Director of Public Prosecutions (NSW) v Van Gestal

Procedural Background

1. The respondent was arrested on 10 February 2020, at his home in Victoria. He was extradited, by order of the Melbourne Magistrates' Court, to NSW. He did not oppose that extradition.
2. The respondent appeared before Manly Local Court on 11 February 2020. He was granted bail by the Magistrate at the Manly Local Court on 11 February 2020. Initially, he was required to live at an address in Sydney but, in due course, his bail was varied so as to permit him to return to his home address in Victoria.
3. At all times the respondent has complied with his conditions of bail and has appeared either by Audio Visual Link ("AVL") or in person in accordance with Court orders.
4. On 23 May 2022, the respondent was arraigned before a judge and jury in the District Court at Sydney. The Crown presented an Indictment which contained eight counts. The first five counts involved offences against s 76 of the Crimes Act 1900 of indecent assault of one victim which were said to have occurred between 1 January 1974 and 1 June 1977. He was charged with two offences involving another victim in the period between 1 January 1988 and 31 January 1994. Those offences were constituted by one of indecent assault contrary to s 61E(1) of the Crimes Act and one offence against s 61M(1) of aggravated indecent assault. The final count on the Indictment involved a third victim and was constituted by an offence against s 61E(1) of the Crimes Act of indecent assault which was said to have occurred between 1 August 1989 and 30 September 1989.
5. The maximum penalty for each of the counts on the Indictment varied between 4 years imprisonment and 7 years imprisonment depending on the offence and the time at which it was committed. No standard non-parole period is prescribed for any of the offences.
6. The jury returned on 9 June 2022 with verdicts of guilty on all counts of the Indictment.
7. Discussion with counsel took place about the further steps.
8. Her Honour indicated a preliminary view that bail could continue for the respondent until the hearing on sentence on 21 October 2002, a date fixed by agreement. After determining the period of the adjournment before the sentence hearing could occur, her Honour enquired of the Crown what its attitude was to the continuation of bail on the existing conditions of bail.
9. In the course of that discussion the Crown prosecutor, who had been the prosecutor during the trial, did not suggest that any further conditions were necessary to be imposed. The prosecutor did not suggest to her Honour that the respondent was a flight risk - indeed, he specifically informed the Court that he refrained from making any such submission.
10. Accordingly, in light of the fact that arrangements needed to be made to obtain evidence by way of expert report and other material relevant to the sentence proceedings, her Honour permitted bail to continue on the existing conditions.
11. At the time the trial Judge granted bail to the respondent, she did so (and was obliged to do so) in accordance with Division 2 of Part 3 of the Bail Act 2013, which can conveniently be described as the "unacceptable risk test".
12. Under that test, the respondent was not required to establish special or exceptional circumstances, nor was the fact of the convictions anything more than a factor which was required to be taken into account in accordance with the terms of s 18(1)(i1) of that Act. The fact that the respondent had been convicted of an offence but was not yet sentenced was not a reason, without more, to refuse bail. Rather, that fact, taken together with an assessment by the trial Judge of "the likelihood of a custodial sentence being imposed" was merely a factor to be considered in assessing whether, having regard to any bail concerns identified by the Crown, the granting of bail was permitted if the Court assessed that there were no unacceptable risks: s 20 of the Bail Act.
13. At the time the grant of bail was considered, the Crown prosecutor did not raise any bail concern of any kind. He drew attention to the fact that the respondent had been convicted (as was obvious) but did not identify any of the bail concerns set out in s 17 of the Bail Act.
14. The grant of bail by the trial Judge in accordance with the legislation at the time, and having regard to the absence of any identification of any bail concerns by the Crown prosecutor, was a conventional application of the Bail Act as it then stood. There is no basis for any criticism of that decision of the trial Judge.

The Application of the DPP

1. The DPP brings this application in accordance with her entitlement under s 50 of the Bail Act to apply to this Court for a revocation of bail. Because the original bail decision was made in the District Court, the Supreme Court has the jurisdiction to hear and determine the detention application: s 66(2) of the Act.
2. At a time after the bail decision of the trial Judge was made and after the detention application was filed, the Bail Act was amended to introduce s 22B. That amendment came into effect on 27 June 2022.
3. The DPP's application relied upon those amendments. The DPP submitted that by reference to the provisions of s 22B of the Act, this respondent fell within the definition in the Act of an accused person who "… will be sentenced to imprisonment to be served by full-time detention …".
4. Accordingly, the DPP contended that in order to remain on bail the respondent was required to establish that special or exceptional circumstances existed to justify that status.

Retrospectivity

1. The respondent submitted that s 22B of the Act did not apply to the respondent at all, because the section did not have retrospective operation and applied only to individuals who were convicted of offences on or after 27 June 2022.
2. It is appropriate to deal with this preliminary issue first.

