Bunyan v The King

[2025] NSWSC 1216

Supreme Court

New South Wales

Medium Neutral Citation:

Bunyan v R [2025] NSWSC 1216

Hearing dates:

14 October 2025

Date of orders:

14 October 2025

Decision date:

14 October 2025

Jurisdiction:

Common Law

Before:

Kirk J

Decision:

Bail granted on conditions

Catchwords:

CRIME — bail — release application — section 22B of the Bail Act 2013 (NSW) — bail sought after conviction but before sentence for two sets of offences — whether s 22B applies in circumstances where there is an indication that applicant will seek to withdraw guilty plea — whether being sentenced to imprisonment to be served by full-time detention is forward-looking from time of sentence, and how that relates to non-parole period — whether special or exceptional circumstances exist — significance of applicant being offered a place in a residential drug rehabilitation program to special or exceptional circumstances, show cause and unacceptable risk tests

Legislation Cited:

Bail Act 2013 (NSW), ss 4(1),16A, 16B, 17, 18, 19, 20, 22B, 49.

Crimes (Sentencing Procedure) Act 1999 (NSW), s 11

Cases Cited:

A1 v R; A2 v R [2016] NSWSC 1288

Chau v Director of Public Prosecutions (1995) 37 NSWLR 639

Director of Public Prosecutions (DPP) (NSW) v Campbell [2015] NSW CCA 173

Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173

Director of Public Prosecution (DPP) (NSW) v van Gestal (2022) 109 NSWLR 136; [2022] NSWCCA 171

Edwards v R (No 2) [2022] NSWSC 1344

Nikollaj v R [2025] NSWCCA 31

R v ET [2022] NSWSC 905

R v Isaac [2023] NSWSC 22

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 June 2022

Category:

Principal judgment

Parties:

Todd Bunyan (Applicant)
Crown (Respondent)

Representation:

Counsel:
S Jordan-Mee (solicitor) (Applicant)
R Buttini (solicitor) (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2025/328582

Publication restriction:

Nil

EX-TEMPORE JUDGMENT (REVISED)

1. The applicant, Todd Bunyan, is a 44 year old Aboriginal man who has made a release application under s 49 of the Bail Act 2013 (NSW) (the Act). He has been in custody for some six and a half months, since 24 March 2025.

2. The applicant has been charged with three sets of offences.

3. In relation to the first, he has been charged with one count of common assault; one count of stalk/intimidate; and one count of being armed with intent to commit an indictable offence. The applicant has entered pleas of guilty to this set and the matter is listed for sentence at Wollongong Local Court on 21 November 2025. The facts alleged are as follows. The applicant and complainant were in a relationship. On 6 June 2024 they were arguing about the whereabouts of a car. The applicant cornered the complainant against a wall. He was holding a pair of pliers in his left hand, and a silver blade in his right hand, and pointed the blade at her throat, yelling, “I’ll cut your fucking throat, where’s the fucking car”. He swung his head around, motioning to the complainant that he would head-butt her. He then hit her on the head with his hand. The applicant was only charged with these offences in December 2024 after police obtained relevant CCTV footage.

4. In relation to the second set, the applicant has been charged with one count of use carriage service to threaten serious harm; one count of possess or use prohibited weapon without a permit; and one count of reckless grievous bodily harm (GBH) in company. He has pleaded guilty to these offences, to be sentenced in the District Court, albeit an issue has arisen about this which I explain below. The facts contained in a statement of agreed facts are in brief as follows. The carriage charge relates to threatening messages sent by the applicant to his then girlfriend (the complainant in the first set) on 16 June 2024. It appears the applicant may have suspected his girlfriend and the male complainant in this matter of having been intimate. On 17 June 2024 the applicant and his co-offender entered the applicant’s unit where the male complainant was present. The applicant punched that complainant six to eight times in the upper body and the head, as was observed by a witness. The applicant then picked up the complainant, who may have been unconscious, and partially dangled him over the railing of the balcony. The applicant and the co-accused were observed by a witness to be laughing as they walked away. The male complainant’s injuries were severe. He was in critical care in hospital for one week. On any view, this was serious criminal conduct.

5. In relation to the third set, the applicant has been charged with one count of assault occasioning actual bodily harm. He has pleaded not guilty. That matter is listed for hearing on 21 November 2025 at Wollongong Local Court. It is alleged that the applicant and a complainant (being a different complainant to the previous sets) had known each other for some time and were residing close to one another in suburban Wollongong. In the early hours of the morning on 23 March 2025 the complainant was outside near the back of the complex where the applicant lived. The applicant appeared and spoke aggressively to the complainant, saying, “Where’s my money?” and urging the complainant to hit him. The complainant backed away. The applicant then commenced punching the complainant repeatedly with closed fists, including to the head. The latter part of the incident was captured on CCTV.

