Mohr v R (No 3) [2018] NSWSC 1955

Supreme Court New South Wales

Medium Neutral Citation: Mohr v R (No 3) [2018] NSWSC 1955 Hearing dates: 29 November 2018, 5 December 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Common Law Before: Rothman J Decision: Application for variation refused. Catchwords: BAIL – variation of conditions – house arrest sought to be deleted and electronic monitoring imposed – discussion of Bail Act – application refused. Legislation Cited: Bail Act 2013 (NSW) Criminal Code Act 1995 (Cth), ss 11.5(1), 307.(1) Cases Cited: Darren Mohr v R [Supreme Court (NSW), 22 December 2017, unrep] R v Darren Mohr [Supreme Court (NSW), 27 April 2017, unrep] Category: Principal judgment Parties: Darren John Mohr (Applicant) The Queen (Respondent) Representation: Counsel: G Brady SC (Applicant) S Indyk (Respondent)

Solicitors: Conaghan Lawyers (Applicant) Office of the Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2018/311189

Judgment 1. HIS HONOUR: The applicant, Darren John Mohr, applies for a variation on the bail conditions required by order of the Court. The variation seeks to lift the requirement that the applicant be under house arrest, namely, that, except for the purpose of reporting to Police in accordance with other conditions or for attending court or a prearranged conference with his legal representatives, the applicant not be absent from the premises at which he resides at Runaway Bay in Queensland. 2. It is necessary to recite the nature of the charges faced by the applicant and the history of the proceedings. Each is a brief summary and the summary does not purport to be a complete recitation of the history of the proceedings. 3. The applicant was charged with the offence of conspiracy to import a commercial quantity of a border controlled drug, namely cocaine, being 500 kg, contrary to s 307.(1) and s 11.5(1) of the Criminal Code Act 1995 (Cth) (hereinafter "the Criminal Code"). 4. Section 11.5 deals with the conspiracy to commit an offence and, assuming the principal offence is punishable by imprisonment for more than 12 months, the conspiracy is an offence under the Criminal Code and punishable in the same manner as the principal offence. Section 307.1 of the Criminal Code renders the importation of a prohibited substance at or above commercial quantity as an offence, the penalty for which is life imprisonment, or a fine, or both. 5. Cocaine is a border controlled (or prohibited) drug and 500kg of cocaine is at or above a commercial quantity. As a consequence, the maximum penalty that may be imposed upon the applicant is life imprisonment. 6. The prescription of a maximum penalty of life imprisonment for the offence with which the applicant is charged makes clear that the legislature (in this case the Commonwealth) considers the offence of importing a commercial quantity of a prohibited substance as one of the most serious offences known to the law. 7. The foregoing offence was said to have been committed between 1 May 2016 and 5 November 2016. A trial for the offence is listed to commence on 3 February 2020. 8. The reason for the delay in the trial is that the Court will be dealing with separate trials in relation to two co-offenders in the same importation, which trials are listed for hearing, one following the other, in the second half of 2019. The applicant's trial will commence at the beginning of law term in 2020, following the two trials to which reference has been made. 9. The applicant was initially charged and arrested on 27 December 2016. The applicant had been on remand. His initial bail applications were refused by Police and then the Local Court and, ultimately, refused by this Court on 27 April 2017. The refusal of the bail application was accompanied by the reasons for judgment of Fullerton J (R v Darren Mohr [Supreme Court (NSW), 27 April 2017, unrep], hereinafter "R v Mohr (No 1)"). 10. The applicant faced a committal proceeding in 2017. On 12 December 2017, the learned Magistrate hearing the committal proceeding, discharged the applicant at committal. Following the applicant's discharge at committal, the prosecution filed and served an ex officio indictment and detention application. That application and the ex officio indictment occurred within two hours of the applicant's discharge and release. 11. On 22 December 2017, Hamill J granted bail (Darren Mohr v R [Supreme Court (NSW), 22 December 2017, unrep], hereinafter "R v Mohr (No 2)"), which contained the house-arrest condition to which reference has already been made. Those reasons for judgment were ex tempore, as is almost universal in bail applications. The applicant has remained on bail since 22 December 2017 and there is no suggestion that the applicant has not complied with the conditions of bail that were prescribed.