Submissions

1. The respondent submitted that his convictions occurred on 9 June 2022, and the Bail Detention Application was filed on 17 June 2022, both of which events occurred before 27 June 2022, the day upon which s 22B of the Bail Act came into effect.
2. He submitted that s 22B had no application to these proceedings because of the well-known presumption of statutory interpretation that a statute which affects existing substantive rights is not intended to apply retrospectively in the absence of express words or a necessary implication in the legislation that the statute is to have such application: Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 at [7].
3. The respondent submitted that this presumption against retrospectivity applied because: 1. the terms of s 22B substantially increased the respondent's liability to be imprisoned by imposing on him an obligation to demonstrate special of exceptional circumstances existed sufficient to justify a grant of bail. He submitted that because this provision placed an onus on him to prove certain matters, it constituted an interference with his rights and, therefore, was not procedural in nature and could not be construed retrospectively: MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988) 12 NSWLR 16 at 31G. He noted that the right to be at liberty in accordance with the law was a fundamental right; 2. there was a high degree of unfairness in retrospectively requiring him to demonstrate special or exceptional circumstances, particularly where there had been no change in the circumstances between the time when he was granted bail in the District Court and the introduction of the legislation; 3. as these are pending proceedings, which were in existence prior to the introduction of the amendment, the presumption against retrospectivity is harder to displace: Lodhi v R [2006] NSWCCA 121 at [23]-[24]; 4. the Parliament did not specifically or explicitly make s 22B retrospective. Such retrospectivity cannot be achieved by delegated legislation - in this case cl 45 of the Bail Regulation 2021 which provides that s 22B applies to any bail decision made after the commencement of the section. It was said that this was particularly so because the Bail Regulation was not made until 1 July 2022, namely four days after the commencement of s 22B: CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072 at [120]-[123]; and 5. the nature and content of the legislation is such that it can only work against the liberty of the subject, which is a long-standing right. This favours an interpretation that the section is substantive as opposed to procedural: Stephens v R [2021] NSWCCA 152 at [97].
4. In response to those submissions, the DPP submitted that the common law presumption against retrospectivity or, alternatively put, that legislation is to be construed as having a prospective operation only, is a rebuttable one. It was submitted that the presumption involved only that legislation was not to be construed as attaching new legal consequences to facts or events which occurred before its commencement. And it was submitted that the presumption was not concerned with a case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future: Robertson v City of Nunawading [1973] VR 819.
5. The DPP submitted that a person in the position of this respondent, namely one who had been convicted of an offence but who has not yet been sentenced, did not have any "accrued substantive right" to have an undetermined release application or detention application determined according to the law as it stood at the time of conviction or at any time other than the time when such application was heard and determined. In those circumstances, it was submitted that there was no statutory bar to the Court taking account of the provisions of s 22B in determining this application.
6. In short, the DPP submitted that properly understood, s 22B has no work to do, or no substantive effect, unless and until a court is called upon to hear and determine either a release application or a detention application. In those circumstances, s 22B prescribes the test which the Court is obliged to apply in determining any such application.
7. The DPP accepts that a court undertaking such a task necessarily takes into account an antecedent fact, being the fact of conviction, which has occurred. But it notes that that fact is taken into account as a basis for what is determined in the application to be the status of an offender in the future. The DPP submits that in that way s 22B does not infringe the presumption against retrospectivity.
8. The DPP calls in aid the terms of cl 45 of the Bail Regulation which provides: "To avoid doubt, the amendments to the Act made by the Bail Amendment Act 2022 apply to any bail decision made after the commencement of that Act."
9. Finally, the DPP submitted that, properly understood, the provisions of s 22B are procedural rather than substantive and, accordingly, the presumption against retrospectivity did not apply. The DPP submitted that the provisions of the section were procedural because it did no more than alter the test to be applied by a Court if and when either a release application or a detention application was made, heard and determined.

Discernment

1. Consideration of these competing submissions commences with an understanding of the Bail Act. The purpose of the Bail Act is set out in s 3 of it in the following terms: "3 Purpose of Act (1) The purpose of this Act is to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions."
2. Section 49 of the Bail Act confers on a person the right to apply to a court to be granted bail or for bail to be dispensed with. Section 50 of the Bail Act confers a right on a prosecutor in proceedings for an offence to apply for a person to be refused bail or else for bail to be revoked or made subject to conditions.
3. With the exception of those offences nominated in s 21(2) of the Bail Act, in respect of which there is a right to release, no other offences carry a right to be released. The offences nominated in s 21(2) of the Bail Act do not include any of the offences relevant to this application.
4. Accordingly, it is clear that there is no right to bail, although, as the Bail Act itself states in its preamble, there is what may be regarded as a "general right to be at liberty". That general right, however, is one which is subject to a law which enables detention in custody or conditional release in the community "… as an incident of the exclusively judicial function of adjudging and punishing criminal guilt": Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; [1992] HCA 64; see also Minister for Home Affairs v Benbrika [2021] HCA 4; 95 ALJR 166 at [70]-[74]; [216]-[218].
5. But as Brennan, Deane and Dawson JJ noted in their judgment in Lim at 28, the committal to custody of a person awaiting trial either by the exercise of judicial power, or of an executive power subject to judicial supervision, is not seen as punitive but rather as a law to ensure attendance at trial. Accordingly, a law such as the Bail Act is recognised as an exception to the general right to be at liberty.
6. As I interpret the provisions of s 22B of the Bail Act, it requires a court to deal with an application for release or for detention in the way specified. The provisions of the section operate at the time that a court is hearing an application made either by an offender or by a prosecutor. In determining that application, the Court is required to take into account and apply a standard fixed by the Bail Act.
7. The Bail Act does not require the Court to act on past offences in any way. It does not impose any punishment on an offender for past offences. What it simply does is to provide that in particular cases where a release or detention application is made, namely those in circumstances during a period following conviction and before sentence, certain provisions will apply.
8. In my view, any order made pursuant to this provision does not have any retrospective effect. It simply enables a determination of a release or detention application to be done by a court having regard to the standards fixed by the legislation. It in no way affects anything done by the respondent in the past.
9. The determination of this Detention Application made by the DPP does not involve any retrospective interpretation of the amending Act.
10. I note that Bellew J, in Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927, reached the same conclusion with respect to the lack of retrospective operation of this provision. I express with respect my agreement with his Honour's conclusion set out at [31] of his judgment that s 22B of the Act does not offend any common law presumption against retrospectivity because: "… s 22B takes into account antecedent facts, namely the fact that a person has been convicted but not sentenced, and uses that as a basis for what it prescribes is to occur in the future, namely that the person is not to be released if he or she will be sentenced to full-time imprisonment, and if there are no special or exceptional circumstances."

Does s 22B apply to the Respondent?