6. The applicant has a criminal history dating back to 1998 when he was 16 years old. His offences as an adult include driving and drug-related offences, charges of possess/use prohibited weapon, custody of knife in public place, assault occasioning actual bodily harm and property and dishonesty offences which, from the sentences, implicitly were minor. He has not previously been sentenced to a term of imprisonment. The applicant also has a conviction for failure to appear in accordance with a bail acknowledgement.

7. The charge in the third set is subject to the show cause test because the applicant was subject to bail for the earlier two sets of offences at the time: see s 16B(1)(h)(i) of the Act. His bail on the second set was granted by this Court in October last year.

8. Three tests under the Act arise: the test in s 22B; the show cause test in s 16A; and the unacceptable risk test in s 19.

Section 22B of the Act

Construction of the provision

9. It is not disputed that s 22B of the Act applies in relation to the first set of offences. The application of that section involves the following considerations:

1. First, it is necessary to consider whether the applicant has been convicted and is yet to be sentenced. The term “conviction” is defined in subs (5) to include a plea of guilty. It also includes a finding of guilt pursuant to s 4(1) of the Act.

2. The second condition is that the applicant “will be sentenced to imprisonment to be served by full-time detention”.

3. If both those criteria are satisfied then, on a release application, a court must not grant bail or dispense with bail unless “it is established that special or exceptional circumstances exist that justify the decision”. This criterion replaces any show cause requirement pursuant to s 22B(2), but the unacceptable risk test still applies pursuant to s 22B(3).

10. Here, as regards the second set of offences, the applicant initially entered pleas of guilty in the Local Court. As noted, he has agreed to a statement of agreed facts for sentencing purposes. He has not yet been arraigned in the District Court where the matter is listed for sentencing. Some 11 days ago the District Court was apparently informed on behalf of the applicant of a possible issue relating to the integrity of the plea, and was told that the applicant wished to withdraw his plea and plead not guilty. I understand the matter was adjourned to allow the applicant’s new legal representatives to receive instructions. No motion has been filed to withdraw the plea but the applicant’s representative, appearing before me, submits that there is a real prospect that the matter will not continue to sentence.

11. In those circumstances the applicant submits that it is “less clear” whether s 22B is enlivened, as arguably the matter can no longer be considered to be in the period before sentencing, as required by the first criterion. I do not accept that submission. In my view, unless and until the applicant is permitted to withdraw his plea, the first statutory criterion in s 22B, namely, that he has been convicted, is satisfied. That is so taking account of the fact that a conviction is defined to include a plea of guilty.

12. An issue then arises with respect to the second criterion. In Director of Public Prosecution (DPP) (NSW) v van Gestal (2022) 109 NSWLR 136; [2022] NSWCCA 171 it was explained at [17] that “it is implicit in the nature of this condition that it requires the court to form an opinion or reach a state of satisfaction as to whether the convicted person ‘will’ be sentenced to full-time imprisonment”, which is “an evaluative judgment of a future matter”.

13. The Court then addressed the nature of the satisfaction required, saying at [44]:

[T]he use of the word “will” in the condition indicating future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen. That does not mean that “will” involves a state of absolute certainty. That cannot be correct since the task of the Court as a bail authority is to make a forward-looking assessment of the future disposition of the sentence with respect to the convicted person based on materials which are unlikely to be complete.

14. In this matter, a further issue arises as to what the phrase “will be sentenced to imprisonment to be served by full-time detention” means. In particular, does it apply if, in the assessment of the court considering bail, there is not a realistic inevitability that the person will be sentenced in a way which would involve their continued full-time detention? That would be so if, for example, the bail court considered in the light of the period spent on remand that, even if a sentence of imprisonment was realistically inevitable, it was not a realistic inevitability that any non-parole period imposed would go beyond the period already served on remand.

