On 27 June 2022, the new section 22B of the Bail Act 2013 (NSW) came into force. Since that time, we have often been asked by our clients about how this affects their chances of getting bail or staying on bail.

When does section 22B apply?

Section 22B applies to a person who has either pleaded guilty or been found guilty of an offence for which the person will be sentenced to full-time imprisonment. This means that the Court will not apply this section if the Court might sentence the person to a penalty other than full-time imprisonment, such as an Intensive Correction Order.

The section only applies on a release application made by a defendant or a detention application made by the prosecution. It does not apply to a variation of bail.

What is the test?

If the section applies, the defendant must show “special or exceptional circumstances” for the Court to grant bail or allow the person to stay on bail.

This is a very high threshold for a defendant to establish.

The Courts have never provided an exhaustive list of “special or exceptional circumstances”. It could be one factor or a combination of factors that are sufficient to reach that threshold.

Once “special or exceptional circumstances” are established, the Court still needs to consider the ordinary test for bail.

How is this different to the previous law?

This law was introduced by the New South Wales Government in response to several bail decisions that were said by the Hon. Melinda Pavey, MP, to be “out of step with community expectations”.

Previously, the requirement for “special or exceptional circumstances” only applied to people who had already been sentenced and were waiting in custody to appeal their conviction or sentence to the Court of Criminal Appeal or the High Court.

In all other matters, the Court would instead take into account all the usual factors in deciding whether there were any “unacceptable risks” that the accused person would:

1. Fail to appear;
2. Commit a serious offence;
3. Endanger the safety of victims, individuals or the community; or
4. Interfere with witnesses or evidence.

If the Court found that there were no unacceptable risks, the Court would grant bail.

The likelihood of a custodial sentence being imposed was previously only one factor to be taken into account by the judge or magistrate assessing the bail concerns. This factor is now of central importance.

For more information about bail, you can speak to one of our criminal lawyers, or see our webpage on bail.