R v Agang; R v Bajwa; R v Ghanem

Supreme Court of NSW|2017-02-23|Before: Harrison J

Judgment

HIS HONOUR: The Crown makes a detention application pursuant to s 50 of the Bail Act 2013 in respect of two bail determinations made at Parramatta Local Court by Magistrate Favretto on 28 January 2017 in the case of Mr Agang and Mr Bajwa, and one made by Magistrate Keady on 30 January 2017 in the case of Mr Ghanem. All three respondents were granted bail, subject to conditions, in terms that are referred to later in these reasons.
The respondents are each charged with the offence of robbery in company contrary to s 97(1) of the Crimes Act 1900 allegedly committed by them at commercial premises in Melville Street, Parramatta on 27 January 2017. The Crown alleges that the three respondents, together with another man, travelled to the Melville Street premises at about 3pm on that day in a vehicle owned and driven by Mr Ghanem. He remained in the car while the other three, armed with a machete and a large hunting knife, entered the premises of Mani Group, a business that retains cash on site. The robbery occurred on what was pay day when a number of employees were in attendance to receive their fortnightly pay.
The Crown alleges that a director and other employees of the company were violently assaulted and threatened with words such as "I'm going to kill you give me the money." It is reasonably apparent from the Crown case that this was a terrifying experience for these people. One of them was slightly injured when the respondents began ransacking the premises, pulling out drawers and smashing a glass counter. A piece of glass from the counter penetrated the foot of one employee.
In the course of this incident, another person working upstairs in a different office called the police. Polair attended the scene and began a video recording of events on the ground. The vehicle in which the respondents arrived left the location with all of them in it but was soon stopped. All men were arrested a short time later not far from the scene of the robbery. The vehicle was searched and found to contain a balaclava, three pairs of gloves, a large black handled machete, a wooden handled hammer, and a black and silver bag containing clothing and two mobile phones. There was an unopened text message on one of the phones that said, "Do it right ya knw". A black duffle bag was also recovered from the car containing a hunting knife and $29,182 in cash. The money was contained in three Commonwealth Bank envelopes.

Makug Agang 1. Report to Mt Druitt Police Station daily between 8am and 8pm. 2. Reside at 11/334 Woodstock Avenue, Mt Druitt. 3. Do not contact any of his co-accused. 4. Do not enter Melville Street, Parramatta. 5. (5) Not to go near or contact Honee Nardeosingh or Michael Hanania.

Najem Bajwa 1. Report to Mt Druitt Police Station daily between 8am and 8pm. 2. Reside at 48 Meacher Street, Mt Druitt. 3. Do not contact any of his co-accused. 4. Do not enter Melville Street, Parramatta. 5. Not to go near or contact Honee Nardeosingh or Michael Hanania.

Magistrate Keady granted bail to Mr Ghanem on the following conditions:

David Ghanem 1. Report to Cabramatta Police Station daily between 8am and 8pm. 2. Reside at 19 Hutchens Avenue, Mt Pritchard. 3. House arrest unless reporting or attending approved medical appointments or legal conferences with lawyers. 4. Surrender passport. 5. Not to go within 1km of any kind of point of departure in Australia. 6. $10,000 surety. 7. Do not contact any of his co-accused.

