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    A complete guide to breach of bail laws in NSW including defences, penalties and what to do if you cannot comply with your bail conditions

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      breach of bail nsw

      Breach of Bail in NSW

      The offence of breach of bail in New South Wales is taken very seriously by police and the courts.

      Bail is granted with the expectation that a defendant will comply with a set of bail conditions. As such, any breach of these conditions can result in serious penalties and even the revocation of bail.

      What is bail?

      Bail is the authority to be at liberty for an offence according to section 7 of the Bail Act 2013 (NSW). It is simply the conditional release of an accused person, upon an agreement to appear at court and to comply with all bail conditions.

      Since a core value in the criminal justice system is the presumption of innocence until proven guilty, bail can be granted to any person accused of an offence, as long as there is no unacceptable risk of a bail concern. Bail can be granted by either the police, a magistrate or a judge.

      Bail conditions

      Bail conditions are requirements that an accused person must comply with. They can be imposed by police or a court.

      In deciding what bail conditions to impose, a court must only impose conditions which mitigate any bail concerns. This is designed to minimise the risk of flight, re-offending, community safety and/or interfering with witnesses.

      Examples of Bail Conditions

      Examples of bail conditions include conduct requirements, security requirements, enforcement conditions and character acknowledgements.

      Conduct requirements can limit the defendant’s activities or ensure that they do certain things such as report to the police. This can include the following:

      • reporting to the police on a daily/weekly basis
      • living at a designated location/address
      • surrendering the defendant’s passport
      • not associating with speci1c people (this may include the victim or any witnesses)
      • having to stay within a certain distance away from speci1c places
      • having a curfew
      • not driving a motor vehicle (for alleged tra  c oIences)
      • not drinking alcohol
      • attending drug and alcohol courses
      • attending rehabilitation or counselling courses
      • attending medical appointments

      Security Requirements include surrendering or agreeing to surrender an amount of money or property. This can only be imposed if there is a bail concern that the defendant will fail to appear at court. In this case, the defendant or an ‘acceptable person’ would have to surrender or agree to forfeit a certain amount of money to the court to receive bail. An experienced bail application lawyer will be able to advise you whether this condition should be offered to the court.

      To provide security in the form of cash, the court requires evidence of where the money came from in the form of either a bank statement or receipt. Property may also be used as a form of security. The defendant would have to prove the property’s value and gain the bank’s approval to do so.

      Enforcement conditions are requirements that allow police to contact the defendant to ensure they are complying with their bail conditions. They can include:

      • urine testing
      • random breath tests
      • complying with police checks ensuring curfew and other bail conditions are being followed

      Character acknowledgements require an acceptable person of ‘good character’ to provide a signed character reference stating that the defendant will obey their bail conditions and appear at their assigned court date.

      What is a breach of bail?

      Breach of bail is when a defendant fails to comply with the conditions of their bail or fails to appear before a court in accordance with a bail acknowledgement. The penalties for breaching bail include fines, imprisonment and revocation of bail.

      What happens if I breach my bail?

      If you breach your bail you can be subject to a warning, fines, imprisonment or you’re your bail being revoked. 

      Actions police can take

      Police may consider using their discretion where there has been a minor breach of bail,  such as being a few minutes late to curfew, and they may choose to take no action against you. For more serious breaches, a warning may be issued. Where the breach is particularly serious, a court attendance notice or an arrest warrant can be issued, or you can be arrested and brought to court, in which case you will have to re-apply for bail.

      Actions the court can take

      A magistrate or judge may deal with you for breaching bail by:

      • revoking your bail, in which case any security you have paid does not get returned;
      • taking no action and releasing you on the same bail conditions;
      • varying your existing bail conditions;
      • adding new bail conditions.

      Breach of bail sentencing

      Under Section 79 of the Bail Act 2013, it is an offence for a person fails to appear before a court in accordance with a bail acknowledgment and they can be sentenced to 3 years and/or a monetary penalty of 30 penalty units or $3300.

      When considering what action is appropriate, a magistrate or judge will consider a range of factors including:

      • The nature and seriousness of the breach,
      • Whether there have been any previous breaches,
      • Whether you have a reasonable excuse for the breach,
      • Your personal circumstances,
      • Whether there are alternative courses of action.

      Breaching bail conditions domestic violence

      For domestic violence offences, bail conditions usually will mirror an AVO. Breaching bail conditions for a domestic violence offence will usually result in a breach of AVO which carries a fine of $5500 and/or up to 2 years of imprisonment.

      This is contained in the Crimes (Domestic and Personal Violence) Act 2007 This can also result in your bail being reconsidered in court.

      Domestic Violence is handled very seriously in NSW, and those suspected of it may face a range of penalties from fines to imprisonment. If you have been charged with a domestic violence offence, the court will order a temporary ADVO (Apprehended Domestic Violence Order) against you for the duration of your bail. An ADVO includes three mandatory conditions:

      • the defendant must not assault or threaten the person the ADVO is for
      • the defendant must not stalk, harass or intimidate that person
      • the defendant must not intentionally destroy or damage their property or harm their animal

      The court can also restrict the defendant from being near the protected person by ordering the defendant to not:

      • be in proximity of the protected person
      • be in proximity of their residence or workplace
      • contacting the protected person in any way including in person or online

      What if I cannot comply with my bail conditions?

      In the case that you are unable to comply with the conditions of your bail, you may be able to vary your bail conditions.

      A formal application must be filed with the Court. Factors such as gaining full-time employment or a medical condition may mean you are unable to report to the police daily. In such a case you will have to prove to the local court that a change in bail conditions is needed by providing evidence of such a change in circumstances.

      It is important that a lawyer completes the application process properly and argues in court as to why your bail should be varied. You can read more about how to vary bail conditions.  An experienced lawyer may even be able to obtain consent from the prosecution before your bail hearing. Bail conditions can be changed by the Registrar at the Court registry if the prosecution agrees to the changes.

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