Citation: R v Ali-Ahmad [2018] NSWSC 413
Court: Supreme Court of New South Wales
Date: 5 April 2018
Judge: Garling J
Background
A 21-year-old applicant had been in custody since 30 November 2017, charged with serious offences including dealing with proceeds of crime (AU$469,740), knowingly participating in a criminal group that supplied cocaine, and related offences. He was alleged to be one of the principals in an 11-person syndicate responsible for supplying cocaine across Sydney, generating over $1.2 million in proceeds.
A previous bail application had been refused by Adams J on 9 March 2018, primarily because the proposed residential rehabilitation arrangement was unsuitable. Her Honour indicated that a different rehabilitation proposal could constitute a change of circumstances under section 74 of the Bail Act 2013, permitting a further application.
The current application presented a new proposal: admission to Niagara Lodge, a medium-term residential rehabilitation facility, supported by $2.79 million in monetary security offered by family members and friends, and an undertaking to wear an electronic monitoring device.
Legal Issues
- Whether the applicant had demonstrated grounds for a further release application under section 74 of the Bail Act 2013 by presenting a new rehabilitation proposal.
- Whether the applicant could show cause why his detention was not justified, as required by section 16B(1)(h)(ii) of the Bail Act 2013 (applicable because he was on bail for a prior drug offence when arrested).
- Whether the proposed bail conditions were adequate to reduce any identified bail risks to an acceptable level.
Decision
Issue 1: Section 74 Threshold
The Crown conceded that the new Niagara Lodge proposal, together with the withdrawal of one of the drug charges, constituted a change of circumstances sufficient to satisfy section 74 of the Bail Act 2013 (at [5]-[6], [12]). The Court accordingly proceeded to hear the application.
Issue 2: Show Cause Requirement
Because the applicant was on bail for a prior drug offence at the time of his arrest, he was required to show cause why his detention was not justified (at [7]). The applicant relied on four matters: his young age and first period of custody, the "crossroads" principle derived from The Queen v Osenkowski (1982) suggesting a young person may be capable of reform, the opportunity offered by the rehabilitation program, and the substantial pre-trial delay he would face (at [41]-[47]).
Garling J found none of these matters, individually or together, sufficient to discharge the show cause requirement. The Crown case was very strong and a significant custodial sentence was described as inevitable upon conviction (at [48]). The applicant placed considerable weight on the rehabilitation proposal, but no evidence was placed before the Court that he suffered from drug or alcohol addiction that the program could address. The Court declined to infer addiction merely from a hedonistic lifestyle or from a single occasion on which a small quantity of cocaine was found (at [49]-[53]).
Issue 3: Adequacy of Proposed Conditions
The Court accepted that reporting conditions, an electronic monitoring device, and substantial financial security would likely address the risk of the applicant failing to appear (at [55]). However, the risk of further serious offending was assessed differently. The applicant's offending had been sophisticated and organised, conducted beyond the observation of family, and continued despite existing bail conditions (at [56]-[57]). His history of providing false identities to police, evading arrest, ignoring bail undertakings, and failing to appear in court gave the Court no confidence that he would refrain from further offending if released (at [58]). The strict conditions proposed were found to be inadequate to reduce that risk to an acceptable level (at [60]).
Orders Made
- Application dismissed.
Key Takeaways
- Under section 74 of the Bail Act 2013, a new and materially different residential rehabilitation proposal can constitute a change of circumstances sufficient to permit a further bail release application to be heard (at [3]-[5]).
- Where an applicant is required to show cause under section 16B of the Bail Act 2013, placing significant weight on a rehabilitation program requires evidence that the applicant actually suffers from the addiction the program is designed to treat; an inference drawn from lifestyle alone will not suffice (at [49]-[53]).
- A "crossroads" submission, derived from sentencing principles articulated in Osenkowski, may be relevant to a show cause hearing involving a young offender, but it does not in itself discharge the requirement (at [43]-[46]).
- Refusing bail, the Supreme Court distinguished between the risk of failing to appear (which strict financial and monitoring conditions could address) and the risk of committing further serious offences arising from sophisticated, organised criminal conduct (which those same conditions could not adequately address) (at [55]-[57]).
- A pattern of providing false identities to police, evading arrest, breaching bail conditions, and failing to appear in court are matters the court weighs heavily against satisfaction of the show cause requirement (at [58]-[60]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases
- The Queen v Osenkowski (1982) 30 SASR 212