R v Naizmand

"Exceptional circumstances"

1. The expression "exceptional circumstances" is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what are looked for are circumstances that are or that appear to be an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics.
2. This can be shown by example. In a majority of the United States, certain crimes remain subject to the imposition of sentences of capital punishment. By definition, only the most serious crimes attract this penalty. However, these sentences are regularly carried out, even though large sections of the population of the United States take exception to capital punishment in any circumstances. The frequency with which these executions occur renders them unexceptional, even if the notion of capital punishment or the State sanctioned taking of a person's life might seem to most people to be unacceptable in a civilised society. Capital punishment is commonly administered in the United Sates and is not for that reason an exceptional circumstance. Circumstances that occur regularly or frequently, even if wholly unacceptable, are hardly exceptional.
3. In Haddara v Commonwealth Director of Public Prosecutions [2006] VSC 8, Osborne J commented upon the operation of s 15AA as follows: "[4] In these circumstances it may be that the requirement to establish 'exceptional circumstances' has the potential to operate in a harsh manner. Such a requirement is generally imposed only with respect to offences the seriousness of which is reflected by significantly higher penalties than those which attend the offence charged. It is possible that an offence of the kind charged may involve culpability of a wide range of degrees. Nevertheless, this Court is required to implement the law as enacted by Parliament and it is necessary for the applicant to satisfy the threshold requirement of 'exceptional circumstances' before the Court turns to other considerations. [5] The concept of exceptional circumstances is necessarily a flexible one but it is clear that it may be constituted by a combination of matters which taken together render the case exceptional."
4. These comments were endorsed by Studdert J in R v Khaled Cheikho (Unreported, Supreme Court of New South Wales, 15 May 2006).
5. In R v Young [2006] NSWSC 1499, Johnson J said this at [20]: "[20] It seems to me that exceptional circumstances may be found in a case by the coincidence of a number of features. These can include features subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise that, absent this particular test, the applicant is otherwise a person who will answer bail."
6. In the case of Paul Darren Mulvihill, Davies J on 11 October 2012 considered that the applicant had demonstrated exceptional circumstances, being a combination of the particular nature of the offence, the difficulty of the custodial conditions, both for the preparation of the applicant's defence and the ability to deal with his family law proceedings, and the stringency of the proposed bail conditions. His Honour assessed the strength of the Crown case to be "a moderate to a moderately strong one" on the available material. Price J came to a similar view when considering an application for bail by the same applicant following its original revocation for a breach of one of the conditions imposed by Davies J: see R v Mulvihill [2013] NSWSC 1190.
7. In R v NK [2016] NSWSC 498 at [26], Hall J summarised the applicable principles as follows: "[26] The following principles may be derived from the relevant caselaw: (1) Section 15AA of the Crimes Act 1914 has been said to enact a rebuttable presumption against bail being granted to a person charged with a terrorism offence: Hammoud v DPP [2006] VSC 516 per Bongiorno J at [1]. (2) Section 15AA of the Crimes Act 1914 prevents the court from granting bail unless it is satisfied that exceptional circumstances exist to justify bail. While such a provision requires the applicant to satisfy the court, it does not prohibit bail in all cases. It has been observed that each application for bail, even under these provisions: '…must be so dealt with in a way that does more than pay mere lip service to the anxious concern of the law that circumstances do alter cases and that it is rarely, if ever, that a simple, not to say a simplistic one size fits all approach, will be the best way of achieving a just individual result': Regina v Mirsad Mulahalilovic 2006/763, 1 August 2006, per Rothman J quoting dicta in R v Newbury, Sully J, NSWSC, 27 January 2006, unreported). (3) In Hammoud v DPP, supra, it was observed that as the 'presumption' referred to in (1) above is rebutted only if exceptional circumstances exist to justify bail, the onus is upon an applicant to satisfy the Court affirmatively that such circumstances exist: at [2]. (4) Section 15AA sets an extremely high hurdle. The requirement for exceptional circumstances imposes a high test. (5) The word 'exceptional' has received judicial attention in many cases. What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective 'exceptional': Hammoud v DPP at [3]. (6) The concept of exceptional circumstances is necessarily a flexible one. Such circumstances may be constituted by a combination of matters which taken together may render the case exceptional: Haddara v Commonwealth DPP [2006] VSC 8 at [5] per Osborn J and R v Young [2006] NSWSC 1499 at [19] and [20] per Johnson J (as to s 9C of the Bail Act 1978). (7) Exceptional circumstances is a threshold issue that requires a case-by-case examination and that there is no definitive definition that would apply to all cases: R v Maywand Osman 2015/12786, 12 February 2015 at p 6 per Hall J. (8) In considering the issue of exceptional circumstances, not only can a combination of matters constitute such features but they can include features that are subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise, absent the particular test, that the applicant is otherwise a person who will answer bail: R v Mulvihill [2013] NSWSC 1190 at [10] and [11] per Price J."
8. His Honour also considered the concept of exceptional circumstances in the particular context of s 15AA of the Crimes Act 1914. His Honour said this: "[28] In relation to the provisions of s 15AA, the following matters may be noted: (1) Section 15AA (1) imposes a statutory prohibition on a bail authority granting bail to a person charged with an offence covered by s 15AA (2). (2) However, the section also provides for a statutory exception to that prohibition where the bail authority: (a) 'is satisfied' (b) that 'exceptional circumstances' exist; (c) being circumstances that 'justify' a grant of bail. (3) The phrase 'is satisfied' denotes a decision of an evaluative kind. (4) The phrase 'exceptional circumstances' may be taken as referring to circumstances that are, unusual, out of the ordinary, or special: Oxford English Dictionary. [29] The word 'justify' in s 15AA (1) is to be given its ordinary meaning, but subject to the other provisions of s 15AA (1). Whilst the Oxford English Dictionary meaning of 'justify' includes 'make right, proper or reasonable', 'give adequate grounds for', 'warrant', in the context of s 15AA (1), I consider that to justify a grant of bail, the circumstances must be such as to warrant a grant of bail. [30] What circumstances may amount to 'exceptional circumstances' cannot be determined by reference to any fixed category of class of case. The facts and circumstances of each case will guide the determination as to whether they evidence or are capable of constituting exceptional circumstances. [31] As noted above, the phrase 'exceptional circumstances' admits to a degree of flexibility. The circumstances may include the personal or subjective circumstances of an applicant for bail. They may also include circumstances relating to a strength or weakness of a Crown case."

