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Supreme Court 23 July 2015

R v Mawad

[2015] NSWSC 1237

Theft & propertyFirearms & weapons
CRIMINAL LAW BAIL APPLICATION SHOW CAUSE COMBINATION OF CIRCUMSTANCES YOUNG CHILDREN WITH DISABILITIES LENGTHY REMAND PERIOD

Citation: R v Mawad [2015] NSWSC 1237
Court: Supreme Court of New South Wales
Date: 23 July 2015
Judge(s): Hamill J

Background

The applicant was charged with serious offences arising from an armed robbery at a hardware store in Chullora, in which two employees were threatened with what appeared to be a handgun and over $40,000 was stolen. A co-offender had provided full admissions to police and named the applicant as a participant. Police also located an air pistol at the applicant's home during a subsequent search warrant, resulting in a further charge of possessing an unauthorised firearm.

Because the charges involved an alleged firearm, the applicant was required under s 16A of the Bail Act 2013 (NSW) to "show cause" why his continued detention was not justified. This is a higher threshold than the standard bail test: the applicant bears the burden of demonstrating that detention is not warranted before the court proceeds to assess bail concerns.

At the time of the application, the applicant had been in custody for some months. His case was listed for a committal hearing in August 2015, with a trial not expected for at least a further year after that.

  • Whether the applicant could satisfy the "show cause" requirement under s 16A of the Bail Act 2013 (NSW), given the serious nature of the charges
  • Whether, if show cause was satisfied, any identified bail concerns amounted to "unacceptable risks" under s 19 of the Act
  • Whether proposed bail conditions could adequately alleviate those concerns

Decision

Hamill J accepted that the show cause requirement must be addressed first, as a distinct and separate question from the assessment of bail concerns. His Honour confirmed, drawing on the approach taken in R v Young [2006] NSWSC 1499, that a combination of circumstances working together can satisfy the threshold, even if no single factor would do so alone.

On the show cause question, Hamill J found that the anticipated remand period of up to 18 months, taken alone, would not have been sufficient given the seriousness of the charges and the apparent strength of the Crown case. However, that factor combined with the applicant's family circumstances tipped the balance. The applicant had two young children, both with disabilities, one with a confirmed hearing impairment and one with a likely autism spectrum disorder, who were experiencing significant distress from the separation. The family's income depended almost entirely on the applicant's glazing business, which remained salvageable only if bail was granted promptly. His Honour was careful to note that bail was not being granted out of sympathy, but that these circumstances, in combination, satisfied the show cause requirement.

Turning to bail concerns, Hamill J acknowledged real risks: non-attendance, commission of further serious offences, danger to the community, and some risk to the Crown witness who had implicated the applicant. Working through the s 18 factors, his Honour noted the extreme seriousness of the offences, the strength of the Crown case, the likelihood of a custodial sentence on conviction, and some history of non-compliance with bail conditions. Against those factors, he weighed the applicant's limited criminal history (no relevant adult violence), the strong incentive to comply presented by the proposed surety, and the family's need for the applicant's presence.

The proposed bail conditions were decisive in resolving the unacceptable risk question. The offer of $300,000 in security, representing the family's entire equity in their home, led Hamill J to conclude it was most unlikely the applicant would forfeit that by failing to appear. The suite of additional conditions, including daily reporting, a curfew, non-association orders, and travel restrictions, alleviated the remaining concerns to below the threshold of unacceptable risk. Bail was granted.

Orders Made

  • The applicant to be of good behaviour
  • Daily reporting to Bankstown Police Station between 8:00 am and 5:00 pm
  • Residence at a specified address
  • Curfew: not to be absent from residence between 8:00 pm and 6:00 am, except in a medical emergency
  • Not to consume alcohol or enter licensed premises
  • Not to use illegal or non-prescribed drugs
  • No association or communication with co-accused Torik Jamal (except through a lawyer)
  • No contact with the Crown witness or any prosecution witness (except through a legal representative)
  • Not to apply for any passport or travel document
  • Not to approach within 500 metres of any international departure point
  • One surety to deposit $300,000, forfeitable on failure to appear
  • One surety to deposit $10,000, forfeitable on failure to appear
  • To present at the front door of the residence to confirm curfew compliance when directed by police on reasonable grounds
  • To appear at Burwood Local Court on 13 August 2015 and as required thereafter

Key Takeaways

  • Under the Bail Act 2013 (NSW) as amended in 2014, the "show cause" requirement in s 16A is a distinct threshold question that must be resolved before a court turns to bail concerns. It must be addressed first: R v Tikomaimaleya [2015] NSWCA 83 confirmed this sequencing.
  • A combination of circumstances, none of which is individually determinative, can together satisfy the show cause requirement. Hamill J applied this principle (drawn from the "exceptional circumstances" reasoning in R v Young) to find that prolonged remand combined with dependent children with disabilities crossed the threshold.
  • Anticipated remand periods of 18 months or more carry real weight in bail analysis, but the Supreme Court indicated they are unlikely to suffice on their own where charges are serious and the Crown case is strong.
  • Onerous bail conditions, particularly the offer of substantial surety tied to the family home, can reduce identified bail concerns below the level of "unacceptable risk" under s 19, even where genuine concerns about non-attendance and community safety exist.
  • Factors relevant to the bail concerns assessment under s 18 may also inform the show cause analysis, but the two inquiries remain legally separate and distinct.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 18, 19
- Bail Act 1978 (NSW)
- Bail Amendment Act 2014 (NSW)
- Firearms Act (NSW) (extended definition of firearm)

Cases:
- R v Tikomaimaleya [2015] NSWCA 83
- R v Young [2006] NSWSC 1499