1. The respondent contends that s 22B does not apply to him because this Court would not be satisfied that he "will be sentenced to imprisonment to be served by full-time detention" (a phrase which I will shorten for convenience to "full‑time imprisonment").
2. He submits that in considering whether s 22B is engaged in this way, this Court would need to be positively satisfied that any sentence, other than a sentence of full-time imprisonment, is outside the range of legitimate outcomes for the particular offence or offences and for the particular individual concerned.
3. In his written submissions, the respondent argued that although it was "on the cards" that he would be sentenced to full-time imprisonment, that was not the same as saying that he "will be" so sentenced. The respondent pointed to a series of subjective factors applicable to him which meant that, although it was highly likely, or very highly likely, that he would be sentenced to full-time imprisonment, the Court could not be satisfied to the requisite degree that he will be so sentenced.
4. The DPP submitted that the determination by this Court of whether the respondent was a person to whom s 22B applied was a decision to be made on the balance of probabilities as provided for in s 32 of the Bail Act. The DPP submitted that the apparent intention of the legislature to emphasise the degree of satisfaction about the imposition of a sentence of full-time imprisonment would not displace the standard of proof described in s 32 of the Bail Act. The DPP submitted that such a decision can be made without reaching the level of absolute certainty suggested by the respondent.
5. The DPP pointed to the fact that the respondent's offending was objectively serious and submitted that it was inevitable that the respondent would be sentenced to full‑time imprisonment. The DPP supported that submission by reference to a variety of factors relating to the offending in question, various aggravating features of it, namely that it involved an abuse of trust, and that it took place in the respondent's home. The DPP pointed to the fact that the respondent had not shown any remorse or contrition for his offending and that the Court in considering its sentence would be obliged to apply s 25AA of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") which meant that the Court would apply current sentencing patterns rather than the sentencing patterns in existence at the time the conduct was engaged in.
6. In Director of Public Prosecutions (NSW) v Day [2022] NSWSC 938 at [60], I noted that a decision on a detention application involving the application of s 22B requires that the Court: "… determine consistently with s 5 of the Sentencing Act that given all available sentencing alternatives, no alternative other than full-time imprisonment will be imposed."
7. Accordingly, it is necessary to understand what sentencing alternatives other than full-time imprisonment would be lawfully available, for the purpose of determining whether the DPP has, on the balance of probabilities, excluded them: Day at [61].
8. Counsel for the DPP initially submitted that the sentencing court would not have available to it the sentencing option of an Intensive Corrections Order ("ICO") because the offences for which the respondent had been convicted were "prescribed sexual offences" within the meaning of s 67 of the Sentencing Procedure Act.
9. It is appropriate to here set out the relevant provisions of s 67. They are: "67 Intensive correction order not available for certain offences (1) An intensive correction order must not be made in respect of a sentence of imprisonment for any of the following offences - (a) … (b) a prescribed sexual offence, … (2) For the purposes of this section - … prescribed sexual offence means: (a) an offence under Division 10 … of Part 3 of the Crimes Act 1900, being - (i) an offence the victim of which is a person under the age of 16 years, or (ii) an offence the victim of which is a person of any age and the elements of which include sexual intercourse (as defined by section 61H of that Act), or … (g) an offence that, at the time it was committed, was a prescribed sexual offence within the meaning of this definition. (3) To avoid doubt, subsection (1) extends to a sentence of imprisonment for 2 or more offences any 1 of which includes an offence referred to in that subsection."
10. Counsel for the DPP then submitted that as an ICO is not an available sentencing alternative, and that under no circumstances could a Community Corrections Order ("CCO") or other lesser sentencing option be available, it would follow that the only sentence available to the sentencing Judge was one of full-time imprisonment.
11. The respondent did not specifically address the submission of the DPP that s 67 of the Sentencing Procedure Act applied so as to prohibit the imposition of an ICO in writing, or initially in oral submissions. When asked specifically about that submission, counsel for the respondent accepted that counsel for the DPP was correct in his submission.
12. Counsel for the respondent accepted that if an ICO was not available, then the only other available sentencing option was a CCO. Counsel for the respondent was not able to point to any case in which a court had made a CCO in comparable circumstances. Counsel drew attention to the recent decision of the Court of Criminal Appeal in R v Obbens [2022] NSWCCA 109, where a Crown appeal against the inadequacy of a sentence imposed on the offender in that case by way of a CCO was dismissed. However, counsel accepted that the facts were not comparable.
13. Obbens is a case which had most unusual facts. It involved the imposition of a single sentence in the context of the totality of the offending of Mr Obbens where he had previously been sentenced to a term of imprisonment for similar offending. The circumstances described in that judgment make it plain that it is wholly distinguishable from, and quite inapplicable to, the circumstances here.
