Supreme Court New South Wales Medium Neutral Citation: R v Kelu; R v Millner (No 6) [2023] NSWSC 1542 Hearing dates: 13 July 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: The detention application in respect of the offender, Jonatan Kelu, is refused. Catchwords: CRIME — Bail — Detention application – where offender suffers from autism spectrum disorder and other health problems – where offender requests time to undergo testing and treatment prior to entering into custody – whether special or exceptional circumstances exist – application refused Legislation Cited: Bail Act 2013 (NSW), ss 22B, 32(1) Criminal Code Act 1995 (Cth), s 135.4 Cases Cited: Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173 Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 Category: Procedural rulings Parties: Rex Jonatan Kelu Cedric Adrian Millner Representation: Counsel: G Craddock SC with B Stevens (Crown) M Avenell SC (Mr Kelu) S Hall SC (Mr Millner) Solicitors: Commonwealth Director of Public Prosecutions Bannisters Lawyers (Mr Kelu) KPW Lawyers (Mr Millner) File Number(s): 2018/32462 and 2018/67357 Publication restriction: None REVISED EX TEMPORE Judgment 1. On 11 July 2023, the offender, Jonatan Kelu, was convicted of two counts of conspiracy to defraud the Commonwealth contrary to s 135.4 of the Criminal Code Act 1995 (Cth). After his conviction, the Crown Prosecutor made a detention application, relying on s 22B of the Bail Act 2013 (NSW) ("Bail Act"), which is in the following terms: 22B Limitation regarding bail during period following conviction and before sentencing for certain offences (1) During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court— (a) on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or (b) on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision. (2) If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person's detention is not justified. (3) Subject to subsection (1), Division 2 applies to a bail decision made by a court under this section. (4) This section applies despite anything to the contrary in this Act. (5) In this section— conviction also includes a plea of guilty. Note— Conviction is defined in section 4(1) to include a finding of guilt. 1. Ms Avenell of Senior Counsel appears on behalf of the offender, as she appeared for him throughout the trial. She accepts that the threshold point raised under s 22B – that is, that the offender will be sentenced to imprisonment to be served by way of fulltime detention – is satisfied. That is not in issue on this application. However, Ms Avenell says that there are special or exceptional circumstances which exist, such that the detention application should be refused. 2. Following an approximately seven-week trial, the offender was convicted of two counts of conspiracy to defraud the Commonwealth, along with his co-conspirator, Mr Millner. The offences relate to a course of conduct which occurred in 2012 and 2013 and involved what I will describe as a "scheme" involving the purchase, melting and sale of gold. When the company which was said to be the seller of the gold, Investrix, completed and submitted periodical Business Activity Statements ("BAS") and/or Goods and Services Tax ("GST") forms, a claim was made in respect of Input Tax Credits, thereby offsetting the amount of GST received from the ultimate purchaser of the gold, Focus Metals. 3. The net effect was that GST of approximately $40 million (received from Focus Metals over a two-year period) was not paid to the Australian Taxation Office ("ATO") but retained by Investrix, based on the offsetting of said-to-be-permissible Input Tax Credits. 4. Having regard to the terms of the provisions under which the offender was charged, the jury must have accepted that the offender conspired with Mr Millner with the intention of dishonestly causing a loss to the Commonwealth, being the amount of the GST received from Focus Metals. 5. The scheme established by the offender in conjunction with Mr Millner differed slightly over the two years the subject of the charges: in 2012, people deemed to be "friends and relatives" were placed between ABC Gold Bullion ("ABC") and Investrix, whereas in 2013, persons described as "Korean holidaymakers" were placed between ABC and Investrix. All of these people were paid a periodical amount for the purposes of allowing the offender and Mr Millner to control or engage in the process of purchasing and selling gold, so as to derive the benefit of the GST. No doubt, there will be some dispute on the facts that I should find on sentence, but that is a thumbnail sketch of the scheme which was presented by the Crown to the jury. 6. The only question which arises on this detention application is whether the offender has satisfied that special or exceptional circumstances exist such that he should not be placed into custody immediately. 7. The issues arising under s 22B of the Bail Act were considered by the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (DPP) (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171 ("Van Gestel") and Director of Public Prosecutions (DPP) (NSW) v Day [2022] NSWCCA 173. 8. As was observed in Van Gestel, whether special or exceptional circumstances exist which justify the decision to grant or dispense with bail is a question of fact to be determined on the balance of probabilities: s 32(1) of the Bail Act. The convicted person bears the onus of establishing that special or exceptional circumstances exist. 9. Whether special or exceptional circumstances exist is essentially a matter of evaluation, having regard to the evidence put before the Court and the submissions of the parties. There is no definition or limitation of special or exceptional circumstances. 