D108 v The King - [2023] NSWCCA 28

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: D108 v R [2023] NSWCCA 28
Hearing dates: 20 February 2023
Date of orders: 20 February 2023
Decision date: 20 February 2023
Before: Beech-Jones CJ at CL at [1] and [37]
Price J at [35]
Wilson J at [36]
Decision:
Application for bail refused

Catchwords:
CRIMINAL LAW – bail pending appeal to District Court – custodial sentence for misleading Crime Commission – show cause offences – appeal fixed for hearing just before expiry of non-parole period – cause shown – unacceptable risk – strong evidence of association with organised crime – unacceptable risk of committing a serious offence – bail refused

Legislation Cited:
Bail Act 2013 (NSW)
Crime Commission Act 2012 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)

Cases Cited:
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227

Category: Principal judgment
Parties: D108 (Applicant)
Rex (Respondent)
Representation:
Counsel:
Mr G James KC (Applicant)
Mr D Scully (Respondent)
Solicitors:
One Group Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/305307
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Date of Decision:

25 October 2022

Before:

R A Hulme AJ

File Number(s):

2022/276555

EX TEMPORE JUDGMENT

(Revised from transcript)

BEECH-JONES CJ at CL: On 8 April 2022, the applicant for bail, D108[1] , was convicted in the Local Court of three offences of knowingly give false or misleading evidence to the NSW Crime Commission (the “Crime Commission”) contrary to s 27(1) of the Crime Commission Act 2012 (NSW) and one offence of obstructing or hindering the Crime Commission in the exercise of its functions contrary to s 47G of the Crime Commission Act. The maximum penalty for an offence under s 27(1) is 5 years’ imprisonment, although, if dealt with summarily, the Local Court is restricted to imposing a sentence of 2 years imprisonment (s 27(2) and (4)). The maximum penalty for an offence under s 47G is 2 years imprisonment.
1. The applicant is to be referred as “D108” pursuant to an order made by Fagan J on 9 August 2019 (see New South Wales Crime Commission v D108 [2019] NSWSC 1035).
On 20 June 2022, the applicant received an aggregate sentence in the Local Court of imprisonment of 3 years and 3 months with a non-parole period of 2 years commencing on 30 September 2021. Under that sentence he will be first eligible for release on parole on 29 September 2023.
The applicant has filed an appeal to the District Court against both his conviction and sentence (Crimes (Appeal and Review) Act 2001 (NSW), s 11). His appeal is listed for hearing for two days commencing on 23 June 2023.
The applicant sought bail from the Local Court after he was sentenced from the District Court on 4 July 2022 and then from the Supreme Court on 25 October 2022. He was refused bail each time. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D108 v The King

Details

AGLC: D108 v The King [2023] NSWCCA 28
Case: [2023] NSWCCA 28
Decision Date: 20 February 2023

CaseChat Overview and Summary

In D108 v The King, the respondent was convicted of misleading the Crime Commission and show cause offences. The respondent sought bail pending an appeal to the District Court, which was fixed to commence just before the expiry of the non-parole period for the custodial sentence imposed. The Crown opposed the application, arguing that the respondent posed an unacceptable risk of committing a serious offence and that there was strong evidence of the respondent’s association with organised crime. The court was required to determine whether the respondent had shown cause for the grant of bail and whether there was an unacceptable risk that the respondent would commit a serious offence if released on bail.

The court considered the evidence of the respondent’s association with organised crime and the risk of reoffending if released on bail. The court found that the respondent had shown cause for the grant of bail because the appeal was fixed to commence just before the expiry of the non-parole period. However, the court also found that the risk of the respondent committing a serious offence if released on bail was unacceptable. The court noted that the respondent had a history of reoffending and that there was a real risk that the respondent would reoffend if released on bail. The court also noted that the respondent had failed to provide satisfactory evidence of his ties to the community and his ability to comply with any conditions of bail. The court concluded that the risk of the respondent committing a serious offence if released on bail outweighed the respondent’s right to liberty and that bail should be refused.

The court refused the respondent’s application for bail. The court noted that the respondent’s appeal was fixed to commence just before the expiry of the non-parole period and that the respondent had shown cause for the grant of bail. However, the court found that the risk of the respondent committing a serious offence if released on bail was unacceptable. The court noted that the respondent had a history of reoffending and that there was a real risk that the respondent would reoffend if released on bail. The court also noted that the respondent had failed to provide satisfactory evidence of his ties to the community and his ability to comply with any conditions of bail. The court concluded that the risk of the respondent committing a serious offence if released on bail outweighed the respondent’s right to liberty and that bail should be refused.

Orders