Debono v Director of Public Prosecutions (NSW)

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JUDGMENT

1. Luke Debono makes a release application pursuant to the Bail Act 2013 (NSW) (“the Act”). I have resolved that bail should be granted on very strict conditions. These are my reasons for that decision.

Section 74 prohibition on multiple release applications

2. The application has several hurdles, the first of which is that this is Mr Debono’s second application to this Court and the provisions of s 74 of the Act apply. That provision prohibits a second release application unless, relevantly:

(b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c) circumstances relevant to the grant of bail have changed since the previous application was made

3. A number of circumstances have changed since Mr Debono was refused bail by Ierace J on 14 October 2024. Most significantly, material information concerning the applicant’s medical condition was presented on the present application. That information came in the form of the report and oral evidence of Honorary Professor Richard Fox, a well-qualified oncologist now based in Melbourne. Dr Fox provided clear evidence that Mr Debono has symptoms of lymphoma which require investigation which has been delayed for some time because of the applicant’s incarceration. There are some complications around that aspect of the case to which I will return. However, Dr Fox’s evidence was such that Mr Singh, who appears for the Director of Public Prosecutions, accepted the applicant’s submission that s 74 was overcome.

4. I am satisfied that I should accept Mr Singh’s very fair and proper concession and consider the application on its merit.

The facts of the case and evidence on the bail application

Delays in resolution of the application

5. The application came before me in the bail list on 20 February 2025. The applicant’s lawyers, for reasons which were unexplained or – when explained – unacceptable, filed and served additional material the day before the application was due to be heard. That material was described as evidence in the “defence reply” but it was, in no relevant sense, responsive to the prosecution bundle. Because of the nature and volume of that material and the history of the matter – specifically that a false medical certificate was tendered on a bail application made in the Tweed Heads Local Court back in June of 2024 – the Prosecutor and investigating police required more time to investigate the evidence that should have been provided when the application was originally filed.

6. I granted the application for the adjournment. Had the matter been returned to the Registrar’s list, there would have been a delay of some months before the application was heard. However, the delinquency was that of the applicant’s solicitors and not the fault of Mr Debono himself. It seemed unfair that his application be greatly delayed as a result, particularly in light of s 71 of the Act which provides that “[a] bail application is to be dealt with as soon as reasonably practicable.” I had also read all of the material and it would have been inefficient to have another Judge forced to do the same. My Associate, with the assistance of Registry staff, was able to find a date where I could hear the matter and so the application was adjourned, part heard, until 26 March 2025.

The alleged offences

7. The prosecution bundle, Ex A on the application, set out the facts of the offences alleged against the applicant. They fall into two groups.

8. The first group of offences arose on 5 December 2023. The applicant was arrested and charged that day with a series of offences including receiving stolen property (fishing equipment valued at around $80,000) that it seems was stolen from a store in Melbourne, dangerous driving in the course of a police pursuit in northern New South Wales, possession of an unauthorised pistol and dealing in the proceeds of crime (around $110,000 in cash). The Director has certified some 13 charges arising out of that incident, many of which appear to be alternatives or closely related offences. Those offences and the relevant penalties are as follows:

| Sequence Number | Offence | Maximum Penalty | | 2 | Possess unregistered unauthorised pistol in public place-T2: s 93I(2) Crimes Act | 14 years imprisonment | | 3 | Possess loaded firearm public place-T2: s 93G(1)(a)(i) Crimes Act | 10 years imprisonment | | 4 | Use, supply, acquire, possess stolen firearm or part-T2: s 51H(1) Firearms Act | 14 years imprisonment | | 5 | Receive etc property stolen outside NSW >$15000-T1: s 189A(1) Crimes Act | 10 years imprisonment | | 6 | Deal with property proceeds of crime < $100000 & < $5000-T2: s 193C(2) Crimes Act | 3 years imprisonment | | 7 | Possess or use a prohibited weapon without permit-T2: s 7(1) Firearms Act | 14 years imprisonment 5 year standard NPP | | 8 | Possess or use a prohibited weapon without permit-T2: s 7(1) Firearms Act | 14 years imprisonment 5 year standard NPP | | 9 | Not keep firearm safely-pistol: s 39(1)(a) Firearms Act | Summary only 2 years imprisonment and/or $5500 | | 10 | Possess ammunition w/o holding licence/permit/authority: s 65(3) Firearms Act | Summary only $5500 fine only | | 11 | Deal with property proceeds of crime => $100000-T1: s 193C(1) Crimes Act | 5 years imprisonment | | 12 | Police pursuit - not stop - drive dangerously -1st off-T2: s 51B(1) Crimes Act | 3 years imprisonment | | 13 | Police pursuit - not stop - drive at speed - 1st off-T2: s 51B(1) Crimes Act | 3 years imprisonment | | 16 | Deal with property proceeds of crime < $100000 & < $5000-T2: s 193C(2) Crimes Act | 3 years imprisonment |

