Director of Public Prosecutions (NSW) v Dagdanasar

[2016] NSWSC 1089

Supreme Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Dagdanasar [2016] NSWSC 1089
Hearing dates:	13 July 2016
Decision date:	13 July 2016
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Bail refused
Catchwords:	BAIL – assessing bail concern of committing a serious offence – meaning of serious offence – s 18(2) of the Bail Act 2013 (NSW) – driving offences in the circumstances amount to a serious offence – application refused
Legislation Cited:	Bail Act 2013 (NSW) s 18
Category:	Principal judgment
Parties:	Director of Public Prosecutions Ruhi Dagdanasar
Representation:	Counsel: Mr M Reville (Solicitor for the Crown) Mr D Clarke (Applicant)   Solicitors:
File Number(s):	2016/144791

Judgment

1. HIS HONOUR: The applicant in this matter was charged on 28 March this year with an offence of driving whilst disqualified. It appears that bail was dispensed with in relation to that. On 4 April he was again charged with driving whilst disqualified and also with an offence of having the custody of a knife in public and having the custody of a motor vehicle that was suspected of being stolen.

2. The focus of this bail release application is really upon the driving whilst disqualified charges. The applicant does not have a history that would give rise to any particular concern about the other two charges. Putting that another way, if he was only charged with those other matters, I think bail would be granted readily.

3. According to police facts, the driving whilst disqualified charge on 28 March 2016 involved the applicant being stopped at about quarter past midnight for a random breath test. When he was asked for his licence he said he had “forgotten it”. The breath test was negative, but the police officer obviously made some checks and then asked the applicant if he was disqualified and received an affirmative response. The officer asked why the applicant was driving and he replied: “Taking my cousin for a night out”.

4. The second matter, on 4 April 2016, occurred at about 11.40 am, so it is alleged. He was again stopped for a random breath test, which proved negative. He told the officer that he did not have a licence on him. The officer made checks. He asked the applicant why he was driving and he said that he was “Driving around so he could find a place that would repair the broken driver’s side window”.

5. The police searched the car and noticed that the front registration plate was different to the rear registration plate and checks revealed that the front plate had been stolen from another car on 23 March 2016. The car was searched further and, in addition to finding a machete on the passenger side of the centre console (about which the applicant denied knowledge), also found was the corresponding plate to the stolen front registration plate. That was found in the boot. There was also another number plate under the spare tyre.

6. These facts that are alleged, if correct, suggest that the applicant had a blatant disregard for the fact that he was disqualified and was intent on driving as he desired.

7. The applicant has a significant driving record. He was first licensed in 1993. There were four speeding offences and then in December 1996 he was dealt with for driving whilst unlicensed. There were then eight further speeding offences in the ensuing eight years or so and then he was dealt with for three matters of driving whilst unlicensed in 2004, 2005 and 2008.

8. On 12 May 2009 he was dealt with for driving whilst disqualified and placed on a bond for two years and disqualified for one year. There followed a speeding offence in 2010. On 28 March 2012 he was dealt with for two matters of driving whilst disqualified. He received an eight month suspended sentence bond for one of them and a ten month suspended sentence bond for the other and was disqualified for two years. Both of the bonds were breached and he received intensive correction orders for eight months and ten months respectively.

9. There followed another speeding offence in April 2013 and then on 16 July 2013 he was dealt with for two more offences of driving whilst disqualified. He received intensive correction orders of 16 months and 18 months respectively and was disqualified for two years. Habitual offender declarations brought automatic periods of disqualification for five years each; he was thereby disqualified up until 28 March 2026.

10. The State Parole Authority revoked the intensive correction orders on 12 March 2014 and he was required to serve ten months imprisonment from that date until 11 January 2015. On 1 May 2014 he was dealt with again for driving whilst disqualified and received a sentence of 18 months imprisonment with a non-parole period of 11 months, dating from the day of imposition and disqualified for a further period of two years, until 28 March 2028. That is the context in which the offences alleged to have occurred in March and April of this year occurred.

11. The Crown relies upon bail concerns of failure to appear, commission of a serious offence and endangering the safety of victims, individuals or the community. In relation to failing to appear, there are three prior occasions when the applicant has not appeared in Court as required; one in 1985, which can be put aside. The others in 2008 and 2011 are relevant, but do not bear out a concern about appearing in Court in response to bail of any great significance.

12. The prospect of receiving a longer sentence of full-time imprisonment carries with it the inherent motivation to avoid the consequences by not appearing in Court, but overall I am not satisfied that that amounts to an unacceptable risk.

13. I am also not satisfied that there is an unacceptable risk concerning the safety of victims, individuals or the community. The Crown has pointed to the disregard by the applicant of the licensing regime which controls those who can or cannot drive on our public roads. But I do not think, in any real sense, it can be said that that bail concern amounts to an unacceptable risk.

14. That leaves the contention that there is an unacceptable risk of committing a serious offence. The concept of serious offence is not defined in the Bail Act 2013 (NSW) but s 18(2) provides matters that may be considered and they include, “the number of offences likely to be committed or for which the person has been granted bail or released on parole”.

15. Parliament could have defined a serious offence as being, for example, a serious indictable offence or in some other way specifying criteria such as a certain maximum penalty threshold. But, it has been left to the Courts to determine, on a case by case basis, what amounts to a serious offence.

16. In this case, if the applicant is convicted of one or both of the driving whilst disqualified charges, it is almost certain that he will receive relatively lengthy periods of imprisonment. I say that, having regard to the escalating seriousness of impositions in the past.

17. In these circumstances I am prepared to accept that any further offence of driving whilst disqualified should be considered "a serious offence". The risk of the applicant continuing to offend in the same way is high. It is an unacceptable risk.

18. To conclude, I have had regard to the fact that the matters are listed in the Local Court on 11 August 2016, which means that a refusal of bail would not see the applicant remain in custody bail refused for an overly lengthy period of time. None of the other matters required to be considered by s 18(1) have altered my view as to the unacceptability of the identified concern.

19. The application is refused.

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Decision last updated: 09 August 2016