Singh v R

Court of Criminal Appeal (NSW)|2015-10-14|Before: Macfarlan JA, Mr P, Wilson J, Hoeben CJ

Judgment

THE COURT: The applicant has made a release application pursuant to s. 49 of the Bail Act 2013 (NSW) ("the Act"). A previous application was refused by Wilson J on 5 August 2015.
The present application was heard by the Court on 14 October 2015. It was heard de novo: R v Kugor [2015] NSWCCA 14 at [4] per Hoeben CJ at CL. At the conclusion of the hearing the Court concluded that the application should be granted, and that the applicant should be released on the following conditions, namely that: 1. he appear at the Liverpool Local Court on 21 October 2015 and thereafter as may be required; 2. he reside at 7 Phillip Street, Liverpool; 3. he not be absent from 7 Phillip Street, Liverpool between the hours of 8 pm and 6 am; 4. one acceptable person, namely Ravenna Singh, deposit the sum of $2,000.00 and agree to forfeit that amount in the event that the applicant fails to appear in accordance with his bail undertaking; 5. he present himself at the front door of 7 Phillip Street Liverpool upon being directed to do so by any police officer to confirm compliance with his curfew, such direction to only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy; 6. he not approach directly or indirectly, except through his legal advisers, Rayane Gobindram or any other person whom he is notified will be called in the proceedings against him; 7. he surrender his passport to the officer in charge of the investigation prior to entering bail; and 8. he not apply for any new passport or travel document.
At the time of making the orders in [2] above the Court indicated that its reasons would be published in due course. Those reasons now follow.

