Director of Public Prosecutions (NSW) v Van Gestel

Case •

[2022] NSWCCA 171

•

12 August 2022

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171
Hearing dates: 1 August 2022
Date of orders: 1 August 2022
Decision date: 12 August 2022
Before: Gleeson JA; Wright J; Cavanagh J
Decision:

(1)   The Crown detention application is granted.

(2)   The respondent’s bail is revoked.

(3)   The respondent is to be taken into custody forthwith.

Catchwords:

CRIME – bail – detention application – application made by prosecution following conviction and before sentencing – s 22B Bail Act 2013 – whether conditions limiting Court’s power to make bail decision met – whether convicted person will be sentenced to full-time imprisonment – where condition involves a state of satisfaction as opposed to a fact – whether special or exceptional circumstances exist to grant bail

STATUTORY INTERPRETATION – meaning of “will” – assessment of disposition of sentence in light of available sentencing alternatives – meaning of “special” or “exceptional” circumstances – where same words appear in different parts of statute – where reference to dictionary definitions is of limited assistance

Legislation Cited:

Bail Act 1978 (NSW), s 9C

Bail Act 2013 (NSW), ss 4, 16A, 16B, 17, 18, 22, 22B, 32, 50, 67, 75

Crimes Act 1900 (NSW), ss 61E, 61M, 76

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 25AA, 67

Cases Cited:

2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409

Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232

Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938

Director of Public Prosecutions (NSW) v GX [2019] NSWCCA 84

Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927

Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

El-Hilli and Melville v R [2015] NSWCCA 146

Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55

R v Cattell [2019] NSWCCA 297

South-Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69

State of New South Wales v Kaiser [2022] NSWCA 86

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68

The Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611; [1975] HCA 41

Trinh v R [2016] NSWCCA 110

Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355

Texts Cited:

Macquarie Dictionary (2022)

Category:Principal judgment
Parties: Director of Public Prosecutions (NSW) (Applicant)
Robert Van Gestel (Respondent)
Representation:

Counsel:
G Newton / R Kotsis (Applicant)
M Hobart SC / T Hennessy (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Applicant)
McAneny Lawyers (Respondent)
File Number(s): 2022/220024

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 9 June 2022, following a trial by jury in the District Court, the respondent, Mr Robert Van Gestel, was found guilty and convicted on 8 counts of sexual misconduct involving a child. The counts involved offences of indecent assault and aggravated indecent assault against three victims, occurring between the years 1974 and 1994. Mr Van Gestel had been granted conditional bail on 11 February 2020, following his arrest and extradition to New South Wales from Victoria. Upon the return of guilty verdicts by the jury, the Crown did not make a detention application and the trial judge permitted bail to continue, with the sentencing hearing to occur on 21 October 2022.

On 17 June 2022, the Director of Public Prosecutions (NSW) filed a detention application in the Supreme Court relying s 22B of the Bail Act 2013 (NSW) which came into effect on 27 June 2022. Section 22B(1) provides that, on a detention application for the period following conviction and before sentencing for an offence for which a convicted person “will be sentenced” to full-time imprisonment, the court must refuse bail, unless special or exceptional circumstances exist that justify the decision, in effect, to grant bail or dispense with bail.

Garling J dismissed the detention application on 21 July 2022. The Director filed a further application in the Court of Criminal Appeal which was heard on 1 August 2022. At the conclusion of the hearing, the Court granted the detention application, revoked Mr Van Gestel’s bail and ordered that he be taken into custody.

The appeal raised two issues:

  1. whether the condition in s 22B limiting the Court’s power to make a bail decision with respect to a convicted person had been met, namely the Court is satisfied that Mr Van Gestel is a person convicted of an offence for which he “will be sentenced to imprisonment to be served by fulltime detention”; and

  2. if this condition was met, whether Mr Van Gestel established that special or exceptional circumstances existed to justify a decision to continue bail.

The Court (Gleeson JA, Wright and Cavanagh JJ) held:

As to issue 1:

The condition in s 22B(1) that the convicted person “will” be sentenced to full time imprisonment involves an opinion or state of satisfaction, as opposed to a fact. As this is an evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not the relevant standard: [17]

Section 22B sets a high bar for the degree of satisfaction to be reached by the Court to engage the limitation on the power to make a bail decision under this provision: [42]. When regard is had to the context of s 22B, including that the Court as the bail authority is not the sentencing court, the proceedings are not an abridged sentencing hearing, and the Court is unlikely to have all the materials from trial or to be relied upon on by the parties on sentence, the use of the word “will” indicating a future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen, but does not does involve a state of absolute certainty: [43]-[44].

