Bobbi v R

[2021] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bobbe v R [2021] NSWCCA 44

Hearing dates:

10 March 2021

Decision date:

24 March 2021

Before:

Macfarlan JA at [1]
Walton J at [2]
Hamill J at [3]

Decision:

(1)   The release application is dismissed.

(2)   Bail is refused.

Catchwords:

CRIMINAL LAW – release application – bail after sentence on indictment – bail pending appeal – special or exceptional circumstances – appeal against conviction – where pleas of guilty entered on indictment – relevant considerations – assessment of prospects of appeal – escape lawful custody – defence of necessity – whether unacceptable risk

Legislation Cited:

Bail Act 2013 (NSW), ss 19, 22, 61, 67

Crimes Act 1900 (NSW), ss 61L, 86

Criminal Procedure Act 1986 (NSW), s 166

Cases Cited:

AC v R [2016] NSWCCA 107

El-Hilli and Melville v R [2015] NSWCCA 146

Kristensen v R [2018] NSWCCA 189

Layt v R [2020] NSWCCA 231

McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99

R v Chi Sun Tsui (1985) 1 NSWLR 308

R v JB [2014] NSWSC 1964

R v Moore [2015] NSWSC 1262

R v Paul Campbell (a pseudonym) [2017] NSWSC 1844

R v Mirzaee [2004] NSWCCA 315

R v Rogers (1996) 86 A Crim R 542

R v Van Hong Pham [2005] NSWCCA 94

R v Williams [2020] NSWCCA 348

United States v Bailey (1979) 444 US 394

Category:

Principal judgment

Parties:

Mahmudul Hasan Bobbe (Applicant)
Regina (Respondent)

Representation:

Counsel:
K Jeffreys (Respondent)

Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/306282; 2021/61912

Publication restriction:

Nil

Judgment

1. MACFARLAN JA: I agree with Hamill J.

2. WALTON J: I agree with the judgment of Hamill J and the orders proposed by his Honour.

3. HAMILL J: On 10 March 2021, Mahmudul Hasan Bobbe made a release application pursuant to the Bail Act 2013 (NSW). There are two sets of proceedings in relation to which Mr Bobbe has been refused bail. It is not disputed by the prosecution that the jurisdiction of this Court to entertain the release application is enlivened by separate provisions of the Bail Act: see ss 61 and 67. Mr Bobbe appeared for himself and without legal representation.

4. The first set of proceedings relates to offences of indecent assault, taking without consent (kidnapping) and driving offences allegedly committed between 16 and 19 August 2018. In relation to those matters, Mr Bobbe entered pleas of guilty and was sentenced in the District Court on 15 April 2020. The applicant has appealed against his conviction (and sentence) to this Court. The appeal is listed for hearing on Friday, 7 May 2021. Grounds of appeal have been filed, and documents in the nature of submissions and affidavits have been submitted to the Court. Because “proceedings” for these offences are pending before this Court, the current bench has jurisdiction pursuant to s 61 of the Bail Act.

5. However, s 22 of the Bail Act provides a “general limitation” on the grant of bail, and the Court “is not to grant bail or dispense with bail” unless it is established that “special or exceptional circumstances exist that justify” either of those decisions. The nature and content of that limitation on the grant of bail was explained in El-Hilli and Melville v R [2015] NSWCCA 146 (“El Hilli”). It is a relatively strict test, generally considered to be at least as stringent as that which exists in cases where an applicant is required to show cause why their detention is not justified: El Hilli at [11]. However, it is not an insurmountable test and there are many examples of cases where bail has been granted pending an appeal to this Court: see, for example, R v Williams [2020] NSWCCA 348; McGlone v Director of Public Prosecutions (Cth) [2019] NSWCCA 99; R vPaul Campbell (a pseudonym) [2017] NSWSC 1844; R v Moore [2015] NSWSC 1262; R v JB [2014] NSWSC 1964.

6. While there is no fetter on the things that might constitute “special or exceptional circumstances”, two features which often arise are (i) whether there is an arguable case on appeal, and (ii) whether all or most of the sentence may have expired by the time the appeal is heard: El Hilli at [25], [29].

7. The second set of proceedings relate to an offence of attempting to escape from lawful custody on 4 December 2020. At that time the applicant was being held at Kirkconnell Correctional Centre serving a sentence related to the first set of offences. The case in relation to this offence is listed for hearing at the Lithgow Local Court on 16 July 2021. In that case, bail was refused by the Supreme Court (Adamson J) on 1 March 2021. Accordingly, this Court has jurisdiction pursuant to s 67(1)(e) of the Bail Act. The application before this Court does not involve a review of the decision made by Adamson J.

