Director of Public Prosecutions (NSW) v Day

Director of Public Prosecutions (NSW) v Day - [2022] NSWSC 938 - NSWSC 2022 case summary — Zoe

[3]

The Application of the DPP

The DPP is entitled pursuant to s 50 of the Bail Act 2013 ("the Act") to apply to a court for the revocation of bail by way of a detention application. Where that detention application is made, after a bail decision has been made, the obligation of the Court is to either affirm the original bail decision, or else to vary it: s 50(4) of the Act.
This Court is empowered to hear the detention application if a bail decision has been made by the District Court: s 66(2) of the Act.
In making this application, the DPP relies on the terms of s 22B of the Act which came into effect on 27 June 2022.
The DPP submitted, by reference to s 22B of the Act, that this Court ought be persuaded that the Offender "will be sentenced to imprisonment to be served by full-time detention" (a phrase which I will shorten for the remainder of this judgment to "will be sentenced to… full-time imprisonment"), and accordingly he was required to show "special or exceptional circumstances" to be allowed to remain on bail.
In oral submissions, the DPP submitted that the circumstances giving rise to the convictions on the 34 offences of fraudulent embezzlement were such that, regardless of any subjective case which may be advanced at the sentencing hearing, which is to take place in September 2022, there was no alternative disposition other than a sentence of full-time imprisonment.
The DPP made that submission on the basis that general deterrence in the circumstances of this application must trump any other sentencing consideration.
The oral submissions concluded in this way: "So, ultimately, the Crown's submission, and it will be the submission on sentence as well, is that no other - notwithstanding all of [the] subjective features that might be presented in relation to this particular offender, no disposition, other than a period of full-time imprisonment, would be appropriate, and an ICO would not be within the ballpark for consideration."
The DPP further noted that neither before Gartelmann DCJ, nor in this Court, had the Offender advanced any submission that special or exceptional circumstances existed which would justify a decision not to refuse bail.
The nature of this application calls up for consideration and interpretation the provisions of s 22B of the Act. It is to that question that I now turn.

[4]

The Bail Act 2013

Part 2 of the Act (ss 7-14 (inclusive)) sets out various general provisions with respect to bail and bail decisions which can be made.
Part 3 of the Act deals with making and varying of bail decisions. Section 15 provides that a bail decision, a term defined in s 8 of the Act to include a decision to grant bail, or refuse bail, or dispense with bail, is to be made in accordance with Pt 3.
Section 15(2) notes that Pt 3 applies: "… to the making of a decision to affirm a bail decision, or to vary a bail decision, after hearing a bail application in the same way as it applies to the making of a bail decision."
Division 1A of Pt 3 introduced various requirements for an accused person to show cause why his or her detention was not justified prior to a decision about bail being made in accordance with Div 2 of Pt 3.
Division 2, which consists of ss 17-20A, provides for the methodology of the making of a bail decision. In broad terms, it requires the assessment of any bail concerns of the kinds set out in s 17(2) of the Act prior to making a bail decision. Section 18 of the Act provides that a bail authority "… is to consider the following matters, and only the following matters, in an assessment of bail concerns …"
Of importance to later submissions is s 18(i1) of the Act which sets out the following matter which a court must so consider: "if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed, …" (emphasis added)
After the evaluation of the matters set out in s 18, if the bail authority concludes that there is an unacceptable risk, then bail must be refused. If the bail authority is satisfied that there are no unacceptable risks, then bail can be granted with or without the imposition of conditions, or else the person can be released without bail, or bail can be dispensed with. Special or exceptional circumstances are not required.
Division 2A follows and contains ss 21-22B. Division 2A is entitled "Special rules for certain offences". Section 21 deals with particular provisions for offences for which there is a right to release under the relevant legislation. Section 22 provides with respect to particular offences (which are set out) that bail is not to be granted or dispensed with unless it is established that special or exceptional circumstances exist that justify that bail decision. That section has no application to this matter. However, the terms of s 22(2) and s 22(3) are identical to the provisions of s 22B(2) and s 22B(3) of the Act.
Section 22A of the Act deals with a limitation on power to release a person with respect to what can be conveniently described as terrorism-related offences. On its face it has no application here except, again, the provisions of subssections (2) and (3) of s 22A are in identical terms to those two subsections of s 22B. It is of relevance to note the use of a phrase in s 22A(1)(b). That subsection deals with identifying offences to which the section applies. It describes an offence in these terms: "any other offence for which a custodial sentence may be imposed, …". In other words, the introductory description of the offence raises a question of whether the offence is one in respect of which a custodial sentence may be imposed.
Section 22B is in the following form: "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. Note - Conviction is defined in section 4(1) to include a finding of guilt."
Section 31 of the Act provides that the principles or rules of law regarding the admission of evidence do not apply to a bail authority when exercising any of its functions in relation to bail. Section 32 of the Act provides that any matter that must be decided by a bail authority is to be decided on the balance of probabilities.

