Director of Public Prosecutions (NSW) v van Gestal [2022] NSWCCA 171
Director of Public Prosecutions (NSW) v van Gestal [2022] NSWCCA 171 · Read the judgment on AustLII
Catchwords: Bail – s 22B – ‘will be’ sentenced to imprisonment
In this decision the CCA has settled – at least for the time being – the level of satisfaction which is implied by s 22B of the Bail Act, which provides that convicted defendants are ordinarily to be refused bail following conviction (other than special or exceptional circumstances) if they ‘will be’ sentenced to fulltime imprisonment. Essentially the court must be satisfied that fulltime imprisonment is realistically inevitable, although it need not be absolutely certain it will be the case.
The respondent (this was a detention application by the Crown) was convicted of historical child sexual offences following a jury trial. It should be noted that for technical reasons the offences did not meet the test for ‘prescribed sexual offences’, so that, unusually, Intensive Correction Orders were at least hypothetically available in this case.
The defendant had been on bail at the time of the trial and for the preceding two years, and no detention application was made immediately following the guilty verdicts. A little while later (coinciding with media outcry), the Crown filed a detention application in the Supreme Court. That initial detention application was refused by Garling J: Director of Public Prosecutions (NSW) v van Gestal [2022] NSWSC 973. The Crown made a further application to the CCA, amounting to a fresh detention application.
Some practitioners will be aware that there is a tension in the legislation: the test in s 22B provides that it applies where the defendant ‘will be’ sentenced to fulltime imprisonment, and s 32 provides that decisions in the Act are to be decided on the balance of probabilities. This left it unclear what the level of satisfaction was before s 22B would apply.
Here, the Court (Gleeson JA, Wright and Cavanagh JJ) determined that the question of whether or not a person ‘will be’ sentenced to full time imprisonment involves an opinion or state of satisfaction of the court, as opposed to fact. Because this is an evaluative judgment of a future matter and not a fact to be proved, proof on the balance of probabilities is not the relevant standard (at [17] and [38])).
The mere fact that a sentencing option is lawfully available, whilst relevant, does not circumscribe the degree of satisfaction required (at [39]). By reference (in part) to the Second Reading speech and other authority, the Court determined that ‘… s 22B sets a high bar for the degree of satisfaction to be reached by the Court to engage the power to make a bail decision under s 22B. That is consistent with the approach that legislation that affects personal liberty will be given strict construction…’. Given that and other context, the use of the word ‘will’ in s 22B refers to something that ‘… is realistically inevitable as distinct from what may happen or is likely to happen’ – but that does not mean that it involves a state of absolute certainty, especially since the materials upon which the bail authority is making the decision are unlikely to be complete (at [44]).
Factors relevant to the assessment include the offences for which the defendant has been convicted, all applicable sentencing principles and laws (including the availability, if it be the case, of alternatives to fulltime imprisonment); the materials placed before the court; and the abbreviated nature of the release or detention application, especially since the application is not a pseudo- or abridged sentencing hearing (at [45]). Note, however, that the mere fact that a sentencing alternative is theoretically available does not mean that a court could not reach the level of satisfaction required by s 22B; the level of satisfaction required by s 22B would be met if, notwithstanding the theoretical availability of an alternative to fulltime custody, the court is satisfied that no other sentence that fulltime imprisonment could realistically be imposed in the circumstances of the case at hand (at [46]-[47]).
On the other hand, if that decision is determined against the interests of the defendant (i.e. if the defendant has been convicted, and the court is satisfied that they ‘will be’ sentenced to imprisonment), a different test applies to whether ‘special or exceptional circumstances’ exist that would justify a decision not to refuse bail. That question is to be determined on the balance of probabilities (at [20]). Assuming special or exceptional circumstances exist, it is still necessary for the Court to then address any bail concerns, in accordance with the usual ‘unacceptable risk’ test (at [23]).