8. Returning to the first set of proceedings, the offences to which the applicant pleaded guilty are these:

1. Indecent assault (s 61L Crimes Act1900);

2. Take and detain for advantage (s 86(1)(a) Crimes Act 1900);

3. Indecent assault (s 61L Crimes Act 1900); and

4. Failing to stop in the course of a police pursuit.

9. These offences carry maximum penalties of 5 years, 14 years, 5 years and 3 years respectively. There was a drink driving offence (mid-range PCA) dealt with under s 166 of the Criminal Procedure Act 1986 (NSW) and two related indecent assault offences placed on a Form 1 to be taken into account in sentencing for Count 1.

10. The prosecution asserts that the applicant committed the sexual and personal violence offences (that is, the offences in Counts 1, 2 and 3) against two young women who had recently arrived in Australia. The applicant met the women through an online service or application called “Couchsurfing” (used by travellers to meet people in new places) and, after going out with each of them, allegedly assaulted them in his car.

11. The first offence allegedly occurred on 16 August 2018 and involved the applicant “tongue kissing” the complainant, attempting to squeeze her breasts under her shirt and putting his hands down the front of the complainant’s jeans and inside her underwear. That happened in the applicant’s car when he was driving the pair between venues to meet another group of travellers. The complainant says she asked the applicant to stop numerous times during the period of their physical contact. At one point, feeling panicked and finding it hard to breathe, the complainant asked the applicant to open the car window. When the applicant agreed to do so, the complainant was able to push Mr Bobbe off her and escape. That incident gives rise to one count of indecent assault as well, it seems, as the two offences on the Form 1.

12. The second incident occurred three days later. Again, the meeting between the complainant and the applicant was facilitated through the Couchsurfing application and again the complainant and the applicant ended up together in the applicant’s car. On this occasion, contrary to the couple’s agreement to go to a nearby pizza restaurant, the applicant drove south via a McDonald’s fast food franchise in Tempe and on to the Royal National Park on the southern outskirts of Sydney. When the applicant parked the car, he pinned the complainant to the seat with her legs apart and grabbed her breasts while attempting to pull down her leggings. Those events gave rise to two charges; the take and detain and the indecent assault offences in Counts 2 and 3. The complainant hit out towards the applicant and struck him with her mobile telephone in response to his behaviour. This gave her an opportunity to get out and run from the car. She flagged down a passing vehicle and made her escape.

13. Later the police saw the applicant driving with his mobile ‘phone and pursued him. A pursuit followed over the next 40 minutes with the applicant allegedly reaching speeds of 130km/h and driving on the wrong side of the road. This gave rise to Count 4 and the matter dealt with under s 166 of the Criminal Procedure Act.

14. The applicant was legally represented in the District Court, and amongst the material tendered on the release application, was correspondence between the applicant’s then lawyers and the DPP. There was also a transcript of the proceedings before the District Court when the matter was listed for trial. There were delays for various reasons. At one stage, the parties indicated that discussions were taking place. In the end, the applicant entered pleas of guilty to the first set of charges. Facts were agreed and the applicant signed a document styled “Agreed Facts” which were tendered on sentence. The agreed facts were also signed by an interpreter and bear a notation that they had been read and translated to the applicant.

15. The matter was dealt with by her Honour Judge Huggett SC on 15 April 2020. Her Honour imposed an aggregate sentence of 6 years with an aggregate non-parole period of 3 years and 6 months. The non-parole period is due to expire on 18 February 2022 and the total sentence will expire on 18 August 2024. It is unnecessary for the purpose of the release application to set out the individual indicative sentences.

16. The facts as I have relayed them above are disputed and denied by the applicant. They reflect, in brief and very general terms, the agreed facts as they were before the District Court.

17. The applicant appeals against his conviction. Mr Bobbe said he intends to represent himself on the hearing of the appeal on 7 May 2021. I have given due allowance for the fact that the documentation he has filed lacks the precision and finesse that would be expected if lawyers were appearing. However, the substance of the applicant’s complaints is clear, and he should not be disadvantaged because he is not legal represented. The grounds of appeal upon which he intends to rely are as follows:

“Grounds of Appeal:

I am not guilty.

Lawyers misguided me and I was forced to [plead] guilty.

