Citation: R v Mahfouz [2023] NSWDC 559
Court: District Court of New South Wales
Date: 25 October 2023
Judge(s): Neilson DCJ
Background
The respondent was charged with supplying a commercial quantity of cocaine (265.2 grams) contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2). She was alleged to have participated in a cocaine supply operation run principally by her son from premises in Bankstown, during a period in early 2019.
On 11 October 2023, the jury returned a verdict of not guilty of the charge as presented, but guilty of the lesser offence of supplying a prohibited drug. Following the verdict, the Crown applied for the respondent's detention, which prompted the bail proceedings summarised here.
Several co-offenders had already been sentenced. The respondent's son (the principal offender) received four years and two months imprisonment, while other participants received sentences ranging from intensive corrections orders to three years imprisonment.
Legal Issues
- Whether the respondent would be sentenced to imprisonment served by way of full-time detention, triggering the presumption against bail under s 22B(1)(b) of the Bail Act 2013 (NSW)
- Whether special or exceptional circumstances existed to justify continuing bail despite that presumption
Decision
Issue 1: Likelihood of full-time imprisonment
Neilson DCJ found that the respondent's offending was comparable to that of co-offender Abdul Arnaout, who was sentenced to three years imprisonment with a non-parole period of one year and six months (at [8]). His Honour noted that Arnaout had received a 10% sentence discount for pleading guilty before trial, whereas the respondent maintained her innocence, showing no contrition or remorse (at [9]). The respondent's continued denial of guilt, despite the jury's verdict, was treated as a relevant sentencing factor working against her. Accordingly, the court found it likely that the respondent would receive a sentence of full-time detention (at [9]).
Issue 2: Special or exceptional circumstances
Neilson DCJ considered two categories of claimed exceptional circumstances. First, the respondent's medical conditions were not considered exceptional, as Justice Health could provide treatment in custody (at [11]). Second, the respondent's role as primary carer for her 84-year-old father was considered more carefully (at [14]).
The court found the respondent's own evidence unsatisfactory, given the jury's clear rejection of her trial testimony after only half an hour of deliberation (at [15]). However, the court accepted that the father's immediate care arrangements were uncertain, noting the absence of evidence that other family members (two sons, two daughters, and approximately nine grandchildren) had been asked to assist (at [14]).
The court found special or exceptional circumstances to exist not on account of the respondent's personal circumstances, but specifically because of the position of her elderly father and the approximately seven weeks remaining until the sentencing hearing on 14 December 2023 (at [16]). His Honour noted in strong terms that if adequate care arrangements for the father were not made in the interim, that failure would constitute a form of elder abuse on the respondent's part (at [17]). The detention application was refused on that limited basis.
Orders Made
- The application for detention is refused.
Key Takeaways
- Under s 22B(1)(b) of the Bail Act 2013 (NSW), once a court finds that a convicted person will likely be sentenced to full-time imprisonment, bail must be refused unless special or exceptional circumstances are established.
- A convicted person's continued maintenance of innocence after verdict, while permissible, indicates an absence of contrition or remorse that bears on the likely sentence and, by extension, on whether full-time detention is probable (at [9]).
- Refusing the detention application, the District Court distinguished between the respondent's personal circumstances (not exceptional) and the situation of a dependent third party, finding that the welfare of an elderly, frail parent with no confirmed alternative carer could constitute special or exceptional circumstances justifying continuation of bail (at [16]).
- The court gave significant weight to the short timeframe involved: roughly seven weeks until a fixed sentencing date, rather than an indefinite period of liberty (at [16]).
- Where exceptional circumstances rest on a carer's role, the absence of evidence that other family members were asked to assist is a factor the court will examine when assessing whether the claimed dependency is genuine and unresolvable (at [14]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013 (NSW)
- Criminal Code 1995 ( Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- Haddara v The Commonwealth Director of Public Prosecutions [2006] VSC 8
- R v Naizmand [2016] NSWSC 836
- R v NK [2016] NSWSC 498