This is a Release Application on behalf of Mr Hawkins. Mr Hawkins was sentenced on 26 April 2023 at the Local Court Wyong to an aggregate sentence of imprisonment to a term of 18 months commencing 1 March 2023 to expire on 31 August 2024 with a non-parole period of 10 months.
A table of the indicative sentences imposed in relation to each offence is below:
2023/68944-001 Drive whilst disqualified 7 months
2023/68944-002 Dishonestly obtain benefit by deception 6 months
2023/68955-001 Take & Drive conveyance w/o consent 6 months
2023/68955-002 Drive whilst disqualified 7 months
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Mr Hawkins has filed a notice of appeal to the District Court on grounds that the penalty is too severe. That appeal is to be listed on a date to be fixed. This Release Application seeks the grant of bail in relation to the matters pending the determination of his appeal.
During the course of the Release Application the question was raised by the Court as to whether s 22B of the Bail Act 2013 (NSW) (the 'Bail Act') is relevant to the present application.
Section 22B of the Bail Act relevantly provides:
(1) During the period following conviction and before sentencing for an offence for which the accused sentence will be 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…
The legal representative for Mr Hawkins submitted that s 22B did not apply given that s 18(2)(j) of the Act requires the Court, when assessing bail concerns, to consider "if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success".
It was also submitted that if it was intended that s 22B was to apply to the circumstances of an "appeal bail" then s 22B would expressly provide for this. In supplementary submissions made the Court's attention was drawn to the provisions of s 22 of the Bail Act which imposes a limitation on the Court's power to release for an offence for which an appeal against conviction or sentence on indictment is pending in the Court of Criminal Appeal. It was submitted that if s 22B applied to appeal bails then s 22 would be left with no work to do.
The police prosecutor responded to the issue submitting that on the plain reading of the provision s 22B did apply to an "appeal bail" in that Mr Hawkins has been convicted of the offences and is now awaiting sentencing on appeal in the District Court.
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Consideration
I am not aware of any superior court authority on s 22B that relates to cases involving release applications. To date, the only reported decision that I am aware of is that of Barnett SC LCM in R v Sturmann [2022] NSWLC 3. In that case his Honour found that s 22B did apply in relation to appeals bail where a severity appeal was pending. While that decision is not binding upon me, it is very persuasive.
In light of the limited authority on the issue the Court has determined to independently turn its mind to the issue.
It is clear that s 22B applies to release applications. The question is whether it applies to release applications made during the period after a sentence is imposed in the Local Court and pending determination of an appeal to the District Court.
The right of a defendant to appeal to the District Court is contained in the Crimes (Appeal and Review) Act 2001 (NSW). Section 11 confers a right to a person who has been convicted and sentenced in the Local Court to appeal to the District Court within 28 days of the sentence being imposed. Mr Hawkins has lodged an appeal within this time frame. Once an appeal is lodged s 63(2)(c) of the Act provides:
(1) This section applies to:
(a) any sentence…
(2) The execution of any such sentence… is stayed:
…
(c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act.
Section 20(2) of the Act provides that the District Court may determine an appeal against sentence-
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
The consequence of these provisions is that the sentence imposed by the Local Court on 26 April 2023 remains in force unless and until the defendant is entitled to be released on bail pending the determination of the appeal. The sentence imposed in the Local Court remains valid unless it is set aside or varied by the District Court.
On one view, the imposition of the sentence by the Local Court might suggest that the operation of s 22B of the Bail Act concluded on 26 April 2023. However, s 22B refers to the timeframe of operation being between "conviction and sentencing" rather than the phrase of being between "conviction and until a sentence is imposed". It is also relevant to note that s 6(2) of the Bail Act provides that "if a court convicts an accused person of an offence, and a sentence is to be imposed, proceedings for the offence do not conclude until the sentence has been imposed". The legislature could have couched s 22B in similar terms by applying the provision to the period between conviction and the conclusion of proceedings for the offence. It has not used that language.
The distinction is material. It means that while s 22B could have been expressed to conclude at the time that a sentence was imposed by the court the legislature has not framed the section in such restrictive terms. In the present case, while a sentence has been imposed by the Local Court the lodgement of an appeal against the severity of the sentence to the District Court means that sentencing in relation to the offences will not come to an end until the determination of the appeal process.
A broader construction of s 22B is consistent with the intention of Parliament. Section 22B was introduced by the Bail Amendment Act 2022 (NSW). The Second Reading Speech to the Legislative Assembly by Mrs Pavey on behalf of Mr Speakman (Hansard 21 June 2022) identifies the objectives of the amendment in the following terms:
"Turning to the first amendment proposed, schedule 1 to the bill introduces new section 22B of the Bail Act which will provide that a court is not to grant bail or dispense with bail including in the course of considering a detention application during the period following conviction and before sentencing for an offence for which an offender will be sentenced to full-time detention, unless it is established that special or exceptional circumstances exist that justify that bail decision. For the purposes of the provision "conviction" is defined in subsection (5) to include a plea of guilty…
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 then their matter determined. Bail is not intended to be a prejudgment 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 a guilty plea. Currently, when an accused person is found guilty of an offence and the matter is adjourned for sentencing to a later date, a bail decision-maker must, under section 18(1)(i1) of the Bail Act, already have read 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."