15. This issue is, of course, a matter of statutory construction, to be resolved by consideration of the text, context and purpose of the provision. The text is forward-looking: “to be served by full-time detention”. It looks to the time of sentencing, as was explained in van Gestal. It is evident that a term of imprisonment to be served by way of an Intensive Correction Order (ICO) is not encompassed by the provision, that not being full-time detention. So much was expressly acknowledged in the second reading speech for the Bill introducing the section which was read on behalf of the Attorney General in the Legislative Assembly on 21 June 2022. That speech also indicated that the provision would not apply where an offender would be considered for an order under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which involves adjourning sentence proceedings for purposes relating to assessing the offender’s rehabilitation capacity and prospects, amongst other things. Both an ICO or a s 11 adjournment might be considered in circumstances where the person had been remanded in custody prior to the date of sentence.

16. The second reading speech went on to say this (at 9073):

[T]his reform will ensure that those offenders who will be receiving full-time detention are not granted bail to be released back into the community in the interim before that sentencing hearing can occur.

This is not about increasing the number of people going to prison. It is about offenders who have already been found guilty beyond a reasonable doubt or pled guilty and are heading to prison getting there quicker and not being out in the community while awaiting sentence.

17. These statements indicate that the mischief being addressed was offenders obtaining bail in circumstances where they would be “heading to prison” after sentence. That mischief does not extend to circumstances where it is not a realistic inevitably that any non-parole period imposed will not extend past the day of sentencing.

18. In R v ET [2022] NSWSC 905 Davies J stated at [6] with respect to s 22B that “the applicant will show special or exceptional circumstances if the time he has presently served will or might not be less than the sentence that might be imposed upon him when he comes to be sentenced”. That decision was handed down prior to the decision of the Court of Criminal Appeal in van Gestal. I respectfully agree with his Honour that the issue could be considered in terms of special or exceptional circumstances noting, however, that in light of van Gestal, the issue might be resolved prior to having to consider that test.

19. Here, I am considering bail and s 22B does not “involve an abridged sentencing hearing”: Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173 at [31]. Nevertheless, and as often is the case on bail applications, I must undertake a relatively quick and impressionistic assessment of likely sentencing outcomes.

Application

20. The first set of offending to be sentenced in the Local Court in about one month’s time involves some significant threatening behaviour and violence within an intimate relationship. However, whilst the applicant has a relatively significant criminal record, he has not previously served a sentence of imprisonment, although he is aged 44. It is relatively evident there are drug issues connected to all of the offending before me. As the Crown has submitted, his record “suggests a longstanding history of drug addiction”. In that regard, if he could establish that he had real prospects of addressing his underlying drug issues, that would be a significant matter in assessing his prospects of rehabilitation. I consider any non-parole period imposed for the first set of offences is unlikely to exceed the eight months he will have then been on remand.

21. As for the second set of offences, I will proceed on the basis that (assuming the plea of guilty is not withdrawn) he would be sentenced in about February of next year, when he would have been in custody for some 10 to 11 months referable to all three sets of offences. The objective seriousness of the offences alleged in the second set, particularly the reckless GBH charge, is significant. There is a standard non-parole for that charge of five years. A judge sentencing in the District Court for the second set of offences would of course take account of any sentence imposed by the Local Court for the first set of offences and would likely consider that totality issues arose, to some extent, in the light of the proximity of time. However, even allowing for those matters, along with the fact that he has not been imprisoned before, taking account of the severity of the assaults, I consider it is a realistic inevitability that he will be sentenced for a non-parole period exceeding the period then spent on remand. Needless to say, that view is based on limited material, and I accept it is possible that a lower sentence will be imposed if and when it comes to the sentencing exercise.

22. It is necessary then to consider whether there are special or exceptional circumstances in the sense outlined in s 22B. The key issue that arises in this regard, in my view, is the availability of a residential drug rehabilitation spot. As already indicated, and as is reflected in submissions from the Crown, it is plain that the applicant has been afflicted with drug issues for an extended period of time and indeed he has suffered from a long history of drug addiction. He now has the opportunity to participate in a residential rehabilitation program run by an organisation known as Wayback. It is proposed that he live in a particular residence in Sydney. I understand, from submissions made on behalf of the applicant, that Wayback has a central campus where it provides rehabilitation services with their residents living at houses in the community. The material before me indicates that Wayback is not a fully supervised rehabilitation centre. Clients are required to reside in Wayback houses in the community under strict conduct guidelines. Residents are subject to curfews and scheduled and unscheduled house checks. It is submitted on the applicant’s behalf, and I accept, that he has not previously had the benefit of a residential rehabilitation program.