THE FACTS

Rayane Gobindram ("the victim") and the accused both attended the same high school between 2011 and 2012. During that time they became friends although after the victim left school they had no further contact.
In December 2014 the victim and the applicant again came into contact through mutual friends. At about 1:00pm on 1 February 2015, the victim received a phone call from the applicant who said to him: "Give me one hundred bucks or I'll bash you".
The victim replied: "Give me a reason first and I'll give you anything you want."
The applicant then ended the call.
At about 4:50pm on the same day, the victim received a private message from the applicant on "Facebook", again asking for money. The victim agreed to meet the applicant at a designated location at 6:20pm that evening. However, the victim had no intention of meeting with the applicant and only wanted him to stop asking him for money.
At about 11:00pm on 1 February 2015 the victim was at home when he heard the applicant's voice. He looked out his window and saw the applicant, in the company of an unknown male, standing outside. The victim heard the applicant talking, following which the applicant and the unknown male started knocking on doors of premises within the housing complex in which the victim lived, asking for the victim. The victim turned off the lights inside his premises and closed the blinds. After a period of time the applicant and the other male left the location.
Between about 10:00am and 11:00am on 2 February 2015, the victim was at the Liverpool Library located on George Street at Liverpool, in the company of a friend, Erika Octavia ("Octavia"). The victim received a phone call and upon answering it realised that the applicant was on the phone. He terminated the call. A short time later the victim's phone rang again, on this occasion displaying the identity of the caller as "Yasser". The victim and Yasser were not friends but they had mutual friends. In the past, Yasser had called the victim's mobile phone to speak with these friends. The victim did not answer the call. Several more calls were made by Yasser to the victim's phone, none of which were answered.
Yasser then called Octavia's mobile phone. Upon answering the call, Yasser told Octavia: "Tell Rayane he better bring the hundred dollars to Maccas on Elisabeth Drive by tonight otherwise Brendon will show me where he lives and I'll put a bullet in his head".
The victim and Octavia remained at the Liverpool Library all day. As they were sitting out the front of the library at about 6:00pm, the applicant walked up to the victim and they had a discussion about money. The victim then told the applicant that he would go and get him the one hundred dollars for which he had asked.
A short time later the applicant saw the victim walking with Octavia in Liverpool. The applicant said to the victim: "I thought you were going home to grab the money".
The victim replied: "I'm going soon".
The applicant said: "I'm coming with you cause I'm sick of you playing games with me".
The victim, the applicant and Octavia then walked to Octavia's house near Liverpool Railway Station. As the victim and the applicant were leaving that area to walk to the victim's house, a motor vehicle began to follow them. The victim saw that Yasser was seated in the front passenger seat of that vehicle, along with two other males who were not known to the victim.
The victim and the applicant then arrived at the victim's house. The vehicle stopped outside and the applicant remained with it. The victim walked inside his house and called his mother. He told her that the applicant was asking him for one hundred dollars or he would bash him. While the victim was on the phone to his mother he could see the applicant talking to the males in the vehicle. The victim saw a "flash" at the vehicle, following which he terminated the call with his mother and walked outside. The applicant showed him a picture on his phone of a quantity of guns and knives contained in a black bag which resembled a laptop case. One of the guns looked like a hand gun, the other an M16. The applicant said to the victim: "If I don't get my money tonight one of the bullets is going through your head".
Whilst the applicant and the victim were still outside the victim's premises, the police attended. Police spoke with the victim but he told them that there was no problem. On the Crown case, the victim said this because the police had spoken to him in close proximity to the applicant, as a consequence of which the victim feared saying anything to the police. Police then spoke with the applicant and obtained his details before telling him to leave the area.
At about 3:00pm on 3 February 2015 the victim's mother received a phone call on her mobile phone from a number recognised by the victim as that of the applicant. The victim told his mother to terminate the call and block the number.
At about 1:45am on 4 February 2015 the victim was sitting outside Liverpool Library with Octavia and two other persons, Shelam and Waleed. Octavia received a call and about 30 minutes later the applicant arrived at the library. The applicant said to the victim: "Rayane, come with me, I need to talk to you, but come by yourself."
The victim and the applicant walked to the car park which was located at the rear of the library. As the elevator was turned off, the victim and the applicant walked up the stairs to level 6 to find Yasser and another male standing at the top of the stairs. The other male had been at the victim's house on the previous Sunday evening in the company of the applicant.
The applicant opened the door and called out "oi". A male voice said: "Wait I'm on the phone."
The applicant then began to punch the victim a number of times using both fists all over his body. The applicant also kicked the victim to his left knee. The victim put his head down to protect himself before sitting down. At that point the applicant said: "I've done this because you haven't given me my hundred dollars."
The victim said: "I wouldn't give it to you no matter what cause you have no reason for it."
The applicant then leant down and grabbed the victim's mobile phone from his right pocket, at which time the victim said: "Alright you can have my phone, don't ever touch me again. Just give me my Sim card."
The applicant then handed the victim his phone. The victim removed the Sim card and then threw the phone at the applicant. The applicant then left by walking down the stairs with Yasser, whilst the victim remained sitting in the stairwell. At about 3:45am the victim's friends, Octavia, Shelam and Waleed, walked up the stairs and saw him. The victim told them what had happened before he was driven home.
At about 4:30pm that day the victim attended Liverpool Police Station and provided the police with a statement. In that statement he told the police that he did not know why the applicant was asking him for money.
At about 10:20am on 5 February 2015, the victim received a message from the applicant via Facebook. That message said: "Meet me at Bigge Park, you got the $100?" The victim responded: "Yes". The applicant said: "I am leaving my house now." The victim responded: "Okay and bring my phone with you." The applicant said: "I will see you soon."
At 11:29am the applicant sent a message to the victim saying: "Where are you, I'm at the library".
The victim contacted police and told them that the applicant had contacted him and was at Liverpool Library wanting money for his phone. Police attended Liverpool Library a short time later and identified the applicant who was with another male. At that point the applicant was arrested and taken into custody. Police questioned the applicant about the victim's phone and the applicant told police that it was with his friend. Police spoke with the friend who gave them the phone.
The applicant declined the opportunity to participate in a recorded interview.

THE DECISION OF THE PRIMARY JUDGE

The primary judge dealt with the applicant's release application on 5 August 2015 and in an ex tempore judgment she refused the application.
Her Honour noted that a difficulty faced by the applicant arose from the fact that the alleged offending on 4 February 2015 occurred whilst he was subject to bail for an offence of supplying a prohibited drug. Her Honour concluded (inter alia) that it was likely that the conditions of bail which had been proposed to her could "adequately ameliorate the risks presented by the applicant being at liberty". However, concluded that the evidence was insufficient to discharge the onus placed upon the applicant by s. 16A of the Act.

