New Bail amendments were introduced to Parliament regarding bail options for those accused who wish to plead guilty, or who have already been found guilty by the court. Section 22B of these amendments has been criticised for its lack of community consultation.
The s22B amendments will make it more difficult for accused people to be released from prison throughout the duration of their court matter. These difficulties arise for those people who decide to plead guilty, or are found guilty of an offence. If the likely sentence is that of a full-time custodial punishment, it must be found that there are special or exceptional circumstances in the matter to be released on bail for sentencing hearings. These circumstances are of a much higher calibre than what has previously been required for bail applications.
The practical implications for an accused person is that if they are entering a plea of guilty, the Prosecution or Crown are more likely to make a detention application if it is likely a full-time custodial penalty will be the ultimate penalty.
It will be important to prepare a release application in advance should a custodial penalty be a possibility. Furthermore, often a plea of guilty is entered prior to having finalised all subjective material to be tendered to the Court in consideration of sentence. It is on this basis that it may be open to make a submission that the subjective material will make it much less likely that a full time term of imprisonment is likely.
Law Society President Joanne van der Plaat addressed the media regarding these issues, stating that “this would only add pressure to a criminal justice system still struggling with COVID-19 related backlogs.” These pressures are seen in the extensive time between plea entry and a sentencing hearing, which can often be months. These new amendments are likely to impact on reduced pleas of guilty in early court processes, as well as increasing the number of detained individuals, which in turn increases the costs of incarceration.
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