Bail is the term used to refer to the temporary release from custody of an accused person awaiting their sentence by the Court.
When a person is granted bail, that person enters into a bail undertaking. They are entitled to be released (if in custody) and remain at liberty. A person granted bail is to undertake in writing to appear before the court as notified and to notify the court of any change in the person’s residential address. A person is entitled to be granted bail so long as the person is not in custody for some other offence. Additionally, a person can be granted bail when not in custody.
All persons in custody will appear by way of audio-visual link.There are interpreters available for persons with English as a second language or who are hearing impaired. The weekend and public holiday bail courts for both adults and juveniles are conducted at Parramatta Local Court. This court will deal with adult bail hearings for all persons arrested in the Sydney metropolitan area and juvenile bail hearings from across the state.
The Local Court usually determines bail for summary offences. More senior courts often deal with indictable offences. A police officer can grant bail provided the court hasn’t already made a determination. If not authorised to grant bail the Officer will bring the person before the court. After an officer makes a determination as to bail they must inform the person that they may communicate with a legal practitioner and provide them with such facilities to do so as are reasonable in the circumstances.
A court will refuse to hear a further application if bail has already been determined unless:
• The person was not legally represented and now has legal representation
• Information relevant to bail was not presented in the previous application
• Circumstances relevant to the grant of bail have changed
A court may dispense with bail, meaning the person is to remain at liberty until required to appear before court. Where the court in respect of bail makes no specific order or direction, the court shall be deemed to have dispensed with the requirements for bail.
There is a right to be released on bail for minor offences, i.e. not punishable by imprisonment, unless a person:
• Has previously failed to comply with a bail undertaking or bail conditions imposed
• Is incapacitated by intoxication, injury, drug abuse or is otherwise in danger of physical injury or in need of physical protection
• Stands convicted of the offence or the person’s conviction for the offence is stayed
A person accused of one of these offences is not to be granted bail unless the person satisfies the court that bail should not be refused. Bail cannot be dispensed with for any of the following offences:
• Certain offences under the Drug Misuse and Trafficking Act
• Serious Firearms and weapons offences
• Certain repeat property offences, where the person is accused of two (2) or more serious property offences, not being offences arising out of the same circumstances and the person has been convicted of one or more serious property offences within the last two (2) years
• Offences carrying prison terms where the person is on lifetime parole
• Breach of extended supervision orders or interim supervision orders
There is a general presumption in favour of bail except for the following offences, where bail will generally not be granted except in extraordinary circumstances:
• Murder or Manslaughter
• Attempted Murder
• Aggravated Sexual Assault
• Kidnapping
• Robbery
• Supplying prohibited drugs on an ongoing basis
• Certain offences under the Drug Misuse and Trafficking Act where the quantity concerned is alleged to be twice the indictable quantity
• Certain domestic violence offences
• Offenders who have a prior conviction for one of the above offen
There is an exception to the presumption in favour of bail if the person is alleged to have committed an offence while:
• On bail
• On parole
• In custody
• Serving a sentence but not in custody
• Was subject to a good behaviour bond or program intervention orderA person accused of one of the above offences is entitled to be granted bail unless the court, following consideration of the matter, feels justified in refusing bail.
A person is not entitled to be granted bail if the person in custody is serving a sentence of imprisonment in connection with another offence and the court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the later offence would be granted.
There are four distinct criteria to be considered in bail applications:
1. The probability of whether or not the person will appear in court in respect of the offence having regard to:
• The person’s background and community ties, as indicated by the history and details of the person’s residence, employment and family situations and the person’s prior criminal record
• Any previous failure to appear in court
• The circumstances of the offence, the strength of the evidence and severity of the probable penalty
2. The interests of the person having regard to:
• The period the person may be obliged to spend in custody if bail is refused
• The needs of the person to be free to prepare for appearance in court
• Whether or not the person is incapacitated by intoxication, injury or drug abuse or is otherwise in danger of physical injury or in need of physical protection
• If the person is under 18 years of age, or is an Aboriginal person or Torres Strait Islander, or has an intellectual disability or is mentally ill
3. The protection and welfare of the community having regard to
• The nature and seriousness of the offence
• Where the person has refused to observe a previous bail condition
4. Whether or not the person is likely to commit one or more serious offences while on bail
A person is entitled to bail either unconditionally or subject to bail conditions.