In assessing whether the condition in s 22B(1) has been met, the Court will have regard to: (1) the offence(s) for which the accused person has been convicted, bearing in mind the principles of sentencing and all applicable sentencing laws, including the available sentencing alternatives to full time imprisonment; (2) the materials and submissions placed before the Court as the bail authority relevant to the future disposition of the sentence; and (3) the abbreviated nature of the release or detention application before the Court: [45].

That an alternative sentence to full time imprisonment is theoretically available does not preclude the Court from otherwise reaching the degree of satisfaction required by the condition in s 22B if no other sentence than fulltime imprisonment could realistically be imposed by the sentencing court in all the circumstances of the case: [47].

In the present case, having regard to the objective circumstances of the offending, the applicable maximum penalties, the acceptance by the respondent’s senior counsel that counts 1-5 would require full time imprisonment subject to the subjective matters to which attention was drawn and the applicable sentencing principles and laws, the Court was satisfied that the respondent will be sentenced to full time imprisonment: [48].

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; State of New South Wales v Kaiser [2022] NSWCA 86 referred to.

As to issue 2:

Whether “special or exceptional circumstances” exist is a question of fact and the convicted person relying on this exception has the onus of proof: [20].

The same meaning should given to “special” and “exceptional” in s 22B as in s 22(1), of the Bail Act, given there is no reason to do otherwise: [50] Whether “special or exceptional circumstances” exist involves a case-by-case determination: [51]-[52]. Reference to dictionary definitions is not of great assistance: [53].

None of the matters relied upon by the respondent concerning the level of health care which can be provided by Justice Health, and the need to be at liberty to make care arrangements for his wife and adult son amounted to special or exceptional circumstances: [62], [64], [68]-[71].

Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927; El-Hilli and Melville v R [2015] NSWCCA 146 applied.

2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409; The Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611; [1975] HCA 41; Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55; TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 referred to.

Judgment

  1. THE COURT: On 27 July 2022 the Director of Public Prosecutions (NSW) (the Director) filed a detention application pursuant to s 50 of the Bail Act 2013 (NSW) against Robert Van Gestel (the respondent) seeking bail refusal. The respondent is a convicted person awaiting sentence in the District Court on sexual misconduct charges.

  2. The application to this Court followed the dismissal by a judge of the Supreme Court on 21 July 2022 of a detention application filed by the Director against the respondent on 17 June 2022. This Court has power to hear the present application given the previous bail decision made by the Supreme Court: Bail Act, s 67(1)(e).

  3. The detention application was heard in this Court on 1 August 2022. At the conclusion of the hearing, the Court granted the detention application, revoked the respondent’s bail and ordered that the respondent be taken into custody. The Court reserved its reasons for that decision. Our reasons for making those orders follow.

Background

  1. On 9 June 2022 following a trial by jury in the District Court before Latham ADCJ, the respondent was found guilty and convicted on 8 counts of sexual misconduct involving a child, in each case a young girl.

  2. Counts 1-5 involved offences of indecent assault of one victim aged between 5 and 9 years in the period between 1 January 1974 and 1 June 1977 contrary to s 76 of the Crimes Act 1900 (NSW). Counts 6 and 7 involved offences of indecent assault against a second victim aged between 5 and 6 years, one offence in the period 1 January 1988 to 18 April 1989 contrary to s 61E(1) of the Crimes Act and one offence of aggravated indecent assault in the period between 19 April 1991 and 31 January 1994 contrary to s 61M(1) of the Crimes Act. Count 8 involved an offence of indecent assault against a third victim in the period between 1 August 1989 and 30 September 1989 contrary to s 61E(1) of the Crimes Act. All of the offending occurred in the respondent’s home when the victims were visiting, either to play with the respondent’s own children or for a household errand.

  3. The respondent has been on conditional bail at all times since 11 February 2020 following his arrest on 10 February 2020 and extradition to New South Wales. His bail conditions had been varied since his arrest, and at the time of trial were:

  • to live at a specified residential address in Victoria;

  • not to contact any prosecution witness, including two specified persons (except through a legal representative).

