R v Najem [2015] NSWSC 2108

Supreme Court New South Wales

Medium Neutral Citation: R v Najem [2015] NSWSC 2108 Hearing dates: 18 February 2015 Decision date: 18 February 2015 Jurisdiction: Common Law Before: Wilson J Decision: Bail refused Catchwords: CRIMINAL LAW – bail application – Bail Act 2013 (NSW) Legislation Cited: Bail Act 2013 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Michael Najem (Applicant) File Number(s): 2015/00029730 Publication restriction: None

EX TEMPORE Judgment 1. Michael Najem makes application for bail in relation to an offence of driving whilst suspended, a number of offences of break enter and steal, and a goods in custody offence. Those matters are due to be mentioned before the Sutherland Local Court on 3 March 2015. 2. At the time of the alleged commission of those break and enter offences, and indeed the driving offence, the applicant was subject to conditional bail. He had been admitted to bail in relation to an offence of contravening an apprehended domestic violence order, and it appears that he was also subject to bail in relation to two counts of possessing a prohibited drug and one count of dealing with property the proceeds of crime. Those latter matters have now been dealt with by the imposition of s 9 bonds for a period of 18 months but at the time of the alleged commission of these matters they were outstanding and there was a grant of bail. It appears that there were at least two separate orders for bail that governed the applicant's conduct, together with conditional liberty pursuant to sentence orders. 3. On 12 September 2014 the applicant was convicted of an offence of contravening an apprehended domestic violence order, indeed two counts of that, and he was placed on s 9 bonds with respect to each for a period of 18 months. So there are, thus, two bonds and two sets of bail which applied as at the date of these alleged offences. This gives rise to the application of the show cause provisions under the Bail Act 2013 (NSW) and obliges the applicant to show cause why his detention is not justified. 4. The applicant raises in support of that contention that the Crown case is not a strong case. It appears to rest, at least in part, upon the discovery of some items in a car associated with the applicant, certainly a car that he should not have been driving given the current suspension. 5. The applicant asserts, through his lawyer, that the things found in his possession by the police had been in his possession prior to the commission of the alleged offences. That information, he says, is within the knowledge of police and that he had been stopped prior to these matters and the property in his vehicle noted by police officers. Additionally, he says that some of the property was physically marked with the initials of his son and he is in a position to prove his ownership of the items that the police have seized. 6. Those competing versions of events are simply unable to be resolved by this Court, it is just not possible to know what the position is in relation to that property. 7. The Crown says that there is some other evidence, including closed-circuit television footage, which places the applicant in the vicinity of the location of the crimes and thus strengthening the Crown's case, but it is simply something that I cannot determine on the basis of the material before the Court and the competing claims as to that property. 8. The applicant, additionally, relies upon his ill health. There is evidence before the Court in exhibit 1 to establish that he had a serious motor vehicle accident in March of last year and sustained very significant injuries including fractures to the spine and the ulna. He had surgical repair of those injuries by the insertion of metal pins but he is in a position, he says, where he has ongoing pain and he has had no pain relief since his admission to custody on 12 January 2015, and indeed he has not even had the provisions of items of bedding such that his pain might be alleviated. 9. That, obviously, is a matter of significant concern. Any person in the care of the Corrective Services Department, whether they are a sentenced prisoner or a prisoner held on remand, has to have access to appropriate and proper medical treatment and if that is not occurring then that would appear to be a dereliction of the duty that the Department has to adequately care for inmates. That would be a matter of concern to the Court. It is certainly a matter which is capable of being relied upon to discharge the onus in relation to showing cause why the applicant's detention is not justified. 10. If that information is accepted at face value, again it is not information that the Court can verify that I assume the Crown has had an opportunity to test. But if one assumes that that information is correct and the applicant is being held in circumstances where he is being denied access to necessary medical treatment, and denied access to appropriate conditions having regard to his medical issues, then it seems to me that that is something which would displace the discharge of the onus and show cause why his detention may not be or is not justified. 11. If one then goes to the question of risk and whether there are risks that are not acceptable, or are unacceptable in the language of the statute, risks that may or may not be able to be addressed by conditions, one turns to the applicant's criminal history. 12. He was, as has been noted, on both a number of s 9 bonds and at least two sets of bail at the time of the alleged commission of these offences. He has a relatively lengthy criminal history dating back to 1999. There are offences relating to drugs, driving-related offences. More troublingly, there are offences which establish that the applicant has in the past, and indeed in the recent past, ignored court orders issued against him to regulate his conduct with respect to named individuals. He has convictions for the contravention of apprehended domestic violence orders and that is demonstrative of an attitude of disregard for an order of the Court. 13. The applicant is able, if released to bail, to live with his family at an address at Hurstville. That is the address at which he was living at the time of the alleged commission of these matters and, in light of that, it does not greatly address the issues as to the commission of further offences whilst at liberty. The applicant is hampered in being unable to offer any particular security to the Court by his custodial status. I infer from that that there is no person who is in a position, from the community, to act as a surety in relation to bail for the applicant. He could, of course, report on bail and that would provide at least some measure of supervision to any bail awarded the applicant. 14. Weighing up the competing issues that the Court must consider, the applicant's need to be at liberty, the likely delay in bringing these matters to a final disposition, which if they are dealt with summarily, and that is not certain but if they are, could be expected to be perhaps some months, if they are dealt with on indictment it could be as much as a year, one must consider that possible delay, coupled with the applicant's interests to be at liberty principally so that he can obtain appropriate medical treatment, against matters connect with, on the objective evidence, his criminal history which suggests that he has in the past shown a level of disregard for the orders of a court. 15. Whilst I think the applicant has discharged the onus and I think he has thus brought the Court to consider the question of whether risks are unacceptable or can be mitigated adequately, I am not persuaded that the risks can in fact be mitigated by the bail conditions that are proposed. It seems me that there is a significant risk of the commission of further offences whilst at bail and, having regard to the applicant's criminal history, something more would be required to adequately address those risks. 16. Accordingly, bail is refused. 17. I ask that the Registrar take out a copy of my remarks and forward them to the superintendent of the facility at which the applicant is held, and additionally to the director of the Justice Health service, noting the applicant's complaints as to the absence of any medical treatment afforded him and requesting and recommending that he be immediately given access to a doctor and assessed for such treatment and pain relief as he may need.