Mr Hawkins has pleaded to serious offences and does not seek to disturb those pleas on appeal. The pleas constitute a conviction for the purposes of s 22B(5). Mr Hawkins is not entitled to the presumption of innocence. The objective of s 22B remains relevant until sentencing is finalised including during the period up until determination of the appeal. To restrict s 22B to the period between conviction and to when the sentence is imposed by the Local Court would lead to the absurd position that the limitation contained in s 22B would apply to Mr Hawkins immediately prior to 26 April 2023 when he was awaiting sentencing but then inapplicable immediately after 26 April 2023 notwithstanding that the likely sentence of full-time imprisonment foreshadowed prior to 26 April has now been imposed.
In my view, there is nothing in the language in s 22B which requires it to be construed in the narrow manner suggested on behalf of the defendant. I am satisfied on its proper construction that s 22B applies in relation to the period up until the sentencing of the offender is finalised on appeal in the District Court.
In relation to the argument that this construction of s 22B would render s 22 of the Bail Act redundant I accept that the construction of s 22B to appeals bail may potentially give rise to some overlapping of provisions. The rules of statutory construction would mean that the specific provision will operate over the general provision so that s 22 would continue to apply. In addition, the nature of appeal against a sentence imposed on conviction on indictment to the Court of Criminal Appeal is significantly different to severity appeals to the District Court. Whereas appeals to the Court of Criminal Appeal involve questions of law as to whether a sentence is manifestly excessive or manifestly inadequate severity appeals from the Local Court to the District Court do not require establishment of error on the part of the Local Court. The nature of the severity appeal remains a rehearing de novo (see Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at McColl JA at [90]-[95]). Whereas the Court of Criminal Appeal makes determinations of questions of law, the process of a severity appeal from the Local Court to the District Court is a broad power to rehear and determine the sentence afresh. The nature of a severity appeal to the District Court is in practical terms a sentencing process rather than an appeal process.
I also reject the further argument that s 22B need not apply as s 18(2)(j) already provides the Court with the obligation to consider whether the appeal has a reasonably arguable prospect of success. Section 22B is an additional step in the consideration of bail applications. In the same way as s 22B applying in addition to s 18(1)(i1) "the likelihood of a custodial sentence imposed" it applies in addition to any consideration of s 18(2)(j).
Having formed the view that s 22B applies in a release application on an appeal bail it is now necessary to consider how s 22B applies in the present case.
In this regard, the Court remains guided by the principles outlined by Gleeson JA, Wright J and Cavanah J in Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 at [43]-[44]:
"Accepting that the word "will" is to be read as emphasising the degree of satisfaction to be reached by the Court before the limitation under s 22B on the Court's power to make a bail decision operates, does not provide an immediate answer to its intended meaning. Some assistance as to the intended meaning of "will" is provided by its context, relevantly: the Court as the bail authority is not the sentencing court, the Court will not necessarily be apprised of all of the evidence at trial, the Court will not have all of the materials that are to be relied upon by the parties on sentence, and that the task of the Court required by s22B is not to conduct a pseudo or abridged sentencing hearing.
When regard is had to these contextual considerations, the use of the word "will" in the condition indicating future likelihood suggests what is realistically inevitable as distinct from what may happen or is likely to happen. That does not mean that "will" involves a state of absolute certainty. That cannot be correct since the task of the Court as a bail authority is to make a forward looking assessment of the future disposition of the sentence with respect to the convicted person based on material which are unlikely to be complete."
In the present case, the Court is in a better position than it might be at the time of conviction in terms of its capacity to assess the future disposition. The Court has available the fact sheet, record and a sentencing assessment report. It is also relevant that a Local Court Magistrate considered the principles of sentencing and the subjective circumstances of Mr Hawkins and formed a view that no alternative other than full time imprisonment was appropriate. Notwithstanding that determination, it remains necessary for this Court to consider whether Mr Hawkins will be sentenced to full time imprisonment in the District Court. In my view, it is relevant that Mr Hawkins has a lengthy record of drug, dishonesty and traffic offences dating from 2008 including 12 prior charges of driving whilst disqualified some of which received penalties of full time imprisonment. The taking of a motor vehicle, while opportunistic, was serious offending. No doubt, specific deterrence will be a relevant sentencing objective. In terms of the possibility of an Intensive Corrections Order Mr Hawkins' criminal history shows non compliance with previous community based orders and a sentencing assessment report that considers the risk of reoffending assessed at medium/high. In the context of unresolved mental health and drug issues his prospects of rehabilitation remain, at best, guarded. In view of these matters I consider that it is realistically inevitable that Mr Hawkins will be sentenced to full time imprisonment in relation to these matters.
No submissions have been made to the effect that there are special or exceptional circumstances that would justify a grant of bail.
Having regard to s 22B of the Bail Act, I am satisfied that bail should be refused. I respectfully agree with the conclusions reached by his Honour Barnett SC in Sturmann.
While this finding makes it unnecessary for the Court to consider the issue of bail concerns under s 18 of the Bail Act, for the sake of completeness and if I am wrong on the issue of se 22B, I find further that bail is refused on the grounds that there are unacceptable risks of bail concerns of failure to appear and the commission of a serious offence on bail. I note the criminal record for Mr Hawkins indicates a number of instances where warrants have been issued to secure his attendance at court. The likelihood of a full time sentence of imprisonment heightens the concern that he will not appear at court. The lengthy criminal record, his guilt in relation to these offences and his unresolved drug and mental health issues means that there is a significant and unacceptable risk of further serious offending. Those concerns cannot be mitigated by the imposition of bail conditions.
Magistrate Olischlager
Local Court of New South Wales
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Decision last updated: 27 September 2023