R v AC (No 3) (Detention application) - [2016] NSWSC 209

Supreme Court

New South Wales

Medium Neutral Citation: R v AC (No 3) (Detention application) [2016] NSWSC 209
Hearing dates: 8 March 2016
Date of orders: 08 March 2016
Decision date: 08 March 2016
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Detention application refused.
Conditional Bail affirmed.
Additional condition imposed.

Catchwords: CRIMINAL LAW – bail after pleas of guilty to serious offences – where lengthy custodial sentence inevitable – show cause offences – lawlessness –pleas of guilty removed presumption of innocence – offender on stringent bail conditions for almost 2 years – no breaches – very large surety deposited – where delay in sentencing would delay trial of five offenders – where incarceration would cause delay – whether a factor in determination of the show cause requirement – not appropriate to refuse bail because “sensible or expedient” for the offender commence to serve inevitable gaol sentence
Legislation Cited: Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Bail Amendment Act 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: DPP (NSW) v Tikomaimaleya [2015] NSWCA 83
DPP v Boatswain [2015] NSWCCA 85
DPP v Brooks [2015] NSWCCA 190
JM v R [2015] NSWSC 978
R v Qaumi & Ors (No 2) (Basha Inquiry) [2015] NSWSC 1715.
R v Qaumi and Ors (AVL) [2015] NSWSC 1711
R v Qaumi and Ors (No 3) (Severance and separate trial) [2016] NSWSC 16
R v Boyd [2015] NSWSC 1065
R v Farrell [2015] NSWSC 1082
R v Mawad [2015] NSWCCA 227
R v Young [2006] NSWSC 1499
Category: Procedural and other rulings
Parties: Regina (Applicant)
Witness M (Respondent)
Representation:
Counsel:
K McKay & P Hogan (Crown)
Z Khatiz (Solicitor) (Witness M)
Solicitors:
Solicitor for the NSW DPP(Crown)
Oxford Lawyers (Witness M)

File Number(s): 2014/90422; 2014/315510
Publication restriction: No publication until the conclusion of both trials of R v Qaumi & Ors.

EX tempore Judgment (revised)

Last Wednesday, that is 3 March 2016, Witness M, to whom I will refer to as the respondent, pleaded guilty to two extremely serious offences and asked that a third be taken into account in sentencing her. At that point, she had been on bail since 26 March 2014 with the exception of a period of around one month from 27 October 2014 until 27 November 2014. Once her plea was entered, the learned Crown Prosecutor made a detention application pursuant to s 50 of the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). That application was adjourned until today to allow her to gather the evidence that she needed to resist the detention application. In adjourning the matter, I noted the provision in s 50(5) which is a requirement for reasonable notice.
The evidence on the bail application consisted of the material tendered by the prosecutor on sentence (exhibits AC-1 to AC-6), the prosecution’s tender bundle (ex AC-7) and the respondent's tender bundle (ex AC-A). Both the Crown Prosecutor and Mr Khatiz, who appears for the respondent, provided helpful written…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AC (No 3) (Detention application)

Details

AGLC: R v AC (No 3) (Detention application) [2016] NSWSC 209
Case: [2016] NSWSC 209
Decision Date: 08 March 2016

CaseChat Overview and Summary

The respondents, AC, and another offender, sought to be released on bail pending the sentencing of AC for four serious criminal offences. AC had already been on stringent bail conditions for almost two years without any breaches. The application was heard in the Supreme Court of New South Wales. The primary issue before the court was whether AC should be granted bail pending sentencing, considering the presumption of innocence removed by the pleas of guilty and the inevitable lengthy custodial sentence.

The court held that the presumption of innocence was removed by the pleas of guilty and that the offences were serious. Despite this, the court considered that the delay in sentencing would significantly impact the trial of five other offenders, which was a relevant factor in determining the show cause requirement. The court recognised that there was no risk of AC reoffending or failing to appear for sentencing. The court found that it was not appropriate to refuse bail simply because it was "sensible or expedient" for AC to commence serving the inevitable gaol sentence.

Accordingly, the court granted the application for bail pending sentencing. The court noted that AC was subject to stringent bail conditions and had a very large surety deposited. The court also noted that AC had not breached any bail conditions for almost two years. The court concluded that it was not appropriate to refuse bail based solely on the fact that AC would be commencing an inevitable gaol sentence.

Orders