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Supreme Court 23 June 2014

R v Daniel

[2014] NSWSC 1968

Drugs
CRIMINAL LAW BAIL RELEASE APPLICATION SUPPLY OF PROHIBITED DRUG EX TEMPORE JUDGMENT S 74 OF THE BAIL ACT 2013 (NSW)

Citation: R v Daniel [2014] NSWSC 1968
Court: Supreme Court of New South Wales
Date: 23 June 2014
Judge(s): Button J

Background

The applicant, a man in his mid-thirties, faced charges of supplying a prohibited drug (inferred to be an amphetamine) on multiple occasions between February and April 2013. The allegations ranged from small street-level deals to four instances of supplying a large commercial quantity, substantially exceeding the statutory threshold. The maximum penalty for those offences is life imprisonment, with a standard non-parole period of fifteen years.

The Crown case relied heavily on electronic evidence, including video surveillance, recorded conversations, and SMS messages. At the time of arrest, the applicant was also found with $1,100 in cash, street deals, and items consistent with drug supply. His solicitor did not seek to challenge the strength of the Crown's evidence.

The applicant had previously been refused bail by Beech-Jones J in September 2013. This application came approximately fourteen months later, after the applicant had received psychiatric treatment and medication in custody, and with a proposed residential and support arrangement in place.

  • Whether the threshold requirement under section 74 of the Bail Act 2013 (NSW) was satisfied, permitting the court to consider a further bail application after a prior refusal
  • Whether there was an unacceptable risk that the applicant would fail to appear if granted bail
  • Whether any proposed bail conditions could adequately mitigate that unacceptable risk

Decision

Button J accepted, without detailed statutory analysis and on the basis agreed by both parties, that the section 74 threshold had been satisfied. The change in the legislative presumption (which no longer operated against the applicant under the new Act) and the effluxion of time since the previous refusal were treated as sufficient changes in circumstances to allow the application to proceed.

Turning to the merits, the court assessed the unacceptable risk factors under section 17 of the Bail Act 2013. Button J found the applicant's background, community ties, and absence of a history of violence or prior serious offending on bail were factors in his favour. The applicant's improved mental health and proposed arrangements, including residing with a relative in Queanbeyan, regular police reporting, abstaining from drugs and alcohol, and a $20,000 surety from his mother, were all considered.

Despite those positive factors, the court identified an unacceptable risk that the applicant would fail to appear. Button J reasoned that the extreme seriousness of the charges, the very strong Crown case built on electronic evidence, and the near certainty of a lengthy custodial sentence upon conviction created a powerful motivation to abscond. The court also noted a view that the applicant's drug problem remained unresolved.

The proposed conditions, although detailed and substantial, were found insufficient to mitigate that risk to an acceptable level. Bail was refused.

Orders Made

  • Bail refused.

Key Takeaways

  • Refusing bail under the Bail Act 2013 (NSW), the Supreme Court held that the strength of the Crown's case and the prospect of a lengthy custodial sentence upon conviction can together create a flight risk so significant that even detailed bail conditions cannot reduce it to an acceptable level.
  • Under section 74 of the Bail Act 2013, a subsequent bail application following a prior refusal requires a threshold to be met; here, the removal of a legislative presumption against bail and the passage of approximately fourteen months were accepted (without detailed statutory analysis) as satisfying that threshold.
  • Positive changes in an applicant's circumstances, including improved mental health, proposed stable accommodation, family support, financial sureties, and reporting conditions, do not automatically overcome an unacceptable risk of non-appearance where the incentive to abscond is assessed as powerful.
  • The court treated the near inevitability of significant imprisonment upon conviction, combined with a very strong evidentiary case, as central to the flight risk assessment under section 17(3).
  • Button J acknowledged the regrettable consequence that the applicant would likely spend a further year in pre-trial custody, but held that this did not alter the bail determination where the statutory risk threshold was not satisfied.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 17, 17(3), 74

Cases:
No cases were cited in the judgment.