Citation: Tugaga v R [2021] NSWDC 388
Court: District Court of New South Wales
Date: 10 August 2021
Judge: Haesler SC DCJ
Background
The applicant had been sentenced in November 2018 to three years and three months imprisonment for firearms and commercial cannabis supply offences. He was released to parole in March 2020 but was arrested in October 2020 and charged with supplying 16 grams of methylamphetamine. His parole was revoked, and he served the balance of his parole period until 31 July 2021.
Following a charge negotiation process, the applicant was committed to the District Court for sentence. Before the first mention, a release application was filed. The matter was listed for sentence on 3 September 2021, with the bail application initially placed in abeyance before being pursued on 9 August 2021.
Because jury trials could not proceed during the COVID-19 lockdown, the sentence date was brought forward. The bail application was determined in chambers in accordance with a direction from the Chief Judge, with written submissions received from both the applicant's counsel and the Director of Public Prosecutions.
Legal Issues
- Whether the applicant had satisfied the "show cause" requirement under section 16A of the Bail Act 2013, given that the alleged offence was committed while he was on parole
- Whether the proposed bail conditions were capable of mitigating identified bail concerns, including the risk of flight and the risk of further drug supply offending
- Whether the section 18 Bail Act considerations independently warranted refusal of bail
Decision
The court found that the applicant had not shown cause why his detention was not justified. The offence alleged was drug supply committed while he was on parole for an earlier drug supply offence also committed for commercial gain. Apart from the applicant's general desire for liberty, no specific cause was advanced. The court noted that there was no inordinate delay in the proceedings and no evidence that the applicant would be disadvantaged in preparing for sentence.
On the "show cause" question, the court rejected the submission that the relatively low objective seriousness of the offence, combined with the proposed conditions, was sufficient to establish cause. The applicant's history of parole breach and repeated commercial drug supply offending meant that the risk of further similar offending remained.
Even if cause had been shown, the court held that the section 18 considerations would independently require refusal. The proposed conditions, described as very stringent, were found incapable of ameliorating the risk of further drug supply offences endangering the community or the risk of flight. On the risk of flight, the court noted that a full-time custodial sentence was likely, giving the applicant considerable incentive to flee the jurisdiction, and that COVID-19 travel restrictions did not sufficiently address that risk.
The court also addressed the sentencing discretion question, emphasising that refusing bail did not constrain the sentencing court's options. Alternative dispositions such as an intensive correction order remained available for genuine consideration, and each case required individual assessment.
Orders Made
- The bail application was refused.
Key Takeaways
- Under section 16A of the Bail Act 2013, an applicant who commits an offence while on parole must show cause why their detention is not justified; a general desire for liberty and relatively low objective seriousness are insufficient to meet that threshold.
- Refusing bail on "show cause" grounds does not foreclose an alternative sentencing outcome; the District Court affirmed that a sentencing court's discretion cannot be judicially constrained and that each offender must be sentenced individually.
- Proposed bail conditions, however stringent, will not satisfy the bail test if they cannot realistically address the specific risks identified, such as a pattern of commercial drug supply offending and a likely custodial sentence creating flight incentive.
- COVID-19 travel restrictions were considered but found insufficient on their own to neutralise a risk of flight where other factors, particularly the prospect of imprisonment, gave an applicant strong reasons to abscond.
- In cases involving illicit drug trafficking, the court confirmed the established principle drawn from Robertson v R [2017] NSWCCA 205 that a sentence of imprisonment is generally imposed absent unusual circumstances, regardless of the level at which the trafficking occurred.
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW), ss 16A, 18
Cases
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
- DPP v Mawad [2015] NSWCCA 227
- EF v R [2015] NSWCCA 36
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45
- McAndrew v R [2016] NSWCCA 58
- R v Tugaga, unreported DC NSW, 16 November 2018
- R v Xi [2015] NSWSC 1575
- Robertson v R [2017] NSWCCA 205