  1. Following the return of the verdicts by the jury, the Crown did not make a detention application, nor suggest that any further bail conditions were necessary to be imposed or that the respondent was a flight risk. The trial judge permitted bail to continue on the existing conditions and the matter was fixed for a sentence hearing in the District Court on 21 October 2022.

  2. The Director’s detention application in the Supreme Court was heard before Garling J on 19 July 2022, who dismissed the application on 21 July 2022 and imposed an additional bail condition that the respondent is prohibited from being in the company of any child under the age of 12 years, unless in the presence of his wife or one of his children. His Honour delivered his reasons on 22 July 2022: Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWSC 973.

  3. The detention application before this Court is to be dealt with “as a new hearing” and “evidence or information may be given in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision”: Bail Act, s 75. There is no requirement that error be shown in the refusal of the earlier detention application.

  4. In determining the application, this Court may have regard to the findings of the judge who determined an earlier bail release or detention application: Commonwealth Director of Public Prosecutions v Saadieh [2021] NSWCCA 232 at [11] (Adamson J, Bathurst CJ and Beech-Jones CJ at CL agreeing), citing Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227 at [8] (Beech-Jones J, Gleeson JA and Adams J agreeing). See also Director of Public Prosecutions (NSW) v GX [2019] NSWCCA 84 at [5]-[6] (Johnson J, R A Hulme and Wright JJ agreeing).

  5. It has been said that the form of “new hearing” is to be approached with a degree of flexibility and, at least in a case where oral evidence has been called at an earlier hearing, this Court should be entitled to take account of findings, particularly as to the credibility of witnesses made by the judge in the earlier proceeding: Trinh v R [2016] NSWCCA 110 at [28] (Basten JA, McCallum and Davies JJ agreeing).

The detention application: s 22B

  1. The Director’s application relies on s 22B of the Bail Act which came into effect on 27 June 2022. That section is contained in Division 2A of Pt 3 of the Bail Act, and provides:

22B   Limitation regarding bail during period following conviction and before sentencing for certain offences

(1)   During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—

(a)   on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

(b)   on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

(2)   If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.

(3)   Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.

(4)   This section applies despite anything to the contrary in this Act.

(5)   In this section—

conviction also includes a plea of guilty.

The structure of s 22B

  1. Statutory powers or limitations on powers are often qualified by preconditions. Section 22B is such a provision. The opening words of s 22B(1) set out conditions of engagement of the limitation on the power of the Court to make a bail decision with respect to a convicted person on a release application made by a convicted person or a detention application made by the prosecution.

  2. The provision contains two conditions: (a) the accused person the subject of the release application or detention application has been convicted of an offence (which includes a plea of guilty), and (b) the offence is one for which the person “will be sentenced to imprisonment to be served by fulltime detention” (emphasis added). It is convenient to use the shorthand expression “full-time imprisonment” for the statutory language in s 22B(1).

  3. The first condition involves a question of fact. It is unlikely to be controversial, but if in dispute, it is a matter to be determined on the balance of probabilities: Bail Act, s 32(1).

  4. The second condition requires the Court as the bail authority to make an evaluative judgment as to a future matter, being the disposition of the sentence with respect to the convicted person. That involves the Court making a forward-looking assessment on the limited materials placed before the Court on the release or detention application. Those materials are unlikely to contain all the materials which will be relied upon by the parties on sentence.

  5. Despite the absence of specific reference in the opening words of s 22B(1) to the opinion or satisfaction of the Court, as opposed to the fact, 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. As this is an evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not the relevant standard. The difficult issue concerning the degree of satisfaction to be reached by the Court before the power to make a bail decision is limited under s 22B, is best deferred until after the analysis of the structure of s 22B is completed.

  6. If the conditions in s 22B(1) are satisfied, the provision directs the outcome of the application, being the Court “must” not grant bail or dispense with bail on a release application made by a convicted person, and the Court “must” refuse bail on an detention application made by the prosecution, subject in each case to the exception expressly provided for, being that “special or exceptional circumstances” exist that justify “the decision”.

  7. Relevantly, on a detention application made by the prosecution, the concluding words in s 22B(1)(b) referring to the “the decision”, should be taken in context as referring to the “contrary” decision, namely the decision to grant bail or dispense with bail.

