R v Mark William Standen [2009] NSWSC 1499

New South Wales Supreme Court

CITATION : R v Mark William Standen [2009] NSWSC 1499

HEARING DATE(S) : 16 and 17 December 2009

JUDGMENT DATE : 17 December 2009

JUDGMENT OF : James J at 1

DECISION : The bail application is refused

Commonwealth Criminal Code - ss 11.5, 307.11 LEGISLATION CITED : Drug Misuse and Trafficking Act NSW - ss 25(2), 26, 33(3) Commonwealth Crimes Act - s 42 Bails Act - s 8A

CATEGORY : Principal judgment

R v Kissner (Hunt CJ at CL, 17 January 1992) CASES CITED : R v Masters (1992) 26 NSWLR 450 Director of Public Prosecutions (Commonwealth) v Germakian (2006) 166 A Crim R 201

PARTIES : Regina Mark William Standen

FILE NUMBER(S) : SC 2009/8922

COUNSEL : T Game SC, H Dhanji SC (Crown) M Ierace SC (Accused)

SOLICITORS : Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JAMES J THURSDAY 17 DECEMBER 2009 2009/8922 REGINA v Mark William STANDEN

Judgment 1 HIS HONOUR: Mark William Standen has applied for bail. The application is opposed by the Crown. The applicant and an alleged co-offender Bakhos Jalalaty have been charged with three offences namely: 2 "1. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to import a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug the substance being a border controlled precursor, namely pseudoephedrine, and the quantity being a commercial quantity. 3 2. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to supply an amount of a prohibited drug, to wit 300kgs of pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. 4 3. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to pervert the course of justice in relation to the judicial power of the Commonwealth, by agreeing that Mark Standen would use his knowledge and information obtained by him in order to avoid proceedings being instituted or successfully prosecuted with respect to an offence of importing a substance in contravention of Commonwealth law." 5 The first charge is a charge under s 11.5 and s 307.11 of the Commonwealth Criminal Code. The maximum penalty is imprisonment for twenty-five years or a fine of 5,000 penalty units or both. 6 The second charge is a charge under s 26 and s 25(2) of the Drug Misuse and Trafficking Act New South Wales. By virtue of s 33(3) of that Act the maximum penalty is imprisonment for life and/or a fine of 5,000 penalty units. 7 The third charge is a charge under s 42 of the Commonwealth Crimes Act. The maximum penalty is imprisonment for five years. 8 The applicant has been in custody since he was he arrested in June 2008. A joint trial of the applicant and the alleged co-offender Bakhos Jalalaty was fixed to commence on 1 February 2010. This week I vacated that trial date on the grounds that the High Court is presently reserved on two appeals dealing with the offence of conspiracy, particularly under the Commonwealth Criminal Code, and the trial on the present charges should be deferred until a time after it is likely that the High Court will have handed down its decision in the two appeals. It is anticipated that a joint trial of the applicant and Jalalaty can commence in about May next year. 9 The applicant made an earlier application for bail. However, the present application is the first bail application which has proceeded to a court hearing. 10 The offences charged in the first and second counts in the indictment are offences to which s 8A of the Bail Act applies. Accordingly, under sub-s (2) of s 8A the applicant is not to be granted bail unless he satisfies me that bail should not be refused. 11 Section 8A of the Bail Act has been interpreted in a number of cases, including R v Kissner, Hunt CJ at CL, 17 January 1992; R v Masters (1992) 26 NSWLR 450 at 473; Director of Public Prosecutions (Commonwealth) v Germakian (2006) 166 A Crim R 201. 12 It has been consistently held that a person charged with an offence to which s 8A applies should ordinarily be refused bail. A very high onus is placed on the applicant for bail. The principal consideration is the strength of the Crown case and less weight should be placed on circumstances which are common to all, or most, bail applications. In Kissner Hunt CJ at C L said: "Common to all bail applications are the circumstances that the applicant's continued incarceration will cause a serious deprivation of his general right to be at liberty together with hardship and distress to himself and his family and usually with severe effects upon the applicant's business or employment, his finances and his abilities to prepare his defence and to support his family. 13 Also common to most bail applications by persons charged with the offences to which section 8A applies is the availability of sureties prepared to forfeit, with or without security, large sums of money to ensure that the applicant will answer his bail. An application would otherwise be unlikely to be considered in relation to such serious matters. 