What is Bail?

When someone is charged with a criminal offence, police may decide that they will not release that person from their custody, or that they will only release that person from their custody if they comply with certain conditions.

If the police decide they will not release the person, then they are required to bring that person before a Court as soon as possible, in order for the Court to make a determination as to whether or not bail should be granted (if the accused person wishes to make an application) and to commence the court process in relation to the charges.

Bail can be seen as an agreement with the Court that you will appear before the court when required, be of good behaviour, and (if imposed) agree to certain other conditions.  If a person cannot comply with the conditions, they will remain in custody.

Bail considerations include the seriousness and circumstances of the alleged offending, any relevant criminal history, any perceived risk that the person may commit further offences or otherwise endanger witnesses, or that the person might fail to appear at Court.

Bail laws have become stricter over the years, generally in reaction to the prevalence of certain types of offending and moral panics spread by media outlets promoting ‘law and order’ politics.

Section 22B of the Bail Act

In 2022, section 22B of the Bail Act was introduced in response to media attention and public outcry following a number of high-profile crimes being allegedly (at the time) committed by a number of persons who were on bail at the time of their allegations.

The “knee jerk” response was met with significant criticism from legal academics, civil libertarians and the legal profession.

Section 22B sets out that, upon a conviction (which includes a finding of guilt or entering of a guilty plea), where an application is made, the Court must refuse that person bail if they will receive a sentence of imprisonment for the offence.

The primary concern at that time was that it was highly subjective as to whether someone would indeed receive a period of imprisonment but despite these concerns, and the initial ‘teething period’, the application of this section has been largely uncontentious in matters and appears to now be appropriately applied in most cases.

The Bail and Crimes Amendment Act 2024 (NSW)

On 3 April 2024, further amendments were made to the Bail Act (and other Acts, described below), with the introduction of the Bail and Crimes Amendment Act.

This amending legislation was brought about in response to the increase in serious offending by young people (aged 18 and under), particularly in relation to break and enters offences and stealing of high-end vehicles, and then posting on social media bragging of that offending.

The Bail and Crimes Amendment Act firstly creates new offences in the Crimes Act 1900 (NSW) called “performance offences”, which attracts additional periods of imprisonment for people who commit break and enter offences or vehicle theft offences and then publish material related to that offending. The provisions have a review period of 2 years to determine if they will remain in force.

Secondly, the Bail and Crimes Amendment Act inserts section 22C into the Bail Act, which has caused much controversy again in the legal profession and among legal academics. The provision specifically targets children aged 14-18 years who are on bail for vehicle theft offences, break and enter offences, or “performance offences” (as described above) and imposes on the Court, the requirement for the bail authority to refuse bail unless they have a ‘high degree of confidence’ that the person will not commit another offence.

The concern is that this new provision has no regard to whether the person might ultimately be found not guilty of the offence, nor whether, if found guilty, the person will ultimately receive a sentence of full-time imprisonment. This means children may spend considerable periods of time in custody for matters that ultimately don’t require the imposition of a custodial sentence.

Impact of Provisions on the Community

On 23 April 2024, NSW Police heralded its success with Operation Regional Mongoose. The operation targets offending (and “performance offending”) in NSW Western Region and includes places such as Dubbo, Tamworth, Moree, Orange, Gunnedah and Bourke. The operation employs a range of tactical support from Police Air Wing, Transport Command, Highway Patrol, Public Order and Riot Squad and Dog Squad.

The operation began on 27 September 2023 and police have indicated it will remain ongoing. Police report they have charged 192 people, 140 of which are under the age of 18, and charged them with a combined 1617 offences, 245 of which were breaches of bail.

With the introduction of section 22C, and an increased appetite for NSW police to target young people in particular areas, there is a significant risk that young people will spend long periods of time in custody that could otherwise be avoided, and better spent with rehabilitative efforts.

Further Review of Bail provisions

On 24 April 2024, NSW Premier Chris Minns announced a further review of bail conditions after a number of recent high profile domestic violence related murders by people who were on bail for serious offending at the time of the allegations, again, including in regional NSW.

What does this all mean for me?

With more people now being refused bail after charging, it is important that if you are charged (or anticipate being charged with an offence), you receive specialist advice at the earliest available opportunity to ensure that you have the best chances of being granted bail, or otherwise, of resolving your matter with the most efficient and favourable outcome.  For help in these highly stressful situations, get in contact with the team at Mitchell and Co Lawyers as soon as possible, on (02) 8507 2091.