  8. Whether “special or exceptional circumstances” exist that justify the decision to grant bail or dispense with bail, is a question of fact to be determined on the balance of probabilities: Bail Act, s 32(1). The convicted person as the party seeking to rely upon the exception to the directed outcome of the release application or the detention application has the onus of establishing that “special or exceptional circumstances” exist. That reading of the exception is confirmed by the language following the word “unless”, being the ordinary word used to introduce a negative condition: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [81] (Leeming JA, Basten and Barrett JJA agreeing).

  9. This construction of the exception is confirmed by the language in s 22B(2) which refers to the “requirement” that the convicted person “establish” that special or exceptional circumstances exist that justify the decision to grant bail or dispense with bail, where the offence for which the person has been convicted is a “show cause” offence (Bail Act, s 16B) instead of the usual “requirement” in the case of a show cause offence that the accused person show cause why the accused person’s detention is not justified (Bail Act, s 16A(1)).

  10. Insofar as the observations of Garling J in DPP v Van Gestel in second sentence of [81] might be read as suggesting that s 22B(1) places the onus on the prosecution to establish the existence of special or exceptional circumstances, we doubt that was intended by his Honour.

  11. If the convicted person establishes the existence of special or exceptional circumstances, it remains necessary for the Court to address any bail concerns in the usual manner in accordance with the “unacceptable risk” test in s 17 of the Bail Act, considering the matters identified in s 18 of the Bail Act. So much is confirmed by s 22B(3), noting that ss 17 and 18 are contained in Division 2 of the Bail Act.

The issues

  1. Three issues arose on the Director’s application.

  1. First, whether the condition in s 22B has been satisfied with respect to the respondent, namely that the Court is satisfied that the respondent is a person convicted of an offence for which he “will be sentenced to imprisonment to be served by fulltime detention”: s 22B(1).

  2. There is no dispute that the respondent answers the description of an “accused person” for the purposes of s 22B(1), which includes a person who has been convicted of an offence: Bail Act, s 4(1).

  3. Second, if the condition in s 22B(1) is satisfied, whether the respondent has established that special or exceptional circumstances exist to justify a decision to grant bail.

  4. Third, whether there are unacceptable risks from the respondent remaining on bail.

  5. As will appear below, given the conclusion on the first two issues, the third issue does not require consideration.

Is the condition in s 22B satisfied?

  1. The applicable principles of statutory construction are not in dispute. It is sufficient to refer to the joint judgment of Kieffel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

  1. Section 22B is a provision which, clearly enough, is intended to restrict the grant or continuation of bail in the period following conviction of an offender and pending sentence in the specified circumstances.

  2. The context of this provision in the Bail Act includes that if the limitation under s 22B on the Court’s power to make a bail decision is not engaged, the Court must still address any bail concerns in the usual way in accordance with the “unacceptable risk” test in s 17 of the Bail Act, considering the matters identified in s 18 of the Bail Act, before making any bail decision with respect to a convicted person the Court.

  3. The parties diverged as to the degree of satisfaction to be reached by the Court for the condition in s 22B(1) to be met, and the application of that condition in the present case on the materials before the Court.

  4. The Director said that the word “will” directs the Court’s attention to a future circumstance about which this Court, as the relevant bail authority, must make an evaluative determination applying a standard of balance of probabilities, consistent with s 32(1) of the Bail Act. The submission continued that the word “will” does not elevate the condition to a requirement of certainty with respect to the sentencing outcome.

  5. The Director repeated his submissions before Garling J that the Court would be satisfied that the condition in s 22B(1) has been met as the respondent faces an inevitable fulltime custodial sentence, given that the respondent’s offending was objectively serious; that any sentence will need to take into account that the respondent was 30 to 45 years of age at the time of the offending and had no prior convictions or subsequent offending; the offending involved an abuse of trust; that all victims were considerably below the threshold for the charged offending of 16 years; that the offending was aggravated by the fact that it occurred in the respondent’s home; the nature of the offending against the first victim (the details of which do not require reference in this judgment) including that the offending caused pain to the victim and the respondent took steps to conceal his offending by urging the victim to remain silent; that the respondent has shown no remorse or contrition for his offending; and that s 25AA of the Sentencing Procedure Act applies with the consequence that the sentencing judge will be required to apply current sentencing patterns having regard to what is now known of the trauma of sexual abuse on children: R v Cattell [2019] NSWCCA 297.

