R v ET - [2022] NSWSC 905

Supreme Court

New South Wales

Medium Neutral Citation: R v ET [2022] NSWSC 905
Hearing dates: 6 July 2022
Date of orders: 6 July 2022
Decision date: 06 July 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
Conditional bail granted

Catchwords:
CRIME – bail – where bail sought after conviction but before sentence – whether applicant will be sentenced to a imprisonment by fulltime detention – need to show special or exceptional circumstances – where non-parole period will probably not exceed time applicant has spent in custody on remand – special or exceptional circumstances shown

Legislation Cited:
Bail Act 2013 (NSW) ss 22, 22B

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

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown
ET (Applicant)
Representation:
Counsel:
K Marinos (Crown)
P Johnson (Applicant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Catherine Hunter, Solicitor (Applicant)

File Number(s): 2021/285277
Publication restriction: Nil

Judgment

The applicant, who at the time of the present offending was a young person, applies for bail following the entry of a plea of guilty to the offence of affray on 1 July 2022. The applicant had been charged with murder, in the alternative manslaughter and in the alternative affray, in respect of the death of Alex Ioane on 24 May 2019. Alex was killed when he was seriously assaulted by a person whom I have already sentenced for murder, Tafuna Taumalolo, and other persons with whom the present applicant was charged. On 1 July 2022 the Crown accepted pleas from the five co-accused. As I have said, the present applicant pleaded guilty to affray, and that plea was accepted in full answer to the whole of the indictment.
The statement of agreed facts show that the applicant arrived at the party where Alex was killed, seemingly in response to a phone call he received from a person at the party saying, "Come asap because Funa's gonna have a go with some guys from Cabra." The applicant arrived in one of two cars arriving at the same time, from which a number of males alighted. He took a baseball bat from the boot of one of the vehicles and started swinging the baseball bat around in the crowd saying, "Who wants it? Who's next? Claymore on top." The reference to Claymore was because the applicant was a member of a gang known as the Claymore Boys. This gang included Tafuna Taumalolo and one of the other co-accused.
The agreed facts do not disclose that the applicant actually struck the deceased. The discarded baseball bat was later found and a forensic examination located his fingerprints on the shaft of the bat. The applicant was arrested on 20 March 2020, and today he has been in custody for two years three months and sixteen days. At the time of the offending he was aged seventeen years.
Section 22B of the Bail Act 2013 (NSW) was recently enacted. It relevantly provides:

(1) During the period following conviction and before sentencing for…

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 ET

Details

AGLC: R v ET [2022] NSWSC 905
Case: [2022] NSWSC 905
Decision Date: 06 July 2022

CaseChat Overview and Summary

The matter of R v ET was heard in the Supreme Court of Queensland. The applicant sought bail after being convicted of various criminal offences but before sentencing. The crux of the issue was whether the applicant would be sentenced to full-time detention in prison and whether the applicant could demonstrate special or exceptional circumstances warranting bail. The court was tasked with determining if the non-parole period of the anticipated sentence would likely not exceed the time the applicant had already spent in custody on remand.

The court examined whether the applicant had shown special or exceptional circumstances that would justify granting bail despite the anticipated custodial sentence. Given the applicant's history and the nature of the offences, the court found that the non-parole period of the sentence would probably not exceed the time the applicant had already spent in custody on remand. This finding was pivotal in the court's decision, as it established that the applicant met the criteria for showing special or exceptional circumstances. Consequently, the court concluded that the applicant had demonstrated a sufficient basis for granting bail.

The Supreme Court of Queensland, recognising the special or exceptional circumstances, allowed the bail application. The court determined that the applicant had shown a compelling case for being released on bail pending the finalisation of sentencing. The decision highlighted the importance of considering the balance between the applicant's rights and the need for public safety in such circumstances.

Orders