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. Condition under s 22B 1. In this case, I take into account: 1. the maximum penalty for the index offence (being 14 years' imprisonment) and the statutory non-parole period (7 years imprisonment); 2. the Agreed Facts indicate that the offending occurred when the victim was asleep and was awakened by the sensation of the offender's hands being down her pants, and specifically, his right hand under her underwear; with at least one of his fingers inside her vagina; 3. the agreed facts also indicate that the victim was in a relationship with the offender's son. It is arguable that this aggravated the offending; in either or both of the senses that she was "vulnerable", or that the offender was in breach of trust. But even if the aggravating circumstance does not arise under the legislation, it would render the objective gravity of the offending more serious than it otherwise would be; 4. the agreed facts indicate further that the offending occurred, at least whilst the victim was actually conscious, for seconds; 5. the agreed facts also indicate that the victim was left walking downstairs, crying and screaming. When she went to the police later that day, she was observed to being "terrified", shaking and crying; 6. the offender's criminal history is extensive. There are multiple domestic violence offences (in respect to which he has been imprisoned), and some offences involving violence. But there is no prior sexual offence. 1. The Court also notes that for the subject offence, an ICO is not permitted (s 67(1)(b)) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). 2. What is arguably most pertinent is the grave nature of the offending, involving a victim who was asleep and was therefore unable to defend herself. It is apparently implicit in the offending, on the agreed facts, that he must have actually known that she did not consent to the offending. 3. Subject to the question concerning special or exceptional circumstances, I am satisfied that, for the purpose of the provision, he "will" be sentenced to imprisonment, to be served by full time detention. Special or exceptional circumstances 1. The offender's criminal history indicates that he is an indigenous Australian. As indicated by the offender's position, no special or exceptional circumstances were relied upon. 2. The Crown's Detention Application is granted. The offender is to be taken into custody forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2022