  6. The respondent embraced the construction applied by Garling J in the Supreme Court (DPP v Van Gestel at [68]-[69]), adopting his Honour’s reasoning in Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938 at [61], namely, the prosecution must satisfy the Court on the balance of probabilities that no sentencing alternative could lawfully be imposed other than full-time imprisonment.

  7. Senior counsel for the respondent candidly acknowledged in oral argument that counts 1, 2, 3, 4 and 5 are “serious matters that require sentence today for a period of fulltime imprisonment, subject to matters” which counsel then referred to, and that “the other offences are less serious, but also of course serious in their very nature”. Counsel drew attention to the subjective features of the respondent’s case on sentence being to the respondent’s rehabilitation prospects (lack of prior criminal convictions), age (78 years) and health issues which it was said, in combination with other factors, may be relevant to considerations of length and time of penalty, and that an intensive corrections order (ICO) under s 7 of the Crimes (Sentencing Procedure Act) 1999 (NSW) taking into account the limitations in s 67 of that Act, was an alternative sentencing option available to the sentencing judge with respect to the respondent.

Consideration

  1. Addressing the requirement of the condition in s 22B(1), the starting point is to observe that the condition involves a state of satisfaction, not a fact, and the common assumption of the parties that the balance of probabilities standard applies to the Court’s satisfaction of this condition cannot be accepted for the reasons given at [17] above.

  2. That a sentencing option is lawfully available, whilst relevant to the forward-looking assessment required of the Court, does not circumscribe the degree of satisfaction to be reached by the Court as to the disposition of sentence with respect to the convicted person.

  3. In the present case, both parties accepted the correctness of the conclusion by Garling J in DPP v Van Gestel at [63] that each of the offences for which the respondent was convicted was not a “prescribed sexual offence” as defined in s 67(2) of the Sentencing Procedure Act, with the consequence that an ICO was a lawfully available sentencing alternative in this matter. It is appropriate to proceed upon that basis. No argument was advanced by the Director that s 25AA of the Sentencing Procedure Act might give rise to a different conclusion taking into account current sentencing patterns and practices when sentencing for child sexual offences.

  4. Both parties referred to passages in Second Reading Speech in the Legislative Assembly on 21 June 2022 given by the Member for Oxley on behalf of the Attorney-General which included:

“… Bail is not intended to be a pre-judgment of someone’s guilt or punishment before conviction. However, that does not mean that criminals who have been convicted or plead guilty and who the court is confident will be sentenced to imprisonment by full-time detention, should be permitted to walk free in our community while they are waiting to be sentenced. The presumption of innocence does not apply after a conviction or guilty plea. Currently, when an accused person is found guilty of an offence and the matter is adjourned for sentencing to a later date, a bail decision maker must, under s 18(1)(i1) of the Bail Act, already have regard to ‘the likelihood of a custodial sentence being imposed’.

The provision will go one step further to provide that serious offenders who will be sentenced to imprisonment to be served by full-time detention must not be granted bail post-conviction prior to sentencing. Offenders will not be taken into remand under the provision in circumstances where they will later be sentenced to a lesser penalty and released, or, for example, be considered for an intensive corrections order or an order under s 11 of the Crimes (Sentencing Procedure) Act 1999 because by very definition those are not circumstances where the offender ‘will be sentenced’ to full-time detention. This is not intended to be a pseudo or abridged sentencing hearing. A full sentencing hearing will still occur before a judge, as per the usual processes, at a later date determined by the court, with the usual opportunities for parties to make submissions. The defence will still have the opportunity to put forward evidence and arguments about what the precise sentence should be. However, this reform will ensure that 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 (sic) guilty and are heading to prison getting there quicker and not being out in the community while awaiting sentence …” (emphasis added)

  1. Some limited assistance can be obtained from the Second Reading Speech. The reference to the Court being “confident” of the future disposition of the sentence with respect to the convicted person supports the view that s 22B sets a high bar for the degree of satisfaction to be reached by the Court to engage the power to make a bail decision under s 22B. That is consistent with the approach that legislation that affects personal liberty will be given strict construction: State of New South Wales v Kaiser [2022] NSWCA 86 at [57(6)] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing). It is also consistent with the acknowledgment in the Second Reading Speech that the nature of the application under s 22B is not a pseudo or abridged sentence hearing. It is important however not to fall into the error of construing the words of the statute by reference to the language used in the extrinsic materials.

