District Court New South Wales Medium Neutral Citation: Tugaga v R [2021] NSWDC 388 Hearing dates: 10 August 2021 Date of orders: 10 August 20201 Decision date: 10 August 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: The bail application is refused Catchwords: CRIMINAL LAW – release application – bail conditions – supply of methylamphetamine – guilty plea indicated- sentence date fixed - offence committed on parole - applicant required to show cause – risk of flight – substantial cash security available – otherwise not prohibited by statute – conditions not capable of mitigating risk of flight CRIMINAL PROCEDURE - Chambers Bail determination - application of COVID lockdown procedures BAIL – "show cause" requirement – where applicant has satisfied grounds for further release application –– "show cause" requirement not met – application for bail refused Legislation Cited: Bail Act 2013 Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 DPP v Mawad [2015] NSWCCA 227 EF v R [2015] NSWCCA 36 Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45 McAndrew v R [2016] NSWCCA 58 R v Tugaga, unreported DC NSW 16/11/1020 R v Xi [2015] NSWSC 1575 Robertson v R [2017] NSWCCA 205 Category: Principal judgment Parties: Leti Tugaga (the applicant) Director of Public Prosecutions (the respondent) Representation: Counsel: Mr D Beaufils (for the applicant) Solicitors: Abbas Jacobs Lawyers (for the applicant) Ms A Kerr (for the respondent) File Number(s): 2020/295286 JUDGMENT - Chambers Bail Determination Introduction 1. On 16 November 2018 at Wollongong District Court I sentenced Leti Tugaga to an aggregate sentence of 3 years 3 months imprisonment for firearms and a supply a commercial quantity of cannabis offences. He was released to parole on 21 March 2020: R v Tugaga, unreported DC NSW 16/11/1020. 2. On 14 October 2020 Mr Tugaga was arrested and charged with a fresh drug supply offence, involving 16 grams of methylamphetamine. He was refused bail. His parole was revoked and he served his balance of parole until 31 July 2021. 3. After a charge negotiation process in the Local Court Tugaga was committed to the District Court for sentence. Before the first mention in this court on 6 August 2021 a release application was filed. 4. On 6 August 2021 I listed the matter for sentence to 3 September 202; in the expectation that we would have time to hear the matter as jury trials could not proceed because of an expected extension of the present COVID-19 lockdown. The Bail Application was placed in abeyance. 5. On 9 August 2021 the Court received notice that the release application was being pursued. 6. Later that day the Director of Public Prosecutions (DPP) confirmed that the application was opposed. In accordance with the Chief Judge's direction of 2 August 2021 the matter will be determined in chambers. 7. I have the received and reviewed: 1. The application with 13 proposed (and very stringent) conditions 2. A letter from Mr Tugaga's brother, who offers to be a surety and provide accommodation. 3. A letter from a proposed employer. 4. The DPP's Draft "Statement of facts" for sentence. 5. A custodial movements history and 6. A criminal history – bail report. 1. I am assisted by written submissions from Mr Beaufils for the applicant and Ms Kerr for the Director. 2. As the applicant was on parole at the time of the allegations he must 'show cause' and demonstrate that his detention is not justified: s 16A Bail Act 2013. Submissions 1. On the "show cause issue" Mr Beaufils took me to relevant authority. He submits that as the offence is objectively towards the lower end for this type of offence, this low objective criminality and any penalty that may be imposed is relied upon to establish that cause has been shown: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83; McAndrew v R [2016] NSWCCA 58; DPP v Mawad [2015] NSWCCA 227. He accepts however, that some of the factors listed in s18 of the Bail Act are logically relevant to the task of determining whether an applicant has shown that his or her detention is not justified. They include the length of time that the applicant is likely to spend in custody if bail is refused and their need to be free to prepare for his appearance in court: McAndrew at [9]. 2. As to the risk of flight he submits that practically speaking flight is, in reality, very unusual and the risk is even lower now, given the current travel restrictions as a consequence of COVID-19. He submits that the proposed bail conditions are factored in that they are so stringent that they can ameliorate to a substantial degree the unacceptable risks. 3. In relation to s18 Bail Act considerations he submits that: 1. The applicant has a limited criminal record with one lengthy prison sentence; 2. The applicant does not have a history of violence and most matters on his record are towards the lower end of the spectrum; 3. The applicant does not appear to have previously offended whilst on bail; 4. The applicant does have a history of non-compliance with other court orders outside of this parole breach; 5. The applicant will have spent a month in custody awaiting sentence. 6. Exceptionally strict conditions can be imposed to address any bail concern, including self-surety as well as a curfew condition. 1. In response, Ms Kerr makes the point that even if I found cause was shown, which she says I should not, I could have no confidence that Mr Tugaga would not reoffend by supplying drugs yet again, given his history; thereby endangering the safety of the community. 2. Further, the Director submits the following factors are of significance: 1. Criminal History – the applicant has a previous offence of supplying prohibited drugs in a substantial quantity. The applicant also has firearm offences on his record. 2. The offender was subject to parole for the offence of supply prohibited drugs when he committed this offence. 3. The offence for which the applicant is to be sentenced is serious and carries a maximum penalty of 15 years imprisonment. 4. The applicant has criminal associations – links to "OMCGs" are set out in the custodial movements document – which they say must refer to Outlaw Motor Cycle Gangs. 5. The DPP will be submitting on sentence that a full- time custodial sentence is warranted. 1. As to the proposed conditions she notes that police have made enquiries regarding the proposed condition that the applicant resides with his brother. Police advise that although the applicant's has had no convictions since 2013, he was convicted of three robbery offences in 2008. Police also advise that the premises are a three-bedroom townhouse which the brother shares with his partner and three children. Police raised concerns that compliance with the proposed conditions may become an issue. Determination 1. It is recognised that 'no grant of bail is risk free:' R v Xi [2015] NSWSC 1575 at [42]. Apart from Mr Tugaga's desire to be free no specific cause has been shown. There has not been, nor will there be, inordinate delay. To the contrary the matter is progressing relatively quickly. There is no evidence Mr Tugaga will be disadvantaged in his preparation for his sentence. 2. Mr Tugaga must show cause because he committed an offence while on parole. That offence involved drug supply. It is alleged it was committed for commercial gain. He was on parole for a drug supply offence committed for commercial gain. The risk that he may offend in a similar way again remains. Cause has not been shown. 3. Even were I to find cause had been shown, s18 Bail Act considerations would mean the application must be refused. The stringent conditions proposed cannot ameliorate the risk of further drug supply offences that would endanger the community or the risk of flight. 4. Further, there is a likelihood (based only on the DPP case) that even if I granted bail Mr Tugaga will return to gaol in early September 2021. That does not mean an alternative disposition such as a sentence served subject to an intensive correction order will be not given full, fair and genuine consideration. A Court's sentencing discretion cannot be judicially constrained; EF v R [2015] NSWCCA 36. As High Court has repeatedly stressed sentencing Judges must balance a complexity of sometimes competing or contradictory factors. Judges have both discretion and a duty to fit the sentence to the offence and offender, as each case and each offender is different: Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45. 5. A sentencing court must nevertheless give full and proper consideration to the guidance offered by past sentencing decisions. In practice this means that, in the absence, perhaps, of some unusual circumstance, those who engage in trafficking in illicit drugs, no matter what their level, a sentence of imprisonment is generally imposed: Robertson v R [2017] NSWCCA 205. 6. The applicant thus has considerable incentive to flee the jurisdiction. Orders 1. The application is refused. ********** 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: 10 August 2021