An attempt to revoke the bail of a Far South Coast man who was recently found guilty of child sex crimes has failed due to his health issues.
On Monday (11 July), the Sydney Supreme Court heard the issues that Neil Duncan is facing may even be grounds for leniency when he is sentenced.
In June 2022, a jury found the 67-year-old former Bega Valley man guilty of eight counts of intentionally sexually touching a child between the ages of 10 and 16 after a trial in the Queanbeyan District Court.
However, he was found not guilty of four charges while the jury could not reach verdicts on two more.
Judge Robyn Tupman refused to end Duncan’s bail once the trial was over, saying he had moved from the area to Tamworth and “there is no demonstrated risk to any other children”.
But late last month the NSW Government passed tough new bail reforms requiring bail to be refused after a conviction and before sentencing where an offender will be handed full-time imprisonment, unless special or exceptional circumstances can be established.
“This is about ensuring that offenders who have already been found guilty beyond a reasonable doubt, or pled guilty, and are already heading to prison, get there quicker, and are not out in the community while awaiting sentence,” Attorney General Mark Speakman said at the time.
The prosecution then asked the Supreme Court to revoke Duncan’s bail on Monday.
But the court heard a magistrate had already ruled he hadn’t breached his bail conditions at the Narrabri Pony Club earlier this year and medical evidence showed he had been diagnosed with prostate cancer.
He may also have bowel cancer, but needs more tests to confirm.
Crown Prosecutor David Morters conceded these medical issues did amount to the special or exceptional circumstances that could allow his bail to be continued.
“He is in a fairly unique position in relation to someone that is soon to be sentenced for fairly serious offending,” he said.
Duncan has opted for surgery on the prostate cancer that is scheduled for late September – over a month after when he is meant to be sentenced on 5 August.
When discussing this issue, barrister Richard Pontello SC said there may need to be an application to adjourn his client’s sentencing in the future.
Mr Pontello argued if his client was taken into custody on Monday then he would be in COVID-19 isolation for 10 days and there would be no possibility of urgent testing for bowel cancer or timely treatment.
“It’s almost certain nothing would happen until he’s sentenced, in terms of health care,” he said.
He also said if his client’s prognosis was poor then that may have “a material” effect on sentencing – it might even call for leniency.
The court heard an affidavit from Duncan appeared to show he accepted the “inevitability” of a full-time jail sentence, while Justice Geoffrey Bellew also thought he would be handed time behind bars, subject to any more evidence.
Duncan still has to arrange his affairs as he lives on a property and has to sell cattle, stock “and all the rest of it”, the justice said.
Justice Bellow accepted the Crown’s concession there was special and exceptional circumstances in the case and stressed a magistrate had already found there had been no breaches of bail.
The Crown’s application to revoke bail was dismissed.