‘’BAIL ACT 2013 – SECT 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.
"Conviction" is defined in section 4(1) to include a finding of guilt.’’
What does this mean?
In 2022 section 22B of the Bail Act was introduced for defendants convicted and likely to serve a term of imprisonment, that is following a plea of guilty or following a finding of guilt after a trial. The law simply states that bail is not granted or continued following a conviction unless special or exceptional circumstances exist which justify the decision for bail to be granted.
The law prior to 2022 amendment was different as defendants applying for bail only had to establish that ‘Special or exceptional circumstances’ existed where their sentence or conviction appeal was pending in the Court of Criminal Appeal. However now, the special or exceptional circumstances test applies in all courts in relation to defendants who have been convicted or in relation to defendants who have entered a plea of guilty to an offence and will be sentenced to a term of full-time imprisonment.
‘Special or exceptional circumstances’ are usually decided on a case-by-case basis.
Under the new section 22B of the Bail Act, the defence will need to establish that special or exceptional circumstances exist prior to addressing the court as to whether the person is an unacceptable risk (under the unacceptable risk test).
It should be noted that section 22B of the Bail Act is only enlivened in circumstances where a defendant will be sentenced to full time imprisonment and section 22B of the Bail Act will not be enlivened if a judge (or magistrate) considers that a sentence of full-time imprisonment is ‘possible’ or ‘likely’. As such, the court must be certain that the defendant will in fact be sentenced to full time imprisonment.
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*This article correctly reflects the Laws of NSW as at 28th March 2023.
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