the media interest was an unfortunate incident of Mr Hayne’s status but was not in itself an exceptional circumstance. [17]
In DPP (NSW) v Duncan, Neil Duncan submitted that if he was taken into custody before sentencing, he would not be able to get his prostate and bowel problems properly diagnosed. As custody would make it difficult for the offender to undergo his scheduled colonoscopy before sentencing, the Court allowed Mr Duncan, inter alia, to be at liberty. [18]
Finally, in R v Isaac, Mikkel Isaac pled guilty to several drug and firearm offences. The exceptional circumstance that Mr Isaac presented was that his wife was ‘brutally murdered’ shortly after his conviction. [19] Mr Isaac argued he needed to be at liberty to care for his grieving children and arrange for their care, to access familial support and to attend his wife’s funeral. While the Crown argued the offender could attend his wife’s funeral via audio-visual link, the court called it a ‘very poor substitute’ in the particular context of this case. [20] Mr Isaac was allowed on bail subject to strict conditions.
Conclusion
As manslaughter carries a maximum of 25 years imprisonment, it is likely that one of the reasons Mr Button has not entered an early guilty plea is due to the operation of s 22B. His matter is still before the Local Court and (depending on his plea) will be committed to trial or sentencing in the District or Supreme Court sometime after March.
If an offender pleads guilty before their matter is committed for sentence to the District or Supreme Courts, the offender is entitled to a 25% reduction in any sentence that would otherwise be given. [21] This is due to the ‘utilitarian’ value of pleading guilty early (e.g. saving the court’s time and expense by not running a trial and sparing witnesses from added trauma). It is notable that once the matter is in the District Court or Supreme Court from the period between arraignment and the last fourteen days before trial, any guilty plea entered would only entitle the offender to a 10% discount in their final sentence.
As such, if Mr Button pled guilty any time between his arrest (June 2023) and committal (expected to be after March 2024), he would receive the discount but be detained earlier due to the operation of s 22B. Therefore, it is likely that Mr Button would have gotten advice that unless he could prove he had ‘special or exceptional’ circumstances to be on bail after conviction and before sentence, he should wait until his matter is committed to the higher courts to enter a plea, should he decide to plead guilty.
Author Postscript: On 8 May 2024, Brett Button pled guilty to 35 charges including 10 counts of dangerous driving occasioning death in Newcastle Local Court. Following the plea, the DPP withdrew the 10 manslaughter charges. Mr Button was immediately taken into custody following a section 22B application. It is expected he will be sentenced in the District Court later this year.
[1] Eli Green, Jessica Wang, ‘Bus driver granted bail after charges upgraded to manslaughter over Hunter Valley wedding crash’, news.com.au (online, 17 January 2024) <https://www.news.com.au/national/nsw-act/courts-law/bus-driver-granted-bail-despite-manslaughter-charges-over-hunter-valley-wedding-crash/news-story/f8a4c887650fb0da74cb5ca38c270106>.
[2] Bail Act 2013 (NSW) ss 16A, 17.
[3] Bail Act (n 2) s 22B(1).
[4] DPP v Van Gestel [2022] NSWCCA 171 [20] (‘Van Gestel’)
[5] Van Gestel (n 4) [44].
[6] Ray Hadley, ‘Premier promises to block ‘unacceptable’ bail loophole’, 2GB Sydney (online, 15 June 2022) <https://www.2gb.com/premier-seeks-to-block-unacceptable-bail-loophole/>.
[7] Australian Associated Press, ‘Accused drug kingpin Mostafa Baluch behind bars in Sydney after extradition from Gold Coast’, The Guardian (online, 11 November 2021) <https://www.theguardian.com/australia-news/2021/nov/11/accused-drug-kingpin-mostafa-baluch-behind-bars-in-sydney-after-extradition-from-gold-coast>.
[8] Adriane Reardon, ‘Convicted NSW paedophile Neil Duncan remains on bail after Supreme Court dismisses detention bid’, ABC News (online, 11 July 2022) <https://www.abc.net.au/news/2022-07-11/paedophile-neil-duncan-remains-on-bail-supreme-court/101226316>.
[9] New South Wales, Parliamentary Debates, Legislative Council, 23 June 2022 (Adam Searle).
[10] New South Wales, Parliamentary Debates, Legislative Council, 23 June 2022 (Melinda Pavey).
[11] New South Wales, Parliamentary Debates, Legislative Council, 23 June 2022 (Walt Secord).
[12] New South Wales, Parliamentary Debates, Legislative Council, 23 June 2022 (Sue Higginson).
[13] Thomas Spohr, ‘Rushed Reforms’, LSJ (online, 05 August 2022) <https://lsj.com.au/articles/rushed-reforms-uncertainty-and-more-prisoners-on-remand-recent-changes-to-the-bail-act/>.
[14] DPP (NSW) v Hayne [2023] NSWSC 377 [7]-[11] (‘Hayne’).
[15] Ibid.
[16] Hayne [9].
[17] Hayne [18].
[18] DPP (NSW) v Duncan [2022] NSWSC 927 [49]-[50].
[19] R v Isaac [2023] NSWSC 22 [14] (‘Isaac’).
[20] Isaac [29].
[21] Crimes (Sentencing Procedure) Act 1999 (NSW) s 25D.