R v McGee [2022] NSWDC 426

District Court New South Wales

Medium Neutral Citation: R v McGee [2022] NSWDC 426 Hearing dates: 26 September 2022 Date of orders: 26 September 2022 Decision date: 26 September 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 14 Catchwords: CRIMINAL LAW – bail - detention application – application made following plea of guilty - s 22B of the Bail Act 2013 (NSW) – prescribed sexual offence Legislation Cited: Bail Act 2013 (NSW) s 22B Crimes (Sentencing Procedure) Act 1999 (NSW) s 67 Crimes Act 1900 (NSW) s 61I Cases Cited: DPP (NSW) v Van Gestel [2022] NSWCCA 171 DPP (NSW) v Day [2022] NSWCCA 173 Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) Mr A McGee (offender) Representation: Mr A O'Connor for the Crown Mr B Kernick for the offender File Number(s): 2020/00320069 Publication restriction: Nil

JUDGMENT 1. This morning, the offender pleaded guilty to the charge of sexual assault against the victim occurring on 9 November 2020, on an amended indictment. Prior to his guilty plea, he had been on bail. 2. Immediately after the offender's guilty plea, the Crown made a detention application, relying upon s 22B(1)(b) of the Bail Act 2013 (NSW). The application was initially opposed, but that position changed. Ultimately, the offender did not oppose the detention application. 3. On the detention application, the Crown tendered an Agreed Facts on Sentence (Exhibit B) and the offender's criminal history (Exhibit A). 4. Section 22B(1)(b) provides that for a detention application made following conviction, but before sentencing for an offence for which the offender "will" be sentenced to full time imprisonment, a court "must" refuse bail unless special or exceptional circumstances justify the decision. 5. Section 22B(1) is a recently enacted provision of the Act. It was authoritatively construed by the Court of Criminal Appeal in DPP (NSW) v Van Gestel [2022] NSWCCA 171 and DPP (NSW) v Day [2022] NSWCCA 173. 6. As those authorities make plain, the requirement that the offender "will" be sentenced to full-time imprisonment involves an opinion, or state of satisfaction, as opposed to a fact. That opinion is that, given the limited nature of the evidentiary material before the bail authority, it is "realistically inevitable" that the offender will receive a sentence of full-time imprisonment, and that does not require a state of absolute certainty. 7. Further, when considering whether the condition in s 22B(1) has been met, the Court will have regard to: (a) the offence for which he or she has been convicted, bearing in mind principles of sentencing and all applicable sentencing laws, including available sentencing alternatives; (b) the materials and submissions placed before the Court as the bail authority relevant to the future disposition of the sentence; and (c) the abbreviated nature of the (detention) application. 8. Whether 'special' or 'exceptional' circumstances exist is a question of fact, for which the offender, as convicted person, has the onus of proof.