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District Court 16 December 2014

R v Khoda Doost

[2014] NSWDC 327

Assault & violencePublic order & justice offences
CRIMINAL LAW BAIL PAROLE PERIOD VULNERABILITY OF APPLICANT PSYCHIATRIC EVIDENCE

Citation: R v Khoda Doost [2014] NSWDC 327
Court: District Court of New South Wales
Date: 16 December 2014
Judge: Cogswell SC DCJ

Background

The applicant, a 31-year-old Kurdish-Iranian man, had been held in immigration detention at Villawood Immigration Detention Centre since arriving in Australia by boat in August 2010. Between May and August 2014, while in detention, he was charged with a series of offences including assaulting detention centre officers (by biting and hitting), threatening behaviour, and indecent exposure. He was initially granted bail following arrest in August 2014, but committed a further assault the following day, placing him in breach of that bail.

The applicant was subsequently taken into custody and his bail refused. A trial date was set for June 2015, meaning he faced approximately ten months in pre-trial custody. The Commonwealth Director of Public Prosecutions opposed any further release application.

Psychiatric evidence before the court indicated the applicant suffered from significant mental health vulnerabilities, including what was described as organic brain deficits. Evidence was also presented that his condition was deteriorating in custody, with notable instances of self-harming behaviour.

  • Whether there existed an "unacceptable risk" under section 17(1) of the Bail Act 2013 that the applicant would commit a serious offence or endanger the safety of individuals in the detention centre.
  • Whether any unacceptable risk could be "sufficiently mitigated" by the imposition of bail conditions, as required by section 20 of the Bail Act 2013, before bail could be refused.
  • What weight should be given to the applicant's psychiatric vulnerability and the likelihood that his pre-trial custody period would exceed any non-parole period he might receive if convicted.

Decision

The court accepted that an unacceptable risk existed. The applicant had a documented pattern of aggressive conduct toward detention centre staff across a sustained period, and the factors relevant to assessing unacceptable risk under the Bail Act 2013 pointed predominantly toward that conclusion. The prosecution's position on this point was not seriously contested.

The central question then became whether that risk could be sufficiently mitigated by bail conditions. The court drew on the reasoning in R v SK; R v DK [2014] NSWSC 816, where McCallum J observed that the Bail Act does not require the absence of all risk upon release, but rather an informed balancing of competing risks. The court applied that principle here.

Two factors weighed heavily in favour of granting bail. First, the time the applicant would spend in pre-trial custody was likely to exceed any non-parole period that would be imposed if he were convicted. The prosecution fairly conceded this point. Second, the applicant's psychiatric condition was deteriorating in custody, and expert evidence from Dr Newman indicated that isolation and strict behaviour management were contra-indicated given his condition. The court accepted that continued detention posed its own serious risks to the applicant's wellbeing.

The court was satisfied that strict conduct conditions would sufficiently mitigate the unacceptable risk. Those conditions would require the applicant to refrain from any assault, harassment, or intimidation of detention centre staff, to accept reasonable directions from officials, and to engage in STARTTS counselling. The court noted that even a single breach would expose the applicant to revocation of bail and return to custody, providing a meaningful deterrent.

Orders Made

  • Bail granted to the applicant under section 49(3) of the Bail Act 2013, subject to the following conditions:
  • Reside at accommodation determined by the Minister for Immigration.
  • Not assault, molest, harass, threaten, or otherwise interfere with any detention centre staff.
  • Not engage in any conduct that intimidates detention centre staff.
  • Be of good behaviour.
  • Accept reasonable directions from SERCO and immigration officials.
  • Attend court as directed.
  • Engage in STARTTS counselling.
  • Time for filing of the indictment extended to 30 January 2015.

Key Takeaways

  • The District Court confirmed that identifying an "unacceptable risk" under section 17(1) of the Bail Act 2013 does not automatically compel refusal of bail. Refusal is only warranted under section 20 if that risk cannot be sufficiently mitigated by conditions.
  • Under the Bail Act 2013, the balancing exercise requires courts to weigh the risks of release against the risks of continued remand, including risks to the applicant's health and the prospect of pre-trial custody exceeding any likely sentence.
  • Psychiatric vulnerability constitutes a material consideration in bail decisions, particularly where expert evidence indicates that custodial conditions are themselves causing deterioration in the applicant's mental health.
  • Strict conduct conditions, combined with the prospect of immediate bail revocation for any breach, can in some circumstances provide sufficient mitigation of a serious risk of offending, even where the applicant has a recent history of offending on bail.
  • The concession by the prosecution that pre-trial custody would likely exceed the non-parole period for the charged offences carried significant weight in the court's reasoning, reinforcing the importance of proportionality in remand decisions.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17(1), 20, 25, 49(3)

Cases:
- R v SK; R v DK [2014] NSWSC 816 (McCallum J)