14. In my view, no sentencing Judge in these proceedings could lawfully conclude that an appropriate sentence for all of these offences would be constituted by the imposition of a CCO.
15. However, notwithstanding that the concession made by counsel for the respondent, it does appear that the submission made by the DPP, that the provisions of s 67 of the Sentencing Procedure Act have the effect that the sentencing Judge in these proceedings could not lawfully impose an ICO, is not correct.
16. As is apparent from the text, which is extracted at [49] above, s 67 applies to prohibit ICOs being made in respect of prescribed sexual offences. The definition of a prescribed sexual offence requires it to be an offence under, relevantly, Division 10 of Part 3 of the Crimes Act where the victim is a person under the age of 16 years.
17. Each of the victims here was under the age of 16 years. The issue is whether the offences of which the respondent was convicted, namely offences against s 76 of the Crimes Act, s 61E(1) of the Crimes Act and s 61M(1) of the Crimes Act are offences under Division 10 of Part 3 of the Crimes Act.
18. With respect to the offences against s 76 of the Crimes Act, the range of times during which the respondent was charged and convicted was between 1 January 1974 and 1 January 1976. At that time, s 76 came within Part 3 of the Crimes Act, but the Crimes Act did not include any Divisions. Accordingly, the offences of which the respondent has been convicted do not fall within with current definition of a prescribed sexual offence, nor within the limb of the definition to be found in s 67(2)(g), namely, that the offences were, at the time they were committed, offences within Division 10 of Part 3.
19. Section 76 was repealed with effect from 14 July 1981 by the passage of the Crimes (Sexual Assault) Amendment Act 1981. The entirety of s 76 was omitted by cl 8 of Schedule 1 of that amending legislation. Section 61E of the Crimes Act was first introduced by that same legislation.
20. Section 61E was repealed by its complete omission from the Crimes Act by cl 2 of Schedule 1 of the Crimes (Amendment) Act 1989, which took effect from 17 March 1991. Section 61M was first introduced by this legislation.
21. Section 61M was repealed with effect from 1 December 2018 when it was removed from the Crimes Act by cl 7 of Schedule 1 of the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018.
22. As at 31 January 1994, which was the last date for the commission of any of the offences, there was no "Division 10" in the Crimes Act.
23. Based on this review of the legislative history, it seems clear that in October 2022, when the sentence hearing is to be held, none of the offences against (the now repealed) ss 76, 61E and 61M would be an offence under Division 10 of Part 3 of the Crimes Act, and accordingly would not fall within the phrase "prescribed sexual offence" in s 67 of the Sentencing Procedure Act. It is equally apparent that at the time the offences were committed, they were not within the meaning of that term for the purpose of s 67(1)(a) of the Sentencing Procedure Act.
24. On 21 July 2022, when I announced my decision in this matter and indicated that I would give reasons on the following day and invited further submissions from counsel in respect of the issue as to whether the offences were caught by s 67 of the Sentencing Procedure Act. They were received by 4pm that day.
25. The DPP withdrew the submission that s 67 operated to preclude the availability to the sentencing Judge of the sentencing option of imposing an ICO on the respondent.
26. Counsel for the respondent maintained that s 67 precluded the availability of an ICO in this case. In addition to referring to the terms of s 67, he relied on s 3 of the Criminal Procedure Act 1985 which in that Act defines "prescribed sexual offence" as including offences under ss 76, 61E and 61M of the Crimes Act.
27. The definition contained in the Criminal Procedure Act has no application and is quite irrelevant for the purposes of interpreting s 67 of the Sentencing Procedure Act. Counsel's submission is entirely erroneous and should be ignored.
28. Accordingly, I reject the submission that the sentencing Judge in this proceeding is prohibited as a matter of law from imposing an ICO. In those circumstances, I cannot conclude, consistently with the principled approach which I enunciated in Day, that an ICO would not be a lawfully available sentencing alternative to the sentencing Judge. There are circumstances in which sentences for historical child sex offences have consisted of, or included, the imposition of an ICO. Whether or not the sentencing Judge, apprised of all of the facts and circumstances in this case, would impose an ICO is not a matter which I have to decide. It is sufficient to indicate that the DPP has not satisfied me on the material put before the Court that such a sentencing alternative could not lawfully be imposed.
29. In my view, it is reasonably possible that, depending on the evidence provided, a sentencing Judge could impose an ICO.
30. In those circumstances, I am not persuaded that the respondent is a person to whom the provisions of s 22B would apply, because he is not a person "… who will be sentenced …" to full-time imprisonment.
31. However, as I have earlier observed, counsel for the DPP and the respondent were initially content to rest their submissions upon the proposition that s 67 of the Sentencing Procedure Act applied to the offence for which the respondent was convicted, and that it was not lawfully open to the sentencing Judge to impose an ICO.
32. In those circumstances, and because counsel dealt with the subsequent issues including special and exceptional circumstances, and in case the interpretation which I have set out above is erroneous, it is preferrable that I consider the position with respect to the respondent on the basis which was originally uncontested between the parties.
33. This requires the Court to determine, on the assumption that s 22B applies to the respondent, how s 22(1)(b) is to be interpreted.