  2. Accepting that the word “will” is to be read as emphasising the degree of satisfaction to be reached by the Court before the limitation under s 22B on the Court’s power to make a bail decision operates, does not provide an immediate answer to its intended meaning. Some assistance as to the intended meaning of “will” is provided by its context, relevantly: the Court as the bail authority is not the sentencing court, the Court will not necessarily be apprised of all of the evidence at trial, the Court will not have all of the materials that are to be relied upon by the parties on sentence, and that the task of the Court required by s 22B is not to conduct a pseudo or abridged sentencing hearing.

  3. When regard is had to these contextual considerations, the 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.

  4. In making that assessment, the Court will have regard to:

  1. the offence(s) for which the accused person has been convicted, bearing in mind the principles of sentencing and all applicable sentencing laws, specifically the Sentencing Procedure Act, including the available sentencing alternatives to full time imprisonment;

  2. the materials and submissions placed before the Court as the bail authority relevant to the future disposition of the sentence with respect to the convicted person; and

  3. the abbreviated nature of the release or detention application before the Court, especially, that the application is not a pseudo or abridged sentencing hearing.

  1. It is necessary to say something further about the significance of sentencing alternatives to full time imprisonment for the Court’s assessment of whether the condition in s 22B(1) is met. As mentioned, that an alternative sentence to full time imprisonment is lawfully, and therefore theoretically, available does not mean that the Court could not reach the opinion or state of satisfaction that the convicted person will be sentenced to full time imprisonment.

  2. Thus, notwithstanding the theoretical availability of an alternative sentence to full time imprisonment, the Court as the bail authority could reach the degree of satisfaction required by the condition in s 22B(1) if it is satisfied on the materials and submissions placed before the Court, that no other sentence than full time imprisonment could realistically be imposed by the sentencing court with respect to the convicted person in all the circumstances of the case.

  3. In the present case, having regard to the objective circumstances of the offending set out in the Crown case statement, the applicable maximum penalties, the respondent’s senior counsel’s candid acceptance (on this hearing) that the offences the subject of counts 1-5 for which the respondent has been convicted would require a period of full time imprisonment subject to the subjective matters to which attention was drawn, and the applicable sentencing principles and laws, including s 25AA of the Sentencing Procedure Act, we were satisfied that the respondent will be sentenced to imprisonment to be served by full-time detention.

  4. It followed that the limitation on the Court’s power to make a bail decision on the Director’s detention application was engaged and s 22B required that the Court must refuse bail, or as in this case, revoke bail, unless satisfied special or exceptional circumstances existed to justify the decision to continue the respondent’s bail pending sentence.

Whether special or exceptional circumstances exist?

  1. The terms “special” and “exceptional” are not defined in the Bail Act. The phrase “special or exceptional” circumstances appears in s 22(1) of the Bail Act as a limitation on the Court’s power to grant bail or dispense with bail for specified offences for which (a) an appeal is pending in the Court of Criminal Appeal against a conviction on indictment, or a sentence imposed on conviction on indictment, or (b) an appeal from the Court of Criminal Appeal is pending in the High Court in relation to such an offence. The same meaning should be given to the same words appearing in different parts of a statute unless there is reason to do otherwise: The Registrar of Titles of the State of Western Australia v Franzon (1975) 132 CLR 611 at 618 (Mason J); Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 at [21]. Neither party suggested that there was a reason to do otherwise with respect to s 22B.

  2. The approach of this Court to s 22 of the Bail Act has been not to set out an exhaustive list of factors that may constitute “special or exceptional circumstances”. In El-Hilli and Melville v R [2015] NSWCCA 146 at [29], Hamill J (Simpson and Davies JJ agreeing) said that special or exceptional circumstances “may exist in the combination of factors or in ‘the coincidence of a number of features’ … It is not possible to determine or predict in advance what those features may be.”

