R v Khoda Doost [2014] NSWDC 327

District Court New South Wales

Medium Neutral Citation: R v Khoda Doost [2014] NSWDC 327 Decision date: 16 December 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Conditional bail granted. Catchwords: CRIMINAL LAW - bail - charged with offences allegedly committed whilst in detention - serious unacceptable risk of serious offending - whether able to be sufficiently mitigated by conditions - period of custody likely to be greater than possible non-parole period - vulnerability of applicant - psychiatric evidence Legislation Cited: Bail Act 2013, ss 17(1), 20, 25, 49(3) Cases Cited: R v SKR v DK [2014] NSWDC 816 Category: Procedural and other rulings Parties: Commonwealth Director of Public Prosecutions (Regina) Ruhollah Khoda Doost (Applicant) Representation: Commonwealth Director of Public Prosecutions (Regina) Blair Criminal Lawyers Pty Ltd (Applicant) File Number(s): 2014/00243524; 2013/00260542; 2014/00342073

Judgment 1. Ruhollah Khoda Doost has made a release application. That is an expression used by the Bail Act 2013. He has made this application because he has been charged with various offences and has been refused bail. 2. Mr Khoda Doost is a 31 year old man from a Kurdish community in Iran. He travelled to Australia by boat and arrived at Christmas Island on 18 August 2010. He is classified as an "unlawful non-citizen" and has been held in detention since then. He has been held in detention at the Villawood Immigration Detention Centre. His parents and four siblings are overseas. 3. Whilst he has been in detention, between 7 May and 20 August this year, he has committed a number of offences. Some of them are more serious than others. He has assaulted officers of the agency which is charged with responsibility for managing the detention centre. The assaults have been physical and include biting and hitting. In addition, he has been charged with threatening behaviour towards some officers. He has charged at them. Finally, he has been charged with exposing himself in a public place. 4. He was arrested and charged for a number of these alleged offences on 19 August this year. He was given bail and permitted back into the detention centre. But the following day he committed the last offence, namely the one on 20 August 2014, where he hit one of the officers on the face. He therefore committed that offence whilst on bail. 5. Ms E Lloyd appears for Mr Khoda Doost today on this application. Ms A Karavias appears for the Commonwealth Director of Public Prosecutions who is prosecuting Mr Khoda Doost for these alleged offences. Both have drawn my attention to the legislation. It is important for me to apply it. 6. Section 17(1) of the Bail Act 2013 says that I "must, before making a bail decision, consider whether there are any unacceptable risks". Ms Karavias claims that there are two unacceptable risks of the kind specified in that section, namely, an unacceptable risk that Mr Khoda Doost will commit another serious offence or that he will endanger the safety of individuals in the detention centre. She has carefully in her submissions (which are part of exhibit A) gone through the matters which are the only matters which I may consider in deciding whether there is an unacceptable risk. The considerations in respect of almost all of the matters point positively towards an unacceptable risk. In particular, there is evidence that while in detention Mr Khoda Doost "has been involved in numerous incidents of aggressive and abusive behaviour towards staff", as Ms Karavias argues in paragraph 20 of her submissions. 7. Ms Lloyd points to two particular matters which I have to take into account in considering the unacceptable risk. One is the length time which her client is likely to spend in custody if bail is refused. Evidently Mr Khoda Doost is defending the charges and a trial date has been fixed for June next year. He was taken into custody in September this year. Ms Lloyd points out that he will be in custody for almost ten months before his trial. 8. Ms Karavias fairly acknowledges that that period of custody is likely to be greater than any prison sentence, or at least any equivalent of a non-parole period that would be imposed in respect of the offences. 9. The second factor relied upon by Ms Lloyd in particular is the special vulnerability of her client. There are psychiatric reports in respect of Mr Khoda Doost which point to him being very vulnerable psychiatrically. Ms Lloyd points to the fact that for the last four months in custody there has been only one incident of misbehaviour - it had to do with him fouling his cell. On the other hand, there have been significant instances of self-harming behaviour, which she acknowledges also occurred in the Villawood Detention Centre. She points to evidence that he has been moved around a lot since he has been bail refused which will affect his stability. She also points to psychiatric evidence that says that the "use of isolation and strict behaviour management is contra‑indicated in a man with organic brain deficits and a significant disorder". That is an opinion expressed by a psychiatrist, Dr Newman. She also goes on to express the view that Mr Khoda Doost "will deteriorate in this situation and develop increasingly difficult behaviours". 