Lawyers provided me false and misleading information.

Police Detective provided false information to Supreme Court on December 2018 to stop me from getting Bail.

Police Detective wrote a letter to Supreme Court Judge on December 2018 and told the Judge that my charges are sexual intercourse without consent x2 and some other charges.

District Court refused to run my trial on November 2019.”

18. The real substance of the appeal appears to be reflected in the contents of the first, second and third grounds. It is difficult to see how the police misleading the bail Court (the fourth ground) could have any impact on the efficacy of the conviction. Similarly, having reviewed the transcripts, I perceive no real substance in the assertion that the District Court refused to run Mr Bobbe’s trial (the fifth ground).

19. As to the allegations against his lawyers, Mr Bobbe has set out their alleged failings at some length in his affidavit. He asserts that his lawyers were at times uncontactable and that they provided him with an estimate of the sentence that was well below the sentence that was finally imposed. The applicant also refers to the delays in getting a trial date and delays when the matter was, as I understand it, listed for trial. Reading between the lines, it seems that no judge was available or that the allocated trial Judge was unavailable for some days.

20. In essence, Mr Bobbe will assert on the appeal that the delay in obtaining a trial date and then the delays that took place when the matter was listed for trial, along with the failure of the Courts to grant him bail, and the legal advice he received as to the likely length of the sentence, placed him in a position where he had little choice but to plead guilty. The applicant put this clearly in his oral submissions. His choice, as he perceived it, was to plead guilty and receive a sentence that would have him released in the next few months or maintain his not guilty plea and remain on remand for two years. In those circumstances, and here, I am extrapolating, the plea of guilty did not reflect a genuine consciousness of guilt.

21. The circumstances where the Court of Criminal Appeal will allow a conviction appeal when a plea of guilty was entered on indictment were discussed last year by Payne JA in Layt v R [2020] NSWCCA 231 (Walton and Fullerton JJ agreeing). His Honour summarised the principles in the following passage:

“24. Where an applicant has entered a plea of guilty and subsequently seeks to appeal against conviction, it is not necessary to conduct an examination into the applicant’s guilt or innocence. Rather, the relevant inquiry is into the integrity of the plea of guilty: Sabapathy v R [2008] NSWCCA 82 at [14]; Thafer v R [2019] NSWCCA 143 at [287].

25. When a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred: R v Chiron [1980] 1 NSWLR 218.

26. The rarity with which this Court grants leave to withdraw the plea of guilty at trial is an aspect of the public interest in the finality of proceedings: Reg. v O’Neill [1979] 2 NSWLR 582.

27. While the categories are not closed, some examples of where leave to withdraw a plea of guilty has been granted are:

(1) the nature of the charge to which the plea has been entered is not appreciated: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233;

(2) the plea is not “a free and voluntary confession”: R v Chiron at 220;

(3) the “plea [is] not really attributable to a genuine consciousness of guilt”: R v Murphy [1965] VR 187 at 191;

(4) there has been a “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”: Sagiv v R (1986) 22 A Crim R 73 at 80;

(5) the plea has been “induced by threats or other impropriety” and the appellant would not otherwise have pleaded guilty: R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep); and

(6) the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt (Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46).

28. It is for the person seeking to withdraw the plea of guilty to satisfy the Court that leave to withdraw the plea should be granted: R v Boag (1994) 73 A Crim R 35; R v Ferrer-Esis. It is only where the material before the Court discloses a real question about the guilt of an accused that the Court will grant leave to withdraw the plea: R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533.”

22. It seems safe to assume that, at the hearing of the appeal, the respondent will adduce evidence clarifying the position in relation to the course of the matter before the District Court and the circumstances in which the plea of guilty was entered. It may be that the lawyers nominated by Mr Bobbe in his affidavit will provide evidence as to the advice he received. At this stage that is a matter of conjecture and the Court has only the material provided by Mr Bobbe and the transcripts and correspondence.

23. On the information before the Court at this stage, an assessment of the prospects of appeal is speculative. The matter is listed for hearing on 7 May 2021; that is, around 9 months before Mr Bobbe’s earliest date for release to parole and over 3 years before the total sentence will expire.

