R v Cowell [2017] NSWSC 1604

Supreme Court New South Wales

Medium Neutral Citation: R v Cowell [2017] NSWSC 1604 Hearing dates: 22 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Jurisdiction: Common Law Before: Harrison J Decision: Grant bail subject to conditions. Catchwords: BAIL – granted subject to conditions – where applicant has extensive criminal history – where conditions adequately address bail concerns Legislation Cited: Bail Act 2013 Crimes Act 1900 Category: Principal judgment Parties: Jacob Cowell (Applicant) Crown (Respondent) Representation: Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2017/293724 Publication restriction: Nil

Judgment 1. HIS HONOUR: Jacob Cowell applies for bail. He is charged that on 14 September 2017 he took and detained a person in company with intent to obtain an advantage, contrary to s 86(2)(a) of the Crimes Act 1900. He is further charged with common assault of the same victim, contrary to s 61 of the Crimes Act. 2. The Crown alleges that the victim had arranged with Mr Cowell to attend his residence to purchase an amount of cannabis. The victim had known Mr Cowell for a few months before 14 September 2017 when the following events are alleged to have occurred. When the victim arrived at Mr Cowell's home, he was standing out in front of his home claiming that his house had just been "done over". The victim maintained that he had seen no one. Mr Cowell's co-accused then arrived. The victim did not buy any cannabis. 3. Mr Cowell offered to drive the victim back to his place of work. All three men got into Mr Cowell's car and drove away. Mr Cowell shortly thereafter pulled over and accused the victim of robbing his house. He intimated that he would give the victim one more chance to confess to this or he would die. Mr Cowell then allegedly went to the rear door of his car, grabbed the victim's finger, produced a knife and threatened to cut it off. He then pushed the knife into the victim's neck. The co-offender then grabbed the victim by the neck. Mr Cowell demanded that the victim give him his wallet. The victim undressed to demonstrate that he had stolen nothing. He was then struck on his eye and his jaw as he was getting dressed. The victim managed to escape and fled across a nearby reserve. 4. The applicant is not charged with a show cause offence. The Crown maintains that all four of the unacceptable risks referred to in s 17(2) of the Bail Act 2013 apply in this case. The Crown contends that the following matters inform the existence of those risks. 5. Mr Cowell has an extensive criminal history, involving a range of violent offences. These include malicious damage, multiple shoplifting charges, traffic offences, licensing offences, resisting police, assaulting police, offensive behaviour, common assault, assault occasioning actual bodily harm, stalking and intimidation, robbery in company and possession of prohibited drugs, among others. The police allege that Mr Cowell is also involved in a variety of other offences including consorting, illegal prostitution and drug offences. 6. The Crown maintains that the victim in the present case is fearful for his safety and feels intimidated as the result of Mr Cowell's actions. These include an alleged statement made by Mr Cowell, indicating to the victim that he knew where he lived. I observe that this did not deter the victim from reporting these matters to the police. 7. The Crown maintains that the police have concerns that Mr Cowell "will seek retribution", presumably meaning that he will attempt to injure the victim further as a response to his having reported the matter to the police. No further material is available in support of that contention beyond its recitation in submissions to me. 8. The injuries inflicted upon the victim are described in a letter from a detective senior constable from St Marys Detectives as "superficial". There is no other evidence that clarifies the nature and extent of the victim's condition. 9. It seems to me that the likelihood of Mr Cowell approaching or interfering with the victim is low to non-existent. Having regard to the prospect that he would be returned to custody immediately if he failed to comply with any conditions of bail, including a condition that he not approach the victim, the very real likelihood in my experience is that the condition will be self-enforcing. The probability that Mr Cowell would imperil his liberty on bail by approaching the victim, with a certainty of an immediate report to the police, is not significant. This is not a case in which the applicant for bail has demonstrated an irrational or uncontrollable tendency for violence that would lead him to ignore or disregard factors that are clearly in his best interests. 10. In my opinion, this is a matter in which the Crown's bail concerns can be adequately addressed by the imposition of suitable conditions. Accordingly, I propose to grant bail subject to the following conditions: 1. He is to be of good behaviour. 2. He is to reside at XX XXX Close, Glenmore Park. 3. He is to report to Penrith Police Station daily between the hours of 8am and 8pm. 4. He is to appear at Penrith Local Court when his charges are next before the court for plea or mention. 5. He is not to drink alcohol or enter premises where alcohol is sold. 6. He is not to take illegal drugs. 7. He is to comply with a curfew and is not to be absent from the address at which he is required to live between the hours of 8pm and 6am. 8. He is not to associate or communicate or attempt to communicate by any means with Wayne Irving.