Statutory Interpretation

1. In Day at [48]-[55], I drew attention to the difficulties of expression in s 22B(1)(b) having regard to the words which are in the legislation. In that decision I did not have to come to any final view with respect to the way in which it was appropriate to interpret s 22B(1)(b) because I held that it did not apply in the particular circumstances of that matter.
2. However, it is a matter to which it is necessary for me to turn in this decision because that is the subsection which it is necessary to apply in the circumstances I am now considering.
3. The modern approach to statutory interpretation was described by a majority of the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] in this way: "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."
4. Context includes the instrument as a whole, linguistic canons of construction, the purpose of the provision and extrinsic material: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].
5. Section 22B(1) reads as follows: "… 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."
6. Grammatically, "the decision" would refer to "a decision to refuse bail" because no other decision is referred to in the subsection. But in the context of the Bail Act, because "the decision" follows the phrase "unless it is established that special or exceptional circumstances exist", it may also refer to the contrary of that decision, namely "a decision to grant or dispense with bail" or "a decision to dismiss the detention application".
7. Section 22B(1)(a) requires a court, on a release application and in certain circumstances, to "not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist". Section 22 requires a court, in certain circumstances, to not grant bail or dispense with bail, "unless it is established that special or exceptional circumstances exist". Section 22A requires a court, in certain circumstances, to refuse bail "unless it is established that exceptional circumstances exist".
8. In other words, the Bail Act normally operates to require an applicant for bail, in certain circumstances, to establish that special or exceptional circumstances exist before a decision may be made to grant, or dispense with, bail. The Bail Act does not require, in any section other than s 22B(1)(b), the prosecution to establish that special or exceptional circumstances exist before a decision may be made to refuse bail.
9. In the context of the Bail Act read as a whole, therefore, the legislative direction encompassed in the phrase "must refuse bail" is incongruous with the phrase "unless it is established that special or exceptional circumstances exist that justify [a decision to refuse bail] ". As I observed above, and in Day at [54], "the decision" in s 22B(1)(b) may more appropriately be understood to refer to "a decision to grant or dispense with bail" or "a decision to dismiss the detention application".
10. That interpretation is strongly supported by the clear and obvious intent of Parliament evidenced by the extrinsic material relating to the Bail Amendment Bill 2022 ("the Bill"), including the second reading speeches in both of the Chambers. Undoubtedly, by introducing s 22B, the Parliament's intention was to limit the circumstances in which bail could be granted or dispensed with in relation to a person convicted but not yet sentenced.
11. There is no suggestion in the extrinsic material that the Parliament intended to require the prosecution to establish special or exceptional circumstances before a court could grant a detention application. In fact, the second reading speech suggests the opposite. In includes this: "The provision does acknowledge that special or exceptional circumstances may arise from time to time that justify the granting of bail even in these circumstances, consistent with the approach taken in the existing section 22 of the Bail Act. Section 22 overrides other sections of the Bail Act by providing that in certain situations bail cannot be granted, except in special or exceptional circumstances. The courts have declined to set out an exhaustive list of factors that may constitute 'special or exceptional'. For example, in El‑Hilli and Melville v R [2015] NSWCCA 146 at [29], Justice Hamill said, their Honours Simpson and Davies agreeing: '"Special or exceptional circumstances" may exist in the combination of factors or in "the coincidence of a number of features … It is not possible to determine or predict in advance what those features may be.' What is clear is that it is a high bar to be met, and similarly will be a high bar under new section 22B. There could, for example, be circumstances where a person argues that special or exceptional circumstances exist as they are required to make arrangements before commencing their prison sentence to avoid hardship on third parties, such as a person for whom they are a carer. However, this is a high bar. It would be for the court to determine the circumstances of the case whether the test was satisfied." (emphasis added)
12. In my view, s 22B(1)(b) is ambiguous and the alternative meanings I have articulated above are meanings which are reasonably open on the natural and ordinary meaning of the words read in the context in which they appear. In those circumstances, it is necessary to make a constructional choice between the alternative meanings: Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [50]. A construction which promotes the purpose or object underlying the provision is to be preferred to a construction that would not promote that purpose or object: s 33 of the Interpretation Act 1987.
13. In those circumstances, once it is established that s 22B applies to a convicted person, I will read s 22B(1)(b) as requiring a court not to make a decision to dismiss a detention application unless special or exceptional circumstances exist.
14. If am wrong that the words of s 22B(1)(b) can reasonably bear the meaning which I have ascribed them, then I would have implied additional words into the provision to ensure that the provision does not lead to an absurd result or manifestly contradict its apparent purpose as a result of a mere fault of expression. That approach, which involves a judgment of matters of degree, is open to this Court to ensure the provision is given a meaning which, despite its terms, it is plain that Parliament intended it to have: Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]; Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551; [2017] HCA 54 at [52].

Legal Principles

1. It is now necessary to consider whether it has been established that special or exceptional circumstances exist to justify the decision, the effect of which is that the respondent will remain on bail until the sentencing hearing in October 2022.
2. The phrase "special or exceptional circumstances" is to be found in a number of different places in the Act.
3. There is no reason to conclude that the phrase means different things in different parts of the Act. In El-Hilli and Melville v R [2015] NSWCCA 146, Hamill J (with whom Simpson and Davies JJ agreed) said at [29]: "… 'Special or exceptional circumstances' may exist in the combination of factors or in the 'coincidence of a number of features': cf the comments of Johnson J in R v Young [2006] NSWSC 1499 at [20], when dealing with the requirement to establish 'exceptional circumstances' in a murder case under the 1978 Act. It is not possible to determine or predict in advance what those features may be. …"
4. That statement has been followed in many, many cases since. Some examples include R v Williams [2020] NSWCCA 348; Carnaby v The Queen [2021] NSWCCA 203 and Bobbi v R [2021] NSWCCA 44. In Bobbi, Hamill J (with whom Mcfarlan JA and Walton J agreed) said that there was "… no fetter on the things that might constitute 'special or exceptional circumstances'".

Evidence

1. The respondent relied on a number of different circumstances which he said, when viewed in combination, amounted to special and exceptional circumstances. In identifying those facts and circumstances, he relied on evidence and material provided to the Court.
2. First amongst that material was the affidavit of Mrs Margaret Van Gestal sworn 12 July 2022. Mrs Van Gestal deposed to the fact that she was the wife of the offender, was aged 74 and had been married to him for 53 years. She noted that they had lived at their current residence for the last 18 years.
3. The prosecution cross-examined Mrs Van Gestal. I observed her closely in the course of that evidence. I have no reason to disbelieve the evidence of Mrs Van Gestal either in her affidavit or the answers which she gave orally in the course of cross-examination. In oral submissions at the conclusion of the hearing, the counsel for the DPP did not submit that I ought not accept any part of Mrs Van Gestal's evidence or its entirety, nor did he suggest any criticism at all of her evidence or the manner in which she gave it. Accordingly, I accept her evidence.
4. The evidence of Mrs Van Gestal establishes that she and the respondent have four children. Their eldest lives in the United States of America with her family. She is presently visiting Australia but that is by no means a permanent arrangement. Her second daughter lives locally with her family. Her second daughter's husband is presently being treated for cancer and will undergo further surgery on 1 August 2022. They have two children who are in the early years of high school. Mrs Van Gestal said that her daughter had said she would support her as much as she could, but that at the moment she works full time, is very involved with her children and their activities, and her husband's health and had not at any time prior to now taken Mrs Van Gestal to any appointments that she may need for health care.
5. A third son, Scott, lives interstate with his family.
6. The fourth child of Mr and Mrs Van Gestal is a son, Paul, aged 51 who lives at home. He works full-time as a storeman in a warehouse and undertaking a second job of lawn mowing. He leaves for work early in the morning and does not return home until late afternoon or early evening. This son, Paul, is not able to manage his own financial affairs which are managed for him by the respondent.
7. Mrs Van Gestal does not hold a driver's licence. She suffers significant personal health difficulties which it is unnecessary to set out in detail. She presently takes seven different types of medication daily and as required, takes a further three different types of medication. She is not at all well.