9. I turn to the facts and evidence relating to those offences which were presented in the form of a prosecution case statement. A little before 8:00am on 5 December 2023, police pursued a BMW SUV with Victorian number plates (1YT 4UV) but aborted the pursuit when the BMW reached a speed of around 240km/h. It is alleged that traffic cameras show the applicant was driving the vehicle. Stills from that camera were later tendered and there may be some issue as to the extent to which the applicant can be identified in those shots. Later that day, police received information that the occupants of the BMW had acquired a second car (Toyota Hilux EVK 35D) and were transferring items from the BMW to the Toyota. They attempted to book a room at a hotel to store the fishing equipment but did not proceed with the booking. Police attended the hotel, but the four alleged offenders had departed in the Toyota. A second police pursuit occurred around midday which traversed around 1km with the Toyota reaching speeds of 133km/h in a 110km/h speed zone. The vehicle was stopped in Coffs Harbour when police deployed road spikes. Three of the men in the car, including Mr Debono, were arrested and the fourth (“Keenan”) took flight on foot but was apprehended quickly.

10. When arrested, Keenan was carrying two “bum bags”. The smaller bag contained a Smith & Wesson .40 calibre pistol with a loaded round in the chamber and the larger bag contained some drugs and a large amount of ammunition for the gun. CCTV footage from earlier in the day showed Keenan in possession of the larger bum bag while the applicant was carrying the smaller bag. The various accused denied possessing the gun. A search of the vehicle located several items including a flick knife, various amounts of cash, more ammunition, fishing equipment and the Victorian number plates that came from the BMW. The location of the items and the position in which the applicant was said to be seated in the car supported (but does not conclusively prove) the proposition that he was in possession of some or all of these items. The applicant provided various explanations, denials and some admissions at the scene but ultimately engaged in a “no comment” interview with investigators. In relation to the number plates on the BMW, the applicant made some admissions and provided explanations that, on their face, strain credulity.

11. Subsequent investigations disclosed that a significant amount of fishing equipment was located in the BMW and may have been stolen in a “ram raid” style theft in Melbourne. However, receipts may “account for” equipment up to around $64,000. This part of the prosecution case statement is somewhat opaque. The Smith & Wesson pistol was stolen from a member of Victoria Police on or around 6 October 2023.

12. Speaking globally, and bearing in mind the obvious limitations in making an evaluation at this distance from the trial, my assessment is that the case against the applicant in relation to the 5 December 2023 offences is strong. However, in relation to some of the charges – and in particular the firearm charges – there appears to be a lively and triable issue, the outcome of which may turn on the clarity of the CCTV footage taken earlier in the day.

13. Mr Debono was granted bail by the Coffs Harbour Local Court on the day he was charged. It appears not to be in dispute that he complied with those conditions of bail for a period of around 6 months.

The alleged offences of 2 June 2024 – H 97669028

14. In the early hours of 2 June 2024, a Toyota Hilux with Queensland registration TJS55 was stolen from Main Beach in Queensland and driven into New South Wales. The owner of the car reported the theft and used a tracking service to ascertain its location at an intersection in Bogangar in northern New South Wales. Police attended and noticed the Hilux was bearing New South Wales registration plates and was parked next to a Ford Ranger vehicle. The plates on the Toyota Hilux were stolen from a car in Tweed Heads earlier in the day.

