Citation: R v Mikel Fajloun [2007] NSWDC 378
Court: District Court of New South Wales
Date: 13 December 2007
Judge(s): Cogswell SC DCJ
Background
The accused had been convicted by a jury the previous month, along with his brother, of two serious offences. The offences involved forcing entry into a dwelling, kidnapping the accused's sister-in-law, and detaining her elsewhere. The victim was physically dragged from her home and driven away in a car the accused was driving.
The accused's role was characterised as secondary to that of his brother, who was likely the instigator. The accused nonetheless accompanied his brother during the entry, participated in the forcible removal of the victim, drove her to the place of detention, and remained there briefly.
Following conviction, the accused applied for bail pending sentencing. His solicitor advanced several grounds in support of the application.
Legal Issues
- Whether bail should be granted after a jury conviction for serious offences where a full-time custodial sentence was a likely sentencing outcome
- Whether the need to obtain psychiatric evidence for sentencing purposes justified bail
- Whether strong community ties and the accused's financial contribution to his family warranted release
- Whether the accused's lesser role in the offences, compared with his co-offender brother, supported a different approach to bail
Decision
Cogswell SC DCJ identified the primary consideration as the fact that the accused had been convicted by a jury of two serious offences. While declining to pre-judge the sentencing outcome, his Honour observed that a period of full-time custody was likely. This weighed heavily against the grant of bail.
On the question of psychiatric evidence, the court accepted that obtaining such material would be more difficult and expensive while the accused remained in custody. However, his Honour found that the evidence could still be obtained from custody and that the accused's position at sentencing would not be prejudiced as a result.
The court acknowledged the genuine hardship facing the accused's family, including mortgage arrears and financial difficulty arising from his detention. His community ties were also accepted as strong. Despite these factors, his Honour held they did not outweigh the appropriateness of keeping a convicted person in custody pending sentence for crimes of this gravity.
The court also noted that the Crown raised concern for the victim's safety, observing that her security arrangements had been altered on the basis that both brothers remained in custody. This consideration further supported refusal of the application.
Orders Made
- Bail application refused.
Key Takeaways
- Refusing bail after a jury conviction for serious violent offences, the District Court gave primary weight to the gravity of the offences and the likelihood of a full-time custodial sentence at the upcoming sentencing hearing.
- The practical difficulty and additional expense of obtaining psychiatric evidence from custody did not constitute sufficient grounds for bail, provided the evidence could still be obtained without prejudicing the accused's sentencing case.
- Family hardship, including financial stress and the accused's contribution to a household mortgage, was acknowledged as a genuine factor but was found insufficient to outweigh the appropriateness of custodial remand following conviction.
- A lesser role in the commission of the offence, compared with a co-offender, does not automatically warrant a materially different approach to a post-conviction bail application where the accused was nonetheless an active and integral participant.
- Victim safety considerations, including changes to security arrangements predicated on both co-offenders remaining in custody, formed part of the court's overall assessment.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW)
Cases cited: None referenced in the judgment.