Seriousness of the offences

1. The applicant contended that the offences with which he has been charged are not serious. If I understand that submission correctly, the applicant asserts that his particular alleged offending is at the lower end of seriousness for offences of the type in question. For example, the applicant's breaches consist in his viewing videos on YouTube that were, by reason of the restrictions to which he was subject under the control order, proscribed. In other words, access to the videos in question is not otherwise illegal or prohibited for members of the general public and the only alleged illegality in his case arises from the restrictive terms of the control order. In a slightly different way, the applicant contended that the objectionable or extravagant subject matter of the videos in question could not and did not reliably inform the seriousness of the particular alleged offending in his case. His alleged breaches of the control order were unrelated to the content that was viewed on YouTube as opposed to access to the site at all. Moreover, the applicant contrasted his alleged conduct with quite different allegations such as those that might involve obtaining or possessing weapons or explosives or the means to create them. For example, he submitted that, to the extent of anything the applicant did in alleged breach of the restrictions, no damage occurred to anyone and no physical loss was sustained.
2. The applicant also contended that having regard to the fact that the maximum penalty for the offences is 5 years imprisonment, the alleged offending was not serious when compared with other offences in general or terrorism offences in particular. He contended in a related sense that a custodial sentence was by no means a foregone conclusion in the particular circumstances of this case if he were ultimately to be convicted of the offences or any of them.

Delay

1. The applicant was arrested on 29 February 2016 and has remained in custody since then. It seems likely that he will not receive a date for his trial, which will probably be in the District Court at Parramatta, until sometime around June or July of 2017. I hasten to observe that there is no reliable evidence before me to support that prediction and that the Crown contends that a trial somewhere around February next year is more likely.
2. In either case, according to the applicant, he will have been in custody on remand for something approaching and possibly exceeding 12 months before his charges are disposed of finally. He submits that delay of that nature is an unacceptable and wholly extraordinary circumstance.

Custodial conditions

1. The applicant's security classification has resulted in him being housed in a maximum security facility. His association with other inmates is limited to four other prisoners. His exercise time is restricted. When he is outside his cell he is escorted by no less than four prison officers or corrective services personnel. In these situations, he is routinely handcuffed and his feet are always shackled. That procedure is universally adopted, even in circumstances as apparently benign as walking along the corridor to use the phone.
2. In association with these conditions, the applicant has not spent time in custody before. He is 21 years of age and previously worked as a gyprocker in the construction industry. With the exception of his conviction for travelling without proper travel documents, the applicant has not previously offended. By implication, the conditions under which the applicant is being held are an automatic and mechanical manifestation of his security classification, which he maintains is objectively and unfairly disproportionate to the actual risk that a person of his age and background poses in fact.

Subjective circumstances

1. The applicant is married. His wife is not prepared to travel to Goulburn to visit him if not in the company of his mother or other relatives. The people with whom his wife would be prepared to make the journey have themselves been barred from visiting the applicant, with the associated result that he receives no visits from his wife at all. Telephone calls are all regularly monitored so that the applicant has no ability to communicate privately with his wife.
2. The applicant was earning something in the order of $700 to $800 per week. He was the major source of income for his family. His imprisonment means that his wife suffers from financial hardship for as long as he remains unable to work.