[5]

Relevant Principles of Statutory Construction

It is convenient to identify the relevant principles of statutory construction by reference to a recent decision of Simpson AJA, with whom Bell CJ and Beech-Jones JA agreed, in State of NSW v Kaiser [2022] NSWCA 86. At [57] her Honour said: "57. The relevant principles of statutory construction are well established and may be stated briefly. They are: (1) it is the duty of the Court to give the words of the statutory provision under consideration the meaning that the legislature is taken to have intended them to have. While, ordinarily, the grammatical meaning and the intended meaning will coincide, it is not always so: …; (2) in the interpretation of a statute the Court is to prefer a construction that would promote the purpose or object underlying the Act to one that would not achieve that purpose: Interpretation Act 1987 (NSW), s 33; (3) the starting point is always the text of the provision to be construed. But the text of the provision to be construed is not to be taken in isolation. It is to be read 'in the context' of the legislation as a whole. 'Context' is not to be treated as something to which resort may be had when consideration of the text alone fails to yield a satisfactory answer: …; (4) courts must strive to give meaning to every word of the provision to be construed … and should 'strain against a construction which gives no work whatsoever to legal language': … if possible, some meaning and effect should be given to all the words used in a statute: … The rule is subject to the qualification that it may be displaced if there is good reason to do so: …; (5) a statute will not be construed so as to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language that indicates that the legislature has turned its mind to the rights or freedoms in question and has consciously decided upon abrogation or curtailment …; (6) legislation that affects personal liberty will be given a strict construction: ... 58. ... 59. In Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [29], French CJ said that a statute said to affect important common law rights and other safeguards of individual rights and freedoms will be construed as 'effecting no more than is strictly required by clear words or as a matter of necessary implication'." (some citations omitted)

[6]

Extrinsic Material

In the course of submissions, the Court was referred to extrinsic material including the Second Reading Speech in both of the Chambers for the Bail Amendment Bill 2022. The Second Reading Speech in the Legislative Assembly was read on 21 June 2022 by the Member for Oxley on behalf of the Attorney-General.
The Second Reading Speech addressed two amendments proposed by the Bill. The first amendment which dealt with electronic monitoring standards is of no relevance to this matter.
The second amendment addressed in the Second Reading Speech was the terms of s 22B, which is central to the determination of this application.
The Member for Oxley informed the Parliament that the amendment was "… in response to three recent bail matters that were out of step with community expectations".
The Second Reading Speech included the following: "Bail exists to keep victims and our communities safe before and during a trial and to protect every person's right to the presumption of innocence and the general right to be at liberty until they can have their day in court and their matter determined. 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)
The Second Reading Speech goes on to note that once special or exceptional circumstances are established, the other current stringent tests in the Bail Act would also need to be applied in determining whether bail should be granted and what bail conditions may be required.
The Bail Amendment Bill was read a second time on 23 June 2022 in the Legislative Council. There was a change to the text of the Second Reading Speech. After the sentence in the second paragraph extracted above dealing with the opportunity for the defence to put forward evidence and arguments about what "the precise sentence" should be, these words were read: "New section 22B would not be enlivened where there is doubt whether the offender will be sentenced to imprisonment by full-time detention." (emphasis added)
Tabled with the Bill was a Statement of Public Interest which is required to be tabled with each Bill in the Legislative Council under the Parliamentary Standing Orders. It is fair to say that, in the circumstances of this Bill, that statement adds little by way of extrinsic material to the Second Reading Speech.

[7]

Context

The context for the proper interpretation of these provisions requires consideration of what is involved in the process of sentencing. That is because, to understand what is involved in a determination that an offender will be sentenced to a term of imprisonment involving full-time detention, it is necessary to keep in mind the concepts central to the process of sentencing.
Before a sentencing Judge can sentence a person to a term of imprisonment, including one involving full-time detention, it is necessary for the Judge to be satisfied that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") has been met. That provision is in the following terms: "5. Penalties of imprisonment (1) The court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
The process of arriving at an appropriate sentence is one of instinctive synthesis whereby a judge identifies all the factors which are relevant and makes an evaluative decision or a value judgment as to what the sentence ought be. There is no single correct sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [51] (McHugh J).
Relevant factors to be considered include matters identified by statute and the common law, and those referrable to the particular offence and the particular offender.
The Sentencing Act sets out the different purposes of sentencing: s 3A. These purposes are often in tension. In Division 1 and Division 1A of Pt 3 of the Sentencing Act, there are series of matters which are to be taken into account and which will have an influence (sometimes significant) on the sentence to be pronounced. As well, victim impact statements must be considered prior to the imposition of a sentence: s 30E of the Act.
The maximum penalty fixed by statute for an offence together with any standard non-parole period must be looked to by way of a guidepost for determining the sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.
The sentencing discretion of a Judge is also guided by the common law principles to be found in the case law. In summary these include proportionality, parity, totality and the avoidance of double punishment. Other factors which have also been identified by the common law include whether incarceration may be, for the individual offender, particularly burdensome by reason of their mental illness or for any other reason.
As well, subjective factors applying to the particular offender can be relevant. Such factors include, but are not limited to:

