Where There’s a “Will” There’s a Way?
Tough new bail laws were passed last month in NSW.
The intention was said to keep sex offenders and those committing offences against children in custody (remand) while awaiting sentencing. Presumably, the intent was to ensure criminals such as paedophiles were locked up in the period between conviction and sentencing; or between the entering of a plea of guilty and sentencing.
Effectively, the laws reverse the presumption of liberty, by changing the starting point to detention or remand instead of freedom, unless exceptional circumstances are shown.
In other words, when an alleged criminal faces Court and is convicted of a criminal offence; or even enters a guilty plea to a criminal defence, for which they “will be sentenced to imprisonment to be served by full-time detention”, a Magistrate or Judge must now refuse bail.
While this already exists to some extent for “show cause offences”, the new laws have widened the scope and the application to a much greater range of offences, and created mass confusion and uproar in the process, including from the Law Society of New South Wales, journalists and criminal lawyers, including both criminal solicitors and criminal barristers.
There are two major issues that spring to our minds in particular.
The first is that the rule is worded to operate only on the making of a release application (a bail application made by the accused when already in custody) or a detention application (a bail application made by the prosecution to put someone in custody who at that stage is not in custody). There is no automatic provision that applies when neither side makes any such application, when a guilty plea is entered for a specific type of offence or when a conviction follows after trial. In that regard, it seems to have totally missed the mark if the intention was in fact true.
The second is that there is no definition or guidance on the words “will be sentenced to imprisonment”. In other words, a Magistrate or Judge is not told by the new criminal law how to determine the “will” part of it. This is subject to a huge amount of discretion and is a subjective decision, kind of like asking someone to look into a crystal ball.
For example, how can it possibly be known, if a person enters a guilty plea to an offence on the first day; whether by the time they are sentenced the Court will decide to order imprisonment by way of full-time custody (which by law is a last resort)?
To put this in perspective, in the case of our clients who are pleading guilty (who are not paedophiles, for the record!); the bulk of the work is done between the entering of a guilty plea and sentence, and the effect of that work is to transform a case from what might otherwise look to be a full-tie custodial sentence into, say, an ICO (intensive corrections order); or a section 14 (mental health diversion under the Mental Health and Cognitive Impairment Forensic Provisions Act); and particularly for those people who are drug-addicted or psychologically traumatised and that played a large part in their offending.
It could now be that they have to spend a stint in jail in the meantime; when they otherwise would not deserve to, which is highly unfair. In addition to this, it seems a huge drain on the justice and corrective systems, especially when still dealing with a backlog; and we can already see the enormous amount of criminal appeals and bail appeals that will come out of this. In a perverse way, it will encourage people to plead not guilty until the very end of their case; which could produce another unfair result in that their entitlement to a discount on sentence for entering an early guilty plea will be lost.
We will be keeping an eye on this development; and supporting our colleagues who are pushing for amendments to these new bail laws. In the meantime, if you or someone you know is having trouble with a bail application; please do not hesitate to contact us.
At Green & Associates; we are experts in applying for no convictions and have an excellent success rate in achieving this for our clients. Regardless of the charge, we are ready to be in your corner and assist you during this uncertain time. If you or someone you know needs assistance with a defamation case, contact our office today.