EVIDENCE BEFORE THIS COURT

Filed in support of the application was an affidavit of Ravenna Singh, the applicant's mother, affirmed on 9 October 2015. That affidavit established that the applicant is one of three children who, prior to his arrest, resided with his family. Mrs Singh expressed her support for the applicant, along with her willingness, and that of other members of her family, to support and supervise him if he were granted bail. She also confirmed that there was a surety of $2,000.00 in cash which is available to be deposited.

THE REVISED CHARGES

At the commencement of the hearing of the present application, the Court was informed that the charge of aggravated robbery had been withdrawn by the Crown and replaced by the following charges: 1. demand money (Crimes Act 1900 s. 99); 2. steal from person Crimes Act 1900 s. 94);; 3. intimidation (Crimes Act 1900 s. 545B); and 4. common assault (Crimes Act 1900 s. 61).
The Crown indicated that it was proposed that all matters be dealt with summarily in the Local Court. The parties agreed that the maximum penalty which could be imposed by a Magistrate in respect of each charge was imprisonment for a period of 2 years.

THE RELEVANT LEGISLATIVE PROVISIONS

Section 16A of the Act is in the following terms: 16A Accused person to show cause for certain serious offences (1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified. (2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test - all offences). (3) This section does not apply if the accused person was under the age of 18 years at the time of the offence.
Section 18 of the Act is in the following terms: 18 Matters to be considered as part of assessment (1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division: (a) the accused person's background, including criminal history, circumstances and community ties, (b) the nature and seriousness of the offence, (c) the strength of the prosecution case, (d) whether the accused person has a history of violence, (e) whether the accused person has previously committed a serious offence while on bail, (f) whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds, (g) whether the accused person has any criminal associations, (h) the length of time the accused person is likely to spend in custody if bail is refused, (i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence, (j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success, (k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment, (l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice, (m) the need for the accused person to be free for any other lawful reason, (n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence, (o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community, (p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A. (2) The following matters (to the extent relevant) are to be considered in deciding whether an offence is a serious offence under this Division (or the seriousness of an offence), but do not limit the matters that can be considered: (a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900 , (b) the likely effect of the offence on any victim and on the community generally, (c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Submissions on behalf of the applicant

Counsel for the applicant submitted that the Crown's decision to alter the charges against the applicant was a significant one, particularly in terms of the likely penalty. In this regard, counsel emphasised that the maximum penalty for the charge which was originally laid against the applicant was imprisonment for 20 years, and that the maximum penalty available to a Magistrate in respect of the substituted charges was only 2 years.
Counsel accepted that the applicant was required to show cause under s. 16A. However, counsel emphasised that this onus had been imposed upon the applicant as a consequence of the fact that, at the time of the commission of the alleged offences, the applicant had been at liberty on bail for an alleged supply of 0.8g of cannabis leaf. In support of a submission that such onus had been discharged, counsel relied upon: 1. the applicant's age; 2. his lack of criminal antecedents; 3. his ties to the community; and 4. his strong family support.
Counsel further submitted that the likelihood of a substantial custodial sentence being imposed had been significantly reduced as a consequence of the substituted charges. Whilst counsel conceded that the delay in bringing the matter to finalisation would now be less than what would have been the case had the original charge proceeded, it was submitted that on present indications the charges would not be finalised in the Local Court until sometime in February 2016 at the earliest, resulting in the applicant having to remain in custody for a significant period of time.
Counsel for the applicant conceded that the prosecution case appeared "reasonably strong" but submitted that the prospect of a conviction would necessarily depend, at least in part, upon an assessment of the credibility and reliability of the evidence given by the alleged victim. In this regard, counsel pointed to the fact that: 1. when the victim was spoken to by police on 2 February 2015 he indicated that there was no issue between himself and the applicant; 2. in circumstances where, on the Crown case, the offending occurred between 2:50am and 3:00am on 4 February 2015, the alleged victim did not report the matter to the police until 4:30pm on that day which was more than 13 hours later; 3. the Crown case disclosed no evidence regarding actual bodily harm occasioned, in circumstances where the victim alleges that he was punched with both fists all over his body and kicked to the knee; and 4. there was a possible defence, to at least one of the charges, of a claim of right.
Counsel for the applicant also made lengthy submissions in terms of assessing any bail concerns. In this regard, counsel for the applicant pointed to: 1. the available family support and surety; 2. the absence of any prior convictions; 3. the absence of any history of violence; 4. the absence of any history of non-compliance with orders of a court; 5. the absence of any evidence of criminal associations; 6. the necessity for the applicant to be free to prepare his case; and 7. the bail conditions that could reasonably be imposed to address any bail concerns.

