Ok, so Bail. Anyone who has ever worked in Criminal Law has had to apply for or defend an application for Bail. The usual course of events is this:
- Applicant applies to Sergeant at Police Station where arrested for bail. If refused...
- Applicant makes application for Magistrates Court. Must be heard quickly. If refused...
- Applicant can make application for review in the Supreme Court.
The Bail Act 1985 governs the granting of bail in South Australia. Section 10 stipulates the most critical piece of the law, in my opinion: the resumption of bail. It means that the default position is that a person will be granted bail. It is similar in effect to the presumption of innocence.
There are provisions under s10A for when bail should not be granted except in exceptional circumstances. The most common of these is where the person has been arrested for breaching terms of an Intervention Order, and young lawyers should be very careful about making applications in these cases, without reading the legislation thoroughly. Even if the allegation is not that they breached the IO by threatening the victim's physical safety, if the condition that they breach is imposed for the victim's physical safety, then they are a prescribed applicant.
If s10A applies, bail will not be granted unless you can demonstrate 'special circumstances.'
I have dealt with a matter where a client was charged with a large number of offences, many of them committed whilst on bail for similar offending. The offences, if proven, were certain to attract a penalty of imprisonment (drive disqualified), and that sentence is likely to exceed a year.
Whilst there was a distant chance that he could be released on Home Detention, as soon as he entered pleas, he would be sent straight back to Port Augusta for a lengthy stay. I therefore advised him NOT to apply for bail, and enter pleas immediately. (He acknowledged all elements of all charges.)
Under the new Criminal Law Sentencing legislation, entering a plea on the first possible occasion entitles you to a sentencing discount of up to 40%. This means that for a 10 month term of imprisonment, you could be sentenced only to 6 months. You could then be eligible for release on Home Detention after three months.
Also, whilst my client is in detention, he won't be able to commit any more offences.