DPP v Hilton [2025] ACTSC 422

The power to grant bail in the circumstances of this case

4. The court’s power to grant bail derives from s 20B of the Bail Act 1992 (ACT) (Bail Act).

5. The offence is one mentioned in sch 1 to the Bail Act, which sets out the offences to which the presumption in favour of bail does not apply: s 9B(a) of the Bail Act. Equally though, there is no presumption against bail for this offence, nor are special or exceptional circumstances required to be established.

Considerations relevant to the court’s decision

6. Under s 22(1) of the Bail Act, in determining whether to grant bail, the court must consider the following: (a) The likelihood of the person appearing in court in relation to the offence; and (b) The likelihood of the person, while released on bail – (i) Committing an offence; or (ii) Harassing or endangering the safety or welfare of anyone; or (iii) Interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and (c) The interests of the person.

7. There is a further matter relevant to the present application. If the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment: s 22(2) of the Bail Act.

8. In considering those matters, under s 22(3) of the Bail Act, the court may have regard to any relevant matter, including: (a) The nature and seriousness of the offence; (b) The person’s character, background and community ties; (c) The likely effect of a refusal of bail on the person’s family or dependants; (d) Any previous grants of bail to the person; or (e) The strength of the evidence against the person.

Section 22(2) of the Bail Act

9. That the court is required to consider the likelihood of a sentence of imprisonment under s 22(2) of the Bail Act does not mean that bail will never be granted where a sentence of imprisonment is inevitable. It is a consideration to be taken into account, not a prohibition on the grant of bail: R v Antonovic (No 1) [2021] ACTSC 219 per Refshauge AJ at [30] and the cases there-cited.

10. In R v Incandela (No 3) [2022] ACTSC 93, McCallum CJ considered the operation of s 22(2) of the Bail Act in a situation where the person had been convicted and was awaiting sentence. The Chief Justice stated at [8] that s 22(2) does not create a normative principle that a person convicted of an indictable offence should be refused bail, even where a sentence of imprisonment is almost inevitable. Her Honour went on to state at [8]-[11]: 8. … Every application must be considered on its merits. 9. That said, however, it is plain that in a number of respects the fact of conviction alters the balance of the consideration of the mandatory factors set out in s 22 of the Bail Act. The assessment of risk (and in particular, the risk of committing an offence endangering the safety of a person interfering with evidence or failing to appear) is the primary consideration, but the fact of conviction alters the balance in two important respects. 10. Firstly, it may readily be thought to increase the risk of flight or failure to appear. It is a very different thing for a person facing an unproved charge to contemplate failing to appear when required by the Court to a person knowing that he or she has been convicted and is very likely to be sentenced to a term of imprisonment. That is of particular relevance here where the offender is ordinarily resident in another state. 11. Secondly, one of the relevant considerations specified in s 22(3) is the strength of the evidence against the person. The fact of conviction renders that consideration entirely in favour of the refusal of bail in two ways; firstly, it removes the need to speculate about the likelihood of conviction and, secondly, it removes the risk that an innocent person refused bail might spend a lengthy time on remand. Contextually, s 9B confirms this analysis. The competing positions of the parties

11. The offender argued: (a) His risk of reoffending or failing to appear was low, given his previously exemplary criminal history and the specific nature of the offence. (b) He had recently been diagnosed with certain mental health conditions. He wanted to get access to appropriate psychological treatment before the sentencing hearing and to settle himself into residential accommodation in part with a view to maximising the prospect of him serving any sentence of imprisonment by way of an intensive correction order. (c) Due to his psychological conditions (about which there was expert evidence) the custodial environment was weighing more heavily on the offender. (d) He requires medication for ongoing chronic pain which he is unable to access while in custody.

12. The application for bail here was opposed by the prosecution. It was submitted that: (a) It was likely that the offender would receive a sentence of imprisonment requiring further time in custody – beyond the time he has currently served – both as a non-parole period and a head sentence. (b) There was less than a month before the sentencing hearing and releasing the offender on bail now would have a significant impact upon the sentencing judge’s exercise of discretion. (c) The offender has a history of mental health challenges (the details of which are unnecessary to set out here), such that there is a real likelihood that any return to custody following a period in the community would have a more detrimental impact on his mental health. (d) The medical treatment the offender says he needs can occur in custody. (e) One of the criminogenic risk factors is that the offender has substance abuse issues, including the use of cannabis. He has been in a controlled environment and release into the community prior to sentence creates a risk of re-offending. (f) There is a risk of endangering the safety and welfare of the child victim, through re-engagement with her. The evidence indicated that the relationship was “of some sincerity and importance” with “elements of genuine affection”, and there is a concern about the offender having an ongoing difficulty in disengaging from the victim. (g) There was also a perceived risk to the victim in terms of a deterioration in her mental health if the offender were to attempt to contact her while on bail, or if she were otherwise made aware that he was in the community. (h) Monitoring the offender’s compliance with conditions preventing contact is almost impossible, particularly in circumstances where the offender proposes to live alone in the community. There would be no supervision or scrutiny of the offender’s behaviour or movements. (i) Because of the offender’s particular criminogenic risk factors, the accommodation proposed is unsuitable for managing the risk posed in releasing the offender into the community.

Resolution of the competing positions

13. With no presumption in favour or against a grant of bail, I must consider whether the circumstances of the case warrant a grant or a refusal of bail.

14. Given the guilty plea here, some of the considerations as to the strength of the evidence or the risk of interfering with evidence pending trial fall away, but the corollary is that other considerations carry greater force in terms of weighing against a grant of bail. Here, the offender is facing a sentence of imprisonment for an offence where the maximum penalty is a term of imprisonment for 25 years. That is a primary consideration weighing against the grant of bail.