  3. In Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927 at [48], after referring to dictionary definitions of the words “special” and “exceptional” in the Macquarie Dictionary 2022, and earlier authorities in relation to s 9C of the Bail Act 1978 (NSW) which also considered dictionary definitions, Bellew J adopted the approach in El-Hilli and Melville v R and said that given the facts of cases obviously differ, whether circumstances are special or exceptional for the purposes of s 22B involved a case-by-case determination. That approach should be followed.

  4. Reference to dictionary definitions in statutory construction is not of great assistance given the warnings in the authorities such as TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [80] (Leeming JA, Beazley P and Emmett AJA agreeing):

Dictionary definitions may assist in identifying the range of possible meanings a word may bear in various context, but will not assist in ascertaining the precise meaning the word bears in a particular context.

See also South-Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [77]-[81] (Leeming JA, Basten and Meagher JJA agreeing); Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [51]-[57] (Bell P, Basten JA agreeing).

  1. The respondent relied upon three matters as amounting to special or exceptional circumstances:

  1. the respondent has significant health issues that require further and investigation and treatment within the community;

  2. the respondent needs to be at liberty to be able to attend the appointments in the community to be able to obtain necessary information as to his health to put forward on his sentence;

  3. the respondent has a need to make further arrangements for the care of his wife and his son should he go into custody.

Health issues

  1. The respondent referred to affidavit evidence from his wife that he has several health issues: swollen prostate, high cholesterol, reflux and has had deep vein thrombosis three times, and he takes a number of prescribed medications daily. The respondent had a transient ischemic attack (TIA) in early May 2022 prior to his trial commencing on 26 May 2022. On 29 June 2022, the respondent consulted a heart specialist, Dr Christopher Goodes, upon referral from his general practitioner, Dr Aaron Howe. The date of this referral was not revealed in the evidence other than an inference that it occurred sometime in May 2022, given that the claim and benefit payment form issued by Dr Goodes stated the referral date was “2022-05-00”.

  2. Dr Goodes referred the respondent for two tests: a stress echocardiogram and a 24-hour Blood Pressure (BP) Monitor, for which the respondent made an appointment at the Boronia Consulting Suites in Boronia, Victoria, on 1 August 2022. On 27 July 2022, following the listing of the Director’s detention application in this Court on the same date the respondent’s wife rebooked these medical tests for 15 August 2022.

  3. Dr Jacques Ette, Staff Specialist, Primary Care, with Justice Health, provided a report elaborating on an email dated 18 July 2022 which was tendered by the Director on the application before Garling J. Dr Ette was briefly cross-examined by senior counsel for the respondent.

  4. Dr Ette’s evidence was that, if the respondent entered custody, he will have a full medical assessment by Justice Health nursing staff, a chronic disease screening because of his chronic medical conditions, and he would be referred to a Justice Health medical officer for review of his medical conditions. Dr Ette said that the respondent would continue to take his current medications as prescribed, those medications would likely be reviewed regularly, and clinical staff would adjust his medications if needed.

  5. In cross-examination, Dr Ette explained that given the current Covid-19 pandemic, if the respondent entered custody, then following initial screening by Justice Health nursing staff he would be placed in isolation for a period of 14 days, after which, the process of assessment by a Justice Health medical officer for a review of his medical conditions would occur.

  6. Dr Ette addressed the steps that would be taken by Justice Health to ensure that the respondent was referred for the same tests which he has presently booked in the community (in Victoria). His evidence was that the respondent would be reviewed by the Justice Health medical officer and referred to the cardiology department for a stress echocardiogram and 24-hour Blood Pressure Monitor, most likely at the Prince of Wales Hospital, if the respondent was housed in Metropolitan Sydney. Dr Ette said that the referral would be sent to the medical appointment unit within Justice Health which would send it to the hospital for triage and that the referral would be marked urgent as the respondent had TIA. He said that the respondent would most likely also be referred to the Neurology department for assessment. He said that if an inmate had any symptoms of TIA in custody, he would be sent urgently to the nearest hospital by ambulance for assessment and treatment.

  1. Addressing the procedure for the BP monitor test, Dr Ette said that there were two options: one is a referral to the cardiology laboratory of a hospital, such as Prince of Wales Hospital, to install the device which would be carried for 24 hours whilst the patient returned to the prison, and the patient would return back to the hospital to remove the device (this would require the clearance of the Governor for the device to be brought to the prison, which approval would be sought by the Nurse Unit Manager). The other option was for the patient to be referred to the cardiology department of the relevant hospital where the 24-hour BP Monitor could be undertaken in the secure wing of the hospital.

