R v Daniel [2014] NSWSC 1968

Supreme Court New South Wales

Medium Neutral Citation: R v Daniel [2014] NSWSC 1968 Hearing dates: 23 June 2014 Decision date: 23 June 2014 Jurisdiction: Common Law Before: Button J Decision: Bail refused. Catchwords: CRIMINAL LAW – bail – release application – supply of prohibited drug – ex tempore judgment – s 74 of the Bail Act 2013 (NSW) – joint position of the parties with regard to s 74 – risk that the applicant will fail to appear – strong Crown case – bail refused Legislation Cited: Bail Act 2013 (NSW) Category: Principal judgment Parties: Regina Darren Daniel Representation: Solicitors: Legal Aid New South Wales (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2014/00112654

ex tempore Judgment 1. This is an application for bail by Darren Daniel. The applicant faces a number of charges said to have been committed between 21 February 2013 and 30 April 2013. It is said that the applicant engaged in the supply of a particular prohibited drug, which I infer is in the nature of an amphetamine. The allegation is that to a degree he was something of a street-level dealer with regard to very small quantities but, eventually, things progressed to the stage where he allegedly, on four occasions, supplied a large commercial quantity of that drug, indeed substantially above what is the large commercial quantity. The maximum penalty, therefore, is imprisonment for life, with a standard non-parole period of fifteen years. 2. It is alleged that, on 27 February 2013, the applicant supplied 130 grams of the drug in the form of 500 tablets in return for $12,500. On 8 March 2013 it is alleged he supplied 137 grams of the same drug in return for $12,500 in cash. 3. The Crown case is that a great deal of the criminal allegations were electronically recorded by way of video surveillance, electronic recordings of things said by people and, indeed, SMS messages sent to and by the applicant. 4. It is alleged that on arrest the applicant had $1100 cash in his possession, a number of street deals in his possession, plastic bags suggestive of dealing, and also cannabis leaf was found in a motor vehicle. 5. I can proceed on the basis (and his solicitor has not sought to persuade me otherwise) that the Crown case is very strong. 6. For the purposes of s 17(3)(b), it can be said that the seriousness of the offences derives from the maximum penalty to which I have referred, which speaks for itself. 7. Furthermore, if the applicant is convicted, it is inevitable that he will spend many years in gaol. 8. Before I go further, I should say that s 74 of the Bail Act 2013 applies to this application, the applicant having been refused bail by Beech-Jones J in September last year. 9. Without delving into the intricacies of s 74 of the new Act, the parties have been content for me to approach it on the basis that "information before the court" has changed: in particular, the presumption that existed against the applicant being granted bail, which no longer exists. Secondly, his solicitor Ms Neil has submitted that that effluxion of time since September last year constitutes a "change in circumstance". As I say, without engaging in a detailed exercise of statutory interpretation, I am prepared to approach the matter on the basis that a prerequisite in s 74 has been made out. 10. The applicant was born in September 1979. Accordingly, unless I am mistaken, he is now about thirty-four years of age. His criminal record started when he was approximately seventeen years of age. In truth, it is quite short, although it is not something to be proud of. It is not a matter causing great concern on this application. It has the flavour that he is a person who has suffered from a problem with prohibited drugs. 11. Section 17 of the Act calls upon me to consider whether there is an unacceptable risk of one of four matters. Without listing them, suffice to say I consider there is an unacceptable risk that the applicant will fail to appear; to express it bluntly, that he would be the subject to a powerful motivation to abscond if granted bail. The question is whether that unacceptable risk can be mitigated by the imposition of strict bail conditions. 12. Ms Neil has informed me today that it is proposed he would live with his mother's cousin at an address at Queanbeyan, and that that gentleman has undertaken to report the applicant if he were to breach bail. She has explained that, before his incarceration, the applicant was homeless, living in a motor vehicle, his psychological state was very poor and was untreated – in fact, he was a drug addict, and it was out of control. 13. Over the past fourteen months, he has been treated in custody by psychiatrists. He has been medicated with anti-depressants. His mother has noted he has changed. He has been able to take a balanced perspective on things and is looking to the future. 14. The applicant was at one stage a plasterer, and Ms Neil's instructions are he would have good prospects of employment, if released. She made it clear that, if I thought it appropriate, he would be content to contact immediately drug and alcohol services and obtain assistance from them. It is also her case that, as far as he is concerned, he is no longer a drug addict. 15. Ms Neil has put forward a detailed proposal that includes living at an address in Queanbeyan, reporting to the police, abstaining from drugs and alcohol, and having nothing to do with the co-defendants. It also includes the fact that his mother, who has provided an impressive letter which became Exhibit 1, would deposit and agree to forfeit the considerable sum of $20,000. 16. Considering the factors in s 17(3), I think that it can be said generally that the applicant's background, including his criminality history and proposed community ties, is favourable. It can also be said the applicant does not have a history of violence, and has not previously committed a serious offence on bail. Nor does he have a pattern of non-compliance with court orders. 17. It is highly regrettable this man has spent a year in custody and it seems he will spend another year, until 15 March next year, until the matter is resolved. 18. Having said that, it cannot be denied that this offence is extremely serious. 19. On the limited material before me, I proceed on the basis the Crown case is extremely strong and, as I said, a lengthy custodial sentence could be imposed after March 2015. With regard to any non-parole period, it seems to me that its length is inevitable, if this man is convicted. 20. In short, in light of the strength of the Crown case; the inevitability of custody if convicted; the fact that I consider this man is suffering from an unresolved drug problem; and given there is a strong motivation for the applicant not to attend court if granted bail, to my mind the unacceptable risk of the applicant failing to appear cannot be mitigated by the imposition of bail conditions. Bail must therefore be refused.