15. Police attempted to arrest the applicant and a man called Manapori. Manapori resisted arrest and a violent confrontation ensued. Meanwhile, the applicant reversed the Ford Ranger in the direction of Manapori and the arresting officer. He did this three times and the officer was “required to take evasive action to avoid being hit”. The Ford Ranger hit a street sign and sped off.

16. A search of the Toyota Hilux disclosed a Smith & Wesson pistol with rounds in the magazine and 22 .40 calibre bullets on the rear seat. Police also found cable ties “formed together as handcuffs” and a Queensland registration plate stolen earlier that day in Kingscliff. Forensic analysis was conducted on the pistol and swabs were taken. The DNA analysis was consistent with the applicant being the major contributor to the DNA located on the pistol.

17. Returning to the events of 2 June 2024, police attended the applicant’s residence in Cudgen at about 11:00am. He was not at home but a short time later the Ford Ranger arrived in the vicinity driven by another man (Jamariya). He walked away and was seen shortly thereafter being dropped back at the Ford Ranger by a taxi. The applicant was a passenger in the taxi and his partner (Courtney Carlsen) was driving. The police ascertained that Jamariya is the regular driver of the taxi and that, at the request of the applicant and his partner, was returning the Ford Ranger to the Thrifty Hire Car outlet at the Gold Coast airport.

18. The applicant was arrested and declined to participate in an electronically recorded interview.

19. Accepting the applicant’s submission that secondary transfer may explain the presence of his DNA on the gun, the case against the applicant still appears to be reasonably strong.

20. The charges were identified in the prosecution bail chronology as follows:

| Sequence Number | Offence | Maximum Penalty | | 1 | Receive etc property stolen outside NSW >$15000-T1: s 189A(1) Crimes Act | 10 years imprisonment | | 2 | Use etc offensive weapon to prevent lawful detention etc-T1: s 33B(1)(a) Crimes Act | 12 years imprisonment | | 3 | Drive recklessly/furiously or speed/manner dangerous-1st off: s 117(2) Road Transport Act | Summary only 9 months imprisonment and/or $2200 | | 4 | Possess prohibited drug: s 10(1) Drug Misuse and Trafficking Act | Summary only 2 years imprisonment and/or $2200 | | 7 | Possess loaded firearm public place-T2: s 93G(1)(a)(i) Crimes Act | 10 years imprisonment | | 8 | Possess ammunition w/o holding licence/permit/authority: s 65(3) Firearms Act | Summary only $5500 fine only | | 9 | Possess or use a prohibited weapon without permit-T2: s 7(1) Weapons Prohibition Act | 14 years imprisonment 5 year standard NPP | | 10 | Possess unregistered unauthorised pistol in public place-T2: s 93I(2) Crimes Act | 14 years imprisonment |

Local Court bail application and false medical certificate

21. Mr Debono was arrested on 2 June 2024 and charged with offences relating to the stolen vehicle and the alleged assault on the police officer. On 3 July 2024 he made a bail application to the Tweed Heads Local Court. An affidavit of his partner, Courtney Carlsen, was relied on. It included a letter from a Dr Crampton asserting that the applicant required “immediate surgery” for “lymphoma” and that, without the surgery, “the outcome could be fatal” for Mr Debono.

22. Bail was granted by the Magistrate but was not entered. Police made inquiries with Dr Crampton who indicated that neither he nor any member of his medical practice provided the letter that had been tendered in court. While appointments at the surgery were made for the applicant, each of those was cancelled. The letter was described as fraudulent in a subsequent detention application which was granted on 5 July 2024.

The progress of the case and anticipated delay pending resolution of the charges

23. When the matter first came before me on 20 February 2025, all matters were listed for a “case conference mention” on 14 March 2025 at Tweed Heads Local Court. It would ordinarily be expected that, if the matter did not resolve at the case conference, the applicant would have been committed for trial on the certified indictable offences. However, when the bail application resumed on 26 March 2025, the case had been adjourned until 16 May 2025 at Tweed Heads Local Court, presumably for a further mention or committal.

24. Assuming there is a committal for trial in mid-May, and noting there are likely to be two separate trials and possibly multiple accused, there will be no trial date until 2026 at the earliest and it seems unlikely the case will be listed for trial before the middle of that year. By that stage the applicant will have been in custody for at least 20 months and probably, depending on the listing, for a period of 2 years or more.

The show cause requirement

25. The applicant is required to show cause why his detention is not justified. This is because the second set of offences is alleged to have occurred while the applicant was on bail for the first set of offences.

26. I will return to an assessment of the risk for the purpose of ss 17-19 of the Act, but I have taken into account the matters I discuss there in considering whether the applicant has shown cause. Despite his criminal history in Victoria, the false evidence presented in his Local Court bail application and the manifest other difficulties confronting the application, I am satisfied Mr Debono has shown cause by virtue of at least four powerful considerations.

27. First, the delay in bringing the case to trial is substantial. While that matter, of itself, would not overcome the show cause requirement, in combination with the other matters to which I will turn, it is an important consideration.

28. Secondly, I accept the evidence of Dr Fox that the applicant should have a surgical biopsy on his lymph nodes to ascertain whether he has some form of lymphoma. While there is no compelling evidence that such a procedure could not be arranged while the applicant is in custody, the fact is that it has not occurred yet. Justice Health records show there were two occasions when the applicant cancelled doctor’s appointments, but each of those was explicable. One was organised on a date when his family had travelled from Victoria to visit him in gaol and the other fell at around the time of his bail application and his lawyers advised him, rightly or wrongly, not to be transferred for the purposes of the medical appointment. I am also conscious of the fact that the biopsy was not arranged when the applicant was at liberty between March 2024 (by which time on the evidence before me the medical issue was known) and June 2024 (when the applicant was allegedly involved in the second set of offences). Even so, Dr Fox’s evidence was clear and strong. He said the symptoms and tests undertaken to this point suggest that the applicant may and probably is suffering from a life-threatening form of cancer and that his condition needs to be investigated by means of a “core biopsy” (involving the removal of a lymph node by surgical excision). While it may be that this could be arranged by Justice Health, I have no doubt that it is a procedure more conveniently and efficiently undertaken in the community.

29. Thirdly, Susan Homeh Hawil (a psychologist) provided a report for the purpose of the bail application and expressed the opinion that Mr Debono exhibits signs of a protracted “major depressive disorder”, the symptoms of which are exacerbated while he is in custody.

30. Finally, the current bail proposal is extremely stringent. Importantly, the applicant’s mother-in-law (Ms Teresa Mitchell) is a registered nurse who resides in Victoria but is prepared to move to northern New South Wales to live with the applicant and provide him with support and supervision throughout the period he is on bail. I note that the provision of Ms Mitchell’s affidavit was one of the reasons the application was adjourned and the Court is entitled to assume that nothing was found which would undermine the integrity of her evidence or her qualifications. Having commenced from a position of scepticism but having now reviewed all of the material presented, I accept Mr Barrack’s submissions that the applicant has shown cause why his detention is not justified.

Assessment of risk

31. Mr Singh identified three bail concerns for the purpose of s 17 of the Act, namely:

32. The risk of committing a serious offence,

33. The risk of endangering the community, and

34. The risk of flight and not attending court.

35. I accept each of these bail concerns are real and have considered the factors under s 18 which arise in this case to determine whether any one or more of the bail concerns constitute an unacceptable risk for the purpose of s 19 of the Act. In that regard, and without descending into a check list of factors by reference to s 18, I have considered:

36. The applicant’s personal history and community ties as well as his criminal history. These pull in different directions. On the one hand, Mr Debono presents with strong family and community support. On the other hand, his criminal history particularly in Victoria is bad. While there are not many offences of violence, there are a number of offences involving guns or other weapons, the most serious of which resulted in a custodial sentence in 2019. It is significant that a number of the current charges involve the alleged possession of unlawful weapons and firearms.

37. The current offences are serious and the offending ranges from possession of weapons, serious property offences and a very serious driving offence which created a real risk to the police and other road users. In accordance with s 18(2)(a) I have taken into account the weapons offences and in particular the fact that both sets of charges include an allegation that the applicant was in possession of an unlawful pistol.

38. The prosecution case on some of the charges appears to be quite strong, although there are triable issues in relation to the most serious offences.

39. The applicant’s history of violence is limited to a resist arrest and unlawful assault in 2019 and an armed robbery in 2010 when the applicant was still a child. The robbery was dealt with by way of some kind of bond to be of good behaviour and no conviction was recorded.

40. I am satisfied on balance that bail was breached by the commission of a serious offence on 2 June 2024. It is unclear whether the applicant committed serious offences on bail in Victoria. That is probably as a result of my unfamiliarity with the nature and form of that document.

41. As to other breaches of conditional liberty, there is one recorded instance of breaching a community corrections order in 2019.

42. As noted earlier, the remand period will be very long, approaching and potentially exceeding 2 years.

43. If the applicant is convicted of the most serious charges, and given his criminal history, a full time custodial sentence is the most likely outcome if not the inevitable outcome.

44. While he has no “special vulnerability” of the kind contemplated in s 18(1)(k), the applicant does appear to have a serious depressive illness.

45. The applicant has lawful reasons to be in the community both to prepare his defence but, more particularly, to obtain the medical testing and treatment to which Dr Fox’s evidence was directed.

46. There is nothing to suggest that the applicant presents any risk to the victims of the crimes of which he is accused or is likely to endanger the safety of any witnesses. In making that observation, his repeated offences involving firearms and weapons give rise to concerns about the safety of the community.

47. Ultimately, my conclusion as to risk rests on the availability of conditions capable of mitigating the bail concerns raised by Mr Singh. As I have said, the offer of Ms Mitchell to move to northern New South Wales is, as Mr Barrack submitted, a significant factor in my assessment of risk. Without that offer, I doubt I would have reached the conclusion that the patent risks associated with Mr Debono’s release are mitigated to such a degree that there are no unacceptable risks for the purposes of s 19. However, taking her evidence into account I have reached that conclusion.

48. The bail conditions proposed by the applicant’s lawyers shortly after the hearing (at my request) include a house arrest condition, enforced by electronic monitoring. The exceptions to this condition proposed by the applicant were not sufficiently clear and strict in the context of his previous breach of bail and the concerns raised by Mr Singh on behalf of the Director. For example, despite Ms Mitchell’s offer (in paragraph 16 of her affidavit) “to accompany him to any exceptions”, including reporting to police and medical, psychological and legal appointments, the proposed conditions were cast as alternatives in the document provided after the hearing. These will need to be tightened up so that the applicant will not be permitted to leave the house except when he is in the presence of Ms Mitchell. It will be necessary for him to arrange such appointments around her monthly commitment to travel to Victoria to see her doctor. To facilitate Ms Mitchell’s trips, the reporting condition will be twice per week on Monday and Friday (rather than daily). Apart from the usual exception relating to emergency medical treatment, the applicant will be required to notify the officer in charge of the reporting police station in writing of any legal, psychologist or medical appointments that will take him away from the home, and when attending any of those exceptions, he will be required to be with Ms Mitchell.

49. The conditions also include abstention from drugs, a problem which was identified by Ms Hawil, and a requirement that the applicant comply with any recommended therapy or medical treatment. In addition to the conditions proposed on his behalf, the applicant will also need to provide written confirmation that he has complied with these conditions. There will also be a requirement (as proposed by the applicant) that he undertake weekly drug testing and provide the officer in charge with evidence that he remains drug free.

50. The conditions proposed by the applicant included a security requirement that two acceptable persons promise to forfeit $50,000 each if the applicant fails to appear. However, both the applicant’s sister (Elisha Mary Apap) and father (Edwin Debono) provided affidavits saying they have $50,000 from savings or in a bank account. The condition I impose will require both the deposit of cash and an agreement to forfeit the relevant sum.

51. The conditions proposed by the applicant included electronic monitoring as a post-release condition. The affidavit of Ms Windsor indicates that Allied Electronic monitoring can arrange with Corrective Services to install the device before the applicant is released. Accordingly, the electronic monitoring I will provide is a pre-release condition.

52. The conditions proposed by the applicant did not include any condition concerning Mr Debono being accompanied when he is released. I have included such a condition.

53. I am satisfied the conditions I will now read to the applicant provide sufficient protection to the community against further breaches of bail. Accordingly, I am satisfied there are no unacceptable risks associated with his release.

Orders

40. I make the following orders:

The release application is granted and bail is allowed on the following conditions:

1. The applicant is to be of good behaviour.
2. The applicant is to appear at the Local Court at Tweed Heads on 16 May 2025 and thereafter as directed.
3. The applicant is to live at [REDACTED] and nowhere else.
4. The applicant is to report to the officer in charge at [REDACTED] each Monday and Friday between the hours of 8am and 11am.
5. The applicant is to comply with the following home detention condition: not to leave the premises at which the applicant is required to live except in the following circumstance(s):

(a) In the case of a medical emergency; OR (b) To attend court; OR (c) When in the company of Teresa Simone Mitchell and then solely for one of the following purposes:

(i) To report to police; OR (ii) To attend pre-arranged conferences with his legal representatives, but only where the time, date and location of such conference has been notified in writing to the officer in charge of police at [REDACTED] more than three days in advance of the conference; OR (iii) To attend pre-arranged medical or psychological appointments for himself but only where the time, date and location of such an appointment has been notified in writing to the officer in charge of police at [REDACTED] more than three days in advance of the appointment.

6. The applicant is not to approach or communicate with or attempt to make contact with any of the following people or class of people, including by telephone and internet social media platforms, or through another person, other than a legal representative: [REDACTED] and any person he knows to be a prosecution witness except a serving police officer.
7. The applicant is to comply with the treatment and rehabilitation plan as outlined in the applicant’s Court Report Central assessment and as recommended by psychologist Susan Homeh Hawil.
8. The applicant is not to take any illegal or prescription drugs other than a drug prescribed for the applicant by a medical practitioner.
9. Within seven days of his release, the applicant must arrange to undertake weekly drug screening and;

(a) Within ten days of his release, must provide the officer in charge of police at [REDACTED] written proof that such arrangements have been made; and (b) Thereafter must provide the results of such testing to the office in charge of police at [REDACTED] each week.

10. Noting the applicant’s passport has been surrendered to police, the applicant is not to apply for a new passport or travel document. That is a post-release condition.
11. The applicant is not to go within 500 meters of any point of international departure from the Commonwealth of Australia.
12. The applicant is to not use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to [REDACTED] and within 24 hours of taking or resuming possession of any such service.
13. The applicant is not to use or possess any encrypted device or any means of communicating via encrypted applications, including but not limited to WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Zoom, Discord, WeChat or Telegram.
14. Two acceptable persons are to deposit cash in the sum of $50,000 each (total $100,000) and each is to enter an agreement to forfeit that sum if the applicant fails to appear before court in accordance with the bail. This is a pre-release condition.
15. The applicant is to comply with the following electronic monitoring condition and bear the costs of compliance with the condition:

(a) Prior to his release, the applicant is to have fitted and is to maintain in place thereafter a 24-hour electronic monitoring device provided by Allied Universal Electronic Monitoring Australia (Allied). The applicant is to comply with all requirements to ensure that the device continues to operate properly as an electronic monitoring device with Allied. This is a pre-release condition. (b) The electronic monitoring system is to be programmed with an inclusion zone encompassing his home address. This is a pre-release condition. (c) The applicant is not to remove the electronic monitoring device except by arrangement with Allied and only after the bail condition no longer applies. (d) The applicant is to provide Allied with any telephone numbers or electronic email addresses nominated by the New South Wales Director of Public Prosecutions or the officer in charge of the police investigation, which is to be used if it is discovered that the applicant has breached any bail conditions. (e) Within 24 hours of his release, the applicant is to provide the officer in charge with evidence of compliance with this condition.

16. The applicant may only travel away from the Correctional Centre from which the applicant is to be released on bail when in the company of Teresa Simone Mitchell or Elisha Mary Apap or Edwin Debono or Michael Millington, one of whom is to be in attendance before the applicant is released. This is a pre-release condition.
17. The applicant is to present himself at the front door of the address where the applicant will reside at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the:

(a) Home detention condition; and (b) Drug abstention condition.

18. The applicant is to undertake any non-invasive testing required of the applicant at the direction of any police officer who believes on reasonable grounds that the direction is necessary to confirm compliance with the drug and alcohol abstention condition.

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Amendments

08 April 2025

Paragraph numbering corrected at [40].