Supreme Court New South Wales Medium Neutral Citation: R v Hawi & ors (No 33) [2011] NSWSC 1679 Hearing dates: 3 November 2011 Decision date: 03 November 2011 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Application refused Catchwords: CRIMINAL LAW - procedure - bail - after conviction - grounds for granting or refusing - presumption against bail - offences committed in the course of riots or other civil disturbances Legislation Cited: Bail Act 1978 Crimes Act 1900 Cases Cited: R v Kissner (Supreme Court of New South Wales, Hunt CJ at CL, 17 January 1992, unreported) R v Masters (1992) NSWLR 450 Category: Procedural and other rulings Parties: Regina Usama Potrus Representation: Counsel: Ms N Adams (Crown) Mr R Driels (Offender) Solicitors: Solicitor for Public Prosecutions Barakat Lawyers File Number(s): 2009/58679 Judgment 1HIS HONOUR: Mr Usama Potrus was found yesterday by the jury to be guilty of the offence of riot. That is an offence against s 93B of the Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 15 years. 2Mr Potrus seeks that bail be granted to him for the period between now and when his sentence proceedings are finalised. The application is subject to s 8D of the Bail Act 1978 which provides for a presumption against bail for offences of riot and related offences. In short, bail is not to be granted unless the applicant satisfies the Court that bail should not be refused. That is a significant hurdle to the application. It has been held in relation to similar provisions in the Bail Act providing for a presumption against bail that they should be interpreted as meaning that bail would normally or ordinarily be refused: see R v Masters (1992) NSWLR 450; R v Kissner (Supreme Court of New South Wales, Hunt CJ at CL, 17 January 1992, unreported). 3There is some force in the submission of Mr Driels of counsel that the rationale for there being a presumption against bail in s 8D is really to deal with concerns in the aftermath of riots and other matters involving public disorder. A significant matter, in his submission, which I accept, is that there has been in excess of two and a half years that have elapsed between the incident giving rise to the offence and now. 4A considerable number of matters have been put with earnest in support of the application. They include that the applicant has no previous convictions; he has no previous failures to appear in court as required; he may be taken to be a person of good character; he has considerable community support; he has friends and family present in court as a demonstration of that support; he has accommodation available in the family home; he has work available to him; he is prepared to surrender his passport; security is available from both the applicant and his family; and, he is prepared to report to the police if required. 5Mr Driels also referred to there being no fear, because of the time at which the application is made, that is following conviction, for the interference with witnesses or evidence. 6The circumstances of the applicant's custody, particularly over the last six months or so, is also a relevant matter to take into account. I accept that it has been in circumstances more harsh than usually encountered by a person denied bail. 7A particularly relevant matter to take into account is the likely sentence that might be imposed. It is premature for me to form any concluded view, or anywhere near a concluded view, about that at this stage. 8A submission was made that there had been an offer to plead guilty, put in writing and submitted to the Crown in November last year. That was an offer to plead guilty to riot in full satisfaction of the indictment. This would be a matter that may tend to mitigate the sentence that is imposed, but the extent to which it may do so will depend upon the submissions I hear on sentence. I note in that respect that the applicant pleaded not guilty to that offence, that is of riot, before the jury. 9It is difficult, until I hear submissions as to the findings I should make as to the objective seriousness of the offence, to form a concluded view, or anywhere near a concluded view, as to such findings that should be made. I do, however, wish to comment on one aspect of the submissions that were made. It was submitted that there was no suggestion of any person other than the participants in the riot being physically injured. I accept that seems to be the case. But it was also submitted that the emotional harm to others who were present concerned perhaps one, or very few, of those people. That is not the impression I have formed during the course of hearing the evidence of many witnesses during the course of the trial. My tentative view is that the situation, in reality, is that emotional harm was suffered by a great many people who witnessed the events at Sydney Airport on 22 March 2009, to the extent that it may well be likely that those people will never forget that experience. 10The applicant has been in custody for almost two years and four months. I do not know when sentence proceedings will be finalised, but I anticipate the submission will be that Mr Potrus should not serve any further time or, if any further time, not very much. As I say, I have nowhere near a concluded view about that, but it seems to me to be a distinct possibility that the sentence may require him to serve a further period of time of some substance. 11Having regard to all of the very positive things that have been put in support of the application, but also having regard to the presumption against it being granted and the prospect of the applicant being required to serve more than a trivial further amount in custody, on balance, my view is that the application should be 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: 14 February 2012