R v Sturmann

[2022] NSWLC 3

Local Court

New South Wales

Medium Neutral Citation:

R v Sturmann [2022] NSWLC 3

Hearing dates:

15 September 2022

Date of orders:

15 September 2022

Decision date:

15 September 2022

Jurisdiction:

Criminal

Before:

Barnett SC LCM

Decision:

Section 22B of the Bail Act2013 applies to this application for bail on appeal

Catchwords:

CRIME — Bail — Appeal bail — Whether s 22B of the Bail Act 2013 applies in circumstances where an appeal against a sentence of the Local Court is lodged in the District Court

STATUTORY INTERPRETATION — Legislative purpose — Interpretation Act 1987 (NSW), s 33

Legislation Cited:

Bail Act 2013 (NSW), s 22B

Interpretation Act 1987(NSW), s 33

Texts Cited:

New South Wales, Parliamentary Debates, (16:40), Second Reading Speech of the Bail Amendment Bill 2022, the Honourable Ms Pavey on behalf of the Attorney-General

Category:

Procedural rulings

Parties:

Mr Jason Sturmann (Applicant)
New South Wales Police (Respondent)

Representation:

Counsel:
Mr Sullivan (Applicant)

Solicitors:
Mr Galton (Applicant)
Sergeant Williams (Respondent)

File Number(s):

2022/00189208

Publication restriction:

Nil

ex tempore JUDGMENT - REVISED

1. The defendant brings an application for bail on an appeal. As a preliminary point, Mr Sullivan, in answer to me, has submitted that s 22B is not applicable.

2. The appeal is being lodged not against the conviction but against the sentence imposed in the Local Court, which is one of imprisonment for, if I recall it,16 months with a non-parole period of six months, which commenced on 16 August 2022 and the non-parole period will expire on 15 February 2023.

3. Section 22B reads:

“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.”

4. Mr Sullivan indicates that his client is under sentence, not awaiting sentence, so therefore his application is not within the section. He further submits that the sentence remains extant unless and until I grant bail which he enters whereupon that sentence would be stayed.

5. He submits, in answer to a question from the bench, that in respect of any action by the prosecution in relation to the bail after the sentence had been stayed it would need to be brought by the prosecution under review and not under s 22B.

6. The practicalities and the realities of the situation are that his appeal is to be heard by way of a fresh hearing by the District Court in which the District Court will not sit in judgment of the Local Court as to whether the sentence is too severe or there has been an error of law or any of those matters, but purely by way of a rehearing and of an imposition of a sentence by the District Court which it considers appropriate to the offending to which the accused has pleaded guilty as applied to the offender who has pleaded guilty.

7. On a strict and literal interpretation, the only relevance to the District Court of the sentence imposed in this Court, when they are dealing with the matter, is whether the issue of a requirement to give what is referred to as a “ Parker warning” because they have come to a decision that is more severe or believe they are likely to come to a decision that is more severe than that imposed by the Local Court.

8. The effect of it, in my opinion, is that he is now between conviction and having pleaded guilty and the imposition of a sentence by the District Court, albeit that my stays in place.

9. If one turns to the second reading speech which was delivered by the Honourable Ms Pavey, the Member of Oxley on behalf of the Attorney-General in the Legislative Assembly, the following can be gained:

“Bail exists to keep the victims in our community 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 have their day in court and their matter determined. Bail is not intended to be a pre-judgment of someone’s guilt or punishment before conviction. However, that does not mean that criminals who have been convicted or pleaded guilty and who the court is confident will be sentenced to imprisonment by fulltime 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 conviction or a guilty plea.”

10. Reading on a little bit further into the next paragraph, the provision will go one step further than s 18(1)(i) of the Bail Act, to which she referred to earlier:

“to provide that serious offenders who will be sentenced to imprisonment to be served by fulltime detention must not be granted bail post-conviction and prior to sentencing. Offenders will not be taken into remand under the provision in circumstances where they will later be sentenced to a lesser penalty or released or, for example, consideration of any intensive corrections order or order under section 11.”

11. Reading on further, at the bottom of the same paragraph, she said:

“this reform will ensure that those offenders who will be receiving full-time detention are not granted bail to be released back into the community in the interim before that sentencing hearing can occur.”

12. She went on to note:

“It is about offenders who have already been found guilty beyond a reasonable doubt or pled guilty and are already heading to prison getting there quicker and not being out in the community while awaiting sentence.”

13. When one then turns to s 33 of the Interpretation Act 1987, it requires that, “In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made), shall be preferred to a construction that would not promote that purpose or object.”

14. A reading of the section itself, consideration of the second reading speech makes it clear, in my opinion, that the object of the legislation is that persons convicted of offences, either by verdict or plea, and who are to receive a fulltime sentence of imprisonment are not to be at liberty between that conviction and the passing of the sentence.

15. To interpret that because a Local Court has passed a sentence of fulltime imprisonment on somebody and they have lodged an appeal and therefore the provision does not apply to the period that is to exist between the conviction or plea and a decision de novo of the District Court as to what sentence should be imposed is outside the purview of s 22B is one; to, completely ignore the purpose for which s 22B has been passed and the situation to which Parliament clearly intends it to be directed.

16. As Mr Sullivan notes, if he is granted bail, the sentence of this Court is stayed. That would promote the extremely ludicrous situation where, as soon as he was granted bail and the sentence ceased to exist by reason of being stayed, the prosecution could immediately bring a detention application to achieve the result, on Mr Sullivan’s interpretation, the section does not achieve.

17. Again, that is indicative of the construction proposed by Mr Sullivan not promoting the purpose or object of s 22B and I am satisfied that s 22B does apply to the current situation.

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