R v Chehab [2013] NSWCCA 62

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Chehab [2013] NSWCCA 62 Hearing dates: 19/03/2013 Decision date: 21 March 2013 Before: Latham J Fullerton J Adamson J Decision: Bail revoked Catchwords: CRIMINAL LAW - Crown application for bail review Legislation Cited: Bail Act 1978 Crimes Act 1900 Category: Principal judgment Parties: The Crown Hussan Chehab (Respondent) Representation: Counsel: R Herps (Crown) G Jauncey (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) File Number(s): 2012/165846 Decision under appeal Date of Decision: 2013-02-19 00:00:00 Before: Harrison J File Number(s): 2012/165846

Judgment 1THE COURT: On 25 February 2013 the Director of Public Prosecutions commenced proceedings seeking a review of a decision of Harrison J on 19 February 2013 granting the respondent conditional bail. The power of this Court to review the bail decision derives from s 45(1) of the Bail Act 1978. 2On 19 March 2013, after a hearing de novo, an order was made revoking the grant of bail. What follows are the reasons for that determination. 3On 24 May 2012 the respondent was arrested and charged with three offences, an aggravated break and enter to commit a serious indictable offence contrary to s 113(2) of the Crimes Act 1900 and two related driving offences, the most serious of which involved a police pursuit contrary to s 51B(1) of the Crimes Act. 4The charge under s 113(2) was laid following a police investigation where listening devices and tracking devices were utilised by police to record the respondent planning the break-in and tracking his vehicle en route to the apartment block in Redfern where the break-in was effected. Additionally, CCTV footage shows the offender consistent with the appearance of the respondent inside the apartment block both before and after the offence was committed. 5Section 9D(1) of the Bail Act provides that bail is not to be granted in respect of a serious personal violence offence if the person seeking bail is a repeat offender unless the court is satisfied that exceptional circumstances justify the grant of bail. Section 90(4)(b) provides that s 113 is a personal violence offence for the purposes of s 9D of the Bail Act if the circumstances of the offence involved an act of actual or threatened violence against a person. 6What constitutes, or might constitute, exceptional circumstances is a question of fact to be determined referable to considerations personal to the applicant for bail or the circumstances of the particular case. Where the preconditions to the operation of s 9D(1) are met, the applicant for bail (in this case the respondent to the bail review) has the evidential burden of establishing circumstances sufficiently exceptional to warrant bail being granted. 7For the purposes of the bail review, counsel conceded that the respondent is a repeat offender as defined in s 9D(2) of the Bail Act and that the circumstances giving rise to the charge under s 113 constitute a serious personal violence offence as defined. The respondent has been convicted of a number of serious personal violence offences including robbery in company contrary to s 97(1) of the Crimes Act; an aggravated assault with an intention to rob contrary to s 95 of the Crimes Act, and a further offence of take and detain a person in company contrary to s 86(2)(A) of the Crimes Act in 2003. The latter offence attracted term of imprisonment of 5 years. 8The Crown submitted that the respondent has failed to discharge the onus of establishing exceptional circumstances and that bail should be revoked. 9The circumstances relied upon by the respondent as constituting exceptional circumstances were said to be reflected in his compliance with the conditions of his bail following his release to bail on 26 February 2013 and his evidence to the effect that he has gained some insight into his tendency to react with anger when challenged or confronted in a social or domestic setting. He gave evidence of his willingness to participate in an anger management program operated under the auspices of the Probation and Parole Service. (He is currently subject to a grant of parole until November 2013.) He also gave evidence of his preparedness to continue to seek work in the building and construction industry with the encouragement and support of his brother. 10His substantial compliance with his bail conditions since his release to bail and what we accept is an apparently genuine commitment to addressing his tendency to behave inappropriately in situations of stress do not, in our view, constitute exceptional circumstances sufficient to displace the operation of s 9D. 11The fact that the respondent was subject to a grant of bail at the time of the offending the subject of this bail review, and the nature and seriousness of the offences with which he is charged, are also considerations that augur against a grant of bail referable to the criteria in s 32 of the Bail Act, as is the relatively short remand before the respondent's arraignment in the District Court. 12Accordingly, bail is revoked.