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Court of Criminal Appeal 12 August 2016

R v S

[2016] NSWCCA 189

Assault & violenceDrugsTheft & propertyFirearms & weaponsPublic order & justice offences
BAIL CROWN APPLICATION FOR DETENTION SERIOUS OFFENDING STRONG CROWN CASE CAUSE NOT SHOWN DETENTION APPLICATION GRANTED

Citation: R v S [2016] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 12 August 2016
Judges: Macfarlan JA, Hall J, Bellew J

Background

The respondent faced a substantial series of charges arising from three separate episodes of alleged offending. The first involved property damage and stalking/intimidation of a complainant (referred to as B) in March 2016. The second related to a November 2015 incident in which the complainant Kamoto was allegedly lured to premises, detained at knifepoint, physically assaulted, and robbed. The third episode, in April 2016, involved further allegations of aggravated detention, armed robbery, drug possession, and discharging a firearm with intent to cause grievous bodily harm.

Critically, several of these alleged offences occurred while the respondent was already on conditional bail. She was released again by Garling J on 19 July 2016 subject to strict conditions, including daily reporting to police, a curfew, residence restrictions, and prohibitions on contact with witnesses and co-accused.

The Director of Public Prosecutions applied under section 50 of the Bail Act 2013 (NSW) for the respondent's detention. The Court of Criminal Appeal heard the application on 12 August 2016 and determined it afresh, not as an appeal from or review of Garling J's decision.

  • Whether the respondent had shown cause why her continued detention was not justified under the Bail Act 2013 (NSW)
  • Whether the strength of the Crown case and the seriousness of the alleged offending weighed against release
  • Whether the respondent's proposed support arrangements, including residence with her father and engagement with mental health treatment, were sufficient to establish cause
  • Whether the reduction in available family support since the original release order was a relevant consideration

Decision

The Court found that the Crown case on each set of charges was strong. The alleged November and April offending was particularly serious, involving violent conduct, weapons, and deprivation of liberty. Several of the offences were alleged to have been committed while the respondent was already on bail, a factor the Court weighed heavily.

The Court accepted that, in the event of conviction, a substantial custodial sentence was inevitable. This consideration significantly undermined the case for release, as any conditions imposed on bail would only defer that outcome.

A central feature of the application was a reduction in the family support available to the respondent since her release by Garling J. Her father, who had been a cornerstone of the support arrangement underpinning that release, was no longer available to provide the same level of supervision. Without his consistent presence, the conditions attached to the earlier release order could not operate as effectively.

The Court also examined the respondent's engagement with mental health treatment. There was a delay of approximately two and a half weeks between release and her first appointment with a treating doctor, and the resulting mental health plan lacked meaningful detail. The Court was not satisfied that the respondent was approaching her mental health issues with the seriousness required, and could not be confident those issues would be properly managed outside custody. Taking all circumstances together, the respondent had not shown cause why her detention was not justified.

Orders Made

  • The Crown's detention application was granted
  • Bail was refused
  • The respondent was returned to custody

Key Takeaways

  • Alleged offending committed while on bail is a significant factor weighing against a subsequent release application under the Bail Act 2013 (NSW).
  • A strong Crown case and the near-certainty of a custodial sentence upon conviction are relevant considerations that weigh heavily against the applicant for release showing cause.
  • Under the Bail Act 2013 (NSW), factors such as age, absence of prior criminal history, community ties, and family support do not, without more, amount to showing cause, particularly where the alleged offending is serious and the Crown case is strong.
  • Reductions in the practical support available to a respondent since an earlier release order was made are relevant to whether the conditions contemplated by that earlier order can still operate effectively.
  • Where a respondent raises mental health as a factor in support of release, the court may require more than a bare reference to a treatment plan; insufficient detail about how those issues will be managed outside custody may undermine the case for release.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 50
- Crimes Act 1900 (NSW), ss 86(3), 97(1), 195(1)(A), 33A(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- Director of Public Prosecutions (NSW) v Brooks [2015] NSWCCA 190
- R v Kugor [2015] NSWCCA 14