24. Mr Bobbe also referred in the written material to an assault that occurred when he was in prison. He said this caused actual bodily harm including broken teeth. He said he has not been able to get proper dental treatment in custody. There is no independent evidence of that assault which is said to have occurred in December 2019. At the hearing, Mr Bobbe said he had been assaulted in gaol on a number of other occasions. There was not a great deal of detail provided but, again, it must be remembered that Mr Bobbe appeared for himself. There may be gaol records, or other evidence, capable of supporting his account. On the other hand, counsel for the respondent referred to a report of a psychiatrist, Dr Gordon Elliott, dated 30 January 2020. There is no reference in that report to any gaol assaults even though Dr Elliott makes reference to an assault that allegedly occurred in 2017 in the course of a driving incident while the applicant was at liberty. While the absence of reference to any incidents in prison cannot prove that the assaults alleged by Mr Bobbe did not occur, the report highlights the fact that the allegations are not supported by independent evidence.

25. Mr Bobbe also referred to his immigration status and the cancellation of his visa. He refers to the fact that Judge Huggett SC made no reference to this in her Honour’s judgment on sentence. In passing, it is noted that the likelihood of deportation and related matters are not (generally) things to be taken into account on sentence: see, for example, R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311; Kristensen v R [2018] NSWCCA 189 at [34]; R v Mirzaee [2004] NSWCCA 315 at [20]-[21]; R v Van Hong Pham [2005] NSWCCA 94 at [39]; AC v R [2016] NSWCCA 107 at [79]. Further, it is not a matter that has any bearing on the conviction appeal.

26. However, Mr Bobbe submitted that the cancellation of his visa is relevant to the release application because it means that he will not be released into the community if he is granted bail. Rather he would be detained at the Villawood Immigration Detention Centre. This reduces any risk to the community and the risk that he will take flight. I accept that it is a relevant matter. However, I am unable to accept that, even in combination with the other relevant considerations, it overcomes the obstacle presented by s 22 of the Bail Act.

27. Taking into account all of the material tendered and the submissions made, there are no special or exceptional circumstances justifying the grant of bail in respect of the matters that are currently subject to appeal proceedings before this Court. Accordingly, applying the terms of s 22 of the Bail Act, the application must be refused.

28. As to the application for bail for the escape charge, the circumstances of that offence and Mr Bobbe’s criminal history give rise to a bail concern that he will not appear. On its face, the prosecution case appears to be strong. According to the facts sheet, the applicant was found to be absent at an afternoon muster at the correctional centre and there is CCTV footage depicting him scaling a fence and running towards the nearby forest. The applicant was spotted by a correctional services officer two days later and arrested shortly thereafter.

29. On the hearing of the release application, Mr Bobbe said that he scaled the fence to get away from the violence to which he was subject inside the correctional facility. It seems that he will present a defence of necessity. That “defence” requires consideration of “necessity, not expediency, or strong preference” and “in the context of a prison escape, the escapee is not entitled to claim a defence by duress or necessity unless and until he demonstrates that, given the imminence of the threat, (escape) was his only reasonable alternative”: R v Rogers (1996) 86 A Crim R 542 (at 547) (“R v Rogers”) citing Rehnquist J in United States v Bailey (1979) 444 US 394 (at 410). Once the issue is raised, it is for the prosecution to disprove that defence beyond reasonable doubt: R v Rogers at 546, 547, 550. Considering the observations of the Court in R v Rogers, and on the evidence before the Court on the bail application, the prosecution case appears to be a strong one.

30. The nature of the charge, the apparent strength of the prosecution case and the applicant’s criminal history including those matters currently on appeal to this Court, give rise to a number of bail concerns pursuant to s 17 of the Bail Act. There is a risk of the commission of serious offences, a consequent risk of danger to members of the community, and a risk that the applicant will fail to appear. The bail conditions proposed by the applicant do not mitigate the bail concerns to any great extent. The case is listed for hearing in July 2021 and, by then, the conviction appeal in this Court should be finalised. The application could be revisited – although probably not in this Court – if Mr Bobbe is released following his appeal to this Court in May 2021. On the material before the Court, as it is presented at this stage, there are unacceptable risks in releasing Mr Bobbe to bail. As I have said, those risks are that he may commit further offences, endanger the community and fail to appear. I accept that these risks may be mitigated to a degree if he is detained at Villawood.

22. However, taking into account the relevant matters under s 18 of the Bail Act, the risks remain unacceptable. Pursuant to s 19 of the Bail Act, bail must be refused for this charge as well. As I have said, the question of bail for the escape charge may be a matter for a fresh release application once the appeal against conviction is determined.

23. For those reasons, I would make the following orders:

1. The release application is dismissed.

2. Bail is refused.

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Decision last updated: 24 March 2021