  2. Having considered the evidence of the level of health care which can be provided to the respondent by Justice Health, and the likely timing of the referral of the respondent for identified tests as part of the investigation of the respondent’s health issues, if he was in custody pending sentence, relative to the timing of the tests which the respondent has rebooked in the community (in Victoria) on 15 August 2022, we were not satisfied that the respondent’s preference for investigation and treatment of his health issues in the community amounted to a special or exceptional circumstance.

Arranging the respondent’s affairs

  1. Although referred to in writing, the need for the respondent to be at liberty to make arrangements for attending medical appointments in connection with preparation for the sentencing hearing was not mentioned by the respondent’s senior counsel in oral submissions.

  2. Given the evidence of Dr Ette that the results of the investigative tests which would be arranged by Justice Health for the respondent would be communicated to the respondent’s general practitioner and cardiologist and can also be communicated to his legal team, we were not satisfied that the respondent’s preference to attend medical appointments in the community, rather than as arranged by Justice Health, amounted to special or exceptional circumstances.

Arrangements for care of the respondent’s wife and adult son

  1. The respondent relied upon affidavit evidence from his wife and her oral evidence before Garling J in support of his asserted need to be at liberty for the purpose of arranging care of his wife and his adult son.

  2. The respondent’s wife, Mrs Margaret Van Gestel, is 74 years old. She has been married to the respondent for 53 years and he is her sole carer. She has a number of health conditions for which she has a need to see her doctor regularly. She does not hold a driver licence and is concerned that she would be unable to do simple everyday tasks such as shopping or attending medical appointments, if the respondent went into custody. In cross-examination, when asked what arrangements she had made if the respondent was taken into custody, Mrs Van Gestel answered, “I don’t know what I will do, to be honest. Can’t survive without him”.

  3. An adult son aged 51 years, lives with the respondent and his wife; he has fulltime employment five to six days per week as a storeman in a warehouse, as well as lawnmowing. An adult daughter lives nearby with her family. Her husband has recently been treated for a health condition and they have two children aged 12 and 13 years. Mrs Van Gestel said that her daughter is “extremely busy and stressed out at present” owing to her own family issues and it would be hard for her to help if the respondent was “not around”. In cross-examination before Garling J, Mrs Van Gestel said of the support she could expect to receive from her adult daughter, “[She] said she would be there to support me, yes, when she can”.

  4. Accepting the favourable credit finding of Garling J in relation to Mrs Van Gestel’s evidence, the respondent has had seven weeks since his trial finished to make appropriate care arrangements for his wife as he considered necessary. There is no evidence of what steps, if any, the respondent has taken in this period to plan for his wife’s care, or if none have been taken, what is the explanation for the delay.

  5. The reasonable inference is that this is not a case of a dependent family member, in this case a wife, with no-one to support or assist her in the absence of her husband, if bail is refused. As indicated, the respondent’s wife has the support of her adult son who resides with her, and her daughter who lives locally, who has indicated to Mrs Van Gestel that she would be there to support her, when she can.

  6. As to care arrangements for the adult son, Mrs Van Gestel said that the respondent managed the son’s finances which it would be “hard” for the son to do without the respondent. The basis of the son’s asserted difficulty was unexplained. The son is holding down a fulltime job as a storeman in a warehouse, as well as doing lawnmowing. As indicated, the respondent has been at liberty following his conviction for seven weeks. There is no explanation as to why that has not been a sufficient period for the respondent to make any necessary arrangements for alternative assistance to be provided to his adult son in managing his finances.

  7. We were not satisfied that the respondent’s asserted need to be at liberty for the purpose of arranging care for his wife and adult son amounted to special or exceptional circumstances for the purposes of s 22B.

Conclusion

  1. For the reasons given above, we were satisfied that the respondent is a person convicted of an offence for which he will be sentenced to imprisonment to be served by fulltime detention: s 22B(1), Bail Act. Further, we were not satisfied that special or exceptional circumstances existed to refuse the detention application. For these reasons, the orders indicated above were made.

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Amendments

15 August 2022 - "van Gestal" amended to read "Van Gestel".

Decision last updated: 15 August 2022

Most Recent Citation
Cases Citing This Decision

33

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