R v Draca [2015] NSWSC 1150

Supreme Court New South Wales

Medium Neutral Citation: R v Draca [2015] NSWSC 1150 Hearing dates: 13 August 2015 Date of orders: 17 August 2015 Decision date: 17 August 2015 Jurisdiction: Common Law - Criminal Before: RS Hulme AJ Decision: Bail granted Catchwords: Bail application – show cause – unacceptable risk Legislation Cited: Bail Act Cases Cited: M v R [2015] NSWSC 138 DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 Category: Principal judgment Parties: Regina Zoran Draca Representation: Counsel: R Buttini Solicitor (Crown) D McCallum (A)

Solicitors: Director of Public Prosecutions Justine Hall Lawyer File Number(s): 2015/194297 Publication restriction: No

Judgment 1. Pursuant to application that appears to have been lodged on 19 June 2015 the above named Zoran Draca has applied for bail. 2. On 17 June last he was arrested and charged with: (i) Between 28 January 2015 and 15 April 2015, cultivating a large commercial quantity of cannabis viz: 293 plants. (ii) Between 9 and 15 April 2015 supplying a large commercial quantity of cannabis, viz: 284 kilograms 1. During February to April 2015 the police had had under observation premises at Lot 115 Jerrara Road, Narrawa. On 15 April, the police executed a search warrant at those premises locating 293 cannabis plants in a garage, approximately 54 kilograms of cannabis head in 7 large bags in a shed and approximately 230 kilograms of cannabis leaf and stems in a large dug out hole at the rear of the property. Other indicia of growing of cannabis were also found. 2. From the police summary of evidence which was presented on the application for bail, it appears that the police had intercepted a number of phone calls between the applicant and a co-accused, such phone calls including instructions to the applicant as to what pumps to buy and referring to problems occasioned by the water system. The summary also recorded that the applicant had been observed attending at the premises on two occasions and in circumstances which tend to indicate that he was, at least, knowingly concerned in what was occurring at the premises. 3. Other evidence put before me on the application indicates that the applicant is some 40 years of age, that he and his wife migrated to Australia in 1996, has two school age children, that the family has lived at their present (rented) address for some 4 years and that the applicant has no significant criminal record. Some but not all members of the applicant's extended family live in the Wollongong area as he does although the applicant's mother and sister still live in Croatia. 4. Other evidence indicates that the applicant has other community ties, that for the last 13 or 14 years, he has been self employed as a builder, that at the time of his arrest he had 6 full time employees and was engaged on 4 building project. Since his arrest, his wife and a friend have kept the business running. According to his affidavit, in the course of doing so, the friend has advanced about $60,000 on the applicant's behalf but is unable to continue financially beyond the date on which the application came before me namely, 13 August 2015. 5. The charges are ones that fall within the terms of s 16B of the Bail Act. Section 16A(1) of that Act accordingly requires that, before he is admitted to bail, the applicant "show cause why his… detention is not justified". If he succeeds in that regard, I am required to make a decision under Part 3 Division 2 of the Act whether admitting the applicant to bail would result in an unacceptable risk of the applicant: * Failing to appear; * Committing a serious offence; * Endangering the safety of victims, individuals or the community, or * Interfering with witnesses or evidence. 1. In support of the application, Counsel appearing for the applicant referred me to the decision of McCallum J in M v R [2015] NSWSC 138. 2. I have difficulty in accepting all that was said in that case for it seems to me that, considered in totality, her Honour's remarks go close to equating the test under s 16A(1) and the unacceptable risk tests specified in Part 3 Division 2 of the Bail Act – see particularly at [16]. In DPP (NSW) v Tikomaimaleya [2015] NSWCA 83 at [25] the Court remarked that the tests under s 16A and division 2 must not be conflated. 3. In this case, as the Crown almost acknowledged, there is no reason to think that if appropriate conditions are imposed, the applicant will constitute an unacceptable risk in any of the respects of which the Bail Act speaks and thus the applicant's entitlement to bail falls to be judged by the terms of s 16A(1). 4. In support of the submission that, by that standard, the applicant should be granted bail, reliance was placed on the absence of an unacceptable risk, what was said to be the circumstantial, and weak, nature of the Crown case and the need for the applicant to carry on his building business. In that latter connection, attention was drawn to the likely impact, if his business has to cease, on the applicant and his family, who would lose their only source of income and on the applicant's employees. 5. Clearly the factors that argue for the applicant not constituting an unacceptable risk argue in his favour under s 16(1). On the other hand, in the circumstances here I do not regard the Crown case as weak or the fact that it is, or may be, circumstantial as arguing in the same direction. 6. The potential consequences to the applicant and his family of the loss of his business does however argue against his continued incarceration and strongly so. If convicted of either of the offences charged, the applicant will undoubtedly have imposed on him a substantial term of imprisonment, a term that is not unlikely to result in the loss of this business. However, providing there are other, and reasonable, options, he should not suffer that loss prior to being convicted and at a time when he may never be. 7. In my view there are other such options. In general, they were proposed on behalf of the applicant, not criticised by the Crown, and accordingly I propose to grant bail substantially on the following conditions. I say substantially because not all of the details were specified or explored at the hearing before me and the parties need to further address me on the details:- (i) The applicant is to be of good behaviour. (ii) He is to reside at [Redacted]. (iii) He is to report to the [Redacted] (iv) He is to appear at [Redacted] (v) He is not to communicate, directly or indirectly, except through his legal advisers, with [Redacted] or any person of whom he has received or receives notice that that person is likely to be called at his trial or committal proceedings. (vi) Prior to being admitted to bail his passport is to be surrendered to the officer in charge of the prosecution or in charge of the [Redacted]. (vii He is not to apply for any new passport or travel document. (viii) He is to enter into an agreement without security under which he agrees to forfeit [Redacted] if he fails to appear in court in accordance with his bail acknowledgement. (ix) One acceptable person is to deposit the sum of [Redacted] and agree to forfeit that sum if the applicant fails to appear before court in accordance with his bail acknowledgment. I note that [Redacted] is an acceptable person for the purposes of such security upon provision of sufficient evidence of identity and residential address.