R v Dimarelis [2016] NSWSC 779

Supreme Court New South Wales

Medium Neutral Citation: R v Dimarelis [2016] NSWSC 779 Hearing dates: 9 June 2016 Date of orders: 15 June 2016 Decision date: 15 June 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1) Bail refused Catchwords: CRIMINAL LAW - Procedure - Bail Legislation Cited: Bail Act 2013 (NSW), ss 16A, 16B, 18(2), 19 Firearms Act 1996 (NSW), s 50B Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 R v Ambury (Supreme Court (NSW), McCallum J, 13 July 2015, unrep) Category: Principal judgment Parties: Regina (Crown) Elias Dimarelis (Applicant) Representation: Counsel: E Curran, (soliticitor) (Crown) S Toomey, (solicitor) (Applicant)

Solicitors: Office of the Director of Public Prosecutions (Crown) Toomey Defence Lawyers (Applicant) File Number(s): 2016/119871 Publication restriction: Restriction lifted

Judgment 1. The applicant for bail was arrested on 12th January 2016 and charged with being an accessory after the fact to the murder of Donovan Mileham. This offending was alleged to have occurred between 14th November 2015 and 26th November 2015. It is not in dispute that this is a show cause offence, carrying as it does a maximum penalty of life imprisonment. He successfully applied for bail in the Local Court on 1st February 2016. The learned Magistrate decided that cause had been shown because he is an insulin dependent diabetic whose condition cannot be adequately managed in custody. His Honour decided that the relevant bail concerns did not constitute unacceptable risks under s 19 of the Bail Act 2013 (NSW) and conditional bail was granted. 2. On 29th March 2016 the applicant was charged with a further offence. It is alleged that on 13th November 2015, prior to the first charge laid, he gave possession of a prohibited firearm, a .38 pistol, to the principal offender on the murder charge who is not authorised by law to possess it. That latter person, Hasan Fazlilar is alleged to have murdered Mr Mileham by shooting him on 14th November 2015. It is important to record and bear in mind that the applicant is not charged as a principal. It is not said that Mr Fazlilar shot Mr Mileham in the performance of a joint criminal enterprise. The murder of Mr Mileham, so far as the material before the Court discloses, was a random spontaneous event committed by Mr Fazlilar for reasons which are presently obscure. 3. However, the laying of the additional charge against the applicant brought him back before the Local Court on 30th March 2016. A release application in respect of the fresh charge was refused and the previous bail revoked. 4. The applicant thus applies for bail in respect of each alleged offence. 5. Ms Curran, solicitor, for the Crown contends that each is a show cause offence. Ms Toomey, solicitor, who appears for the applicant, does not contest the applicant must show cause for the accessorial offence, but submits that the applicant is not required to show cause for the firearm offence. I accept Ms Toomey's argument. 6. The firearm charge is laid under s 50B Firearms Act 1996 (NSW) which provides: "A person must not give possession of a firearm to another person unless the other person is authorised to possess the firearm by a license or permit or is otherwise authorised to have possession of the firearm." Where the firearm is a pistol, as is alleged here, the maximum penalty is imprisonment for 14 years. The offence does not carry a standard non-parole period. 1. The prosecution case is that as of 13th November 2015 the applicant was a partner in a business operating as a brothel and strip club at Kings Cross, styled the Love Machine. The applicant met Mr Fazlilar there and they came to circulate and socialise in the same milieu, including at the Love Machine. The deceased also associated with them there. It is unnecessary to go into all the background facts. 2. The prosecution evidence, which seems compelling, is that these three persons, and a female co-accused aso charged as an accessory after the fact, socialised within the Love Machine into the early hours of 13th November 2015. Later that morning after about 8:30 am, there is compelling evidence that Fazlilar and the applicant had a conversation in a hallway of the premises where the applicant offered to obtain something apparently belonging to Fazlilar which was then in one of the rooms of the Love Machine. Following the conversation the applicant retrieved a revolver from elsewhere in the premises and carried it through the premises handing it over to Fazlilar, who put the firearm down his pants. Neither were licensed or permitted to possess any firearm. In a later statement the applicant admitted that he knew Fazlilar to carry a gun. 3. Section 16A of the Bail Act 2013 requires bail to be refused "for a show cause offence … unless the accused person shows cause why his or her detention is not justified". S 16B prescribes the show cause offences. The Crown rely upon s 16B(1)(d)(iii) which is in the following terms: "A serious indictable offence under the Firearms Act 1996 that involves acquiring, supplying or manufacturing a pistol or prohibited firearm." The Crown says that the handing over of possession of the pistol by the applicant to Fazlilar "involves supplying" the pistol. Reliance is placed on the decision of McCallum J in R v Ambury (Supreme Court (NSW), McCallum J, 13 July 2015, unrep). Her Honour construed s 16B, where an offence is described as one "that involves" particular conduct, not only as catching an offence where the conduct involved is a legal element, but also as extending to an offence which on the facts alleged actually "involves" that conduct. Applying this reasoning, the Crown argue here that although supply of the firearm was not a legal element of the offence charged, the giving of possession necessarily involved supplying Fazlilar with the gun. 1. I accept that the word "involves" connotes a broad connection; and a broad connection between the offending and on that basis the supplying a firearm by giving another possession of it would be sufficient for the purpose of s 16B. The difficulty for the Crown's argument, however, is s 16B(3) which provides, inter alia, that "supply … of a firearm [has] the same meaning as in the Firearms Act 1996". Under s 4 of the Firearms Act 1996 "supply" means "transfer of ownership" of the firearm, and various other transactions which have as their purpose a transfer of ownership. Possession, on the other hand, is defined broadly and not by reference to the concept of legal ownership. 2. It follows from this that the s 50B offence with which the applicant is charged involves neither, as a legal element of the offence nor as a mere question of fact, the transfer of ownership of the pistol from the applicant to Mr Fazlilar. The firearm offence is accordingly not a show cause offence. 3. Nonetheless the applicant is still required to show cause in relation to the charge of being an accessory after the fact of the crime of murder. 4. To show cause in respect of the accessorial liability, Ms Toomey relies upon three points: first, what she submits is a weak Crown case; secondly, and principally, the applicant's type 1 diabetes; and thirdly, what she submits is the compelling case for bail when one considers the requirements of the unacceptable risk test. 5. Dealing with the first argument, the applicant points out that it is an essential element of guilt that the Crown prove that when he provided the alleged assistance to Fazlilar, he knew that Fazlilar had murdered Mr Mileham. It must be borne in mind that the applicant was present in a hotel room with Fazlilar and Mr Mileham when the former drew his pistol and shot Mr Mileham in the leg. The angle of entry was such that the bullet travelled into his abdomen and resulted in his death. The applicant immediately collected his things and left. Fazlilar left the hotel room about six minutes after the applicant. 6. The applicant argued that given the shot was into the leg he could not have known that Mr Mileham was likely to die and his subsequent conduct was carried out under the misapprehension that Mr Mileham was still alive. That he said in a lawfully recorded conversation that Mr Mileham might have bled to death was pure speculation on his part. 7. I don't accept this argument. The applicant saw Fazlilar shoot Mr Mileham at the top of his leg. A jury in due course will be entitled to infer that he knew by shooting him that Fazlilar intended to inflict really serious bodily injury on Mr Mileham even if he did not intend to kill him. From the applicant's comments later the same day, he fully accepted that there was a probability that Mr Mileham might die. 8. From a conversation lawfully recorded later at the Love Machine, it was apparent that the applicant knew Mr Mileham was dead by the following day. He was recorded as saying "he was already dead" in conversation with the female co-accused and the applicant's business partner. They discussed "getting everything out of the hotel room" before the applicant rings the police to say "[Mr Mileham] was arranging a [drug] deal" and was shot by a person unknown to the applicant, a palpable untruth. Following this conversation, a person using the applicant's phone called the hotel to extend the occupancy of the room where Mr Mileham was shot. The applicant and his female co-accused then drove to the vicinity of the hotel and the co-accused went to the hotel to pay for the extended occupancy in cash. 9. During that day hotel staff three times entered the room and assumed that the deceased was asleep and left without disturbing him. Later again, the applicant's telephone messaged Fazlilar's phone stating "all sweet". In the early hours of the following morning the co-accused, who was a close associate of the applicant, entered the hotel room briefly. Police allege that the firearm used to shoot Mileham was removed from the unlocked safe. There is no direct evidence of this, it must be said. The co-accused was in the hotel for no longer than 3 minutes and 20 seconds and then she re-joined the applicant. The applicant then arranged to, and did meet Fazlilar in Surry Hills before returning to the Love Machine. 10. Later the applicant left the Love Machine, leaving his phone behind to return to his home at Burwood. The police assert leaving the phone behind was a deliberate act to hide his movements. At about 6:14 am he telephoned 000 from a public pay phone to express concern about Mr Mileham. He gave a false name and did not mention that Mr Mileham had been shot. He identified the hotel room as the place where he was last seen. Following this call ambulance services contacted the hotel, hotel staff then attended the room and found Mr Mileham dead. Police investigation found a quantity of ammunition within the safe in the hotel room with the fingerprints of Fazlilar on the packaging. There were .32 calibre bullets not .38 calibre bullets. 