Possible conditions of bail includeThat the accused enter into an agreement to observe specified requirements as to conduct
• That the accused or an acceptable person enter an agreement to forfeit a specified amount of money if the accused person fails to comply with their bail undertaking. The court may revoke bail if it appears the security is no longer intac
• That the accused surrender their passport
• That the accused undergo assessment for participation in an intervention program or other program for treatment or rehabilitation
• The accused enters into an agreement prohibiting him from associating with specified persons
• The accused enters into an agreement restricting him from visiting a specified place or district
Potential conditions of bail include:
• Not driving a motor vehicle
• Not drinking alcoho
• Curfew
Magistrates have the power to review bail decisions. If refused a person may apply to a higher court for review of a bail condition. Senior Police Officers have the power to review and grant bail if:
• The accused is no longer incapacitated by intoxication, injury, drug abuse and no longer needs protection
• There is a significant change in circumstances
• There are exceptional circumstances justifying bail
It is an offence to fail without reasonable excuse to appear before court in accordance with a bail undertaking. It is an arrestable offence to abscond on bail or breach a bail condition. Under such circumstances:
• A police officer may arrest a person without a warrant
• The Court may issue a warrant
• Court may revoke bail.
Our Criminal Lawyers will carefully consider your case, advise you on all your legal options, and recommend the best way forward.
The initial consultation is free.
Depending on the charge, an accused person served with a court attendance notice may lodge with the Registrar notice in writing that they will plead guilty or not guilty. If the notice is lodged no later than 7 days before the person is required to attend court then they are not required to attend. This does not apply to a person who has been granted or refused bail [Criminal Procedure Act 1986 s182].
A guilty plea may be accompanied by additional written material detailing mitigating factors [CPA s182].
If attending court, the Court will state the substance of the offence and ask the accused to enter a plea. An accused person may at any time during committal proceedings plead guilty to an offence [CPA s99].
A guilty plea may either be accepted or rejected [CPA s100].
A judge of the District or Supreme Court may order committal proceedings be continued before a Magistrate in respect of a person who has plead guilty if:
• It appears that the facts represented in the court attendance notice do not support the offence to which the person plead guilty;
• If the prosecutor requests the order be made; or
• For any other reason the Judge thinks fit to do so.
[CPA s104]
On the resumption of committal proceedings, the proceedings continue as if the person had plead not guilty [CPA s101]. Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in proceedings [CPA s99].
The Attorney General or Director of Public Prosecutions may alternately direct that no further action be taken in respect of an offence, at their discretion [CPA s107].
If an accused person pleads not guilty, they are taken to have committed themselves for trial [CPA s154].
A court is not permitted to penalise an offender for pleading not guilty if the person is ultimately found guilty of the offence. The imposition of a penalty more serious than would otherwise be imposed is not allowed [Siganto v The Queen at 663].
If the accused person who is arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of not guilty be entered on their behalf [CPA s155].
If the accused is arraigned for indictment and can lawfully be convicted on the indictment of some other offence not charged in the indictment, they may plead not guilty of the offence charged but guilty of the other offence.
The Crown may elect to accept the plea of guilty or proceed on the original charge [CPA s153].
Any dispute as to matters that go beyond the essential elements of the offence must be resolved by a contested hearing on those facts.
A sentencing discount is a reduction in the otherwise appropriate sentence by a quantifiable amount due to a guilty plea. It is applied after the appropriate sentence has been determined [R v Borkowski at 32].
The discount should generally be assessed in the range of 10-25%. The primary consideration is the timing of the plea [R v Thomson & Houlton at 419] When passing sentence for an offender who has plead guilty the court must take into account:
• The fact that the offender has plead guilty; and
• When the offender plead guilty or indicated an intention to plead guilty; and
• The circumstances in which the offender indicated an intention to plead guilty.
[Crimes Sentencing Procedure Act 1999 s22]
It is at the Court’s discretion whether to impose a lesser penalty and they may not always do so. The sentence must not be unreasonably disproportionate to the nature and circumstances of the offence.
Circumstances the Court may take into account include the number and types of charges, the measure of remorse evident and the offender’s assistance to authorities.
If an accused person pleads guilty during the trial, and the court accepts the plea, the court is to discharge the jury and the accused is liable for punishment accordingly [CPA s157].
If the accused is brought before a higher court after having plead guilty and changes their plea to not guilty the Judge is to commit them for trial [CPA s106].
Circumstances under which a court will set aside a guilty plea:
• The appellant did not appreciate the nature of the charge to which the plea was entered;
• The plea was not free and voluntary;
• The plea was not attributable to a genuine consciousness of guiltd. The plea was induced by threats or other impropriety.[Johnston v R]