R v Darwiche [2020] NSWSC 1865

Supreme Court New South Wales

Medium Neutral Citation: R v Darwiche [2020] NSWSC 1865 Hearing dates: 14 December 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Common Law Before: Rothman J Decision: Conditional bail granted Catchwords: BAIL – Show cause – proposed home detention – and electronic monitoring – risk sufficiently ameliorated. Legislation Cited: Bail Act 2013 (NSW), ss 16A, 17, 66 Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 Evidence Act 1995 (NSW), s38 Category: Principal judgment Parties: Hassan Darwiche (Applicant) Regina (Respondent) Representation: Counsel: I Lloyd QC (Applicant) S Jaeger (Respondent)

Solicitors: Hanna Legal (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2020/00335988 Publication restriction: Nil

Judgment 1. HIS HONOUR: The applicant, Hassan Darwiche, applies for bail pursuant to s 66 of the Bail Act 2013 (NSW) having been refused bail by the Local Court. The applicant is currently incarcerated on account of two sets of charges. 2. The first set of charges relates to conduct said to have occurred between 14 October 2019 and 11 December 2019 and comprises five offences: possess ammunition without holding licence and permit; assault occasioning actual bodily harm; two counts of common assault; and stalk and intimidate. The applicant was arrested for these offences on 12 December 2019 and, initially, granted bail. These charges are listed for hearing before the Bankstown Local Court on 3 May 2021. 3. The second set of charges is 23 charges relating to conduct said to have been committed between 26 April 2020 and 19 June 2020. Those charges are: unlawfully sell firearms three times or more within 12 months; participate in a criminal group-criminal activity; eight counts of supply prohibited firearm to an unauthorised person; six counts of supply pistol to persons who are not authorised to possess same; and seven counts of supply or give ammunition to person who is not authorised to possess. For obvious reasons, it seems some of those charges are backup charges to the principal charges. 4. The second set of charges is at the Local Court level and will be the subject of indictment, assuming, for present purposes, that the applicant is committed in relation to those charges. The matter came on for Bail hearing on 14 December 2020 and, at the time, was listed before the Local Court on 16 December 2020 for certification of the charges in relation to the second set of offences. 5. As stated above, the applicant was initially granted bail in relation to the first set of charges and the second set of offences were alleged to have been committed while the applicant was on bail. As a consequence of that circumstance, the provisions of s 16A of the Bail Act apply and the applicant is required to satisfy the Court that his continued incarceration is unjustified. 6. The applicant relies upon a number of factors going to the provisions of s 16A of the Bail Act. First, the applicant relies upon what is said to be a weak Crown case. The applicant submits that the deficiencies in the Crown case are that there is limited evidence going to the applicant's knowledge of the arrangements to supply the weapons, in circumstances where the Crown relies upon joint criminal enterprise. 7. Secondly, the applicant's wife has recently given birth to twins and there is a need for him to be home to assist in the care of the children. Thirdly, the applicant relies on unreasonable delay in the hearing of the matters as a result of the second set of offences not yet having had their charge certified and the likelihood that the trial will not occur until early or mid-2022. Fourthly, the applicant relies upon the stringency of the bail proposals he offers. Lastly, the applicant relies upon the substantial security that is proposed. 8. The bail proposal put forward by the applicant is, essentially, for house arrest with the provision of electronic monitoring to enforce compliance with that condition. There is a degree of irony associated with such a proposal. 9. The provisions of the show cause requirements prescribed by s 16A of the Bail Act require the applicant to show cause "why his … detention is not justified". A proposal that an applicant be subject to house arrest, on one view, accepts the need for the applicant to be detained. 10. Nevertheless, the Court takes the view that the detention to which s 16A of the Bail Act refers is detention in prison and accepts that a proposal for house arrest, assuming the Court is satisfied that such a requirement is enforceable or can be the subject of monitoring for compliance, is a matter that the Court can and should take into account in determining whether cause has been shown and whether, if cause has been shown, what may otherwise be unacceptable risks associated with the bail concerns have been appropriately ameliorated. 11. The Crown relies upon the show cause nature of the circumstances giving rise to the bail application and the seriousness of the offences of supplying prohibited pistols and firearms. The Court, as presently constituted, is on the record as to the seriousness of firearm offences and the comment that some sentencing has not reflected that seriousness. 12. The current allegations involve the supply of that which has been described as "military style weapons" and the possession of same, together with the manufacturing of them. Nevertheless, at this stage, the charges are allegations and the applicant has not been proved to be guilty. 13. Otherwise, the Crown relies upon a number of factors, most of which are obvious, on the face of the charges. First, the applicant, if convicted, will face a significant term of imprisonment and the matter, being the second set of offences, is to be certified shortly. 14. Secondly, the Crown says the Crown case is not weak. Thirdly, the applicant does not suggest medical needs that require the applicant to be at liberty for treatment. Nor, in relation to the recent birth of his children, does the applicant suggest that they have needs above and beyond that of any newborn twins. 15. There is some suggestion in the material that the applicant has a need for "chiropractic treatment" and has asthma. I accept the Crown submission that, in and of themselves, those two matters do not show cause. While the underlying condition that might require chiropractic treatment may be such as to show cause, in and of itself the necessity for such treatment does not. The same can be said in relation to the use of an asthma inhaler. The NSW prison system is not without medical facilities. 16. As to the recent birth of the twins, the Crown submits that the applicant's partner was pregnant at the time of the offending and, assuming for present purposes that the Court accepts that the Crown case is not weak, the offending would, assuming guilt, have occurred at a time when, if the applicant were apprehended in relation to the offending, require his imprisonment in the early stages of the life of the child or children to be born. 17. The applicant's partner, according to the Crown, can reside with her mother and the only aspect that requires the applicant's liberty is that it would assist in the care of the children, but it is not necessary and does not rise to the level of showing cause. 18. A further consideration raised by the applicant is the mental health of the applicant's mother which, again, the Crown submits does not rise to the level of showing cause. Indeed, there is nothing to suggest that the applicant's conditional liberty would be used to assist his mother. 19. Further, given what the Crown says are the criminal associations of the applicant, the surety, while a significant amount of money, does not overcome the prospects of flight and does not adequately mitigate against the risk associated with flight. 20. Fundamentally, the Crown relies upon the risk of non-appearance; the significant period in custody the applicant is facing should he be convicted; and the inadequacy of the proposed surety.