Health Concerns

1. The evidence of Mrs Van Gestal is that the respondent has a number of health issues. About 10 years ago he donated one of his kidneys for the benefit of his son, Paul.
2. He suffers from a series of conditions associated with older males, but in particular has had three episodes of deep vein thrombosis ("DVT"). In the early part of May 2022, the respondent had a transient ischaemic attack ("TIA"). A TIA is a well-recognised medical condition which is constituted by a short episode during which parts of the brain do not receive enough blood. It is sometimes referred to as a "mini stroke". It is thought to be a harbinger of a stroke.
3. According to the documents attached to Mrs Van Gestal's affidavit, it seems that in early May 2022, on or about 9 May 2022, Mr Van Gestal was referred by Dr Aaron Howe, his General Practitioner ("GP"), to see Dr Christopher Goods, a specialist cardiologist, for examination and advice. No doubt that advice would include any referral for investigations and treatment.
4. The appointment with Dr Goods occurred on 29 June 2022 i.e., about six weeks after the date of the referral.
5. From the documents, it appears that Dr Goods has referred the respondent for a stress echocardiogram and for a test known as a 24-hour blood pressure monitor test. According to the referral completed by Dr Goods, under the heading "Clinical Notes", he has recorded "Ischaemia", no doubt his provisional diagnosis which is the basis upon which he has ordered the tests.
6. A copy of the referral form for the tests completed by Dr Goods directs that a copy of any report of the tests be provided to Dr Aaron Howe who is the respondent's GP.
7. The evidence establishes that an appointment has been made for those tests to be undertaken by the respondent at 2.30pm on 1 August 2022.
8. In closing address, counsel for the DPP submitted that there was no evidence about any steps taken by, or on behalf of, the respondent between when the TIA occurred and the date of the trial commencing on 23 May 2022 to seek any medical treatment with respect to it and that there was no evidence as to when the appointment on 29 June 2022 was fixed to see the cardiologist. He submitted that there was no evidence from either the respondent's GP, or cardiologist "… about when and why those appointments were obtained at that time [rather] than any time earlier".
9. I am unpersuaded that the absence of evidence about when appointments were made detracts from the issue of whether the respondent suffers from a serious health condition and requires to undergo the identified tests, nor that there has been any lack of diligence on the part of the respondent. In the first place, the chronology which appears above, which is available from the documents attached to the affidavit of Mrs Van Gestal and from affidavit establishes that the respondent saw a Dr Howe, his GP, in the early part of May shortly after his TIA, and that Dr Howe referred him for specialist care from a cardiologist. The referral documents for the two tests to which I have adverted, demonstrate that the cardiologist had formed a provisional diagnosis of ischaemia and had referred the respondent for tests to a specialist service capable of administering those tests - one of which was to take place over a 24-hour period.
10. The fact that there was a delay between seeing the GP and a specialist cardiologist of about six weeks during which the respondent stood his trial in Sydney does not suggest any delay, or anything else, which is out of the ordinary. In my view, a period of six weeks or so is not an atypical waiting time to obtain an appointment with a medical specialist. As well, any appointment made, having received a referral from a general practitioner, had to be made for a time which took into account the respondent's obligations to be present in Sydney throughout his trial.
11. Counsel for the DPP submitted that an email from the Manager of the Court Report Coordination Unit at the Justice Health and Forensic Mental Health Network ("Justice Health") was sufficient to enable the Court to conclude that all appropriate care can be provided to the respondent if he is in custody, including with respect to the undertaking of the two tests for which he has an existing appointment on 1 August 2022.
12. That email was sent by Justice Health after it had been provided by a solicitor at the offices of the DPP with information about the respondent, including that he had seen a "heart specialist" on referral from his GP on 29 June 2022, and also that the tests referred to were scheduled to occur on 1 August 2022 at a health facility in Victoria.
13. It is appropriate to note the information in that email, which is based on a reported conversation with a staff specialist in primary care:

• Justice Health is able to "coordinate" a stress echo test;
• Justice Health is able to request a 24-hour blood pressure monitor test, however, it is ultimately the decision of Corrective Services NSW ("CSNSW") whether to allow the device into the correctional centre;
• the patient can be referred to the Cardiology Department at a local public hospital for specialist opinion and consideration of keeping the patient in hospital for BP monitoring should that be required.

1. It is relevant to note that the email response from Justice Health did not suggest that it could undertake a stress echo test at a health facility, within a correctional centre, but rather that it could coordinate one being undertaken.
2. It is also relevant to note that the undertaking of the other test, which required a blood pressure monitor for a period of 24 hours, was something over which Justice Health did not have control because whilst it could "request" such a test (from whom is not clear), it was a matter for CSNSW to decide if it could occur having regard to whether a monitor would be allowed into the correctional centre.
3. The response from Justice Health did not identify any timeframe for the making of a request for the 24-hour test, or for the coordination of a stress echo test. It did not specify a time by which those tests could be completed, and the results obtained, nor whether the results would be supplied to the respondent's cardiologist or GP.
4. The email attached a document dated October 2020 entitled "Overview of Services". That document, which is a broad overview of the services capable of being provided by Justice Health, records that health care is provided to people in custody in the ambulatory setting (i.e., an equivalent to a non-admitted care setting). Within that setting direct health services are provided by primary care nursing staff supported by GPs. The Overview, in describing the ways in which primary care interventions are undertaken, does not suggest that investigation or tests of the kind ordered by the respondent's cardiologist are undertaken by the primary health care staff. Rather, the Overview suggests that such tests would fall within the role of the "appropriate [Justice Health] speciality services".
5. It seems from the Overview that access to those speciality services whether "internal or external" is facilitated by a Medical Appointments Unit which liaise with the booking offices of various hospitals, or specialist medical practitioners. The Overview also notes that individuals in custody can have treatment "for elective investigations" or surgery at public hospitals. This naturally requires security and transportation arrangements to be made by CSNSW, as does the provision of any health services outside a correctional centre.
6. The range of services provided by Justice Health's primary care services are described in the Overview and include such items as optometry and radiology services. They do not include any services which would capture cardiology issues or tests of the kind relevant here for the investigation of a cardiac condition such as ischaemia that the tests are to be provided in the community by 1 August 2022. I also conclude that Justice Health is not able to be confident that the 24-hour blood pressure monitor test can be provided within a correctional centre.
7. The Overview of Services does not identify as a part of the health services provided by Justice Health any indicators of time periods with which any health service will ordinarily be provided, or else can be expected to be provided. No doubt this is due to the difficulties in a custodial environment of satisfactorily estimating, at any given time, the demands placed on Justice Health for its services, and the resources it has available to provide those services. Also, where health services are to be sourced from external providers such as specialists, the time within which those services will, or can be, provided will likewise depend on the level of demand for those services and the times for meeting that demand available from the external health providers. None of these matters is completely within the control of Justice Health.