10. Ms Lloyd in particular relies on s 20 of the Bail Act. It provides that I "may refuse bail for an offence only if" I am "satisfied that there is an unacceptable risk that cannot be sufficiently mitigated by the imposition of bail conditions". After canvassing a number of conditions which, it turned out, were not available under the statute, Ms Lloyd emphasised the conduct condition which is the subject of s 25. She acknowledged that the stringent conduct conditions - which Ms Karavias acknowledged would be appropriate if bail was granted - would be in order. They include conditions that Mr Khoda Doost must not "assault, molest, harass, threaten or otherwise interfere" with persons in charge of him in the detention centre, nor engage in any other intimidating conduct. There is a condition that he accept reasonable directions from officers in charge of any facility that he occupies. 11. As McCallum J, as her Honour then was sitting at first instance, said in R v SKR v DK [2014] NSWSC 816 - "Neither the prospect of refusing bail nor the prospect of releasing them from custody is entirely satisfactory or entirely risk free." Her Honour goes on to observe at [15] that "the Bail Act does not contemplate the absence of any risk if a person is released but the informed balancing of risk." 1. The risk in respect of Mr Khoda Doost is significant. He is psychiatrically vulnerable and his behaviour has been deteriorating in a self-harming sense. If he was found guilty of the offences, the time he would spend in custody is likely to be less than the time he would spend in custody awaiting his trial. The imposition of very strict conditions would mean that he would need only to misbehave once or twice for his bail to be revoked and to go back into custody. Indeed, he could not even harass or disobey orders from those in charge of him. To my mind a condition such as the one proposed by Ms Lloyd and acknowledged by Ms Karavias (without conceding that bail is appropriate) would sufficiently mitigate the unacceptable risk posed by Mr Khoda Doost being granted bail. 2. For those reasons, under s 49(3) of the Bail Act 2013 I grant bail to Mr Khoda Doost. The conditions of his bail are these-- 1. That he reside at such place as may be determined by the Minister of Immigration 2. That he must not assault, molest, harass, threaten or otherwise interfere with any detention centre staff. 3. That he must not engage in any other conduct that intimidates any detention centre staff. 4. That he be of good behaviour. 5. That he accept reasonable directions from SERCO and immigration officials. 6. That he attend court as and when directed. 7. That he engage in STARTTS counselling. HIS HONOUR: Any other conditions? LLOYD: No. HIS HONOUR: Mr Khoda Doost, I have granted you bail. You have won your case. There are strict conditions. You must behave yourself. If you do not behave yourself you will be back in gaol. Anything else? KARAVIAS: Your Honour, just the small matter of extending the time to file if that was okay HIS HONOUR: You said that, what's that? KARAVIAS: We were due to file by tomorrow, we will be seeking to 30 January to finalise the charges on the indictment. There will be nothing extra, it's just a matter of drafting-- HIS HONOUR: Is that opposed? LLOYD: No, your Honour. HIS HONOUR: What's the direction that I give? KARAVIAS: To extend the time for filing of the indictment to 30 January. 1. In this case I extend the time for the filing of the indictment to 30 January 2015. KARAVIAS: Thank you, your Honour. LLOYD: Your Honour, I just might enquire what happens with Mr Khoda Doost, normally he's released to SERCO? HIS HONOUR: Well we don't know. Condition one is that he has got to be released to some accommodation approved by the - and in any case I think he would need to be processed downstairs. Is that right? CORRECTIVE SERVICES OFFICER: We have a detention order from-- HIS HONOUR: Say that again? CORRECTIVE SERVICES OFFICER: We have an Immigration detention order for him. HIS HONOUR: What does that mean? Sorry, what does that mean? CORRECTIVE SERVICES OFFICER: We are instructed to return him to our custody and he will be returned to Immigration custody. HIS HONOUR: There you go. KARAVIAS: Thank you, your Honour. LLOYD: Thank you, your Honour. HIS HONOUR: Thank you, Corrective Services. Anything else? LLOYD: No, thank you. HIS HONOUR: Thank you Ms Lloyd, Ms Karavias.