10. The offender identifies a number of reasons why I would accept that special or exceptional circumstances exist. 11. In support of the application, the offender relies on his own letter dated 13 July 2023, a letter from Dr Bruce Jones dated 12 July 2023 and an email from Mr Peter Ashkar dated 12 July 2023. 12. The Crown relies on four policy documents produced by the Justice Health and Forensic Mental Health Network ("Justice Health") to establish that the sort of treatment and care required by the offender can (and would) be provided in custody. 13. Ms Avenell points to five matters in support of her submission that special or exceptional circumstances have been established. 14. Firstly, she points generally to the health problems from which the offender has been suffering for many years and continues to suffer from, including heavy metal poisoning. In his letter, the offender says that since 1994, he has suffered a myriad of health symptoms, including extreme lethargy, chronic fatigue, depression, food intolerances, brain fog, allergies and adverse reactions and bowel issues. This has had a significant effect on him over the years but, in particular, he says that by 2017, there were many occasions when he thought that he was going to die. He has undergone many tests and seen many doctors to try and solve the problem. 15. Secondly, the offender relies on the fact that he is normally required to undertake heavy metal testing every six months. He undertook the last test in November 2022 and was due to be retested in May 2023. He says he did not do the May 2023 test because he was on trial. The tests involve him taking a special liquid, then collecting samples over a 12-hour period, combining the samples and sampling the combined solution of urine, as well as providing stool and hair samples. He says he would like to do that testing and receive the results and further medical advice before commencing his sentence, as that will enable his doctor to provide advice to the NSW Corrective Services. 16. Thirdly, he relies on the fact that he says he will be attending another in-person appointment with Dr Wearne, a neuropsychologist who gave evidence during the trial. There was no dispute in the trial that the offender suffers from autism spectrum disorder. He says that he would like to obtain an opinion from Dr Wearne as to how he could cope in custody and, specifically, to provide some recommendations to Corrective Services as to how best to manage his entry into custody. Ms Avenell particularly relies on this as a matter of importance. 17. The next point relied upon is that the offender would like to have some time to organise what is happening with his accommodation and his lease. 18. The final point relied upon is that he does not present as a flight risk. There is no suggestion to the contrary from the Crown. 19. An evaluation of whether the offender has established special or exceptional circumstances requires a consideration of all of the matters raised by the offender. It is not appropriate to consider each matter in some sort of staged fashion and determine whether, considered in isolation, it might demonstrate special or exceptional circumstances. In my view, the correct approach is to consider all of the matters and determine whether, as a whole, the offender has satisfied the onus of establishing special or exceptional circumstances. Those words should be given their ordinary meaning. 20. In my view, the offender has established special or exceptional circumstances. I am satisfied of that having regard to the issues relating to his health. I would give little weight to the fact that Mr Kelu wants to organise his accommodation; it is difficult to see how that could be afforded any weight. It is not necessary that I decide whether the fact that a person is not a flight risk could constitute special or exceptional circumstances. I would only say that I give it little weight. 21. The offender has satisfied his onus on the basis that, not only does he suffer from health problems which may be significant, but if he is given a further short period of time in the community, he will be able to receive additional treatment and undergo additional testing which will significantly improve both the state of his physical health and the state of his mental health when he enters into custody. In particular, the submission made by Ms Avenell that Mr Kelu will be obtaining further recommendations from Dr Wearne about what can and should be done to assist Mr Kelu in his transition into custody based on his autism spectrum disorder is, in my view, a powerful factor. 22. It is not merely that Mr Kelu suffers from autism (of course, that alone would not amount to special or exceptional circumstances) but there are steps which can be taken to ensure that his transition into custody is as smooth as possible, and that the best mental health outcome is achieved. Mr Kelu will be sentenced to a term of imprisonment, but it is important that, when he enters custody, both his physical and mental health are as good as they can be. 23. Again, I wish to emphasise I am not deciding that merely suffering from physical or mental health problems constitutes special or exceptional circumstances but, in this matter, there are certain steps which I am satisfied will and should be taken over the next short period to assist Mr Kelu's smooth transition into custody. 24. In those circumstances and given that those steps were not taken because of the trial, I am satisfied that the onus of establishing special or exceptional circumstances has been discharged. The detention 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: 15 December 2023