R v Abdallah (No 4) [2015] NSWSC 2157

Supreme Court New South Wales

Medium Neutral Citation: R v Abdallah (No 4) [2015] NSWSC 2157 Hearing dates: 24 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Common Law Before: Adamson J Decision: Bail revoked Catchwords: CRIMINAL LAW – detention application post-conviction – Bail Act 2013 (NSW) s 50(1) – assessment of bail concerns pursuant to s 17 – unacceptable risk of non-appearance at sentence hearing Legislation Cited: Bail Act 2013 (NSW), ss 17, 18(1), 50 Category: Principal judgment Parties: Regina Katherine Abdallah (Offender) Representation: Counsel: S Herbert (Crown) G Stanton (Offender)

Solicitors: Solicitor for Public Prosecutions (Crown) Bannisters Lawyers (Offender) File Number(s): 2013/40978

Judgment - EXTEMPORE 1. Madam Crown, as the prosecutor in these proceedings, has made a detention application pursuant to s 50(1) of the Bail Act 2013 (NSW) for revocation of bail. 2. Mr Stanton, who appears on behalf of Ms Abdallah, contended that I ought not hear the detention application because I could not be satisfied that Ms Abdallah has been given reasonable notice of the application by the prosecutor, as required by s 50(5). 3. I am informed by Madam Crown that at 2.30 pm yesterday the Crown was provided with a medical report of Dr Bassel Rahman which read as follows: "I reviewed Katherine Abdallah on 22 April 2015. She is currently suffering from severe anxiety and panic attacks. I have commenced her on a small dose of Valium and referred her to a psychiatrist to assess her further. She is currently unable to attend court and give evidence on Friday, 24 April 2015." 1. Madam Crown submitted that shortly after that report was received, notice was given to the offender's legal representatives that a detention application would be made. 2. I am satisfied that this constitutes, in all the circumstances, reasonable notice of the application, particularly having regard to the fact that the legal representatives and Ms Abdallah were on notice that they were required to be before me today for the sentence hearing. 3. I am required by s 17 of the Bail Act to assess any bail concerns. Madam Crown has submitted that I ought have two bail concerns, namely that Ms Abdallah will fail to appear at any proceedings for the offence or that she will commit a serious offence, both of those matters being defined as bail concerns in s 17(2)(a) and (b) of the Bail Act. I am not persuaded that I should have a concern that Ms Abdallah will commit a serious offence if she is at liberty. Although it is true that the events surrounding her commission of the offence with which she has been convicted by the jury, namely the manslaughter of Suzie Sarkis, is indeed a serious offence and involved violent conduct on her part, I am not satisfied that she would otherwise commit a serious offence or that there is a substantial risk that she would do so if at liberty. 4. However, I am very concerned that if bail were continued, she might fail to appear at the resumed sentence hearing. When this matter came before me for mention on 27 February 2015, Ms Abdallah did not arrive in time for the hearing and presented herself to the Registry some time later. This morning Ms Abdallah made her way from the residence where she is currently living as a condition of bail to this courtroom by public transport and, notwithstanding what I accept were the best endeavours of her legal representatives, she was about 15 minutes late. I had some concern about her arriving at all having regard to what Mr Stanton informed me was her distressed state, and the contents of the brief report of Dr Rahman set out above. In these circumstances I am satisfied that there is a bail concern under section 17(2)(a) of the Bail Act. 5. I am required to consider the matters specified in s 18 of the Bail Act. Section 18(1)(b), the nature and seriousness of the offence, is relevant as obviously manslaughter is one of the most serious offences known to the law since it results in a person's death. Section 18(1)(c), the strength of the prosecution case, is no longer a matter for speculation, the presumption of innocence having been rebutted by the jury's verdict of guilty of manslaughter. 6. As to the matter in s 18(1)(f), whether the accused person has a history of compliance or non-compliance with bail requirements, I note from the pre-sentence report (exhibit A on this bail application) that Ms Abdallah admitted that that she commenced using methamphetamines shortly after her release to bail in June 2013 and, as a result, she has, since then, engaged in reckless and self-destructive behaviours. It is conceded fairly by Mr Stanton that Ms Abdallah has a substantial and long-standing substance abuse problem. I consider that the material in the pre-sentence report indicates a history of non-compliance with bail conditions. 7. Section 18(1)(i), the likelihood of a custodial sentence being imposed if the accused person is convicted, does not in terms apply because she has, of course, been convicted. The likelihood of a custodial sentence being imposed is very high, if not inevitable. 8. S 18(1)(l) requires me to take into account the need for Ms Abdallah to be free to prepare for her appearance in court or to obtain legal advice. I do not consider that to be a material factor. She has been at liberty since June 2013 and, of present significance, since the jury returned its verdict at the end of February this year. 9. I am not satisfied that the unacceptable risk that she will fail to appear at any proceedings for the offence and in particular at the sentence hearing can be made acceptable by the imposition of bail conditions and, accordingly, I revoke bail and accede to the Crown's detention application.