Crown submissions

1. The Crown opposes the grant of bail upon the basis that the applicant presents an unacceptable risk of non-appearance, of committing a serious offence and of endangering the safety of individuals or the community. Section 15AA creates what is in effect a rebuttable presumption against bail for any person charged with a terrorism offence. The onus rests upon the applicant to satisfy the Court affirmatively that such exceptional circumstances exist. Even though that does not preclude the grant of bail in all cases, it poses an extremely high hurdle for the applicant to get over and he has not demonstrated that he has done so in the present case. The Crown maintained that there were no features that were out of the ordinary, whether alone or in combination, and no compelling subjective features that amounted to exceptional circumstances.

The seriousness of the offences

1. Control orders are only issued in circumstances where a judicial officer has been satisfied that such an order is necessary to protect the public from a terrorist act, or to prevent the provision of support for such an act. The Crown contends that it therefore follows that any contravention of such an order is a serious matter. That is said to be compounded in the present case by reason of the applicant's alleged multiple breaches.
2. Other features that are said to compound the seriousness were as follows: 1. The maximum penalty is five years' imprisonment. 2. Section 104.1 of the Criminal Code provides that the objective of control orders is to allow obligations, prohibitions and restrictions to be imposed on a person for the purpose of protecting the public from a terrorist act. 3. Obtaining a control order is complex and difficult. A senior member of the Australian Federal Police must seek the written consent of the Federal Attorney General pursuant to s 104.2 of the Criminal Code for an interim control order if the AFP member considers on reasonable grounds that the order would substantially assist in preventing a terrorist act. 4. In the present case, the offences consist of five alleged breaches of a Federal Court order by accessing and viewing extremist material advocating violence and killings in support of Islamic State ideology.
3. The YouTube videos viewed by the applicant depicted material consistent with extremism and propaganda produced on behalf of proscribed terrorist organisations such as Islamic State and affiliated groups. They contain audio and imagery of weaponry including assault rifles, machine guns and grenades together with messages encouraging the extermination of so-called non-believers. They also contain material that espouses the virtues of violent struggle and the commission of attacks on non-believers.
4. The applicant has been aware since as early as mid-2014 that he was of interest to law enforcement authorities. He was made aware of the reason for the control order in 2015 and of the seriousness with which the authorities and the community viewed his conduct, as well as the conduct and activities of his associates. The Federal Court determined that there was sufficient evidence on the balance of probabilities that making the orders would substantially assist in the prevention of a terrorist act. The orders expressly required the applicant to comply with them. These matters notwithstanding, the Crown alleges that the applicant repeatedly breached the control order over a six week period.

Delay

1. The Crown contended that there has been no delay in this case since the applicant's arrest. The brief of evidence consists of one volume of material and has been served in accordance with the rules. The matter is listed for committal at Burwood Local Court on 8 August 2016, which was the earliest date suitable to the applicant's legal representatives. The matter is factually and temporally confined. The evidence consists essentially of electronic surveillance.
2. In Raad v DPP [2007] VSC 330, the applicant had been in custody on remand for two years whilst awaiting trial on terrorism charges. The trial was listed to commence in three months with an estimate of six months. Bongiorno J accepted that the applicant's conditions of custody were extremely onerous. There was also psychiatric evidence of the applicant being at risk of falling into a depressive state as a result of his custodial conditions and his circumstances in general. There was an associated risk that the applicant might become suicidal. The applicant had close family ties and there was adequate security being offered. A primary argument was that the Crown case was weak.
3. In respect of delay, his Honour found that it could still be many months before the case was concluded. However, his Honour held that this was not an exceptional circumstance, saying: "[13] …Terrorism cases are going to be, of their nature, long and involved. So much has become clear, even from the relatively little experience of such cases in this country to date. Nor does [the applicant's] health combined with the circumstances of his detention and the delay to which I have referred together make up the exceptional circumstances necessary to overcome the statutory presumption against bail. … [15] [The applicant's] personal circumstances have nothing of the exceptional about them. Many remand prisoners are in the same situation. Of course that situation would have been of greater relevance had the court been able to find exceptional circumstances so as to justify bail."
4. The Crown submitted that there was no relevant delay in this case.