11. When interviewed by police on 26 November 2015, the applicant made a false statement. He asserted he last saw Mr Mileham when he left the hotel room and he was there alone, alive and well. He did not see Fazlilar in the room at the time he left. He asserted that he knew nothing of anything ill befalling Mr Mileham until after the co-accused extended the stay at the hotel. He asserted at that time she had seen Mr Mileham lying on the floor of the hotel room but she had not checked on him. He alleged that he did not find out that Mr Mileham was dead until 18th November 2015 when he was given that information by Mr Mileham's sometime girlfriend. These admitted lies may be powerful evidence of a consciousness of guilt of the offence charged. 12. The Crown case is of some complexity depending largely as it does on inferences to be drawn from telephone intercepts, CCTV footage, scientific evidence uncovered at the scene of the crime and the lies of the applicant. However, I would not categories it as a weak case of its type. Indeed it enjoys some strength. 13. I turn then to the issue of the applicant's medical condition. Ms Toomey submits that the applicant's insulin dependent, or type 1, diabetes, is not being properly treated in custody and his need for medical treatment in the community demonstrates that his detention is not justified. 14. The applicant's diabetes mellitus was diagnosed in 2011; however, he has not seen his treating endocrinologist, Dr Peter Rohl, since 29th April 2013. Following initial diagnosis, the applicant was able to shed a very large amount of weight and accordingly was substantially treated with insulin orally. But by the time he last saw Dr Rohl he was experiencing rising blood sugar levels and the treatment was extended to insulin injections. He was apparently receiving prescriptions for his necessary medication from his GP, Dr Nyunt, but there seems to have been no regular monitoring by medical practitioners of his blood sugar level or other blood tests to monitor the progress of his condition. 15. There is no question that the applicant's condition can be managed in custody. Neither Dr Rohl nor Dr Nyunt say otherwise. 16. In his report to the applicant's solicitor of 21st January 2016, Dr Rohl set out his understanding of the applicant's current medication regime as determined in April 2013. This involved an injection of Lantus once daily, a 500 mgs of Diabex twice daily and one unit of Insulin per millimole per litre (mmol/L) of blood glucose recorded before each meal. The product name for the insulin is Novorapid. The applicant is apparently able to self-manage this regime. There are no contemporaneous records of his actual blood sugar levels whilst at liberty either before his arrest or whilst on bail earlier this year. 17. In a short report dated 22 January 2016 Dr Nyunt points out that a possible consequence of poorly controlled diabetes relied upon by the applicant of ketoacidosis "is not completely reliant on blood sugar level alone". However, he also says: As I have not seen him lately I would recommend the attending doctor at the Corrective Centre review him and adjust the dose according to his presentation of symptoms at the time. From this I would infer that notwithstanding the possible side-effects, Dr Nyunt accepts that the condition can be adequately treated in custody. 1. Dr Rohl's views are to similar effect. Having explained the regime, he stated (in his report dated 21 January 2016) that "this diabetic regime could still be followed as it can be adjusted to fit in with the prison routine". 2. There is simply no expert opinion to the effect that the applicant must be at liberty on bail for the treatment of his diabetes. 3. From the Justice Health records that have been tendered for the purpose of this application, it is clear that the professional staff of Justice Health are well aware of the applicant's condition and the necessary medical regime. Nursing and medical staff are also aware that the correct dose of Novorapid insulin is variable according to his blood sugar levels. 4. As against these objective facts, the applicant relies upon his own affidavit to suggest that the regime in prison is inappropriate. For instance, in paragraph [13] of his affidavit he complains about the timing of meals. But Dr Rohl states "the timing of meals is not critical". The plaintiff asserts that although the dietary requirement of inmates is met with the provision of different categories of meals "there are no diabetic meals here". This statement is difficult to accept at face value given Justice Health records contain a certificate that the applicant requires a diabetic diet. Given the options apparently available, I find it hard to accept that there are no diabetic options available to him in custody. It should also be noted that the reports of Dr Rohl and Nyunt are on his Justice Health file. 5. It is apparent that his blood sugar levels are high. Dr Rohl stated "satisfactory blood glucose levels for a diabetic are between 5.0 – 10.0 mmol/L". Since he has been in custody a diabetic chart of his blood sugar