Director of Public Prosecutions (NSW) v Day

Court of Criminal Appeal (NSW)|2022-08-05|Before: Gleeson JA, Wright J, Cavanagh J, Garling J

Solicitors: Office of the Director of Public Prosecutions (NSW) (Applicant) O'Brien Lawyers (Respondent) Crown Solicitor's Office (Amicus curiae) File Number(s): 2022/220012

Judgment

THE COURT: On 26 July 2022, the Director of Public Prosecutions (NSW) (the Director) filed a detention application against Titus Emanuel Day (the respondent) pursuant to s 50 of the Bail Act 2013 (NSW) seeking bail refusal. The respondent is presently awaiting sentence in the District Court following his conviction on embezzlement charges.
The detention application was heard in this Court on 1 August 2022 and adjourned to 5 August 2022 to allow the respondent to adduce further material, to which the Director replied. At the conclusion of the adjourned hearing, the Court made an order dismissing the detention application and reserved its reasons. Our reasons for making that order follow.

Background

On 30 June 2022, following a trial by jury before Gartelmann DCJ, the respondent was found guilty and convicted on 34 of 47 remaining counts of fraudulent embezzlement as a clerk or servant, contrary to s 157 of the Crimes Act 1900 (NSW). The amount involved totalled $624,675.40. As directed by the trial judge, the jury found the respondent not guilty on three other counts of fraudulent embezzlement, and in respect of three alternative larceny charges. The respondent had been on conditional bail at all times since he was first charged on 1 July 2020.
Following the return of the verdicts by the jury, the Crown made a detention application. That application was heard the following day and was refused by the trial judge. His Honour ordered that the existing bail of the respondent be continued with some bail conditions varied. The matter was adjourned for a sentence hearing on 16 September 2022.
By application filed on 5 July 2022 in the Supreme Court, the Director made a detention application against the respondent relying upon s 22B of the Bail Act. That application was heard before Garling J on 13 July 2022 and was dismissed by his Honour on 18 July 2022: Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938.
This Court has power to hear the Director's further application filed in this Court as the bail decision was made by the Supreme Court (Garling J): Bail Act 2013 (NSW), s 67(1)(e).
At the hearing, the Crown Advocate sought leave to appear as amicus curiae on behalf of the Attorney General to make submissions about the construction of s 22B of the Bail Act. This Court has, by statutory implication under the Criminal Appeal Act 1912 (NSW) in the furtherance of the expeditious and just resolution of disputes before it, the power to grant leave to a non-party to make submissions as amicus curiae: Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [36].
Accepting the need for "the necessary due caution" in permitting third parties to assist as amicus curiae (Karim at [39], citing Levy v State of Victoria (1997) 189 CLR 579 at 604-605; [1997] HCA 31), the Court was satisfied that it was appropriate to grant leave in this case.
There is no requirement that error be shown in the refusal of the earlier detention application. This Court is required to deal with the detention application "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. In determining this 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).

The issue

The Director's application relied on s 22B(1)(b) of the Bail Act. This provision came into effect on 27 June 2022, and relevantly 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 - … (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.
The expression "accused person" in s 22B(1) includes a reference to a person who has been convicted of an offence: Bail Act, s 4(1). The respondent answers that description.
The sole question raised on the Director's application is whether the respondent is a person convicted of an offence for which he "will be sentenced to imprisonment to be served by fulltime detention" (emphasis added): s 22B(1)(b).
If that condition in s 22B was satisfied, the respondent did not advance any submissions that special or exceptional circumstances existed that would justify a decision to continue bail.

The construction of s 22B

Section 22B is a provision which, clearly enough, is intended to restrict the grant or continuation of bail following conviction and pending sentence in the specified circumstances. The parties diverged as to the meaning to be given to the word "will" in s 22B(1)(b).
The Director said that the use of the word "will" in s 22B(1) does not elevate the condition to a requirement of certainty with respect to the sentencing outcome. Rather, whether the convicted person will receive a full-time custodial sentence is a future circumstance about which the Court, as the relevant bail authority, must make an evaluative determination. The submission continued that in determining whether this threshold condition is met the Court is obliged to apply a standard of balance of probabilities consistent with s 32(1) of the Bail Act.
The Director said that this construction was consistent with the comments contained in the Second Reading Speech in the Legislative Assembly on 21 June 2022 given by the Member for Oxley on behalf of the Attorney-General, that persons who have been convicted or plead guilty "who the court is confident will be sentenced to imprisonment by full-time detention", should not be given bail pending sentence. According to the submission, confidence does not imply absolute certainty but rather an expectation as to a particular outcome.
The respondent said that s 22B requires the Court to be satisfied of an absolute, that is, the Court must be able to exclude as a possibility, even if slight, that anything less than a full-time custodial sentence will be imposed. The respondent said that the question under s 22B is whether or not consideration will be given by the sentencing judge to imposing an alternative sentence to that of fulltime imprisonment and if, on the balance of probabilities, consideration will be given to such an alternative, the Court could not be said to have been requisitely satisfied of the conditions set out in s 22B(1).
The Crown Advocate submitted that the requirement in s 22B(1) that an accused person "will be" sentenced to full-time imprisonment is more demanding than a requirement that an accused person "may" or "is likely to" be sentenced to fulltime imprisonment. It requires, the submission continued, the Court to be satisfied, in effect, that there is no prospect that the sentence that will be imposed is a lesser penalty than one of fulltime imprisonment.
The Crown Advocate submitted that the task of the prosecutor is, in effect, to satisfy the Court, on the balance of probabilities that no sentence short of fulltime detention will be imposed in the matter.

