On 15 September 2016 the applicant pleaded guilty to the manslaughter of Basem Salameh on 14 August 2013. The plea of manslaughter was accepted by the Crown on the basis of substantial impairment in circumstances where the applicant had previously been charged with murder and he was found to have been suffering from a schizophrenic illness at the time of the offence. He was initially found unfit to stand trial. However, at a subsequent fitness hearing he was found fit to be tried. On 16 May 2017 he was sentenced to imprisonment for seven years with a non-parole period of four years: R v Kaddour; R v Azar [2017] NSWSC 586.
He was released to parole on 18 December 2017, the date on which he first became eligible for parole. On 4 June 2018 he was charged with destroying or damaging property, being his sister's car, after an argument with another of his sisters. He mistakenly damaged the wrong car. He was granted bail.
Thereafter, he was charged with a number of offences committed on 14 June 2018 whilst on bail for the earlier offence. Those offences were stalk/intimidate intending to cause fear of physical harm, assaulting an officer and resisting an officer in the execution of their duty, common assault, destroy or damage property, and being armed with intent to commit an indictable offence. He was returned to custody when his parole was revoked on 14 June 2018.
He was sentenced for the offences committed whilst on parole. Although that sentence expired prior to the parole period for the manslaughter offence, the Parole Authority refused to release him until his sentence for manslaughter expired on 18 December 2020.
On 16 December 2020 Hoeben CJ at CL ordered that he be subject to an Interim Supervision Order (ISO) commencing 18 December 2020: State of New South Wales v Azar (Preliminary) [2020] NSWSC 1807. That ISO was renewed on 14 January 2021 for 28 days expiring 11 February 2021.
After a number of verbal altercations with his DSO and other employees of Community Corrections, the applicant was arrested and charged with failing to comply with a condition of his ISO, which was a written direction not to engage in any behaviour which would intimidate or threaten Corrective Services NSW staff. Such behaviour was to include swearing or using derogatory or abusive comments. The offence carries a maximum penalty of 5 years' imprisonment, but it can be dealt with by the Local Court where the maximum penalty is 2 years' imprisonment.
On 23 January 2021 the applicant had sought approval to amend his Schedule of Activities, and in the course of speaking on the telephone to another DSO (his DSO not working at that time), the applicant became agitated, and said to the DSO saying, "Fuck you, you dog. Fuck your mum. Fuck you."
Later that day the applicant's DSO and the Unit leader attended at the premises where he was living. The DSO attempted to speak to the applicant about his attitude and behaviour towards Community Corrections staff and about the earlier phone call. The applicant again became agitated and informed the DSO that he did not want to talk "to you cunts anymore". He would not listen to what they were saying, but yelled at them to "Fuck off" and "Get the fuck out. I'm going to hurt you. Get the fuck out". It was those matters that formed the basis for the applicant's arrest and charging.
The applicant was returned to custody on 23 January 2021 and bail was refused on 29 January 2021 by Mount Druitt Local Court. The effect of that custody is that his ISO is suspended: s 10C(1A) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHROA").
The hearing for an Extended Supervision Order (ESO) took place before me on 22 February 2021, and at the conclusion of that hearing the applicant sought bail in respect of his present charge. The Crown opposes bail.
An offence contrary to s 12 of the CHROA is a show cause offence pursuant to s 16B(1)(i) of the Bail Act 2013 (NSW).
The only proposed bail conditions are that the applicant should comply with the conditions of his ISO or his ESO if one is made.
The parties asked that I have regard to the evidence I heard on the application for an ESO.
Two matters are put forward to show cause. The first is that the applicant is currently subject to an ISO which, it was said, can aptly be described as the strictest possible liberty that one can envisage for a person whilst in the community. The second matter was the nature of the offending itself. It was said that it was not a premeditated or sophisticated breach, but rather it was the applicant falling victim to his own impulses.
I was informed from the bar table that the JIRS statistics show that for 60 people who have been charged with breaching the terms of an ESO, 93.3% of them received custodial penalties with a range from one month to in excess of 24 months.
The offence in respect of which the applicant is held bail refused is next listed at Mount Druitt Local Court on 10 March 2021 for mention and response to the Crown brief which is due to be served by 3 March 2021. I was informed that hearing dates at Mount Druitt Local Court were likely to be in August 2021 or later.
In my opinion, the objective seriousness of the offence charged is at the low end. The behaviour exhibited by the applicant is consistent with his long-term behaviour that appears to be related perhaps to a combination of his intellectual disability and the personality problems identified by Dr Furst, the expert psychiatrist, at the hearing. Dr Furst made clear that the applicant cannot be said to have been stabilised in respect of his schizophrenia at the present time. Moreover, he seems to have received minimal treatment in relation to the personality problems. Such treatment would involve psychological therapy with someone that the applicant feels comfortable with, who understands the applicant, his challenges and deficits, and can work with him, as the expert psychologist, Dr Pulman, said.
In my opinion, if the applicant remains in custody until the present matter is heard, he is likely to have been incarcerated for a longer period than any sentence he would receive for the offence. In light of that matter, and the bail proposal that he will remain supervised under the ISO, and the ESO which I intend to impose, I am satisfied that the applicant shows cause why his continued detention is not justified.
The Crown indicates two bail concerns, being the risk that the applicant will commit a further serious offence, and the risk of danger to victims and the community. It must be accepted that, where the applicant committed a number of offences when released to parole, there is a concern that he will commit further serious offences if he is now released to bail. However, that risk will remain until such time as he is better stabilised on his antipsychotic medication and he has received psychological therapy to deal with his personality and behavioural problems.
The best chance that he has of having these matters dealt with is with the assistance of the ESO team, in conjunction with the Forensic Community Treatment Order which was made on 5 August 2020. Moreover, the level of supervision that he receives on the ESO is likely to mean that his risk of reoffending is considerably less than when he was released to parole.
The risk of danger to the Community Corrections staff, his ESO team and his relatives is inextricably linked with the risk that he will continue to commit serious offences. I consider that these risks are manageable with the supervision he will receive on his ESO. The concerns do not rise to the level of being an unacceptable risk.
The applicant should be granted bail on the condition that he complies with the conditions of the ISO imposed by Hoeben CJ at CL, and subsequently with the conditions of the ESO which will be imposed.
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Decision last updated: 03 March 2021