levels has been kept. It is fair to say that although they fluctuate and are occasionally recorded at or around a satisfactory level, the overall impression is that they are high and commonly, at different times of the day, in the mid-20's. However, it is also clear that the medical staff at Justice Health are aware of this and are reviewing, and adjusting his dosage of medication, as required. Blood tests were taken on 19th January 2016. Apparently, the first in many years. On 20th May 2016, a medical officer reviewed his file and noted that his blood sugar levels were high and instituted a plan to increase his medication, particularly his Novorapid and to review him if the situation was unchanged. On 27th May 2016, after the change in dose, his blood sugar levels were still noted to be high and a further adjustment to his regime was made. It was also noted that he had gained weight since he had been in custody. The applicant declined the suggestion of a referral for a review of his vision because he was "expecting bail soon". 6. I fully accept that an unmet need for medical treatment, in an otherwise appropriate case, may well suffice to show why a person's detention awaiting trial is not justified. However, such an argument generally will need to be supported by appropriate expert medical opinion. As I have said, that opinion is absent in the present case. Ironically, he has had more active medical intervention in relation to his diabetes in custody than he has had for many years in the community. The significance of his current apparently high blood sugar levels is not self-evident in the absence of comparatively recent readings taken during the periods when he was at liberty in the community. 7. Assessing this question by reference to available medical opinion and in the light of a Crown case of some strength, I am not satisfied that the applicant has shown cause why his detention is not justified. I will now turn to consider that question taking into account the s 18 factors relied upon in this regard. 8. I accept that absent the show cause requirement there is much in this case that can be said in the applicant's favour upon the application of the unacceptable risk test. He has no prior criminal record and otherwise has strong community ties. Although he was involved in the dubious, but apparently, lawful enterprise of conducting the business of the Love Machine in partnership with others when he made his statement to police in November 2015, he seems to have divested himself of that interest recently before he was arrested. His then lifestyle obviously brought him into contact with undesirables, but it has not been demonstrated that he had known criminal associates, notwithstanding what is apparently the notorious reputation of his former business partner, Mr Bill Bayeh. I accept from the review of past sentences provided by Ms Toomey that a long term of imprisonment would by no means be inevitable were he to be convicted. 9. To the extent to which there may be a concern of flight, his mother is able to provide security in an amount of $300,000. Onerous reporting requirements, a curfew, and other conduct conditions are proposed. Of the various possible concerns, it seems to me that flight is the most significant and I am satisfied by reference to the s 18 considerations that this does not rise to the level of unacceptable risk, notwithstanding the nature and seriousness of the offending and the strength of the Crown case. 10. I should add that, on the materials I have available, the Crown has a strong case in relation to the firearm offence, which itself carries a maximum penalty of 14 years imprisonment. However, it must be said that the applicant's possession of the weapon was brief and the transfer of that possession was to return it to the person who claimed to be its owner. 11. I acknowledge that the applicant says that he directed Fazlilar to remove it from his business premises and if that is accepted notwithstanding contrary evidence, the level of objective seriousness for any proved offending is likely to be comparatively low for that firearm offence. 12. The factors which favour a grant of bail in the case are relevant to the application of the show cause test: see Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. However, the show cause test is a separate and anterior question that must be decided favourably to the applicant before consideration is given to the unacceptable risk test. The latter question does not determine the former. 13. In considering the application of the show cause test, I am alive to the significance of delay. It is likely that the applicant will have been on remand for a period of 18 months to 2 years by the time he is tried. That is a long time for a person who has been convicted of no crime to be held in custody. Regrettably, however, it cannot be said to be unusual by current standards. Each of the offences with which he is charged is serious. If convicted, each may well result in the imposition of a full-time term of imprisonment. Weighing the question of delay in the balance with considerations relevant to the strength of the Crown case and the applicant's medical condition, I am not satisfied he has shown cause why his detention is not justified. In these circumstances I am required to refuse bail. 14. My order is bail is refused.