R v ET

[2022] NSWSC 905

Supreme Court

New South Wales

Medium Neutral Citation:	R v ET [2022] NSWSC 905
Hearing dates:	6 July 2022
Date of orders:	6 July 2022
Decision date:	06 July 2022
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Conditional bail granted
Catchwords:	CRIME – bail – where bail sought after conviction but before sentence – whether applicant will be sentenced to a imprisonment by fulltime detention – need to show special or exceptional circumstances – where non-parole period will probably not exceed time applicant has spent in custody on remand – special or exceptional circumstances shown
Legislation Cited:	Bail Act 2013 (NSW) ss 22, 22B
Cases Cited:	El-Hilli and Melville v R [2015] NSWCCA 146
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Crown ET (Applicant)
Representation:	Counsel: K Marinos (Crown) P Johnson (Applicant) Solicitors: Office of the Director of Public Prosecutions (Crown) Catherine Hunter, Solicitor (Applicant)
File Number(s):	2021/285277
Publication restriction:	Nil

Judgment

1. The applicant, who at the time of the present offending was a young person, applies for bail following the entry of a plea of guilty to the offence of affray on 1 July 2022. The applicant had been charged with murder, in the alternative manslaughter and in the alternative affray, in respect of the death of Alex Ioane on 24 May 2019. Alex was killed when he was seriously assaulted by a person whom I have already sentenced for murder, Tafuna Taumalolo, and other persons with whom the present applicant was charged. On 1 July 2022 the Crown accepted pleas from the five co-accused. As I have said, the present applicant pleaded guilty to affray, and that plea was accepted in full answer to the whole of the indictment.

2. The statement of agreed facts show that the applicant arrived at the party where Alex was killed, seemingly in response to a phone call he received from a person at the party saying, "Come asap because Funa's gonna have a go with some guys from Cabra." The applicant arrived in one of two cars arriving at the same time, from which a number of males alighted. He took a baseball bat from the boot of one of the vehicles and started swinging the baseball bat around in the crowd saying, "Who wants it? Who's next? Claymore on top." The reference to Claymore was because the applicant was a member of a gang known as the Claymore Boys. This gang included Tafuna Taumalolo and one of the other co-accused.

3. The agreed facts do not disclose that the applicant actually struck the deceased. The discarded baseball bat was later found and a forensic examination located his fingerprints on the shaft of the bat. The applicant was arrested on 20 March 2020, and today he has been in custody for two years three months and sixteen days. At the time of the offending he was aged seventeen years.

4. Section 22B of the Bail Act 2013 (NSW) was recently enacted. It relevantly provides:

(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,

5. I am satisfied that the conviction for the offence of affray in the present case means that the applicant will be sentenced to imprisonment to be served by full-time detention. The question is, however, whether special or exceptional circumstances are established. What is put forward principally for the applicant is that the time served to the present will be a period that is equal to or exceeds any period of time he would be ordered to serve for the offence when sentenced.

6. The authorities in relation to s 22 of the Bail Act, which concern bail after a conviction and pending an appeal to the Court of Criminal Appeal, have held that a matter which can constitute special or exceptional circumstances is the possibility that the applicant will have served their sentence or non-parole period before the appeal is dismissed (see El-HilliandMelville v R [2015] NSWCCA 146 at [18] and [29], per Hamill J (Simpson and Davies JJ agreeing)). Appling those authorities to s 22B would indicate that the applicant will show special or exceptional circumstances if the time he has presently served will or might not be less than the sentence that might be imposed upon him when he comes to be sentenced.

7. The applicant's criminal record for one so young is most unsatisfactory. He was convicted of an affray which took place some two months before the present offence, that is on 10 March 2019. He was not arrested for that offence until after the present one was committed. He was sentenced by the Children's Court to probation for six months.

8. He was sentenced on 16 December 2019 for a number of offences which occurred on 14 September 2019, including the offence of riot and a number of offences of throwing missiles at police officers at public disorder. For those offences he was sentenced both to probation for twelve months and a community service order. He was convicted on 11 March 2021 for an offence of robbery in company which occurred some less than two months after the present offence, that is, on 13 July 2019. These offences, which occurred subsequent to the present offence, would be taken into account at sentence in relation to specific deterrence. The offence of affray that took place before the present offence would be taken into account as part of his prior criminal record.

9. I have been provided with some statistical information in relation to the offence of affray, albeit in respect of adult offenders. I accept that statistics are a very blunt instrument, but those statistics indicate that in all offences recorded the non-parole period for the offence of affray did not exceed a period of two years.

10. Section 22B does not require me to conduct a mini-sentence hearing. However, an assessment is necessary to reach a view about how the time the applicant has spent in custody might relate to any sentence imposed. In all of those circumstances, and bearing in mind that he was a young person at the time of the present offending and that this is his first time in custody, there is a reasonably strong prospect that, notwithstanding the applicant's criminal record, any non-parole period that would be imposed when he is sentenced would not exceed the time he has already spent in custody. On that basis I am satisfied that special or exceptional circumstances have been made out under s 22B(1)(a). It is necessary then to consider the bail concerns and the matters in s 18 of the Bail Act.

11. It is proposed that the applicant should go to reside with his parents, that he should report to Campbelltown Police Station between the hours of 8.00am and 8.00pm each day and that his mother undertakes to forfeiture the sum of $500 to ensure his appearance at court.

12. The principal bail concern I have is that he will continue to commit serious offences, and in particular serious public order offences. Whilst I accept that this is a concern, the relatively short period of time between now and when the applicant will be sentenced tells in favour of that concern not rising to an unacceptable level. In addition, I cannot ignore the fact that the applicant's period in custody to date is likely to have had a salutary effect on his behaviour, to make it less likely that he would continue to commit the sort of offences he was committing before he went into custody in March 2020. I find that the bail concern is not an unacceptable risk.

13. Accordingly, bail will be granted on conditions.

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