early childhood deprivation;
the existence of any mental illness or intellectual incapacity;
the moral culpability of the offender for the particular offence or course of criminal conduct;
whether general or specific deterrence have any role to play because of factors particular to the individual offender.

The other essential ingredient for consideration in determining the appropriate sentence is the findings of fact of, and surrounding the commission of, the offence. It is these facts which lead to an assessment of the objective seriousness of the offence and the offending conduct. After a trial, or where facts are not agreed by an offender and the prosecution, the sentencing judge needs to determine those facts. Where facts are adverse to an offender, they can only be found to be established if the court is so persuaded beyond reasonable doubt.
The evidence giving rise to the findings of fact will have become apparent during the course of a trial and prior to a jury returning its verdict. But, in other matters where a plea of guilty is entered, those facts may not be found until after a sentencing hearing - often at the time sentence is pronounced.
It is an impermissible path of reasoning to sentencing for a judge to undertake a two-tier approach to sentencing, namely one whereby the judge identifies an hypothetical sentence based only on the objective facts and circumstances of the offending, including the judge's assessment of objective seriousness, following which the judge then increases or decreases that hypothetical sentence by reference to other factors - including all those previously discussed where they are relevant: Muldrock at [28].
This unduly lengthy, but necessary, exposition of the complex task of identifying and imposing an appropriate sentence for an offender shows that, for the purpose of interpreting the provisions of s 22B of the Act: 1. a judge hearing a release or detention application after conviction and before pronouncement of sentence, including before a sentence hearing, cannot be understood to be engaged in the process of sentencing, but an entirely different decision-making process, namely the making of a bail decision; 2. it follows that in making a bail decision, a judge who will preside over a sentencing hearing and then pronounce sentence, cannot be taken to be pre-judging the sentence which is to be imposed. If any part of the bail decision constitutes a pre-judgment of the sentence to be imposed, then there is a significant risk that the judge who presided over a trial and who is best placed to receive and deal with submissions about sentence, is at risk of being disqualified from undertaking that part of the criminal trial process by reason of pre-judgment. This would not benefit the administration of justice; and 3. the bail decision-making process should avoid embracing an approach which is in any way contrary to, or inconsistent with, the instinctive synthesis approach to sentencing. Put differently, in undertaking a bail decision, it is not open to the judge to apply a "one-tier" approach - namely, to consider and determine whether a sentence of imprisonment will be imposed based only on an assessment of the objective facts and circumstances and the objective seriousness of the offence.

[8]

An Infelicity of Expression

Before proceeding to a resolution of the competing submissions as to the proper interpretation of s 22B, it is necessary to identify an infelicity in the drafting of the section.
In general terms, when the section applies, which is the issue in these proceedings, it is intended to restrict the decision which may be made to grant bail, or dispense with bail by reference to the existence of special or exceptional circumstances.
When a court is dealing with a release application, a circumstance in which a court is called upon to make a decision that bail is to be granted or dispensed with, s 22B(1)(a) requires that bail must not be granted or dispensed with "… unless it is established that special or exceptional circumstances exist that justify the decision". It is clear that the words "the decision" describe the decision of the court to grant or dispense with bail which is the subject of, and the purpose of, a release application.
In contrast, a detention application is an application which requires a decision either to refuse bail, or else to dismiss the application in which case the status quo will remain. In s 22B(1)(b), the phrase "… unless it is established that special or exceptional circumstances exist that justify the decision" is repeated in the identical form to the preceding sub-section. However, as just noted, s 22B(1)(b) applies to a detention application, which is an application made when a person is at liberty in the community (whether the subject of bail conditions or not), or else when they have been granted bail but have not yet been released from custody.
The Court is then called upon to make a decision to refuse or revoke bail. That is the decision made on a detention application if it is upheld. If it is dismissed, the status quo remains, and no further issue remains with respect to an existing grant of bail (or where bail has been dispensed with).
It is now convenient to set out in full the way s 22B(1)(b) reads: "(1) … a court - (a) … (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."
Conformably with the use of the word "decision" in s 22B(1)(a), namely the decision on a release application, the proper interpretation of the word "decision" in s 22B(1)(b) can only apply to the decision to refuse bail. It would be a very odd requirement, and quite discordant with all of the other provisions in the Bail Act, to require special or exceptional circumstances to exist before reaching a decision to allow a detention application and refuse bail. Clearly, the use of the term "decision" is an infelicitous one, and one which is inapt. The phrase "the decision" is obviously intended to mean "the contrary decision" or "a decision to dismiss the detention application".
However, in this application, the parties treated s 22B(1)(b) as requiring the offender to demonstrate that special or exceptional circumstances existed which warranted a grant of bail. The offender, as noted earlier, did not submit that any special exceptional circumstances existed. Accordingly, and fortunately, the Court has not been required to finally interpret, or rest its decision on this infelicity of drafting.