Other Circumstances

1. The respondent submits that he needs to be at liberty until his sentence hearing for a number of other reasons, including continuing to assist his wife with her health conditions and to finalise any plans to be made for her for future living arrangements. Mrs Van Gestal was asked in cross-examination about whether she would be able to obtain assistance from other people, either friends or her daughter, for attending medical appointments and receiving support generally if the respondent was not able to do that. I thought her answer was powerful as demonstrating her present state of mind and the lack of present arrangements for her if the respondent goes into custody. Her evidence was this: "Q. Have you made any arrangements at all as to how you will manage if the application is granted today and your husband is taken into custody? A. I don't know what I will do, to be honest. Can't survive without him."
2. In the following question, she went on to note that her daughter Leonie said that she would be "there to support me…when she can". This was an unsurprising answer given the complexities of Leonie's family life to which reference has earlier been made, and which are set out in Mrs Van Gestal's affidavit.
3. This evidence suggested to me that the fact is that no arrangements had as yet been made by the respondent following upon the grant of bail on 9 June 2022, with respect to the affairs of himself and his family, in particular his wife, which will have effect after the sentencing hearing on 20 October 2022.
4. Whilst it was submitted that those arrangements could and should have been made by now, the fact is that they have not. Up until the Bail Detention Application was filed on 17 June 2022, the respondent had no reason to think that his bail would not continue until the sentence hearing. He could not be expected to have anticipated the legislative amendment relied upon by the DPP as central to its application to have been introduced. Whilst one may be able to be critical of the respondent for not anticipating an adverse outcome of this application, a criticism which I do not accept, the absence of the ordering of his affairs, particularly for the care of his wife who has complex health issues, and the financial supervision of his adult son, nevertheless can and does in my assessment constitute a special circumstance which I should take into account in considering the application of s 22B.
5. In respect of special and exceptional circumstances, the respondent also draws attention to the fact that he has at all times since 11 February 2020, when he was first admitted to bail, complied with all conditions of bail including appearing in Court on each occasion and otherwise strictly complying with those obligations.
6. The respondent also points to the fact that he has provided instructions to lodge a Notice of Intention to Appeal to the Court of Criminal Appeal with respect to the reasonableness of his convictions, and also with respect to an error of law in that the trial Judge permitted complaint evidence to be given over objection.
7. Of themselves, these do not constitute special circumstances although the first of these two matters is relevant to the unacceptable risk test: s 18(1)(f) of the Bail Act.
8. As well, the respondent points to his need to remain at liberty to ensure that his lawyers are fully instructed with respect to both the sentencing hearing and the foreshadowed appeal. That submission is made in the context that present custodial arrangements for anybody in custody do not permit conferences to take place with lawyers attending in person, but rather they need to take place over an AVL conference system and that, from time to time as is well known in this Court, there can be significant delays and many difficulties in putting such AVL conferences in place in a timely way.
9. I accept that there may be significant difficulties for lawyers to presently obtain instructions and to have conferences with their clients, but, on the material before me, I am not satisfied that standing alone, they amount to special circumstances. Nevertheless, these difficulties are a circumstance relevant to the application of the unacceptable risk test: see s 18(1)(h) of the Bail Act.
10. I am persuaded that the respondent has satisfied me that special and exceptional circumstances exist which would justify the continuation of his current bail. His health conditions are serious, they require investigation, those investigations are scheduled to take place in the relatively near future, on 1 August 2022, and will likely form the basis of further expert opinion from his cardiologist and will be relevant to any material to be tendered on his sentence hearing. I also regard the need for the respondent to make arrangements for the care of his wife and his son in his absence should he go into custody as being in his particular case, a special circumstance.

