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Local Court 14 September 2021

United States of America v Kumar aka Valentine

[2021] NSWLC 5

Fraud & dishonesty
EXTRADITION ACT 1988 (CTH), S 15 REMAND APPLICATION FOR BAIL S 15(6) APPLICANT PLACED IN PROTECTIVE CUSTODY ONEROUS CONDITIONS OF INCARCERATION

Citation: United States of America v Kumar aka Valentine [2021] NSWLC 5
Court: Local Court of New South Wales
Date: 14 September 2021
Judge(s): Donnelly LCM

Background

The applicant was arrested in New South Wales on 7 June 2021 following the execution of a provisional extradition arrest warrant. The United States sought his extradition to face prosecution in the Southern District of California for conspiracy to engage in a racketeer influenced and corrupt organisation, contrary to Title 18, United States Code, section 1962(d). A Grand Jury indictment had been returned in May 2021 alleging the applicant was a Distributor within the ANOM organisation, an encrypted device provider that sold communications services to transnational criminal organisations.

The applicant had been held in custody at Parklea Correctional Centre since his arrest, initially in quarantine and subsequently in a protective custody unit. He made a bail application at Central Local Court on 31 August 2021, with judgment delivered on 14 September 2021.

The applicant sought release on bail under section 15(6) of the Extradition Act 1988 (Cth), which requires a person seeking bail in extradition proceedings to demonstrate "special circumstances justifying such a course." He relied on a combination of circumstances: the onerous nature of his protective custody conditions, pre-existing and worsening mental health conditions, and the hardship his incarceration caused his elderly and unwell parents.

Legal Issues

  • Whether the circumstances relied upon by the applicant, individually or in combination, amounted to "special circumstances" under section 15(6) of the Extradition Act 1988 (Cth) justifying remand on bail.
  • Whether the applicant's placement in protective custody constituted special circumstances.
  • Whether the applicant's pre-existing and deteriorating mental health constituted special circumstances.
  • Whether hardship to the applicant's parents constituted special circumstances.
  • Whether, even if special circumstances were established, the applicant was a real risk of flight such that bail should nonetheless be refused.

Decision

The applicable legal framework

The magistrate applied the principles set out by the High Court in United Mexican States v Cabal (2001) 209 CLR 165, which established that bail in extradition proceedings should ordinarily be refused and that special circumstances must be demonstrated before bail is granted. A bail decision in this context is an administrative decision made by the magistrate in a personal capacity, not as a member of the Local Court (at [4]). The magistrate also accepted that past extradition bail decisions are not binding precedents, though they may illuminate relevant factual considerations (at [16]).

Issue 1: Conditions of protective custody

The applicant was held in a segregation unit for approximately 23.5 hours per day in a small cell, apparently because the nature of the ANOM charges placed him at risk of harm from other inmates. The magistrate accepted this was unfortunate but found the conditions did not rise to the level of being extraordinarily harsh so as to constitute special circumstances (at [39]-[40]). The protective custody arrangement was not unexpected given the nature of the charges: persons alleged to have facilitated transnational crime cannot establish special circumstances merely because such charges necessitate placement in protective custody (at [40]).

Issue 2: Mental health

A psychiatric report diagnosed the applicant with depressive illness, anxiety disorder and substance use disorder, and opined that solitary confinement would likely exacerbate these conditions (at [24]). The magistrate found this evidence fell short of establishing the "serious deterioration of health" required to constitute special circumstances under Cabal (at [41]). The materials from Corrective Services NSW and St Vincent's Corrective Health indicated that mental health services were available at Parklea Correctional Centre and that the applicant's conditions could be managed in custody (at [42]).

Issue 3: Hardship to parents

The applicant's father provided evidence of significant health difficulties affecting both parents and described the applicant's role in their daily care. The magistrate accepted that some hardship would result from refusing bail but found the circumstances were not uncommon in extradition cases and did not constitute special circumstances (at [43]-[44]). Hardship to third parties is an unfortunate but ordinary consequence of extradition proceedings.

Issue 4: Combination of circumstances

Applying the approach confirmed by the Full Federal Court in Tsvetnenko v United States of America [2019] FCAFC 74, the magistrate considered all circumstances in aggregate. The combined circumstances were found not to constitute special circumstances because none individually approached the exceptional category, and together they did not take the case into the exceptional territory required by section 15(6) (at [45]-[46]).

Issue 5: Flight risk

The magistrate separately considered whether the applicant was a real risk of flight. Despite the applicant's arguments that pandemic-related travel restrictions, modest financial means and close family ties reduced any flight risk, the magistrate found the applicant was a real risk of flight. The charge carried a maximum penalty of 20 years imprisonment, and his criminal history included a conviction for police pursuit resulting in full-time imprisonment, as well as breaches of licence disqualification orders (at [50]). The flight risk finding provided an independent basis for refusing bail.

Orders Made

  • The application for bail pursuant to sections 15(2) and 15(6) of the Extradition Act 1988 is refused.

Key Takeaways

  • Under section 15(6) of the Extradition Act 1988 (Cth), bail in extradition proceedings is refused unless the applicant demonstrates "special circumstances justifying such a course," consistent with the general rule affirmed in United Mexican States v Cabal that extradition defendants are ordinarily held in custody (at [12]-[14]).

  • Placement in protective custody arising directly from the nature of the extradition charges does not, without more, constitute special circumstances. The conditions of protective custody were not regarded as unexpected given the allegations of facilitating transnational criminal activity (at [39]-[40]).

  • A psychiatric diagnosis and expert opinion that conditions of custody would likely adversely affect mental health do not establish special circumstances unless the evidence demonstrates a serious deterioration in health. Evidence that the applicant's condition may be "adversely affected" was insufficient (at [41]).

  • Hardship to third parties caused by an applicant's incarceration during extradition proceedings is an unfortunate but ordinary consequence of the statutory scheme and does not, in itself or in combination with other non-exceptional circumstances, satisfy the special circumstances test (at [43]-[44]).

  • Where special circumstances are not established, a real risk of flight remains an independent and sufficient ground to refuse bail. The seriousness of charges carrying a substantial maximum penalty and a criminal history involving non-compliance with court orders are relevant factors in assessing flight risk (at [50]).

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW),
- Extradition Act 1988 (Cth ), ss 12, 16, 15, 21, 53
- Extradition Amendment Act 1990
- Title 18, United States Code, section 1962(d)

Cases
- Adamas v The Hon Brendan O Connor (No 3) [2012] FCA 365
- Barney v United Kingdom [2012] FCA 51
- Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
- DPP v Zaiter [2016] NSWCCA 247 .
- R v Edwards (1996) 90 A Crim R 510
- Haddad v Lyon [2003] FCA 1623
- Heslehurst v Government of New Zealand [2000] FCA 937
- O’Donoghue v Ireland [2009] FCA 394
- Pasini v United Mexican States [2002] HCA 3; 209 CLR 246
- Salerno v United States 878 F 2d 317 (9th Cir 1989) Taylor v United States of America [2012] FCA 366
- Tsvetnenko United States of America [2019] FCAFC 74
- United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
- United Kingdom v Forsyth (No 2) [2003] FCA 1072 United States v Green (2009) 257 ALR 252 United States v Taitz 130 FRD 442 at 446 (SD Cal 1990).
- Vasiljkovic v Commonwealth of Australia (2006) 227 CLR 614