Citation: Director of Public Prosecutions v Sitnikoski [2017] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 8 June 2017
Judges: Hoeben CJ at CL, Bellew J, Fagan J
Background
The respondent was arrested in September 2016 and charged with supplying a large commercial quantity of methylamphetamine, unauthorised possession of a pistol, possession of an unregistered firearm, and possession of ammunition without a licence. Police found 853 grams of methylamphetamine packaged into approximately 30 one-ounce lots, along with a loaded Colt .38 calibre revolver, inside a concealed electrically operated compartment in a utility vehicle apparently under the respondent's care and control.
After remaining in custody for approximately eight months, the respondent was granted conditional bail by a Supreme Court judge on 30 May 2017. Conditions included daily reporting to police and a surety of $850,000 secured over his mother's home unit.
The Director of Public Prosecutions filed a detention application under s 50 of the Bail Act 2013 (NSW) on 2 June 2017, seeking revocation of that bail. The Court of Criminal Appeal heard the application on 8 June 2017 and made its orders that day, with reasons published later.
Legal Issues
- Whether the respondent had shown cause why his detention was not justified under s 16B of the Bail Act 2013 (NSW), which applies to "show cause" offences
- Whether the show cause threshold was met having regard to the strength of the Crown case, the risk of flight, and the risk to community safety
- What weight should be given to the provision of substantial surety and character acknowledgments from family members
- Whether police intelligence not placed before the bail judge below was relevant to the detention application
Decision
Three of the four charges were "show cause" offences under s 16B of the Bail Act 2013. The supply charge attracted the requirement because it carries a maximum of life imprisonment. The two firearms charges attracted it because they were alleged to have been committed while the respondent was already on bail for an earlier offence (a breach of an apprehended violence order). Under the framework established in DPP (NSW) v Tikomaimaleya [2015] NSWCA 83, the show cause question must be resolved first and separately, before any assessment of bail risks under ss 17 to 20 of the Act.
The Court accepted that character acknowledgments from family members, backed by a substantial financial commitment, carried some weight in principle. Section 27 of the Bail Act reflects legislative recognition that such acknowledgments are relevant. However, the Court found that the strength of the Crown's circumstantial case substantially diminished the force of those considerations. The respondent had a vehicle key in his shoulder bag alongside his licence and phone; his sister identified the car as one she had registered in her name for him; and DNA matching the respondent was found at multiple locations including inside the concealed compartment where the drugs and firearm were located.
The severity of the potential penalties weighed heavily against the respondent. The non-parole period for the firearms offence alone would likely exceed any remand period, and the standard non-parole period for the drug supply charge is 15 years. The Court found this elevated the risk of flight. The nature of the allegations, including the scale of drug distribution and the possession of a concealable lethal weapon, also raised community protection concerns.
Additionally, the Director tendered police intelligence concerning the respondent's membership of an outlaw motorcycle gang and associations with members of another such gang. This material had not been before the bail judge. Taking it together with all other factors, the Court was not satisfied the respondent had shown cause why his detention was not justified, and accordingly revoked bail.
Orders Made
- The detention application made under s 50 of the Bail Act 2013 (NSW) is granted
- Bail is revoked
Key Takeaways
- Under s 16B of the Bail Act 2013, a show cause offence requires an accused to affirmatively demonstrate why detention is not justified before the court proceeds to any assessment of bail risks under ss 17 to 20; the two stages are distinct and sequential.
- A substantial financial surety and family character references carry some weight in the show cause analysis but are not determinative; the Court of Criminal Appeal found those considerations were overridden by the strength of the Crown's circumstantial case and the severity of the likely penalties.
- Factual matters relevant to the ss 17 to 20 bail risk assessment, such as flight risk and community safety, may also inform the threshold show cause determination, as confirmed by DPP (NSW) v Tikomaimaleya.
- Police intelligence that was not before the original bail judge is admissible on a detention application and may strengthen the basis for detention, particularly where it bears on the risk of further offending.
- Where the Crown case includes prima facie evidence of large-scale drug distribution paired with possession of a concealable firearm, the combined considerations of flight risk and community protection can justify continued detention even where an accused has no significant prior criminal record.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16B, 17, 19, 20, 27, 50
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 65(3)
Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83