15. However, in circumstances where the offender has now spent more than a year in pre-sentence custody, the manner in which that sentence is to be served will be a live question on sentence. The prosecution argued that the approach of the court when considering the application of s 22(2) of the Bail Act was not to consider the time that the offender may be required to serve. The approach that the court takes to s 22(2) has been set out above. While s 22(2) considerations may have weighed heavily against a grant of bail a year ago, I consider that the balance has now shifted considerably.

16. The sentence hearing is also now a matter of weeks away. There is force in the submission that releasing the offender on bail now may fetter the discretion of the sentencing judge, at least from a practical perspective, if not from a legal one. The prosecution intends to submit that a further period in full-time custody is necessary to give effect to sentencing objectives. However, the offender is well-aware of the potential for him to return to custody, and he is wanting to access intensive psychological treatment beforehand, as well as to obtain certain medication to assist with his recently diagnosed condition. He is also wanting to demonstrate his suitability for an Intensive Correction Order to the assessor. In this case, I consider that is better achieved in the community, where the assessor can consider the actual living arrangements, the treatment plan proposed and the offender’s ability to comply with it. That will improve the utility of the opinion ultimately given to the court.

17. It is in the offender’s interests to be granted bail to continue effective treatment for the psychological conditions referred to in the expert medical evidence before the court. That evidence was not the subject of challenge during the bail hearing, nor was the expert required for cross-examination. I accept that the offender has received multiple counselling sessions while in custody, although this appears to have only been achieved as a consequence of the application for bail. Nevertheless, it cannot be said that the offender has received no medical treatment for his conditions in the past 12 months.

18. However, it is the case that he is presently unable to access certain medication in custody for reasons outside his control. I also accept that the further cognitive testing that is recommended to provide a more complete picture of the individual and how best to treat him is more efficiently obtained in the community.

19. The offender has no prior criminal history, and that suggests there is little weight to be given to the risk of further offending. He is not a flight risk and has the support of his father, with whom he will initially stay until he settles into more stable accommodation, which has been secured at Havelock House. While that is not long-term residential accommodation, equally, it is difficult to secure such accommodation from a position of being in custody.

20. The victim may choose to provide a victim impact statement on sentence. There is a risk that the offender may seek to contact the victim. The offender’s evidence was that he does not have the victim’s contact details, does not wish to contact her, understands that he will likely return to prison if he does and is prepared to agree not to have a smartphone or use social media in the intervening period between now and sentence. I accept that evidence. The risk that he will harass the victim is one that I consider can be mitigated to an acceptable level by conditions, even taking into account the fact that the applicant will be in unsupervised accommodation.

21. To the extent there is any separate concern about the victim’s mental health, I accept the offender’s submission that the evidence did not establish this was tied to whether the offender remained in custody, as opposed to the initial circumstances where the offender was arrested. In any event, while the impact to the victim is undoubtedly a consideration upon sentence, the considerations for a grant of bail are different, being directed to securing the attendance of the person at court, protecting the integrity of the evidence for the hearing and ensuring the safety of the community in the meantime.

22. For the reasons just explained, it can be seen that when all of those above considerations are taken into account, the balance now favours a grant of bail. It is in the offender’s clear interests to attend to his health conditions expeditiously and take appropriate rehabilitative measures in the community which will be relevant to the sentence to be imposed. The risks identified are either low or can be reasonably addressed through the imposition of conditions. There is no suggestion of the offender being unable to comply with those conditions and given the length of time the offender has now been in custody, the countervailing factors arising from the plea of guilty no longer outweigh the considerations in favour of bail.

Orders

23. Accordingly, the orders of the Court are as follows: (1) Luke Michael Hilton is granted bail to appear at the sentence hearing on 22 October 2025 on the conditions set out in the Schedule.

Schedule (1) By 4 pm on 18 September 2025, the applicant is to report to ACT Corrective Services at 249 London Circuit Canberra and to thereafter accept the supervision of ACT Corrective Services (as delegated by the director-general) and comply with all reasonable directions. (2) Upon the applicant’s release from the Alexander Maconochie Centre today, he is to travel to his temporary address in the company of his father, Mark Hilton and remain in the company of his father at all times until received by staff at Havelock House and admitted into his assigned accommodation. (3) The applicant is to notify ACT Corrective Services of the following (either directly or through his solicitors): (a) Prior to the Applicant’s release on bail, his address pending the availability of accommodation at Havelock House. (b) Within 24 hours of accommodation being assigned at Havelock House, the address assigned to the applicant. (c) Immediately upon any email service or mobile phone service being activated or changed, his email address and mobile telephone number. (4) The applicant is to refrain from: (a) Consuming alcohol or illicit drugs, including the use of cannabis, or any prescription medication not prescribed for him. (b) Accessing any form of online social media, including but not limited to the websites or applications ‘Reddit’, Facebook, ‘Discord’, and Twitter (‘X’). (5) The applicant is to report to the Officer-in-Charge of City Police Station every Tuesday between the hours of 7:00am and 8:00pm. (6) The applicant is to remain in the Australian Capital Territory at all times, except with the express permission of Corrective Services and to be at his place of residence between the hours of 8pm and 7am, present at the door of his residence and present any mobile phone or other electronic device for inspection (including unlocking the device) if required to do so by Police. (7) The applicant is not to assault, harass, threaten, intimidate or contact directly or indirectly by any means, or be within 100 metres of [the victim]. (8) The applicant is not to be within 50 metres of any secondary school grounds unless travelling past in a vehicle.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: