Director of Public Prosecutions v Sitnikoski

Court of Criminal Appeal (NSW)|2017-06-08|Before: Hoeben CJ, Bellew J, Fagan J, Hamill J

Solicitors: Office of the Director of Public Prosecutions (applicant) Zahr & Zahr Lawyers (respondent) File Number(s): 2017/102428 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: Not published Date of Decision: 30 May 2017 Before: Hamill J File Number(s): 2017/102428

Judgment

THE COURT: Pursuant to s 50 of the Bail Act 2013 (NSW) the Director of Public Prosecutions filed on 2 June 2017 an application for detention of Lewis Van Jordan Sitnikoski in relation to charges laid against him on 23 September 2016. He had been arrested on 23 September 2016 and remanded in custody from then until a judge of the Court granted conditional bail on 30 May 2017.
The detention application was heard in this Court on 8 June 2017 and the following orders were made that day: 1. The detention application made under s 50 of the Bail Act 2013 (NSW) is granted. 2. Bail is revoked. At the time of making these orders the Court indicated reasons would be published thereafter. These are the reasons.

Conditions of bail granted on 2June 2017

The conditions of Supreme Court bail granted on 30 May 2017 included that the respondent report daily to Mascot Police Station and that an acceptable person agree to forfeit $850,000 in the event of the respondent failing to appear. The agreement to forfeit was required to be supported by security. The respondent's mother provided security over her home unit at Allawah, in the southern suburbs of Sydney. She owns a second property, a home unit, at Bondi.

Show cause offences

As the drug supply charge is punishable by imprisonment for life, the Director's detention application in respect of that charge must be granted unless the respondent shows cause why detention is not justified: s 16B(1)(a). He must also show cause in order to defeat the Director's application so far as it concerns the offences against ss 7(1) and 36(1) of the Firearms Act. Those are serious indictable offences (maximum penalty exceeds 5 years imprisonment) and they are alleged to have been committed whilst the respondent was already on conditional bail with respect to an earlier charge. Section 16B(1)(h)(i) of the Bail Act thus applies. The pre-existing bail related to a charge of having breached an apprehended violence order ("AVO") taken out for the protection of a former partner with whom the respondent has a child.
The question whether cause has been shown by the respondent must be considered separately and first: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 at [20]. Unless the court is first satisfied that cause has been shown why the respondent's detention is not justified, it does not become necessary to embark upon an assessment of bail risks (under s 17 of the Bail Act) nor a determination of whether a grant of bail would involve an unacceptable risk (under ss 19 and 20). The factual matters which would be relevant to the second stage of the process, under ss 17 - 20, may bear upon the Court's decision whether cause has been shown: Director of Public Prosecutions (NSW) v Tikomaimaleya at [24]. There appears to be no reason why a court determining a bail or detention application should not rely upon a number of considerations in combination to find that cause has been shown.

Considerations relied upon by the respondent

The respondent is 27 years old. He was born in Sydney and has lived in the southern suburbs of the city all his life. He relied upon affidavits of his older sister (aged 36 years) and his mother (aged 57 years). They deposed to close family connections. Both of them also deposed to their expectation that the respondent would appear to face the charges. The respondent relied upon the circumstance that his mother's opinion in this respect was backed by her commitment to forfeit a substantial sum in the event of non-appearance, secured over her home. It was submitted that the respondent's attendance before this Court on the hearing of the Director's detention application further demonstrated his reliability with respect to appearing to face the charges.
Counsel for the respondent referred to s 27 of the Bail Act. He argued that this section demonstrates legislative recognition that acknowledgements of the character of the accused as a person likely to comply with the terms of bail is a matter of significance, tending against the risk of flight and contributing to a conclusion that detention is not justified. That submission is accepted in principle. The weight to be attached to this consideration will vary from case to case.
Secondly the respondent provided an estimate that this case is not likely to come to trial in the District Court until the second half of 2018. Taking into account submissions from the Director on that subject it appears delay into late 2018 may occur, depending upon whether the respondent succeeds in a pending application in the Local Court for leave to cross-examine certain witnesses at committal. If that application should be unsuccessful the charges may progress to committal hearing and into the District Court arraignment list somewhat earlier. In the latter event, a trial before the middle of 2018 may be possible.

Considerations tending to negate cause shown by the respondent

The respondent's counsel also relied upon what he submitted are "triable issues" which he contended indicate a lack of strength in the Crown case. However it is the Court's view that so far as can be gauged from the material tendered on the application the Crown is in a position to present a strong circumstantial case. The strength of the prosecution case on these charges is a consideration favouring continued detention.
There is a significant body of circumstantial evidence to show that the respondent had care of and control of the motor vehicle in which the drugs, revolver and ammunition were found. A key to the vehicle was located in a shoulder bag which the respondent had in his possession at the time of arrest. The bag also contained his driver's licence, his phone and keys to other vehicles. When asked if the keys and other contents were his the respondent replied, "Yes".
The respondent's sister answered a statutory demand, issued by police, for information concerning the utility motor-vehicle. In this document, dated 28 September 2016, she stated that she was the registered owner. In response to a requirement that she disclose the name and residential address "of the driver of, and any passengers in or on the vehicle between 12:00 am and 3:00 pm on 23 September 2016" she stated in writing: I don't know. I got that car for my brother in my name a few years ago. I put it in my name because the car was turbo. At the date of arrest the vehicle was parked near the respondent's mother's home unit where he was residing. His sister, the registered owner, lived some five kilometres away in Rockdale.
DNA traces from various locations in the motor vehicle and from items found within it have been matched to the DNA of a buccal swab from the respondent. In each trace mixed DNA has been identified, to which the respondent is either the major contributor or a person who cannot be excluded as a contributor (mostly the former). The locations from which the traces were collected are the driver's side headrest, a surface within the rear concealed compartment where the drugs and revolver were found, a surface within a second concealed compartment in the vicinity of the passenger-side airbag, the handles of a blue cooler bag found in the rear concealed compartment and the drawstring of a cloth laundry bag in which the revolver was located. The laundry bag was within the blue cooler bag. It bears the printed name of the Park Hyatt Hotel.
The respondent argued that the mixed DNA profiles cast doubt on the Crown case. But the Court does not consider this to be a weakness. Irrespective of there being other persons' DNA mixed in the samples from the locations referred to above it is difficult to see what reasonable hypothesis the respondent could propound, consistent with his innocence, for prohibited drugs and a revolver being hidden in a secret compartment of a vehicle under his care and control. A jury might conclude these are not the kind of items which some other person would be likely to secrete in a hidden compartment of the respondent's vehicle without his knowledge.
Additional evidence tendered on the detention application, which was not before the judge who granted bail on 30 May 2017, is comprised in an invoice dated 25 April 2016 from the Park Hyatt Hotel, located in The Rocks, Sydney. The invoice is addressed to the respondent and shows that he stayed there on 25 April 2016. This is a further circumstance linking him to the laundry bag and the revolver within it.
With respect to the charges concerning possession of the revolver, under ss 7(1) and 36(1) of the Firearms Act, in addition to the circumstantial evidence of possession of all contents of the vehicle, as referred to at [11] - [14] the Crown case will be supported by the deeming effect of s 4A of that Act. Given that the Crown has strong evidence that the utility motor-vehicle was in the respondent's "care, control or management", the revolver located in it will be taken to have been in the respondent's possession unless he can satisfy the jury that he could not reasonably be expected to have known it was there or that on some other basis it was not in fact in his possession.
As detailed at [3] above, the respondent faces very substantial maximum penalties if convicted and the likelihood of significant non-parole periods on the first three charges. The possession of the weapon, if proved, would be considered for sentencing purposes to be very serious, particularly by reason of its conjunction with possession of the large commercial quantity of methylamphetamine, evidently packaged for sale. That conjunction of offences, if both should be proved, would make it extremely difficult for the respondent to demonstrate any mitigating reason for having had this weapon in his possession. For the offence under s 7(1) of the Firearms Act, if proved, the non-parole period would likely exceed the two years of remand in custody which will follow from the Court upholding the Director's detention application. For the supply of methylamphetamine, if proved, the non-parole period would be significantly higher again and some measure of accumulation would likely be considered appropriate, depending upon the full circumstances presented to a sentencing judge.
The strength of the Crown case and the order of magnitude of penalties which would follow from conviction are matters which elevate the risk of flight and tend to justify detention. The nature of the charges and the strength of available proof also raise a concern about protection of the community. This, again, contributes to justification for detention. The respondent does not have a significant record of prior convictions, either in relation to offences of violence or of drug distribution. However the Crown case includes prima facie evidence that he has a source of a very large quantity of a prohibited drug, that he has equipped himself for the distribution of it on a substantial scale in 1 ounce lots and that he has armed himself with a lethal and concealable weapon in connection with that activity.
The Director also tendered on the detention application an affidavit of a police officer providing details of police intelligence concerning the respondent's membership of the Lone Wolf Outlaw Motorcycle Gang and his association with members of another Outlaw Motorcycle Gang. This material was not before the judge who granted bail on 30 May 2017. Having regard to the evidence of this police officer concerning the activities and structure of Outlaw Motorcycle Gangs generally, the inference that the respondent poses a risk to the community of committing further serious offences if at liberty on bail is strengthened.

Conclusion

Having weighed the competing factors tending for and against the justification for detention of the respondent, the Court was not satisfied that the respondent had shown "cause why his … detention is not justified". It is for these reasons that the orders set out at [2] above were made.

Amendments 20 October 2020 - f DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2020

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