A significant change to the Bail Act was assented to on 27 June 2022 that will affect all criminal law practitioners and individuals facing serious criminal charges.
The new amendment saw the introduction of s22B of the Bail Act 2013 (NSW), which provides that where an accused has either been found guilty or entered a plea of guilty and will be sentenced to full time imprisonment, the court must refuse bail unless there are special or exceptional circumstances.
This means there is now a tougher presumption against bail where an individual who is already on bail pleads guilty or is found guilty following trial and a detention application is made post plea/conviction.
The Second Reading Speech has provided some illumination on the Parliament’s intent in introducing the amendment:
‘Bail is not intended to be a prejudgement 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 section 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’.
It is apparent that the intention of Parliament is to ensure that offenders that are already inevitably heading to prison do not remain in the community on bail awaiting sentence. It is important to stress that an offender who will later be sentenced to an Intensive Corrections Order or a s11 Griffith remand will not be refused bail as this does not meet the criteria of an offender who will be sentenced to full time imprisonment.
Nonetheless, it will fall on the Defence to put forward evidence and submissions about what the precise sentence will be. If the Court is satisfied that there is an alternative to full-time imprisonment, then s22B will not be enlivened.
Nonetheless, the new provision provides some relief where there are special or exceptional circumstances that justify the granting of bail even where an offender will receive a sentence of full-time imprisonment. It needs to be said that the test of special or exceptional circumstances is a high bar, and it is left to the Court to determine whether the offender’s particular circumstances rise to the high standard required to satisfy that test.
Moving forward, individuals charged with serious criminal offences will need to seek appropriate legal advice before entering a plea of guilty to ensure they are fully aware of any potential consequences the guilty plea could have on their bail status.
For further information feel free to contact 1800 CRIM LAW.
