HIS HONOUR: Taniella Pasikala applies for bail. He has been in custody bail refused since the date of his arrest on 31 July 2018. He is charged with taking and detaining a person while in company to obtain an advantage and with demanding property by force in company with intent to steal. His matters are next before the Newtown Local Court on 2 October 2018 for mention. No plea has yet been entered for either offence.
The Crown opposes bail. It contends that all four of the matters listed in s 17(2) of the Bail Act 2013 apply and constitute unacceptable risks in this case.
The alleged background facts are briefly as follows. The victim is known to Mr Pasikala. They met while working together for a construction company. They became friends and trained together at a gym. On 21 July 2018, the victim went to Mr Pasikala's home in Mount Druitt where he was given a blue hooded jumper. The jumper had two pockets. The victim maintains that the pockets were empty.
On 27 July 2018, the victim received a telephone call from Mr Pasikala, asking, in effect, what happened to the sum of $7,000 that Mr Pasikala said was in one of the pockets when he gave him the jumper. Although it is not entirely clear, it seems that the victim continued to deny that there was any money in the garment when it was given to him. This conversation then became heated.
A couple of hours later, Mr Pasikala attended the victim's home with two associates. One of them was armed with a 20cm kitchen knife. It appears that the victim was threatened with the knife that was pointed towards him. He feared for his life and became upset. He was told by Mr Pasikala and his co-accused that if he did not give them the money by the following day he would die. The victim feared for his life and subsequently reported these events to the police.
Before that occurred, Mr Pasikala sent a series of text messages to the victim's mobile phone. Between 3.30pm on 27 July 2018 and 7.24pm on the following day, Mr Pasikala sent some 69 text messages to the victim's phone accusing him of lying about the money. None of these messages contained a threat. However, the Crown contends that the content of the messages clearly corroborates the fact that Mr Pasikala attended the victim's premises, as earlier described, and demanded the return of his money.
Mr Pasikala is a 27 year old man with a lengthy and varied criminal record dating back to 2009. He has previously been convicted of robbery, numerous traffic matters, and drug possession. At the time of the commission of the alleged offences, Mr Pasikala had just been sentenced to an ICO for a driving offence. That was subsequently revoked so that Mr Pasikala is currently serving a fixed term of imprisonment that is not due to expire until February 2019.
The Crown maintains that there are a number of unacceptable risks, including the risk that Mr Pasikala will fail to appear. Indeed, Mr Pasikala has an indifferent record of compliance with court orders having breached bail conditions on no less than five occasions, most recently on 30 November 2015. As already mentioned, his ICO was revoked following the laying of the charges that he currently faces. Mr Pasikala's parole was revoked in both 2012 and 2013.
The Crown also contends that Mr Pasikala poses a risk to the victim who has expressed fear for his own safety. His home address is known to Mr Pasikala who has already been there. The Crown case is that the death threats made to the victim were accompanied by the production of a knife. The victim is said to have been terrified by the offence and subsequently suffered a breakdown. While there is some corroborating evidence, the Crown case relies predominantly on the evidence of the victim. Mr Pasikala has previously been charged with an offence involving violence, namely robbery in company.
The application is based in part upon concern that, while Mr Pasikala is in custody on charges awaiting trial, he is treated as a remand prisoner rather that an inmate serving his sentence, and so is denied access to the possibility of a minimum security classification for the duration of his sentence. Having also only recently been charged, there is a significant prospect that his trial is as far away as 18 months to two years.
It is submitted that Mr Pasikala has strong family support. He has three children under the age of seven years who he supports by working in the construction industry. His incarceration has had a significant detrimental effect upon them. He has employment to return to which will not bring him into contact with the victim. Mr Pasikala has expressed a desire to return to university and study construction management.
There is also some suggestion that Mr Pasikala suffers from a series of mental disabilities including attention deficit hyperactivity disorder, generalised anxiety disorder and major depressive order. These are referred to in a report dated 26 April 2018 from Mr Chafic Awit, a registered psychologist. Mr Awit has expressed the opinion that with ongoing treatment, Mr Pasikala's condition should improve considerably and completion of the treatment should ameliorate the disorders, markedly reduce the probability of the occurrence of further similar offending and assist Mr Pasikala to lead "a lawful and satisfying life".
Mr Pasikala was born in October 1990. He is shortly to turn 28 years of age. His criminal career did not start until he was 19 years of age. When still 19 years of age, he pleaded guilty to an offence of robbery in company and was sentenced to a non-parole period of imprisonment of 18 months. He was to be released on parole subject to supervision including treatment for alcohol addiction and psychiatric counselling. With the exception thereafter of some relatively minor behavioural offences, Mr Pasikala's major problems appear to have been associated with driving motor vehicles. He has been disqualified from driving and on 30 November 2015 he was sentenced to a non-parole period of imprisonment for 7 months for driving during a period of disqualification. The ICO referred to earlier was itself imposed in relation to a second offence of driving during a period of disqualification.
While Mr Pasikala could not, having regard to his criminal history, be described as public enemy number one, he could quite accurately be described as his own worst enemy. The latest offence is a somewhat curious example of the type of stupidity and lack of concern for his own best interests that have largely marked out his adult life.
I accept that the Crown has identified some bail concerns, including the risk that he may reoffend. I am, however, prepared to accept that this risk can be satisfactorily mitigated by the imposition of a series of conditions that might be expected to keep him from reoffending until his trial. It is also not without significance in my opinion that, by reason of the fact that Mr Pasikala will have to remain in custody serving his current sentence until early next year, he will have the opportunity to consider his position at leisure as well as the time to develop some motivation to stay out of trouble upon his release. The prospect of a re-classification in gaol until that occurs may also permit him to gain access to some programs within the Corrective Services system to assist with the management of his psychiatric disorders.
I propose in the circumstances to grant bail, subject to the following conditions:
1. He is to be of good behaviour.
2. He is to reside at xx xxxx, Mount Druitt.
3. He is to report to Mount Druitt police station daily between the hours of 6am and 8pm.
4. He is to appear at Newtown Local Court, by audio visual link if available, on 2 October 2018 and thereafter as required.
5. He is not to drink alcohol or enter premises where alcohol is sold.
6. He is not to take any illegal or prescription drugs other than a drug that has been prescribed for him by a medical practitioner.
7. He is not to be absent at any time from the premises at which he is required to live otherwise than for the purposes of travelling to or from a place of employment with Marques Group Pty Ltd or attending court or reporting to police in accordance with condition (3) above.
8. He is not to have any contact directly or indirectly, except through his lawyers, with any person who the prosecution has told him is or may be a witness for the prosecution.
9. He must not go to within 1km of the suburb of Petersham.
[2]
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: 12 December 2019