14 The legislature has notwithstanding all of those circumstances enacted the presumption against bail in these cases so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail that section 8A has erected. As Badgery-Parker J said "If the Crown case is a strong one the applications for bail on which they will be sufficient to do so must necessarily be somewhat special and the task of the applicant to overcome the presumption that bail is to be refused will ordinarily be a difficult one." 15 Evidence tendered by the Crown in opposing the present application includes a statement of what the Australian Federal Police contend are the facts of the offences and the transcripts of a number of conversations between the applicant and the alleged co-offender Jalalaty. It would appear that of the evidence of the conversations between the applicant and Jalalaty will form a large part of the Crown case at the trial. There were a number of such conversations and they occurred over a period of many months. The conversations were conducted in English and the conversations were recorded by means of telephone intercepts or listening devices. 16 On the present application no submission was made by counsel for the applicant about the strength or weakness of the Crown case, except to refer to explanations given by the applicant when interviewed by police that he had been participating merely in the importation of certain foodstuffs. Indeed, on the few occasions when, during the cross-examination of the applicant, the Crown Prosecutor asked a question possibly going to the strength of the Crown case against the applicant, counsel for the applicant objected. Counsel for the applicant having objected, the Crown Prosecutor did not press the question. 17 In the circumstances I consider that I am required to proceed on the basis that no attempt has been made on behalf of the applicant to show that the Crown case against the applicant is not a strong one. 18 The principal grounds on which the application for bail is put are the onerous conditions to which the applicant is subject while in custody on remand awaiting trial, the effect of those conditions on his mental health, the effect of his deteriorated mental health on his ability to prepare for his trial and to do himself justice at his trial, particularly if he gives evidence, the likelihood of some improvement in his mental health if he is released from custody pending the anticipated date of the trial and the possibility of fashioning conditions of any grant of bail such as would ensure the applicant's attendance at the trial. 19 The applicant gave quite lengthy evidence about the conditions of his custody. The applicant had a long career in law enforcement, details of which I will give later in this judgment, and for his own safety has had to be kept in a severe form of protective custody. 20 The applicant gave evidence that he is the sole occupant of a small cell, which he said was about five paces by three paces. The cell has two doors, one to a small kitchen area and the other to a small yard. 21 On a typical day the door to the kitchen is unlocked soon after 7 o'clock in the morning. The applicant then has access to the kitchen until 2.30 in the afternoon, apart from a period in the morning of about an hour or an hour and twenty minutes. At about 2.30 in the afternoon the applicant is locked in his cell. He then has no contact with anyone else until the following morning. 22 The applicant's breakfast is supplied the night before. Lunch is delivered between quarter past 10 and half past 10 in the morning. Dinner is delivered between quarter past 2 and half past 2 in the afternoon. 23 The applicant has access to a small yard, which he estimated was about six paces by six paces, supposedly for about six and a half hours a day but in fact never for that long, and on some days he is not given access to the yard at all. The applicant sometimes had access to a gymnasium in the prison. 24 However, in March this year another inmate arrived with whom the applicant shares the kitchen. This inmate was referred to on the bail application as 'Mr A'. Since Mr A arrived, the applicant has preferred to spend time with Mr A doing crosswords or playing Scrabble rather than going to the prison gymnasium. 25 The applicant does not have access to the prison library. He has access to a small room in which there are a few books, which he has inferred are books rejected from the main prison library. Since the applicant was incarcerated he has successfully completed the last two subjects in his Law Extension Committee legal studies. On about seven occasions the applicant has participated with Mr A and an art teacher in short discussions about art. 26 Since he was incarcerated the applicant has been seen by a prison doctor about three times, by a prison psychiatrist about three or four times and on thirty-three occasions by Mr Tulloch, a prison psychologist. He has been seen by a welfare officer about six or seven times. He sees, fleetingly, each day a prison nurse who dispenses medications to the prisoners. 27 The applicant has not had access to a computer. He had to hand-write an assignment for his legal studies. 28 Since February 2009 the applicant has been allowed to have two visitors at the weekend. The visitors are limited to eight persons who have been nominated by the applicant, except that the applicant's two youngest children, who are minors, are also permitted to visit. Visiting times are 8am to 9.45am, 10am to 11.45am and 1pm to 2.45pm. The applicant's estranged wife does not live in Sydney and does not like bringing the applicant's youngest child to the gaol to visit the applicant. The applicant has seen his youngest child only four or five times since he was arrested. 