Section 50 of the Bail Act is in the following terms: "50 Prosecutor may make detention application (1) The prosecutor in proceedings for an offence may apply to a court or authorised justice for the refusal or revocation of bail for an offence or for the grant of bail with the imposition of bail conditions. (2) An application under this section is a 'detention application'. (3) A court or authorised justice may, after hearing the detention application: (a) dispense with bail, or (b) grant bail (with or without the imposition of bail conditions), or (c) refuse bail. (4) If a bail decision has already been made, a court or authorised justice may, after hearing the detention application: (a) affirm the bail decision, or (b) vary the bail decision. (5) A court or authorised justice is not to hear a detention application unless satisfied that the accused person has been given reasonable notice of the application by the prosecutor, subject to the regulations. (6) To avoid doubt, a prosecutor may oppose a release application made by an accused person to a court or authorised justice without making a detention application."
In the case of all of the respondents, the Crown contends that it has all of the bail concerns referred to in s 17(2) of the Bail Act. This is said to be so in the case of Mr Agang and Mr Bajwa for the undifferentiated reasons that there is an overwhelming Crown case, the offence that has been committed is very serious, was well planned and is violent. Each respondent is said to be facing "an inevitable full time custodial sentence" and the Crown accordingly maintains that there is an unacceptable risk of them failing to attend court.
Additionally, multiple weapons were used, multiple accused were involved and the offence was committed in broad daylight. There was a blatant disregard for public safety or the prospect of apprehension. The extent of the violence is also said to suggest the existence of an ongoing threat to the employees of the business that was robbed as well as to the community generally. The Crown also submitted that there was a risk of interference with witnesses or evidence.
In the case of Mr Ghanem, the Crown contends in addition that he is in a different position to his two co-accused. He is 5 or so years older than them and has a criminal record for offences that include stalk and intimidate, contravene an apprehended violence order and assault occasioning actual bodily harm. He has served nearly 3 months in prison for some of these offences.

