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  • Writer's pictureGeoff Harrison

s22B Bail Act

Updated: Nov 3, 2023


Best Barrister, Best Lawyer, Best Solicitor, Best Criminal Barrister, Criminal Barrister, Criminal Lawyer, Criminal Solictor, s22B, s22B Bail Act, s22

Published by Geoff Harrison | 7 September 2023


Following the period of a finding of guilt or the entering of a plea of guilty and sentence, where a sentence of imprisonment will be imposed, the accused is to be refused bail unless they can establish special or exceptional circumstances. As to the assessment or likelihood of a sentence of full-time imprisonment, this is an evaluative judgment hence, this does not have to be proven on the balance of probabilities but to a high degree of satisfaction.


As stated by Gleeson JA, Wright J and Cavanagh J in DPP v Day at [14]:


The provision contains two conditions: (a) the accused person the subject of the release application or detention application has been convicted of an offence (which includes a plea of guilty), and (b) the offence is one for which the person “will be sentenced to imprisonment to be served by fulltime detention” (emphasis added). It is convenient to use the shorthand expression “full-time imprisonment” for the statutory language in s 22B(1).


The first condition involves a question of fact. It is unlikely to be controversial, but if in dispute, it is a matter to be determined on the balance of probabilities: Bail Act, s 32(1).


The second condition requires the Court as the bail authority to make an evaluative judgment as to a future matter, being the disposition of the sentence with respect to the convicted person. That involves the Court making a forward-looking assessment on the limited materials placed before the Court on the release or detention application. Those materials are unlikely to contain all the materials which will be relied upon by the parties on sentence.


As stated by Payne JA in R v Cranston at [8]:


It is clear I must assess “what is realistically inevitable as distinct from what may happen or is likely to happen”: Van Gestel at [44]. Absolute certainty is not required, but a high degree of satisfaction clearly is. As explained in Van Gestel at [45], when making its assessment, a court must have regard to:


(1) the offence(s) for which the accused person has been convicted, bearing in mind the principles of sentencing and all applicable sentencing laws, specifically the [Crimes (Sentencing Procedure) Act 1999 (NSW)], including the available sentencing alternatives to full time imprisonment;


(2) the materials and submissions placed before the Court as the bail authority relevant to the future disposition of the sentence with respect to the convicted person; and


(3) the abbreviated nature of the release or detention application before the Court, especially, that the application is not a pseudo or abridged sentencing hearing.


Cases:



______________________________________________________________________________________________________


BAIL ACT 2013 - SECT 22B

Limitation regarding bail during period following conviction and before sentencing for certain offences


(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court--

(a) on a release application made by the accused person--must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

(b) on a detention application made in relation to the accused person--must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.


(2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified.


(3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section.


(4) This section applies despite anything to the contrary in this Act.


(5) In this section--


"conviction" also includes a plea of guilty.

Note--:

"Conviction" is defined in section 4(1) to include a finding of guilt.


______________________________________________________________________________________________________


R v Cranston (No 30) [2023] NSWSC 216 (14 March 2023)


Supreme Court

New South Wales

Case Name:

R v Cranston (No 30)

Medium Neutral Citation:

[2023] NSWSC 216

Hearing Date(s):

14 March 2023

Date of Orders:

14 March 2023

Decision Date:

14 March 2023

Jurisdiction:

Common Law - Criminal

Before:

Payne JA

Decision:

Orders at [14]

Catchwords:

CRIME — Bail — Detention application post-conviction

Legislation Cited:

Bail Act 2013 (NSW)


Criminal Code Act 1995 (Cth) sch 1, Criminal Code


Judiciary Act 1903 (Cth)

Cases Cited:

DPP v Day [2022] NSWCCA 173


DPP (NSW) v Van Gestel (2022) 405 ALR 371; [2022] NSWCCA 171


Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312


Kaya v Commonwealth Director of Public Prosecutions [2018] VSC 420


Ngoc Tri Chau v Director of Public Prosecutions (1995) 37 NSWLR 639


[Redacted]

Category:

Procedural rulings

Parties:

Crown


Lauren Anne Cranston (offender)

Representation:

Counsel:


P McGuire SC with J Paingakulam and C Tran (Crown)


TD Anderson SC (Lauren Cranston)


Solicitors:


Commonwealth Director of Public Prosecutions (Crown)


Greg Willis Criminal Defence Lawyer (Lauren Cranston)

File Number(s):

2017/148185

Publication Restriction:

Not to be published other than to the parties until after the trials of each of the accused are completed.


JUDGMENT


1. On 13 March 2023, the jury found Lauren Anne Cranston guilty of the following offences:

(1) Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe, Daniel Rostankovski and divers others with the intention of dishonestly causing a loss to a third person, namely the Commonwealth.

Contrary to section 135.4(3) of the Criminal Code (Cth).


(2) Between about 1 March 2014 and about 18 May 2017, at Sydney in the State of New South Wales and elsewhere, conspiring with each other, Simon Paul Anquetil, Devyn Michelle Hammond, Joshua Meredith Kitson, Peter Larcombe and divers others to deal with money of a value of $1,000,000 or more believing it to be the proceeds of crime.