29 The applicant requires medication to assist him to sleep. He has been prescribed anti-depressant medication and the dosage has been increased twice. The applicant said in evidence that he was concerned about the state of his mental health. 30 There was admitted into evidence on the bail application a log kept by the applicant between the end of May this year and October this year, showing the number of hours each day his cell has been unlocked. On some days he has been locked into the cell all day or almost all of the day. 31 The applicant said in evidence that he has had difficulty in preparing his case for trial. He has papers relating to the case in boxes and piles of documents in his cell. 32 The applicant is fifty-one years old, married with four children, two of whom are adults one of whom is a teenager and one of whom is eight years old. The applicant's marriage has broken down. His relationship with another woman has also broken down. 33 The applicant had a long career in law enforcement, being principally concerned with illicit drugs and proceeds of crime. In 1975 he began working for the Customs Department. In 1979 he joined the Australian Federal Police. In 1993 he became an investigator in the National Crime Authority. In 1996 he returned briefly to the Australian Federal Police. From 1996 to his arrest he was with the New South Wales Crime Commission. As I have said, most of his career has been devoted to investigation of offences involving illicit drugs and proceedings for the recovery of the proceeds of crime. 34 At the time of his arrest he was one of the two most senior investigators in the New South Wales Crime Commission. The applicant agreed in evidence that he had established a large number of contacts, including criminal contacts. He is very familiar with police methods including police methods of surveillance. The applicant has no criminal convictions. 35 A prison psychologist, Mr Tulloch, gave evidence. He confirmed the general accuracy of the applicant's evidence about the conditions of his custody. Mr Tulloch has seen the applicant on thirty-three occasions since October last year. He last saw the applicant last week. Mr Tulloch formed the opinions that the applicant was suffering from clinical depression, that the depression was initially severe but the depression has been stabilised by medication and at present the applicant suffers from a low to medium level of depression. The applicant also suffers from a moderate level of anxiety giving rise to some physiological symptoms. The applicant presents with a flat affect, that is with reduced animation or emotion. 36 The applicant has no family or personal history of depression or anxiety. Accordingly, in Mr Tulloch's opinion, his depression and anxiety have other causes. The applicant's arrest, incarceration and the charges against him are possibly contributing factors. Mr Tulloch expressed the opinion that the applicant has not coped with the conditions of his custody as well as some other inmates. When asked more than once, while giving evidence, whether the applicant's mental state would be alleviated if he was released on bail, Mr Tulloch gave answers which appeared to me to be rather guarded answers. Finally, in re-examination he was asked by counsel for the applicant: "Would you expect there to be any improvement by May next year in those circumstances (that is, if allowed bail and allowed to reside at a family home)?" Mr Tulloch replied, "Probably". 37 If the applicant was granted bail, he would reside with his elderly father and one married brother and that brother's family in a house at Burwood. The applicant has no financial interest in the house. He has indeed no significant assets at all. The house is registered in the name of the applicant's brother Grant Standen. There is a mortgage to the applicant's brother Craig Standen. The amount due under the mortgage is $500,000. The unencumbered value of the property has been estimated by an estate agent at a little over a million dollars. The applicant's brothers Grant and Craig, are willing for the house property to be used as security in the event of the applicant being granted bail. 38 It was submitted by counsel for the applicant that bail should be granted. It was submitted that circumstances other than the strength of the Crown case had been shown which were "somewhat special" within the statement of principle by Badgery-Parker J which was approved by Hunt CJ at C L in Kissner. It was submitted that it had been shown that the conditions of the applicant's custody were severe, that these conditions had contributed to the deterioration in the applicant's mental health to the point where the applicant had clinical levels of depression and anxiety and that his mental condition would compromise his ability to prepare for his trial and to do himself justice at his trial, particularly if he gave evidence. It was submitted that at a trial the jury might interpret the applicant's demeanour, that is his flat affect, as evincing resignation to his fate and that consequently the jury would give his evidence less credibility. 