R v R Schaaf; R v F Schaaf [2022] NSWDC 116

District Court New South Wales

Medium Neutral Citation: R v R Schaaf; R v F Schaaf [2022] NSWDC 116 Hearing dates: 13 April 2022 Date of orders: 13 April 2022 Decision date: 13 April 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 52 Catchwords: BAIL – accused persons' release applications – charge of detaining complainant, in the company of others, without consent and with intent to obtain advantage, occasioning actual bodily harm Legislation Cited: Bail Act 2013 (NSW) ss 16A, 17, 18, 19 Crimes Act 1900 (NSW) s 86 Cases Cited: DPP (NSW) v Tony Mawad [2015] NSWCCA 227 JM v R [2015] NSWSC 978 McAndrew v R [2016] NSWCCA 58 Moukhallaletti v DPP [2017] NSWCCA 314 Texts Cited: Nil Category: Principal judgment Parties: Office of the Director of Public Prosecutions Mr R Schaaf (applicant) Mr F Schaaf (applicant) Representation: Ms Calderbank for the ODPP Mr Goold (solicitor) for the applicants File Number(s): 2021/00124978; 2021/00125074 Publication restriction: Non-publication order involving any child care proceedings – content redacted

Judgment 1. Before the Court are two bail applications by two persons (both brothers), who have been charged on indictment that on 14 April 2021, at Cremorne, in the company of other persons, each detained Mr Stuart MacGill (the complainant) without his consent and with an intent to obtain advantage, namely the extortion of money and/or information, and at the time of detaining, actual bodily harm was occasioned to the complainant. The alleged offending is contrary to s 86(3) of the Crimes Act 1900 (NSW). The seriousness of the offence is indicated by the fact that the offence has a maximum penalty of 25 years imprisonment. 2. As summarised in the Crown's written submissions on the application, the complainant is a former cricketer. The complainant is in a relationship with the co-accused's (Mr Sotiropoulos) sister, making him the co-accused's brother-in-law. In April 2021, the complainant put the co-accused, Mr Sotiropoulos, in contact with a male by the name of "Sonny." It is alleged that Mr Sonny is a known cocaine dealer. Sometime after this, it is believed that Mr Sotiropoulos was involved in a "botched" drug deal with Sonny whereby Sonny used "fake" money to obtain 2kg of cocaine. Mr Sotiropoulos has since been charged with supply of a large commercial quantity of a prohibited drug. 3. It is further alleged that on 14 April 2021, Mr Sotiropoulos attended the home of the complainant and confronted him about what had taken place between himself and Sonny. Mr Sotiropoulos blamed the complainant as he had "vouched" for Sonny. The complainant was then approached by one of the applicants in this proceeding, Richard Schaaf, and was ordered into the car. The other applicant, Frederick Schaaf, was allegedly waiting in the car. The complainant was then allegedly driven to Bringelly where he was taken into an abandoned shed and assaulted by Richard Schaaf and a co-accused, Vaeluagaomatagy Felio, in the presence of Frederick Schaaf. 4. Both applicants for bail were arrested and charged on 5 May 2021 and have been in custody, with bail refused, since that date. The prosecution briefs have been served and the applicants were committed for trial on 24 February 2022 and the matter is next listed on 22 April 2022 for arraignment. 5. The Crown opposes bail in the case of each applicant. 6. It is common ground that the show cause requirement in s 16A of the Bail Act 2013 (NSW) ('the Act') is enlivened. 7. The issues are therefore whether either applicant can show cause why their detention is not justified and, if either or both succeed in doing so, whether (for the purpose of s 19 of the Act) there is an unacceptable risk that either or both applicants will: fail to appear at any proceeding for the offence, commit a serious offence or endanger the safety of victims, individuals or the community. 8. The Crown and both applicants made extensive submissions and relied upon voluminous material as to the matters set out in s 18 of the Act. 9. There is considerable overlap in the circumstances of each application and where there occurs, I will not differentiate the position of the applicants. Plainly, where there are differences pertaining to each application, they will be identified.