23. In Director of Public Prosecutions (DPP) (NSW) v Campbell [2015] NSW CCA 173 at [20] and [24] it was accepted that an offer of a place in rehabilitation was a factor in favour of cause being shown in circumstances where the show cause test under s 16A of the Bail Act applied. That recognition reflects an acceptance of the significant benefit both to individual applicants and to the community that people afflicted with significant drug addiction problems be able to participate in residential rehabilitation programs. It is clear to me that in the case of this particular applicant it is in his and in the community’s interests that he, if possible, be permitted, and indeed encouraged, to participate in the residential rehabilitation program that is now open to him.

24. In R v Isaac [2023] NSWSC 22 at [11], Yehia J quoted approvingly from a decision of the ACT Supreme Court discussing the notion of “special or exceptional circumstances”. It was there said that:

The words do not mean “unique, unprecedented or very rare”. It must, however, be something which distinguishes the applicant’s case from others, to take it out of the usual or ordinary case.

25. In my view, in the circumstances of this case, the availability of the residential rehabilitation program is something which takes this application out of the usual or ordinary case. In those circumstances, I am satisfied that special or exceptional circumstances, for the purposes of s 22B, have been established by the applicant.

The show cause requirement

26. It is then necessary to consider the show cause test with respect to the third set of offences. Section 16A(1) of the Act requires the applicant to show cause as to why his detention is not justified. Principles relevant to the test are summarised in Nikollaj v R [2025] NSWCCA 31 at [18]-[25]. The provision grants the Court a wide discretion. The justification or otherwise of detention is a matter to be determined by the consideration of all of the evidence or information the bail authority considers credible or trustworthy in the circumstances. Relevant factors can include the strength of the prosecution case, the delay in coming to trial, the applicant’s criminal history (or lack thereof), matters relevant to the unacceptable risk test, and the presumption of innocence and the right to be at liberty. The show cause test is separate to the unacceptable risk test.

27. I accept that a significant factor militating against cause being shown is that the third set of offences occurred in breach of bail. However, for reasons similar to why I am satisfied that special or exceptional circumstances exist, I am also satisfied that the applicant has shown cause why his continued detention is not justified. In particular, taking account of all the circumstances, as already noted, it is again in the interests of both the applicant and the community that his participation in a residential drug rehabilitation program be facilitated.

The unacceptable risk test

28. It is then necessary for me to consider the unacceptable risk test in relation to all three sets of offences. Pursuant to s 19, bail must be refused if I am satisfied with respect to one or more of the bail concerns that release on bail presents an unacceptable risk. Otherwise, taking account of s 20, an order must be made which would allow the applicant to be released. Whether there is an unacceptable risk with respect to the bail concerns is to be assessed having regard only to the matters set out in s 18. Whether or not there is an unacceptable risk can take account of any bail conditions that can reasonably be imposed to address any bail concerns.

28. Releasing any alleged offender into the community involves some risk, but the Act requires that that be done unless the risk relating to the bail concerns is assessed to be unacceptable. The Act takes that approach in light of the presumption of innocence and the general right to be at liberty when not subject to a sentence of imprisonment, as referred to in the preamble to the Act.

29. In granting conditional bail it is appropriate to emphasise two matters. First, bail is not to be denied to the person as a punishment: Chau v Director of Public Prosecutions (1995) 37 NSWLR 639 at 655, cited in A1 v R; A2 v R [2016] NSWSC 1288 at [42]. Second, it is not the function of the court on the present application to make a determination that a person should start serving a custodial sentence in advance of its being imposed, nor should bail be refused as a means to impose interim punishment: see Edwards v R (No 2) [2022] NSWSC 1344 at [20].

30. The Crown has raised all bail concerns under s 17 of the Act. I accept that all four of those concerns exist. However, all four of those concerns will be mitigated, in my view, to a significant extent if the applicant is permitted and required to stay in a residential rehabilitation facility. Risk can also be mitigated by imposition of a range of conditions, including in relation to home detention and with respect to his access to communication devices.

31. I do note the evidence, to which I have already referred, that he will not be fully supervised at the Wayback facility. However, as already noted, there would also still be some checks. Furthermore, I intend to impose reporting requirements, which might also be expected to act as some restraint on his potential behaviour. It is also relevant that the applicant is a vulnerable person within the meaning of s 18(1)(k) of the Act. He is Aboriginal, he appears to have significant ongoing anxiety issues and he is blind in one eye.

32. Taking account of all of the circumstances, I am satisfied, on the basis of an assessment of bail concerns, that there are no unacceptable risks which cannot appropriately be ameliorated by imposition of bail conditions. Bail will be granted on conditions.

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Decision last updated: 16 October 2025