Consideration

The structure of s 22B and its construction was recently considered in Director of Public Prosecutions (NSW) v van Gestal [2022] NSWCCA 171. It is convenient to set out in full what we said at [13]-[19] concerning the structure of s 22B, insofar as it is relevant to the single issue raised on the present application: The structure of s 22B [13] 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. [14] 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). [15] 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). [16] 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. [17] 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. [18] 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". [19] 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.
Thus, the requirement of the condition in s 22B(1) that the Court be satisfied that the convicted person "will" be sentenced to full time imprisonment, involves a state of satisfaction, as opposed to the 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.
Although counsel for the Director initially submitted that satisfaction of the condition in s 22B(1) requires "the prosecution must satisfy the Court on the balance of probabilities that no sentencing alternative could, lawfully, be imposed other than full-time imprisonment", referring to the statement by Garling J in DPP v Day at [61], counsel retreated from this submission and said that the requirement in s 22B(1) is "not a question of considering what is lawfully available". As explained at [21] above, the balance of probabilities is not the relevant standard. Otherwise, the significance of an alternative sentence to full-time imprisonment being lawfully available is addressed in DPP V van Gestal at [39] where we said: 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.
Turning to the degree of satisfaction required of the Court, as the bail authority, that the convicted person "will" be sentenced to full time imprisonment, we repeat what we said in DPP v van Gestal at [42]-[47]: [42] 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. [43] 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 s22B 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. [44] 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. [45] 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 Crimes (Sentencing Procedure) Act 1999 (NSW), 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. [46] 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. [47] 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.

Is the Court satisfied that the respondent will be sentenced to full-time imprisonment?

The Director and the respondent diverged as to the likely disposition of the sentence by an alternative to full time imprisonment, being an intensive corrections order: ss 7 and 67 Crimes (Sentencing Procedure) Act 1999 (NSW).
The Director accepted that there are factors in favour of a non-custodial disposition with respect to the respondent, including his otherwise unblemished criminal history and his positive antecedents. The Director also accepted that specific deterrence is unlikely to factor to any great extent in the sentencing exercise, whilst pointing to the importance of general deterrence in sentencing offenders who commit white-collar crime.
The Director referred to the maximum penalty of ten years imprisonment for an offence contrary to s 157 of the Crimes Act and drew attention to the JIRS statistics which recorded three sentencing outcomes for the offence of embezzlement as a clerk or servant in respect of which sentences of fulltime imprisonment ranging from 3 years and 6 months to 6 years were imposed. The Director submitted that any reasonable tribunal would conclude that there is reasonable satisfaction that fulltime custody will be the outcome of any sentencing determination.
Senior counsel for the respondent said that it will be submitted for the respondent on sentence that he is not only eligible for an intensive correction order, but that, indeed, is the sentence that ought ultimately to be imposed. Counsel emphasised that it was common ground before Garling J, in the absence of a transcript of the application before the trial judge, that the trial judge had expressed the view when dismissing the detention application that whilst a period of imprisonment was highly likely, the trial judge could not be satisfied that it was certain to be imposed.
In addition to the subjective factors favouring a non-custodial sentence (which the Director fairly acknowledged), senior counsel for the respondent relied upon an affidavit by the respondent's solicitor, Mr Andrew O'Brien, who deposed that submissions would be advanced on sentence, in mitigation, that in respect of five counts the monies found by the jury to have been embezzled by the respondent were nevertheless paid to third parties and not retained by the respondent and applied specifically and solely to his benefit, and that in respect of a sixth count the respondent had retained monies, purportedly to secure his payment, at a time when the business relationship between the respondent and Mr Guy Sebastian had broken down, being amounts the respondent claimed (and Mr Sebastian accepted) were, or would become, due and owing to him in respect of other agency commissions. The total amount of the monies the subject of these counts was approximately $316,000.
The Director submitted in response that the matters going to mitigation identified in the solicitor's affidavit, would not be available on sentence as those matters would controvert the jury's verdict. It was further submitted that the foreshadowed matters were of little significance to the objective circumstances of the offending.
Whilst the Court had regard to the parties' competing submissions as to the likely disposition of the sentence, it is not necessary or appropriate to express a view as to the merits of the foreshadowed arguments by either party on sentence. This is for several reasons.
One is that it is inconsistent with the task vested in this Court as a bail authority, which does not involve an abridged sentencing hearing. Another is that this Court should avoid expressing a view in relation to the merits of foreshadowed arguments on sentence as to do so might be viewed an interfering with the function of the sentencing judge. Yet another is the importance of avoiding any suggestion of prejudgment by members of this Court in circumstances where there may be a later appeal by one of the parties.
In the present case, having regard to the objective circumstances of the offending set out in the Crown case statement, the maximum penalty, the deference that should be given to the view expressed by the trial judge as to the likely disposition of the sentence, the foreshadowed submissions of the parties on sentence and the applicable sentencing principles and laws, including the Crimes (Sentencing Procedure) Act, we were not satisfied that the respondent will be sentenced to imprisonment to be served by fulltime detention.
It followed that the limitation in s 22B on the Court's power to make a bail decision was not engaged. The Director did not otherwise suggest that the respondent's existing bail should be revoked relying upon the "unacceptable risk" test in s 17 of the Bail Act by reference to the factors in s 18 of the Bail Act.
For these reasons, the order indicated above was made.

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Supreme Court (Garling J): Bail Act 2013(NSW)

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