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BAIL and how it is a now more difficult to secure

Commentary of Commonwealth laws, Anti Terrorism and how Bail is difficult to achieve;

Commentary on the existing NSW Bail Laws (as of 2016)

Commentary on section 74 of the Bail Act

 

 

Bail refused –anti terror laws our response to hitting hard and isolating the imminent threat in Australia.

Based on events in Sydney Australia September 2016,

 

We recently saw the response of police to quickly engage two young persons in Sydney’s south-west last month. They remain bail refused. Much resources and federal funding go into weeding out the allegations and charges against persons engaged with anti terror behavior.

 

Since September 11, Australia has developed and surged, almost excelled with its response to legislating against  ‘terrorism’. We formed authorities such as specialised police units, federal police divisions and of course, ASIO.

It is estimated 54 pieces of anti terrorism legislation have been created, 48 passed under the Howard Government.

 

The response has led to the convictions of some 25 men over a period of about 15 years since the disaster of September 11.

 

The laws are designed to expose and un-foil ‘any act’, even the initial phase of ideas or perhaps even what can only be deemed ‘anti social behaviour’ that is  commonly identified as acts of terrorism.

 

The first main set of offenders among 25 men who have been convicted since the commencement of these laws involved the terrorist 5 who were tried before Justice Whealy in Sydney in 2010. The were convicted for a term of 20 years after being charged with ”conspiracy to do an act connected with preparation for a terrorist act”,

The case involved the men purchasing items of chemicals, ammunition and other lab equipment. No actual plans or targets were identified. The mere suggestion of planning and thought process brought the group under suspicion and validly permitted authorities to charge them under the federal based laws.

Justice Whealy stated: ”The legislation is designed to bite early, long before the preparatory acts mature into circumstances of deadly or dangerous consequence for the community.”
 

The Bail Laws in New South Wales

The Bail Act NSW 2013

In 2013 a change to the Bail laws in New South Wales occurred.

Persons applying for Bail will need to consider a few things:

  1. do they have a record of committing a serious offence?
  2. does their Bail application attract the new “show cause” element. This requires an additional step to seeking Bail

3.  have they been refused Bail in a court for the offence

already ? The prior Bail act did contain a similar hurdle pursuant to s22A that is now called s74 of the New Bail act.

  1. A Show Cause: A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.

 

S.16B Show Cause Offence:

(a) life imprisonment,

(b) a serious indictable offence that involves:

(i) sexual intercourse <16 by a AP who is 18 >

(ii) AOABH w intent to have sexual intercourse with a person <16 by a AP who is 18 >,

(c) a serious personal violence offence, or an offence of wounding or the infliction of GBH, if the AP has previously been convicted of a serious personal violence offence,

(d) any of the following offences:

(i) a serious indictable offence Pt3/3A Crimes Act or under the Firearms Act that involves the use of a firearm,

(ii) an indictable offence that involves the unlawful possession of a pistol or prohibited firearm in a public place,

(iii) a serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying or manufacturing a pistol or prohibited firearm,

(e) any of the following offences:

(i) a serious indictable offence Pt. 3/3A Crimes Act 1900 or under the Weapons Prohibition Act 1998 that involves the use of a military-style weapon,

(ii) an indictable offence that involves the unlawful possession of a military-style weapon,

(iii) a serious indictable offence under the Weapons Prohibition Act 1998 that involves buying, selling or manufacturing a military-style weapon or selling, on 3 or more separate occasions, any prohibited weapon,

(f) an offence under the Drug Misuse and Trafficking Act 1985 that involves the cultivation, supply, possession, manufacture or production of a commercial quantity of a prohibited drug or prohibited plant within the meaning of that Act,

(g) an offence under Part 9.1 of the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth that involves the possession, trafficking,

cultivation, sale, manufacture, importation, exportation or supply of a commercial quantity of a serious drug within the meaning of that Code,

(h) a serious indictable offence that is committed by an accused person:

(i) while on bail, or

(ii) while on parole,

(i) an indictable offence, or an offence of failing to comply with a supervision order, committed by an accused person while subject to a supervision order,

(j) a serious indictable offence of attempting to commit an offence mentioned elsewhere in this section,

(k) a serious indictable offence (however described) of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit an offence mentioned elsewhere in this section.

 

“Serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

serious personal violence offence” means an offence under Part 3 of the Crimes Act 1900 that is punishable by imprisonment for a term of 14 years or more.

“supervision order” means an extended supervision order or an interim supervision order under the Crimes (High Risk Offenders) Act 2006 .

 

s.17 Bail Concerns:

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

s.18 Matters to be considered as part of assessment:

(a) the accused person’s background, including criminal history, circumstances and community ties,

(b) the nature and seriousness of the offence,

(c) the strength of the prosecution case,

(d) whether the accused person has a history of violence,

(e) whether the accused person has previously committed a serious offence while on bail,

(f) whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,

(g) whether the accused person has any criminal associations,

(h) the length of time the accused person is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,

(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m) the need for the accused person to be free for any other lawful reason,

(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.

(2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered:

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 ,

(b) the likely effect of the offence on any victim and on the community generally,

(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

S.20 Bail Conditions

(2) A bail authority may impose a bail condition only if the bail authority is satisfied that:

(a) the bail condition is reasonably necessary to address a bail concern, and

(b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and

(c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and

(d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and

(e) it is reasonably practicable for the accused person to comply with the bail condition, and

(f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

(3) This section does not limit a power of a court to impose enforcement conditions.

In that case the five men were convicted on evidence that they had purchased ammunition, chemicals and laboratory equipment and possessed extremist propaganda and military instructional material. However, they did not have a plan and had not picked a target, and did not necessarily intend to kill innocent civilians. All were sentenced to jail terms of more than 20 years.

Don’t wait another minute to get the legal representation you need. Call the Sydney criminal lawyers who can help. Your first conference is free. Call 0412 915 247 today.

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