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Supreme Court 14 December 2018

Mohr v R (No 3)

[2018] NSWSC 1955

Drugs
BAIL VARIATION OF CONDITIONS DISCUSSION OF BAIL ACT APPLICATION REFUSED.

Citation: Mohr v R (No 3) [2018] NSWSC 1955
Court: Supreme Court of New South Wales
Date: 14 December 2018
Judge: Rothman J

Background

The applicant faced a charge of conspiracy to import a commercial quantity of cocaine (500 kg) under the Criminal Code Act 1995 (Cth), carrying a maximum penalty of life imprisonment. His initial bail applications were refused at every level before Hamill J granted bail in December 2017, subject to a strict house arrest condition confining the applicant to his Queensland residence except for court attendance, legal conferences, and twice-daily reporting to police.

The applicant had been on bail for approximately 12 months without any recorded breach of his conditions. His trial was not listed to commence until February 2020, with two co-accused trials to be heard in the second half of 2019.

The applicant sought to vary his bail by removing the house arrest condition and replacing it with commercially provided electronic monitoring. He argued his compliance record and the monitoring capacity of electronic technology made the substitution appropriate.

Legal Issues

  • Whether a variation of bail conditions constitutes a "bail decision" under the Bail Act 2013 (NSW), and whether the "show cause" requirement under section 16A applies to such a variation
  • Whether section 74 of the Bail Act (which restricts further bail applications after a refusal) applied to the grant of bail by Hamill J following the applicant's discharge at committal
  • Whether removing the house arrest condition and substituting electronic monitoring adequately addressed the bail concern of flight risk

Decision

Issue 1: Does the show cause requirement apply to a bail variation?

Rothman J held that a variation of bail conditions does not constitute a "bail decision" as defined in section 8 of the Bail Act 2013 (NSW) (at [24]-[25]). Because a variation falls outside that definition, the show cause requirement under section 16A does not apply to it, and it would be inappropriate to require the applicant to show cause as to why the variation should be granted (at [25]).

Issue 2: Did section 74 apply to the earlier bail grant by Hamill J?

The court discussed, but declined to finally determine, whether section 74 applied when Hamill J granted bail after the committal discharge (at [23]). Rothman J observed that the dismissal of a charge at committal does not, by itself, make a subsequent application an application for a different offence, since the charge remains constant (at [21]). However, the dismissal at committal could ordinarily be treated as "grounds for a further release application" within the meaning of the Act (at [22]). Because the bail grant was not appealed and the current application was a variation rather than a bail decision, it was unnecessary to resolve the section 74 question (at [23]-[24]).

Issue 3: Should the house arrest condition be replaced with electronic monitoring?

Rothman J identified the house arrest condition as principally directed at the flight risk, with a secondary function of reducing the risk of further serious offences (at [32]). His Honour noted that the Crown case against the applicant is a strong one and that significant full-time custody on conviction can be expected, lending continued weight to the flight risk concern (at [46]-[47]). Although electronic monitoring would provide greater monitoring capacity in theory, its imperfections had previously been noted by Fullerton J and weighed against the applicant in the original bail refusal (at [42]). Rothman J gave considerable weight to the preference of law enforcement agencies, informed by police and other agencies, for house arrest over electronic monitoring as the more effective means of addressing flight risk (at [51]-[53]). The applicant's compliance record and the personal hardship of home detention were acknowledged but were not sufficient to displace that conclusion (at [52]-[53]).

Orders Made

  • Application for variation of bail conditions refused.

Key Takeaways

  • A variation of bail conditions does not constitute a "bail decision" under section 8 of the Bail Act 2013 (NSW), meaning the show cause requirement under section 16A does not apply to variation applications (at [24]-[25]).
  • Under the Bail Act 2013 (NSW), bail conditions must be no more onerous than necessary to address the relevant bail concern, and a court considering a variation must assess which condition better ameliorates that concern (at [31]-[32]).
  • The dismissal of a charge at committal does not, of itself, transform a subsequent bail application into one for a different offence for the purposes of section 74, though the dismissal may constitute "grounds for a further release application" (at [21]-[22]).
  • Refusing the variation, the Supreme Court gave significant weight to law enforcement agencies' preference for house arrest over electronic monitoring as the more reliable mechanism for addressing flight risk, particularly where the imperfections of electronic monitoring had already featured in an earlier bail refusal (at [51]-[53]).
  • A strong Crown case and the prospect of significant full-time custody upon conviction are factors capable of informing a court's exercise of discretion on a bail variation application, even where the formal show cause threshold does not apply (at [30], [46]-[47]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.(1)

Cases
- Darren Mohr v R [Supreme Court (NSW), 22 December 2017, unrep]
- R v Darren Mohr [Supreme Court (NSW), 27 April 2017, unrep]