A person is a “Schedule 2” offender when, while already on bail for a “serious offence”, they are charged with another “serious offence”. This is commonly referred to as being “Schedule II”.

This is a difficult situation for any accused person to be in. Once a person is a “Schedule II” offender, it means their bail must be refused unless they show “exceptional reasons” why their bail should be considered at all.

Ordinarily, there is no requirement to demonstrate exceptional reasons to be released on bail. The court will look at a variety of factors, and the decision to grant bail is not limited by whether any one factor is or isn’t satisfied.

But if you are in a “Schedule II” situation, the requirement to show “exceptional reasons” makes an application for bail far more complex and usually more difficult. This article outlines the basic principles in a “Schedule II” situation from the perspective of a criminal lawyer in Perth. It is important to understand these basic principles in order to know how to tackle an application for bail when you are Schedule II.

What is a “serious offence”?

There are numerous “serious offences” in the Bail Act. Some of these offences might be comparatively minor to the offence you are on bail for. Some examples of “serious offences” are:

• Assault occasioning bodily harm;
• Wounding;
• Stealing a motor vehicle;
• Possession of prohibited drugs with intent (any quantity including small quantities);
• Breaching an FVRO, VRO or police order; &
• Breaching a “protective bail condition” – such as a “not to contact the complainant” condition. This is a common reason to end up Schedule II.

Which offence does the court refuse bail for if I am Schedule II?

Under the Bail Act, the court must refuse bail for the second / subsequent offence if you are Schedule II. The court does not have to refuse bail for the first offence.

For example:

• An accused person is charged with wounding and released to bail;
• Whilst on bail they contact the complainant and are charged with breach protective bail conditions;
• They are now schedule II. Bail is refused unless they show exceptional reasons;
• Bail is refused for the breach protective bail charge, not the wounding charge.

This is important because the way you deal with a Schedule II situation often depends upon the seriousness of the subsequent offence. Sometimes, pleading guilty to the subsequent offence can assist you to gain bail, but not always.

The fact the first or original offence is discontinued or resolved does not change the requirement to show exceptional reasons. There are numerous Supreme Court cases which confirm this.

What are “exceptional reasons”?

“Exceptional reasons” are not defined in the Bail Act. They need to be something out of the ordinary, something unusual. Examples of factual scenarios that have amounted to exceptional reasons in our experience include:

• An incredibly weak prosecution case combined with a lengthy delay to trial;
• A home detention condition to a locked rehabilitation facility; &
• A minor subsequent offence and the likely sentence across both sets of offences was a non-custodial sentence.

If I demonstrate “exceptional reasons” do I get bail?

No – you must demonstrate exceptional reasons simply to have your bail considered at all.

Once you demonstrate exceptional reasons, the court will then look at all of the questions it ordinarily looks at when considering bail. Things such as the strength of the case, the likely sentence, whether you are likely to re-offend or otherwise breach bail, etc. It may be that there are exceptional reasons but the court still finds, for instance, that you are likely to breach bail. In these circumstances you would still be refused bail.

This is quite a complicated area, the interplay between “exceptional reasons” and the ordinary questions relevant to bail, and we recommend you contact us for expert advice.

What else do I need to know?

If you are “Schedule II”, you are in a precarious position. If you can’t demonstrate exceptional reasons, you potentially face a wait of several years in custody on remand until your trial. It may be that even if you are convicted of the original and subsequent offences, your sentence will be shorter than the time you have spent in custody.

It is difficult to establish exceptional reasons. Courts routinely refuse bail for Schedule II offenders notwithstanding a lengthy wait to trial, even in circumstances where it is clear the accused won’t ever receive a two year sentence if convicted.

It is not impossible to demonstrate exceptional reasons, and to be released on bail whilst Schedule II. However, it requires a properly crafted bail application which clearly identifies what the exceptional reasons are and properly deals with any issues militating against a grant of bail in your case.

At James Jackson Criminal Defence, we have successfully obtained bail for numerous clients who are in a Schedule II situation. We recommend you contact us today if you or a loved one are in this situation as we have the expertise and skills to get you out on bail notwithstanding your Schedule II status.