Submissions of the Crown

In written submissions, the Crown opposed the application. In doing so, the Crown pointed firstly to the fact that the applicant was facing a serious charge carrying a maximum of 20 years imprisonment. It was submitted that in the event of being found guilty of that charge, a custodial sentence would inevitably follow, giving rise to a real risk of flight. The Crown also submitted that the case was a strong one and that there was available corroboration of the evidence of the victim. The Crown also submitted that there were real concerns for the safety of the victim.
In oral submissions, and in light of the fact that the original charge had been withdrawn, the Crown accepted that the nature of the circumstances surrounding the application had "substantially changed", such that "perhaps it (was) the case that the applicant's case (had) been strengthened. Whilst the Crown made it clear that his instructions did not extend to consenting to the applicant being released, he submitted that in the event that the Court was amenable to granting the application, there were a number of conditions which should be imposed, directed towards (inter alia) ensuring that the applicant did not contact or approach the victim, requiring him to report daily to police and requiring him to conform with a daily curfew.

CONSIDERATION

Where an applicant for release is required to show cause under s. 16A of the Act, the Court must apply a two stage test. The first is to determine whether or not the accused person has shown cause "why his or her detention is not justified" (s 16A(1)). The second, which arises if cause is shown, is to assess whether or not the person's release raises any bail concerns (s. 16A(2); s. 17(1)): and, if so, determine whether there is an unacceptable risk of those concerns materialising (s19). A bail concern is a concern that the person will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence (s. 17(2) and s. 19(2)). In relation to the first stage, the justification or otherwise for a person's detention is to be determined by a consideration of all the circumstances. The unacceptable risk test requires that consideration only be given to the factors in s. 18 of the Act: Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 per Beech-Jones J commencing at [12] (Gleeson JA and Adams J agreeing), citing Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83.
In the present case, as the Crown properly conceded, the decision to withdraw the original charge of robbery and replace it with the charges previously outlined represents a substantial change in the circumstances surrounding the application, and serves to strengthen the applicant's position in respect of the onus to show cause under s. 16A. Even allowing for the possibility of partial accumulation of any sentences imposed, the maximum penalty available to a Magistrate dealing with the charges summarily is obviously substantially less than that which would have been available had the original charge of robbery proceeded on indictment.
The applicant is only 19 years of age. He has no prior convictions and finds himself in custody for the first time. He enjoys close family support. Further, although the delay in the substituted charges being finalised is likely to be less than what would have been the case had the original charge proceeded to trial, it remains the position, on the indications given to the Court in the course of the hearing, that the matters are unlikely to be finalised until February 2016 at the earliest. This would mean that the applicant would have spent 1 year in custody awaiting a hearing, in circumstances where the maximum available penalty for any one charge is 2 years imprisonment.
Taking all of these matters into account, the Court is satisfied that the applicant has shown cause under s. 16A of the Act.
The proposed release of the applicant does give rise to some bail concerns. Principal amongst them is a concern for the safety of the victim and other Crown witnesses. However, the Court considers that such concerns can be appropriately addressed by the imposition of a series of conditions, compliance with which will ensure (inter alia) that the applicant resides with his parents, is subject to a curfew (compliance with which can be monitored by police) and reports regularly to police.

ORDERS

For these reasons the Court made the following orders on 14 October 2015: 1. The application for release is granted. 2. The applicant is to be released on the conditions set out in [2] above.

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: 08 June 2016

At a glance

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Judgment (12 paragraphs)

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