Custodial conditions

1. In Haddara the accused was held in custody in significantly confined conditions with restrictions on visitation and communication, in circumstances where the question of adequate access to legal representation was an issue. It was held in that case that those matters did not amount to exceptional circumstances.
2. In R v Mulahalilovic (Unreported, Supreme Court of New South Wales, Rothman J, 1 August 2006) the applicant emphasised the delay that was likely before his case would be finalised and the associated difficulty of preparing his case, "especially in the extraordinary circumstances of the size and complexity of the prosecution brief". Rothman J accepted that the circumstances surrounding the applicant's incarceration created a real difficulty for him, but found that this was not exceptional either alone or in combination with other matters.
3. In R v Azari (Unreported, Supreme Court of New South Wales, Garling J, 3 September 2015), the accused faced a number of terrorism-related charges under the Criminal Code and one count of conspiracy to commit murder under the Crimes Act 1900. He had been in custody for approximately one year. With respect to his conditions of custody, Garling J said: "The fact that the applicant, a young man of no previous convictions, is detained pending trial and in the custodial circumstances which I have summarised, which are applicable to all individuals in custody who have been allocated the same security classification (AA rating), is not a matter which, in my assessment, constitutes exceptional circumstances in this case."
4. The Crown submitted that the applicant's custodial conditions in this case were not unique and could not amount to exceptional circumstances.

Strength of the Crown case

1. The strength or otherwise of the Crown case is a relevant matter to be taken into account. Here the Crown submitted that its case was strong. The alleged breaches relate to the access to proscribed material on an electronic device owned or possessed by the applicant. The offending access is to be found between other legitimate uses of the device that are inferentially attributable to the applicant. Taken at its highest for present purposes, the case against the applicant is formidable.

Consideration

1. The legislative provisions at play in this application operate in effect to exclude bail as the default position, while simultaneously leaving the door ajar in limited circumstances. That is undoubtedly a harsh regime but its severity is not amenable to discussion or criticism in an application such as the present. The application and legitimacy of what amounts to a presumption against bail are to be taken as given. The single focus of attention is the question of whether or not the applicant can demonstrate the existence of exceptional circumstances.
2. The evidence in this application has reinforced the notorious fact that prisoners on remand awaiting trial on terrorism related charges are treated differently. There may be more than one reason for that, but its present relevance lies in appreciating that all such prisoners receive the same treatment. It is therefore to be expected that a person facing prosecution for alleged breaches of a control order will be subject to custodial conditions that include limited association, shackling and constant surveillance, and all of the other onerous and intrusive conditions and constraints of the type outlined by the present applicant.
3. The applicant's custodial conditions are therefore not unique. They are on the contrary widespread and commonplace. They are not exceptional. As I have indicated, the question is not whether some members of the community might take exception to the applicant's restricted custodial circumstances. The question is whether or not in the wider population of remand prisoners facing similar charges the applicant's custodial conditions alone or together with other factors amount to exceptional circumstances.
4. The delay facing the applicant is also not in my opinion unique. Delays of the order potentially confronting the applicant as he awaits his trial are unfortunately quite common. Whereas a twelve or eighteen month delay on remand might in a different situation support a show cause requirement, it does not amount in my view to an exceptional circumstance of the type that the applicant must demonstrate here.
5. Nor is the applicant's subjective case particularly unusual. It is regularly asserted in applications for bail that an applicant's family are suffering hardship because the principal breadwinner is unable to work to support them. So much is understandable and credible. It is not, however, exceptional. It is on the contrary a regular and predictable consequence of an inability to secure release on bail. Neither are deaths in families exceptional. I accept immediately that in the present case the death of the applicant's father-in-law will have placed significant added pressure upon his wife during his enforced absence. But that circumstance is clearly not exceptional.
6. I am mindful that the applicant is only 21 years of age and that this is his first time in custody. Those are matters that weigh heavily in this case and serve to place the difficult custodial conditions to which he is exposed into a very particular context. I accept that the combined effect of the applicant's relative youth and relatively unremarkable criminal history are mismatched to incarceration as a suspected terrorism offender. I am once again unable to conclude that these things amount to exceptional circumstances. In the relatively limited experience of terrorism offences with which this country has had to deal, the treatment which the applicant is receiving whilst awaiting trial on remand is not out of the ordinary. The circumstances of his incarceration are not exceptional.
7. Finally, the Crown case appears to me to be quite strong. In expressing that opinion I should hasten to observe that the evidence before me does not descend into the level of detail that would be necessary to form that opinion as a concluded view. I have assessed the apparent strength of the Crown case by reference to my understanding that the alleged breaches by the applicant will stand or fall upon the evidence derived from a phone or computer in his possession when the offending activities occurred. I accept that there may well be an exculpatory explanation for this electronic footprint, but I have no material touching that possibility and I am required in any event to take the Crown case at its highest. The combination of charges also suggests that the offending conduct was not isolated or accidental.
8. Even taking all of the matters upon which the applicant relies into consideration together, I remain satisfied that they do not amount to exceptional circumstances sufficient to justify a grant of bail.

Conclusions

1. The applicant has not demonstrated that exceptional circumstances exist in accordance with s 15AA of the Crimes Act 1914. His application for bail is therefore dismissed.

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: 27 June 2016