Citation: R v Chehab [2013] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 21 March 2013
Judge(s): Latham J, Fullerton J, Adamson J
Background
The respondent was arrested in May 2012 and charged with aggravated break and enter to commit a serious indictable offence, as well as two related driving offences including failing to stop for police. The prosecution case was supported by listening device recordings of the respondent planning the break-in, tracking device data, and CCTV footage placing him at the scene.
In February 2013, a single judge of the Supreme Court granted the respondent conditional bail. The Director of Public Prosecutions then commenced proceedings in the Court of Criminal Appeal seeking a review of that decision under s 45(1) of the Bail Act 1978.
The respondent had a significant criminal history, including prior convictions for robbery in company, aggravated assault with intent to rob, and taking and detaining a person in company. At the time of the alleged offending, he was subject to a grant of parole.
Legal Issues
- Whether the respondent was a "repeat offender" charged with a "serious personal violence offence" within the meaning of s 9D of the Bail Act 1978, thereby triggering the exceptional circumstances threshold for bail
- Whether the circumstances advanced by the respondent constituted "exceptional circumstances" sufficient to justify the grant of bail under s 9D(1)
- Whether the general bail criteria under s 32 of the Bail Act also weighed against a grant of bail
Decision
Both parties conceded the threshold conditions for s 9D applied: the respondent was a repeat offender and the current charge involved a serious personal violence offence. This placed the evidential burden on the respondent to establish exceptional circumstances.
The Court accepted that the respondent had substantially complied with his bail conditions since his release and acknowledged what appeared to be a genuine commitment to addressing his anger management issues. He had given evidence of his willingness to participate in a Probation and Parole anger management program and to pursue employment in construction with his brother's support.
The Court nonetheless found that these circumstances fell short of what s 9D requires. Compliance with bail conditions and a stated commitment to rehabilitation, while accepted as genuine, do not by themselves constitute the kind of exceptional circumstances needed to displace the statutory presumption against bail for repeat offenders charged with serious personal violence offences.
The Court also noted that the respondent was on parole at the time of the alleged offending, that the charges were serious in nature, and that the remand period before his arraignment in the District Court would be relatively short. These considerations further weighed against bail under the general criteria in s 32.
Orders Made
- Bail revoked
Key Takeaways
- Under s 9D(1) of the Bail Act 1978, bail must not be granted to a repeat offender charged with a serious personal violence offence unless the applicant establishes exceptional circumstances justifying release.
- What constitutes exceptional circumstances is a question of fact, assessed by reference to matters personal to the applicant or the particular circumstances of the case.
- Compliance with bail conditions, even when substantial, does not of itself amount to exceptional circumstances under s 9D.
- A genuine and stated commitment to rehabilitation programs is relevant but was held insufficient, without more, to displace the statutory presumption against bail in this category of case.
- Being on parole at the time of the alleged offending, combined with the seriousness of the charges, reinforced the outcome under the general bail criteria in s 32.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), ss 9D, 32, 45(1), 90(4)(b)
- Crimes Act 1900 (NSW), ss 51B(1), 86(2)(A), 95, 97(1), 113(2)
Cases cited: None recorded in the judgment.