39 The trial date in February has been vacated and, if bail is refused, the applciant would have to spend several more months in the same conditions of custody before the trial took place. It was submitted that suitable and, if necessary, highly restrictive bail conditions could be fashioned which would ensure that the applicant did not abscond and answered his bail. 40 The Crown submitted that counsel for the applicant had overstated the seriousness of the applicant's mental condition. It was submitted that a number of factors other than the conditions of the applicant's custody could have contributed to a deterioration in the applicant's mental state, including his arrest, the charges against him, the loss of his career, the loss of his relationships and simply the fact of his being in any form of custody charged with very serious offences. 41 As to the ability of the applicant to do himself justice at his trial, particularly if giving evidence, it was submitted that the applicant had become noticeably more animated at times during the hearing, particularly when he was pressed in cross-examination. It was pointed out that in August of this year the applicant gave evidence over four days as a witness for the prosecution in a criminal trial. The applicant is an experienced witness. He has given evidence in court on many occasions. If at a trial it appeared to the trial judge that the applicant's demeanour might be unfairly used against him, the trial judge could protect the applicant against prejudice by giving suitable directions. 42 It was submitted by the Crown that the applicant is a serious flight risk. It had not been suggested that the Crown case against him is not a strong one on all counts. If convicted, the applicant would be likely to be sentenced to long terms of imprisonment and possibly imprisonment for the rest of his life for the offence charged in count 2. Any prison sentence would be likely to be served in conditions of custody as onerous as those of the applicant's present custody. 43 In these circumstances the applicant, if allowed bail, would have a strong incentive to abscond. With his background of thirty years in law enforcement and his criminal contacts, the applicant would be uniquely well-placed to arrange his flight. Decision 44 The applicant is charged, not merely with one offence but with two offences within s 8A of the Bail Act. 45 As already indicated, no attempt was made on the hearing of this application to challenge the Crown case and I consider I should proceed on the basis that it has not been shown that the Crown case on all three counts is not a strong one. 46 I accept that the conditions of the applicant's custody are onerous. However, I consider that the deterioration in the applicant's mental state was somewhat overstated in counsel for the applicant's submissions. 47 Mr Tulloch's evidence was that the applicant's depression has been stabilised by medication and that he continues to experience a mild level of clinical depression. Mr Tulloch is of the opinion that the applicant has a moderate level of anxiety. Mr Tulloch gave evidence that it was very difficult to know whether the nature of the applicant's incarceration had contributed to his current mental state. There were a number of other possibly contributing factors. Mr Tulloch was very cautious about making any prediction about the applicant's future, I have already referred to the question and answer that occurred in re-examination. 48 Mr Tulloch said that the symptoms he had observed on the last occasion he had seen the applicant, that is last week, were symptoms the applicant had not shown in the previous twelve months and were probably indicative of acute temporary stress related to having to come to court this week. 49 The applicant gave evidence before me on this application. I consider that he gave evidence competently. I agree with the submission by the Crown that at times the applicant became more animated when giving evidence. I consider that he is likely to be able to give evidence competently at his trial, if he elects to give evidence. I consider that, if at any trial the trial judge perceives a risk of the jury being prejudiced against the applicant by reason of an apparently flat affect, the trial judge can protect the applicant by giving suitable directions. 50 I consider that I should conclude that the applicant remains a flight risk. As submitted by the Crown, the charges are serious. If convicted, it is likely that the applicant will be sentenced to terms of imprisonment which will last the rest, or most of the rest, of his life. It is likely that any terms of imprisonment will be served in similar conditions of custody to those to which he is now subject. In those circumstances there must be a strong incentive for flight. I accept the submission by the Crown that the applicant, by reason of his background, is well placed to take steps to arrange flight, if he decides that that is a course that he should adopt. 51 I have decided that I should refuse the bail application. **********