Supreme Court New South Wales Medium Neutral Citation: R v Boyd [2015] NSWSC 1065 Hearing dates: 14 July 2015 Date of orders: 14 July 2015 Decision date: 14 July 2015 Jurisdiction: Common Law Before: Hamill J Decision: Bail granted Catchwords: CRIMINAL LAW – BAIL APPLICATION – show cause – combination of circumstances – lengthy remand period – stringent bail conditions – applicant on parole – bail granted Legislation Cited: Bail Act 2013 (NSW) Bail Amendment Act 2014 (NSW) Crimes Act 1900 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 R v Cain (2001)121 A Crim R 365 R v Young [2006] NSWSC 1499 Category: Principal judgment Parties: Respondent Crown Darren Boyd (Applicant) Representation: Solicitors: G Campagna (Aboriginal Legal Service NSW & ACT) Solicitor for the NSW ODPP File Number(s): 2015/151464 EX TEMPORE Judgment 1. This is a release application under the Bail Act 2013 (NSW) as amended by the Bail Amendment Act 2014 (NSW). The 2014 amendments are particularly important in a consideration of this application because of the provisions in s 16A which provides a show cause requirement in certain situations, certain offences and in certain circumstances. 2. The issues that arise on this application are first, whether or not the applicant has shown cause why his continued detention is not justified and assuming persuades me of that matter, whether or not there are unacceptable risks of the kind referred to in s 19, namely; that he will fail to appear, commit serious offences, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence. 3. Ms Campagna, who appears for the applicant, has presented a compelling case on both of those issues. The Crown, represented by Mr Curran, opposes the grant of bail and points to the facts of the current offences, the criminal history of the applicant and submits that he has not shown cause. 4. However, having heard the evidence and submissions, Mr Curran took an appropriately restrained approach to making those submissions. However, he maintains the Crown's position. 5. I have come to the conclusion that the applicant has shown cause why his continued detention is not justified and I have also concluded that the conditions proposed by Ms Campagna are such as to alleviate the bail concerns that I do have. These are my reasons for those conclusions. 6. The applicant stands charged with a number of extremely serious offences under ss 33, 35 and 93(c) of the Crimes Act 1900 (NSW). Those offences were allegedly committed on 22 February 2015. At that time the applicant was on parole in relation to an offence for which he was sentenced in 2011 and which occurred in 2009. The Court of Criminal Appeal dismissed an application for leave to appeal against sentence in 2012. 7. As a result of the timing of the present alleged offences he was on parole and therefore s 16B(1)(h) provides that he must show cause why his detention is not justified. 8. Further, as a result, he is currently back in custody serving the balance of parole on that sentence which is not due to expire as I understand it until 22 November 2015. However, there is a parole review hearing on 24 July 2015. 9. Nothing that I may say in these reasons should be interpreted by the Parole Authority as being relevant to the job that it has to do and whether or not he is ultimately released prior to the end of his parole period will be a matter for the Parole Authority. 10. The facts of the alleged offences for which bail has been to this point refused are, as I have said, extremely serious in their nature. They involve what might be described as vigilante activity on the part of the applicant and others or, on a less benign view, acts of revenge as a result of crimes committed by or at least allegedly committed by the ultimate victims of the offences. 11. Early in the morning of 22 February 2015 there was an aggravated break and enter offence committed at premised in Bowen Mountain Road, Bowen Mountain. That was the home of the co-accused and as a result the co-accused, a Mr Abrahams, and the applicant sought to establish who was responsible and, having established who they believed was responsible, set about finding them and extracting revenge in a most gruesome way. 12. It is unnecessary to go through all of the details but ultimately the victim, Mr Wilson-Hore, who is alleged to be perpetrator of the break and enter, was located. He was forced to the ground, he was punched repeatedly and he was stomped on the head by the applicant. 13. The assault thus inflicted was an extremely brutal one and, if accepted, a rather cowardly one. It resulted in extremely serious injuries, the extent of which are not presently known but which did involve serious brain injury, such that the victim was admitted to Westmead Hospital where, at least at the time of the production of the statement of facts before me, remained in a medically induced coma. 14. At some point during the course of the attempt to locate the perpetrators of the break and enter the applicant pretended to be a detective, stopping cars in the middle of public places for that purpose. There is said to be CCTV footage which depicts the applicant attempting to grab another alleged perpetrator of the break and enter from a car or taxi. It needs hardly be said that that represents extremely serious criminality. 15. In addition, the applicant has what can only be described as an appalling criminal history. I will not go through it but there are a number of previous offences of violence as well as a number of earlier breaches of bail and failures to appear. There are many crimes of dishonesty and ironically enough, given the context in which this application is made, the matter for which he is currently serving the balance of parole was itself an aggravated break enter and commit serious indictable offence. In relation to that matter he was sentenced to 4 years and 8 months with a non-parole period of 3 years and 6 months. 16. As I said in the course of argument when the application was being pursued, there is a disconnection between those facts, that criminal record and the material (exhibit 1) tendered on behalf the applicant. That material consists of a letter from Ms Cilla Lavender, who is the partner of the applicant, along with a letter from his mother and an extensive resume showing the applicant's qualifications in electrical fitting and his extensive and impressive academic record and employment record. It is very difficult to reconcile that material with the material in the criminal history. 