[9]

Discernment

This application called up for consideration the introductory words of s 22B, namely, whether the Offender in respect of the convictions for fraudulent embezzlement fell within the description of an accused person who "will be sentenced to… full-time imprisonment".
As noted earlier, the operative words "will be sentenced to [full time] imprisonment" differ from other phrases used in the Act: "likelihood of a custodial sentence being imposed": s 18(1)(i1); or else "any other offence for which a custodial sentence may be imposed: s 22A(1)(b).
An interpretation which is coherent with other phrases in the Act is to be preferred because it involves reading the text of the relevant phrase in the context of the legislation as a whole and not in isolation.
The Court is called upon to decide if the Offender "will be sentenced to… full‑time [imprisonment]". It is not called upon to determine if the Offender may be so sentenced, nor whether they might be so sentenced. Nor is it called upon to determine that a sentence of full-time imprisonment will on the balance of probabilities be imposed.
The word "will" connotes a degree of certainty or confidence that the requisite term of imprisonment will be the outcome of the sentencing hearing. Such an interpretation is consistent with the purpose of the section which is not, by a sidewind, to engage in refusing bail and causing an offender to go into custody and commence serving a sentence (which is yet to be imposed) unless the Court determines consistently with s 5 of the Sentencing Act, that given all available sentencing alternatives, no alternative other than full-time imprisonment will be imposed.
The onus of persuading the Court to that satisfaction in a detention application falls on the DPP. The prosecution must satisfy the Court on the balance of probabilities that no sentencing alternative could, lawfully, be imposed other than full-time imprisonment.
Where, as is the case here, the DPP essays that task by relying solely on the inferences and conclusions to be drawn from convictions for the offences charged, and nothing else by way of Agreed Facts, evidence or matters addressing the presence or absence of any subjective circumstances, it will be very difficult to persuade a court that the possibility of any other lawfully available sentencing alternatives has been excluded.
Understood in this way, the section will promote the overall objects of the Bail Act which do not include, either directly or indirectly, the imposition of a sentence of imprisonment on any individual - a refusal of bail prior to final disposition of charges is not a decision made for the purpose of punishment or as a substitute for a court's evaluative sentencing process: JM v R [2015] NSWSC 978 at [34]-[37].
As well, this interpretation would mean that a court was not imposing a sentence of full-time imprisonment in circumstances where, after a further hearing of all of the matters relevant to sentence, it may find itself having to determine whether such a sentence is the only one which it can lawfully impose.
If there is any doubt about this, or where the court is unpersuaded that there is no other sentencing alternative as a possibility, then the offender will not be a person to whom this section applies.
In this case, I was informed by senior counsel for the DPP, without demur from the respondent, that the trial Judge had expressed the view, in refusing the DPP's detention application (which was made after the jury returned their verdicts), that whilst a period of imprisonment was highly likely, the trial Judge could not be satisfied that it was certain to be imposed on the Offender.
On the material before me, including the acceptance by the DPP that the Offender had no previous criminal convictions, I was not satisfied that there was no other sentencing alternative available to the Judge other than full-time imprisonment; nor that there was no other sentencing alternative which would lawfully be open to the sentencing Judge.
I agree that in this case if all that was placed before a sentencing Judge ultimately at a sentence hearing was the evidence from the trial (which I did not have) and the fact of the convictions and nothing else, it is highly likely that the Offender would be sentenced to full-time imprisonment. But I am also persuaded that there will be more material - particularly going to subjective considerations, which will be before the sentencing Judge.
Persuasion on the balance of probabilities that there is a high likelihood of a sentence of the requisite kind being imposed on the Offender, which was my conclusion in this case, is not sufficient to satisfy the qualification required for an offence to fall within s 22B(1) of the Act because it is not the equivalent of a conclusion that the Offender "will be sentenced to… full-time [imprisonment]".
It is for these reasons that the detention application by the DPP was dismissed.

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