R v Hall [2023] NSWDC 399

District Court New South Wales

Medium Neutral Citation: R v Hall [2023] NSWDC 399 Hearing dates: 8 September 2023; 15 September 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Criminal Before: Grant DCJ Decision: The application is refused. Catchwords: Detention application – consideration of section 22B Bail Act 2013 – realistically inevitable that offender will be sentenced to imprisonment – meaning of "special" or "exceptional" circumstances – onus on respondent to show "special" or "exceptional" circumstances – standard of proof – detention application refused Legislation Cited: Bail Act 2013 Crimes Act 1900 Cases Cited: Dawkins v R [2018] NSWCCA 278 DPP v Van Gestel [2022] NSWCCA 171 Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8 Hogan v R [2008] NSWCCA 150 R v Naizmand [2016] NSWSC 836 R v NK [2016] NSWSC 498 Wakeling v R [2016] NSWCCA 33 Category: Principal judgment Parties: Applicant: Office of the Director of Public Prosecutions Respondent: Mr Hall Representation: Counsel: Ms Mendes (Respondent)

Solicitors: Ms Coleman and Ms Dawson (ODPP) Mr Harrison (Respondent) File Number(s): 2022/00314997 Publication restriction: Nil

JUDGMENT

INTRODUCTION 1. Bradley Hall, the respondent, was committed for sentence from the Local Court to the District Court on two charges, namely: 1. Sexual assault contrary to s 66C of the Crimes Act. The maximum penalty is 16 years' imprisonment. The standard non-parole period is 7 years' imprisonment. 2. Sexual intercourse without consent contrary to s 61I of the Crimes Act. The maximum penalty is 14 years' imprisonment. 1. His sentence hearing is to take place on Thursday, 9 November 2023. On Friday, 8 September 2023 through his counsel Ms Mendes, Public Defender, he confirmed his pleas. The Director of Public Prosecutions made a detention application pursuant to s 22B(1)(b) of the Bail Act 2013. That application was adjourned to Friday, 15 September 2023. Section 22B(1)(b) provides: "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) … (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." 1. Subsection (5) informs that a conviction, "also includes a plea of guilty." Section 50 of the Act empowers the prosecutor to bring an application for revocation of bail which is a "detention application". Ms Mendes relies upon the affidavit of Mr Rohan Harrison, her instructing solicitor, affirmed on 7 September 2023. It is the Crown's position that although sympathetic to the personal circumstances of the respondent, Corrections NSW would be able to undertake sufficient measures to ensure the respondent's safety within reason. The Crown submits that special or exceptional circumstances have not been shown and accordingly the application should be granted.