17. In addition to the material to which I have referred, there are also letters from a Tony Dunn, who is a crime prevention and rehabilitation therapist, who has known the applicant for many years and describes him as a decent and compassionate individual who is however, under extreme pressure, capable of irrational and detrimental decisions. Mr Dunn has indicated a preparedness to assist the applicant in his rehabilitation by providing him with counselling. 18. Ms Campagna puts to me a combination of factors which she says satisfies the requirements of s 16A, that is to say, shows cause why the applicant's detention is not justified. 19. I accept that a combination of factors may constitute satisfaction of the show cause requirement and I refer to the decision of R v Young [2006] NSWSC 1499 where Johnson J held that exceptional circumstances justifying a grant of bail in a murder case could be established or achieved by reference to a combination of factors. There does not have to be just one particular aspect of the case. 20. Ms Campagna refers to the fact that the applicant strenuously denies the charges, that he is presumed to be innocent and, most cogently, that there will be an extremely lengthy delay between the time of this application and the time that he comes to be able to test the prosecution case at trial. 21. At this stage most, if not all, of the prosecution brief has been served and it is to be replied to in August of this year. However, Ms Campagna's inquiries suggest that it is unlikely that there will be any trial date until 2016. My understanding of the trial lists in Western Sydney confirms that that is indeed likely. 22. The words of Sperling J in R v Cain (2001) 121 A Crim R 365 at 367 maintain their resonance under the current bail regime. His Honour said this: "As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial for a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights." 1. Ms Campagna then refers to the complexity of the likely issues in the trial and the fact that a large part of the prosecution case will be dependent on the evidence of an informer who was, on the Crown's own case, a co-accused or co-offender. 2. He, that is to say, the applicant is currently in custody at the North Coast Correctional Centre at Kempsey, whereas his proposed legal team is in either Parramatta or the Lower Blue Mountains, such that his being involved in the preparation for this complex trial is extremely difficult. 3. Ms Campagna then relies on his family circumstances and his community support. She refers to the fact that he has four children aged 17, 14, 9 and 5, that he is qualified as an electrical fitter with an excellent employment history and good prospects of obtaining work. She also refers to the possibility that he will be able to receive counselling by Mr Dunn. 4. I am satisfied on all of that material and with the combination of circumstances that the applicant has shown cause why his detention is not justified. It is established that that question is to be considered separately and not conflated with the question of whether or not there are bail concerns and unacceptable risks for the purposes of ss 17 and 19 of the Act, although it has also been held that the facts and material relevant to one question might also be relevant to the other: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. 5. Because of the criminal history including the record, albeit somewhat historic now, of failing to appear and the frequency of offences over many years, I do have bail concerns pursuant to s 17 and, in particular, concerns that the applicant will fail to appear, commit serious offences or endanger the safety of victims, individuals or the community. 6. The bail conditions that have been proposed are extremely stringent and when taken in combination with the involvement of Mr Dunn, I am satisfied that those concerns are alleviated to such a degree that there is no unacceptable risk of the matters to which I have referred. 7. In coming to that conclusion I have taken into account the matters referred to in the exhaustive list of factors in s 18. I have considered his excellent community ties but also his appalling criminal history; I have considered the nature and seriousness of the offence; I have, insofar as I can, considered the strength of the prosecution case and his history of violence. 8. I have considered the other matters referred to in the following paragraphs of s 18, but in view of the time and busyness of the list I won't go through all of them now. He does have a need to be free for other lawful reasons, namely, caring for his young family and providing for them, as well as a need for him to be free to prepare for his appearance in court and obtaining legal advice. 9. A very significant factor is that in sub section (h) which is to say, the length of time he is likely to spend in custody if bail is refused. It is also the fact of course that if he is convicted of this offence a lengthy period of imprisonment is virtually inevitable. 10. I have taken all of the matters that arise under s 18 into account in coming to my conclusion that there is not an unacceptable risk and for that reason bail will be granted on the following conditions. 1. To be of good behaviour. 2. To report to Windsor Police Station daily between the hours of 9am and 5pm. 3. To live at [REDACTED]. 4. To appear at Penrith Local Court on 14 August 2015 and on such date thereafter as required. 5. Not to drink alcohol or enter any premises in which alcohol is sold. 6. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor). 7. Not to associate or communicate by any means (except through his/her lawyer) with Joe Bee Abrahams and Matthew Anderson. 8. The applicant is not to be absent from the address at which he/she is required to live between the hours of 8 pm and 6 am. 9. Not to have any contact in any way (except through a legal representative) with any person identified as a prosecution witness brief including but not limited to [REDACTED]. 10. To attend counselling sessions with Tony Dunn once or twice weekly as required by Mr Dunn. 11. The applicant is to deposit $ 2000 and agree to forfeit it if he fails to appear before court in accordance with the bail acknowledgment. 12. To present him at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy. 13. To undertake any testing at the direction of any police officer to confirm compliance with the drug/alcohol abstention condition. Such direction may only be given by a police officer who believes on reasonable grounds that the applicant may have consumed drugs/alcohol in breach of the bail acknowledgment. Such testing may only be non-invasive and carried out with respect given to the applicant's privacy. ********** 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: 04 August 2015