Conditional Bail Revoked in Criminal Appeal

The respondent's conditional bail was revoked and a warrant issued for his detention following a change in circumstances, including the cancellation of his visa and a relevant change in the prospects of success in judicial review proceedings.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME_1] v R [2022] NSWCCA 86 Hearing dates: 30 March 2022 Date of orders: 30 March 2022 Decision date: 30 March 2022 Before: Macfarlan JA at [1] Bellew J at [3] Wright J at [8] Decision: (1) The grant of conditional bail by Garling J on 2 December 2021 is revoked. (2) A warrant is to be issued pursuant to s 39 of the Bail Act 2013 (NSW) remanding the respondent to a Correctional Centre under the control of [COMPANY_2]. Catchwords: BAIL – Where respondent was convicted in the [ADDRESS] and sentenced to a term of full time imprisonment – Where an appeal to the District Court was dismissed – Where the respondent then commenced proceedings seeking judicial review of the decision of the District Court – Where the respondent was granted conditional bail – Where respondent's visa had been cancelled resulting in his being taken into the custody of the Australian Border Force on his release – Agreed between the parties that there had been a relevant change in circumstances which had a material and potentially adverse effect on the applicant's prospects of success in the judicial review proceedings – Where [NAME_3] made an application for the respondent's detention – Agreed between the parties that the application should succeed and that the respondent should be returned to the custody of [COMPANY_2] – Orders made – No point of principle Legislation Cited: Bail Act 2013 (NSW) Cases Cited: [NAME_4] v Director of Public Prosecutions [2021] NSWCCA 337 Category: Principal judgment Parties: [NAME_5] – Applicant [NAME_6] – Respondent Representation: Counsel: [redacted] [NAME_7] – Respondent

Solicitors: [redacted] C Hyland, Solicitor for Public Prosecutions, Office of the Director of Public Prosecutions – Respondent File Number(s): 2022/00082995 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal

Judgment – ex-tempore (revised)

1. MACFARLAN JA: I agree with Bellew J.

2. BELLEW J: On 28 April 2021, the respondent pleaded guilty in the [ADDRESS] to a number of charges. He was sentenced to an aggregate term of imprisonment of 2 years and 10 months, with a non-parole period of two years imprisonment, to date from 4 August 2021.

3. The respondent subsequently lodged an appeal to the District Court on the basis that the sentence imposed was too severe, and sought that any sentence of imprisonment be served by way of an Intensive Correction Order. On 23 August 2021, Judge Hanley SC dismissed that appeal, but varied the aggregate sentence to one of full-time imprisonment of 2 years, with a non-parole period of 15 months.

4. The respondent then commenced proceedings seeking judicial review of the decision of Judge Hanley SC (the judicial review proceedings) and on 1 November 2021 he filed an application in the Supreme Court for his release. On 8 November 2021 the judicial review proceedings were listed for hearing on 23 February 2022, although that date was later vacated.

5. On 2 December 2021 Garling J made orders releasing the respondent. However, in circumstances where the respondent's visa allowing him to enter Australia had been cancelled, he was taken directly into the custody of the Australian Border Force upon his release.

6. On 21 December 2021, the Court of Appeal delivered judgment in [NAME_4] v Director of Public Prosecutions [2021] NSWCCA 337 ([NAME_4]). It is agreed between the parties that this judgment has a material (and potentially adverse) effect on the respondent's prospects of success in the judicial review proceedings. In those circumstances, the [NAME_3] filed an application seeking the respondent's detention. The respondent concedes that the decision of the Court of Appeal in [NAME_4] constitutes a relevant change in circumstances and raises no objection to the making of an order for his detention. Such order is appropriate in the circumstances.

ORDERS 1. In all of those circumstances I propose the following orders:

1. The grant of conditional bail by Garling J on 2 December 2021 is revoked.

2. A warrant is to be issued pursuant to s 39 of the Bail Act 2013 (NSW) remanding the respondent to a Correctional Centre under the control of [COMPANY_2].

1. WRIGHT J: I also agree with Bellew J's proposed orders, for the reasons his Honour has given.

2. MACFARLAN J: The orders of the Court will be those proposed by Bellew J.

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