Consideration

Mr Agang is a man of Sudanese origin who came to Australia as a refugee some years ago. He is now an Australian citizen and is 20 years of age. He has no criminal record of any kind.
Mr Bajwa is19 years of age. He also has no criminal record of any kind. He is currently enrolled in a physiotherapy and allied health course at Castle Hill TAFE. He is also employed.
With the considerable benefit of very helpful submissions on their behalf, it seems to me that none of the bail concerns identified by the Crown amounts to or poses an unacceptable risk or indeed a risk of any kind that cannot otherwise be ameliorated or mitigated by the imposition of appropriate conditions. Mr Agang and Mr Bajwa both appeared in response to the present application. There is nothing about their antecedents or character or any clearly demonstrated predisposition that helpfully informs the Crown's application. The only possible exception to that proposition is generated by the very events that give rise to the charge. One could be forgiven for thinking that this very unfortunate sequence of events, which was undoubtedly frightening and distressing for the victims, was the product of a transient attack of complete stupidity by both of them. While I accept that there does appear to have been a considerable amount of planning, in the sense that gloves and weapons were acquired beforehand, and also that there appears to be another person assisting with the robbery, the notion that the respondents would drive to the scene of the crime in a readily identifiable car tends in my limited experience to cast the general applicability of that suggestion into serious doubt.
Be all that as it may, I am not prepared to assume, unfavourably to Mr Agang, having regard to his age and blameless past, that he represents an unacceptable risk of non-appearance, of reoffending or of threatening witnesses or interfering with evidence. I consider that the same can be said of Mr Bajwa.
I am aware that these matters, if prosecuted on a defended basis, will be unlikely to be given a trial date for some considerable period and in all probability not before some time in 2018. Having regard to the strength of the Crown case, which in my assessment is very high if not overwhelming, it would not be surprising if an early plea of guilty were entered by each man. In a purely theoretical sense, therefore, the total delay before the case is finally disposed of may be considerably less. Mr Agang and Mr Bajwa would by now both be acutely aware that it is critical in such circumstances, if at liberty in the community awaiting trial or sentence, to avoid the slightest transgression.
I am not prepared to conclude, for present purposes, that a custodial sentence is an inevitability as the Crown suggests, although it remains alive as one of several distinctly possible sentencing outcomes. In this respect I have had regard to the JIRS statistics for s 97(1) offences for first offenders aged between 18 and 20 years. Fifty six percent of cases were dealt with on a non-custodial basis.
I personally also have some difficulty with the prospect that two young individuals with previously unblemished records should be required to remain in custody on remand awaiting trial for that amount of time when they do not pose risks to the community of the type to which the Bail Act has addressed so much attention. I accept that the existence of a risk and the assessment of whether or not it is unacceptable are matters about which minds may differ. It is always difficult on applications of this type to make that assessment when there is very little satisfactory direct evidence available to support the decision. Inevitably and too often one is required to make the determination based only on contested inferences from the past and frail predictions about the future. I consider that there is a continuing need to remain very cautious about making often unfounded or, worse still, ill-founded assumptions about the existence of s 17(2) bail concerns or mechanically and uncritically propounding the existence of such concerns for purely forensic purposes. There are regular occasions in this Court when the Crown convincingly establishes the existence of bail concerns where continued incarceration on remand is the only reasonably available option. In my opinion, Mr Agang and Mr Bajwa do not fall into that category.
But for the fact that Magistrate Favretto considered in his considerable professional experience that bail conditions were required, I would have considered the grant of bail with fewer conditions. In the events that have occurred, I propose to affirm his Honour's decision in each case, subject only to one small variation that will be uncontroversial.
Mr Ghanem is in a different position. On one view his active role in the crime was less than his co-accused. His culpability, however, is in the circumstances of this case highly unlikely to be reduced as a consequence. It seems inevitable that the Crown will seek to prove that all men were involved in a joint criminal enterprise to rob the premises, so that their respective but different responsibilities will recede in importance. I say as much in response to submissions with which I disagree, made on Mr Ghanem's behalf, that the crime that he is alleged to have committed can be favourably differentiated from that committed by his co-accused.
Mr Ghanem is older than his co-accused and has previously spent time in custody. The conditions attached to the grant of bail by Magistrate Keady wisely reflect those differences. Mr Ghanem has not, however, previously been engaged in any criminal activity of the kind now in question.
I am asked by the Crown to form the view that in these circumstances there is an unacceptable risk that all of the Crown's bail concerns are incapable of being ameliorated by appropriate conditions.
Mr Ghanem has acceptable community ties. He was supported in court by several somewhat anxious looking members of his family. His current bail conditions provide for him to reside with them under conditions of house arrest. Mr Ghanem has undoubtedly committed a serious offence. The Crown case is very strong, as I have already indicated. Mr Ghanem has a not insignificant history of violence that appears to have its origin in family difficulties. In March 2016 he was dealt with in the Local Court for a serious knife related offence. He remains subject to a current apprehended domestic violence order. I am unaware that he has previously breached any bail conditions and he has no history of failing to appear. He does not have any criminal associations to which my attention has been drawn. I consider that the condition that he not leave his place of residence to be of significance in this case.
As I have already discussed, there is a prospect that Mr Ghanem would remain on remand for a considerable period if the matter is ultimately defended. I have no material that suggests that he would go to trial before some time in 2018. Unlike his current co-accused, Mr Ghanem's bail conditions require him to remain at his specified place of residence at all times with some minor exceptions. One of those is for the purpose of attending medical appointments. In that last respect I am advised that Mr Ghanem suffers from schizophrenia and is currently on prescribed anti-psychotic medication. I have no information about whether or not there is or may have been any causal or temporal connection between his past violent offending and the existence of that medical condition.
Mr Ghanem is not an entrenched career criminal or anything like it. I am concerned that he should not remain on remand for a considerable period with a serious mental health condition if there is some appropriate alternative that properly accommodates the Crown's bail concerns. I have given considerable thought to the regime of bail conditions put in place by Magistrate Keady. I consider that there is no sound basis to depart from that regime. That includes the surety condition that has not yet been complied with. I recognise that Mr Ghanem will remain in custody until that occurs.
In coming to the conclusions I have reached in each of these three applications I have been referred to, and have had the distinct benefit of considering, the analysis of Hoeben CJ at CL in R v Kugor [2015] NSWCCA 14.

Orders

In the circumstances I make the following orders: 1. In the case of Makug Agang I dismiss the Crown's detention application. 2. Subject to order (3), I affirm the bail decision made by Magistrate Favretto on 27 January 2017. 3. I vary condition (e) by adding Ridhwana Oreeawon as a further non-contact person. 4. In the case of Najem Bajwa I dismiss the Crown's detention application. 5. Subject to order (6), I affirm the bail decision made by Magistrate Favretto on 27 January 2017. 6. I vary condition (e) by adding Ridhwana Oreeawon as a further non-contact person. 7. In the case of David Ghanem I dismiss the Crown's detention application. 8. I affirm the bail decision made by Magistrate Keady on 30 January 2017.

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: 28 February 2017

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Judgment (7 paragraphs)

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