Contrary to section 11.5(1) and 400.3(1) of the Criminal Code (Cth).


2. Immediately after the verdict, the Crown brought an application under s 50(1) of the Bail Act 2013 (NSW) to have Ms Cranston detained before her sentencing. Given the late hour, bail was granted (by consent) overnight.


Principles to be applied


3. Under s 50(1) of the Bail Act, the prosecutor may apply to a court for the refusal or revocation of bail, or for a grant of bail with conditions attached. After hearing the detention application, the court may, under s 50(3), dispense with bail, grant bail (with or without conditions) or refuse bail. If, as in this case, a bail decision has previously been made, the court that hears a detention application may affirm or vary that decision under s 50(4). Under s 75 of the Bail Act, a detention application is to be dealt with as a new hearing, where evidence or information may be given “in addition to, or in substitution for, the evidence or information given in relation to an earlier bail decision”.

4. Section 22B of the Bail Act, which was introduced on 27 June 2022, effected a significant change in relation to the circumstances in which a court may grant bail following conviction and before sentence. Section 22B relevantly provides:

22B Limitation regarding bail during period following conviction and before sentencing for certain offences

(1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—


...


(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.


5. The parties agreed, and I am satisfied, that s 22B(1)(b) applies to the Crown’s application to detain Ms Cranston. Although this matter is in federal jurisdiction, by parity of reasoning with earlier authorities s 22B of the Bail Act is picked up and applied in this case by s 68 of the Judiciary Act 1903 (Cth): Ngoc Tri Chau v Director of Public Prosecutions (1995) 37 NSWLR 639 at 644 (Gleeson CJ, Kirby P and Powell JA); Lin v Director of Public Prosecutions (DPP) [2017] NSWSC 312 at [40] (Beech-Jones J); Kaya v Commonwealth Director of Public Prosecutions [2018] VSC 420 at [72] (Croucher J), discussing the Victorian Bail Act 1977.


6. In the present case, Mr Anderson SC on behalf of Ms Cranston accepted that both preconditions for the application of s 22B were met. The first precondition is that the accused has been convicted. At the outset of the application, I made orders convicting Ms Cranston of counts 1 and 2 in the indictment, although I note that “conviction”, as defined in s 4 of the Bail Act, includes “a finding of guilt”.


7. The second precondition is that the accused will be sentenced to a period of imprisonment to be served by full-time detention. In DPP (NSW) v Van Gestel (2022) 405 ALR 371; [2022] NSWCCA 171, Gleeson JA, Wright and Cavanagh JJ explained at [17] that this condition requires an evaluative judgment about a future matter, rather than an assessment of whether a fact has been proved. The standard is therefore not proof on the balance of probabilities. See also DPP v Day [2022] NSWCCA 173 at [21] (Gleeson JA, Wright and Cavanagh JJ).


8. It is clear I must assess “what is realistically inevitable as distinct from what may happen or is likely to happen”: Van Gestel at [44]. Absolute certainty is not required, but a high degree of satisfaction clearly is. As explained in Van Gestel at [45], when making its assessment, a court must have regard to:


(1) the offence(s) for which the accused person has been convicted, bearing in mind the principles of sentencing and all applicable sentencing laws, specifically the [Crimes (Sentencing Procedure) Act 1999 (NSW)], including the available sentencing alternatives to full time imprisonment;


(2) the materials and submissions placed before the Court as the bail authority relevant to the future disposition of the sentence with respect to the convicted person; and


(3) the abbreviated nature of the release or detention application before the Court, especially, that the application is not a pseudo or abridged sentencing hearing.


9. In this case, it is common ground that it is inevitable that Ms Cranston will be sentenced to a period of full-time detention. I accept that this concession was correctly made. The sentence I imposed on [redacted] of 4 years’ imprisonment for [redacted] offending against s 135.4(3) and ss 11.5(1) and 400.3 of the Criminal Code is likely most comparable: [redacted]. Ms Cranston will not enjoy the sentencing discounts for pleas of guilty and offers of assistance applied in the case of [redacted].


10. While, of course, this is not a sentencing hearing and I do have before me all the material that will be relied on at sentencing, I am sufficiently familiar with the matter to conclude that Ms Cranston will be sentenced to a significant period of full-time imprisonment.


11. I was therefore satisfied that both preconditions are met and the limitation in s 22B of the Bail Act applies to my determination of the Crown’s detention application.


12. Accordingly, I must refuse bail unless special or exceptional circumstances are shown by the offender to exist.


13. Mr Anderson SC did not submit that special or exceptional circumstances exist.


14. Accordingly, on 14 March 2023 I made the following orders:

(1) Lauren Anne Cranston is convicted of counts 1 and 2;

(2) Bail refused;

(3) The matter is stood over for directions on sentencing to 4 May 2023 before Payne JA.



Amendments


22 March 2023 - Publication restriction lifted. Name of offender in related proceedings redacted.


22 March 2023 - Pronoun redacted.


22 March 2023 - Catchwords updated.

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