Unacceptable Risk Test

1. It is necessary to consider whether granting bail to the respondent raises any unacceptable risks.
2. The unacceptable risk test is undertaken in accordance with ss 17 and 18 of the Bail Act. It is an evaluative assessment of one or more of the four bail concerns set out in s 17(2)(a)-(d) of the Bail Act. The assessment of any identified bail concerns occurs once the Court considers the matters listed in s 18(1)(a)-(p), and only those matters.
3. In written submissions, contained within the "Crown Bail Chronology and Submissions", although the Crown Prosecutor refrained from making this submission on 9 June 2022, the DPP identified only one bail concern, namely "the [respondent] is a flight risk", which I take to be a reference to a bail concern concordant with s 17(2)(a) of the Bail Act, namely that the respondent will fail to appear at any proceedings for the offence relating to the grant of bail.
4. The submission made was in essence in these terms: "… during the course of the trial, the respondent was, due to a bad back, permitted to stand … This the Crown further submits, gives rise to a further or more fundamental reason why bail ought not to be granted, in that given his age and apparent ill-health, there is a real possibility that the respondent whilst on bail in Victoria may create a situation which will make it difficult for him to return to New south Wales." (emphasis added)
5. In further written submissions dated 14 July 2022, counsel for the DPP submitted that having regard to the respondent's age, the likelihood that any sentence of imprisonment will consume a significant proportion of his remaining years, there was an unacceptable risk that he would not attend court for the sentence hearing.
6. Counsel also submitted that there were two further bail concerns, namely an unacceptable risk that the respondent would commit a serious offence or endanger the safety of individuals and the community: s 17(1)(b) and s 17(1)(c) of the Bail Act. No submissions were addressed to either of these later identified bail concerns. These concerns were not previously raised by the Crown prosecutor on 9 June 2022.
7. In oral submissions, counsel for the DPP made submissions largely to the same substantive effect as those set out in his written submissions to which I have referred. In addition, counsel submitted when dealing with the bail concerns that the respondent would not appear at his sentencing hearing: "There is a motivation … that he will not attend court for that hearing. Whether he doesn't attend due to fleeing the jurisdiction or his home or whether he doesn't attend for any other reason or concocts or engineers some other set of circumstances such that he is unable to attend court for his sentencing hearing …" (emphasis added)
8. In support of the submissions about concocting a set of circumstances which would prevent his appearance, counsel submitted that there was no evidence from the respondent's GP or cardiologist about when appointments were made and why those appointments were not made at any earlier time. Counsel was pressed as to whether there was anything else upon which he relied to base his submission. He did not point to any other matter.
9. As I have described above, the documents which evidence the dates of a referral by Dr Howe, the respondent's GP, to Dr Goods, the cardiologist, and the dates of consultation with the cardiologist, and his referral for the tests, and the appointment for those tests, are to be found in documents attached to the affidavit of Mrs Van Gestal. Mrs Van Gestal set out in her affidavit that she attended the consultations of the respondent with his cardiologist, which followed advice the respondent received from his GP, Dr Aaron Howe. She confirmed that the cardiologist had at that consultation made the referrals for the tests and that the respondent made a booking for the tests.
10. Counsel did not cross-examine Mrs Van Gestal on any of the evidence or the documentary material attached to her affidavit relevant to the medical appointment. To say the least, it is surprising that if counsel for the DPP wished to submit to this Court that based on the respondent's behaviour of not obtaining any earlier consultation with his cardiologist or for the appointment for the tests than those which he did, he did not cross-examine Mrs Van Gestal about those matters.
11. It is sufficient for me to record that the matters relied upon by counsel for the DPP are wholly inadequate, having regard to the unchallenged evidence of Mrs Van Gestal which I accept, to ground a submission that the respondent would concoct, engineer or create a situation - words which must incorporate an intention on the part of the respondent to, by faking a set of circumstances, pervert the course of justice, so as to have a "justification" to fail to appear at his sentencing hearing. I reject the submission.
12. Whenever any person is granted bail, there is always a possible risk that they will not appear at court. There can never be any guarantee that a person will appear. However, in considering the unacceptable risk test, any such risk is taken into account and weighed up in light of all of the factors set out in s 18 so far as they are relevant.
13. I am satisfied that there is no unacceptable risk of the respondent failing to appear at the sentence hearing in October 2022. In forming that conclusion, I have considered all of the relevant factors identified in s 18 of the Bail Act.
14. Without ignoring any of those factors, those to which I have given significant weight include the respondent's age, his strong community ties and since the offences for which he has been convicted - a period of over 25 years - the absence of any criminal record. As well, I have given significant weight to the respondent's behaviour whilst he has been at liberty on bail for almost 2 years and 6 months, during he has not been in breach of his bail and has always attended court when required, including for the purpose of the hearing of this detention application when he was a risk of entering custody. I have considered these matters in the present circumstances of the respondent's convictions for the undoubtedly serious sexual offences upon which he was indicted. And I have taken into account the likelihood, which is very high, that he will be sentenced to a term of full-time imprisonment when sentence is imposed.
15. There are existing conditions of bail, namely residence and a surety, which are addressed to ameliorating any risk of non-appearance.
16. It is my evaluation having considered all of these matters and others which I am obliged to, that there is no unacceptable risk of the respondent's failing to appear.
17. With respect to the other two bail concerns identified by counsel for the DPP, I do not regard those bail concerns as constituting unacceptable risks. Counsel accepted that there was no material at all put before the Court on the application to suggest that the respondent had committed any offence at all, let alone a serious offence, over the past 25 years or more. I accept that the respondent's convictions demonstrate that he has committed serious offences. But the Court is asked to consider whether, if he remains on bail, he will commit further serious offences. I am satisfied that having regard to the absence of any complaint of the commission of any further offences for the many years since 1994, that there are no circumstances presently identified which would enable me to find that the respondent will commit any further serious offences whilst on bail.
18. There is no material but for the respondent's convictions which supports a submission that if he remains on bail, he will endanger the safety of individuals and the community. There is no demonstrated present risk of this occurring.
19. I am not satisfied that there are any unacceptable risks which would preclude a grant of conditional bail.

Conclusion

1. Accordingly, on 21 July 2022, I dismissed the application of the DPP for the detention of the respondent for the reasons expressed.
2. In summary, I am satisfied that the respondent is not a person to whom the provisions of s 22B of the Bail Act applies because I am not satisfied on the material before me that a sentencing option other than full-time imprisonment will not lawfully be open to the sentencing Judge in this matter.
3. If I am mistaken in that conclusion, I am satisfied that special and exceptional circumstances have been established and that there are no unacceptable risks from the respondent remaining on bail.

Orders

1. On 21 July 2022, I ordered that the Detention Application filed by the DPP on 17 June 2022 be dismissed. I order that an additional condition be imposed that the respondent is prohibited from being in the company of any child under the age of 12 years, unless in the presence of his wife or one of his children.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2022