Mohr v The Queen (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.

Bail Legislation

12. As already discussed, the power of the Court in relation to the grant of a release application or its variation is governed by the terms of the Bail Act 2013 (NSW) (hereinafter “the Act”). The application before the Court must, therefore, be dealt with pursuant to the provisions thereof.

13. The provisions of s 16B(1)(g) of the Act describes an offence that includes the offence with which the applicant is charged and defines that offence as a “show cause offence”. Further, the provisions of s 16B(1)(a) of the Act also render the offence with which the applicant is charged a show cause offence.

14. The provisions of s 16 of the Act deal with show cause offences and, by s 16B(1) of the Act, require an applicant for a show cause offence to satisfy the bail authority (in this case the Court) why his detention is not justified. If the applicant for a release application for bail satisfies the Court why his detention is not justified, the applicant is then or also required to deal with the bail concerns under s 17 of the Act and, in that regard, consider the criteria prescribed by s 18 of the Act.

15. Notwithstanding the bifurcation of tasks between the requirement, on the one hand, for an applicant to show cause why detention is not justified and, on the other hand, the assessment of bail concerns, those bail concerns and the matters to be considered in assessing the bail concerns are matters that can inform and do inform the task performed by the Court under s 16A of the Act. Other matters may be relevant to the task under s 16A.

16. The bail concerns prescribed by s 17 of the Act are: a failure to appear at the proceedings for the offence; the commission of a serious offence; the endangerment of the safety of victims, individuals or the community; and, to the extent not dealt with in the immediately foregoing concern, the interference with witnesses or evidence. If there are concerns that an accused person will, if released from custody, engage in any of the foregoing, then there is a bail concern and, in determining whether such a concern exists, the legislature has prescribed the criteria in s 18, which it is unnecessary to recite at the present time.

17. Section 19 of the Act requires the Court to refuse bail if the Court is satisfied, on the basis of the assessment of bail concerns, that there is an unacceptable risk associated with the concerns that are prescribed in s 17: see s 19(1) and s 19(2) of the Act.

18. It is necessary to deal with other provisions of the Act.

19. During the course of the proceedings, the Crown and the applicant were asked as to the operation of s 74 of the Bail Act, at least at the time of the judgment of Hamill J in R v Mohr (No 2). The provisions of s 74 of the Act prevent a court from hearing a further application for bail if that court had previously refused (or affirmed a decision to refuse) bail in relation to that offence, unless there are grounds for a further release application. Each of the Crown and the applicant submitted that s 74 of the Act had no operation before Hamill J. Certainly, Hamill J does not deal with the operation of s 74 of the Act.

20. It has long been the practice that, where a magistrate has dismissed a charge and refused to commit the accused for trial, a further application for bail is not treated as being governed by the provisions of s 74 of the Act, or its predecessors. Nevertheless, a reading of the provisions renders s 74 of the Act to operate in relation to “another release application made by the accused person for the same offence”.

21. The mere fact that a magistrate has dismissed a charge at committal does not result in the application for release, made by an accused after an ex officio indictment, being other than an application for bail”for the same offence”. The offence remains constant.

22. However, the fact, as in these proceedings, that the charge against the applicant has been dismissed at committal may, ordinarily, be treated as “grounds for a further release application”.

23. It is unnecessary to determine finally whether s 74 of the Act applied to the grant of bail by Hamill J or, if it were “another release application … for the same offence”, there would necessarily be “grounds for a further release application”. The Court in R v Mohr (No 2) granted bail and that decision and judgment were not the subject of appeal.

24. Further, s 8 of the Act defines “a bail decision” and that definition does not include a variation to the conditions imposed on an accused for the purpose of granting bail. The current application before the Court, which is subject to these reasons, is neither a bail decision (see s 8 of the Act) nor an application for release (see s 74 of the Act). It is, therefore, unnecessary for the Court, as presently constituted, to determine whether s 74 of the Act would have applied or should have applied to the grant of bail by Hamill J.

25. Further, given that the terms of s 8 of the Act do not include a variation of conditions of bail, and, therefore, a variation of bail is not a “bail decision”, the provisions of s 16A and the requirement to show cause do not relate to variations to bail. As a consequence of the foregoing, in the determination of whether a variation to the bail conditions ought to be made, on the application of the accused, it is unnecessary and inappropriate to require the applicant to show cause as to why the variation should be made.

26. There is a tension between the provisions of ss 17, 18, 19 and 20 of the Act. If the Court assesses bail concerns in s 17 of the Act and comes to the view that there is not an unacceptable risk of the occurrence of one of the bail concerns prescribed by s 17 of the Act, it is unclear that bail conditions may be imposed (s 20A of the Act). Section 20 of the Act requires that, if there be no unacceptable risks, the Court to grant bail (with or without the imposition of bail conditions) or to release the person without bail or dispense with bail.

27. Given that the bail authority, including the Court, may impose a bail condition only if the condition is one described by s 20A(2) of the Act, which includes that the bail condition is “reasonably necessary to address a bail concern”, if there were no unacceptable risk there is only a limited capacity, if any, to impose bail conditions.

28. On the other hand, s 19 of the Act requires a Court to refuse bail if, after considering the bail concerns and the factors in ss 17 and 18 of the Act, there is an unacceptable risk. The tension arises because, more often than not, conditions may be imposed that sufficiently ameliorate the unacceptability of the risk to allow bail to be granted.

29. The Act does not seem to deal with the assessment of the unacceptability of the risk of the conduct to which s 17 refers after conditions have been imposed. The tension, in my view, is resolved by treating s 19 of the Act as dealing with the unacceptability of risk after appropriate conditions have been imposed pursuant to the terms of s 20A of the Act.

Variation of Conditions

30. As already stated, a variation of bail conditions is not a “bail decision”. Nevertheless, the seriousness of an offence caught by the provisions of s 16A of the Act or the fact that a further offence has been committed whilst on bail and other such issues are factors which the Court may examine in informing itself in the exercise of the discretion to vary the conditions of bail.

31. As already stated, the conditions to be imposed in a bail acknowledgement must comply with the provisions of s 20A of the Act and, in particular, must be no more onerous than necessary to address the bail concern in relation to which it is proposed.

32. It is obvious, from the conditions imposed by Hamill J, that the bail concern to which the house arrest relates is the flight risk and, to a lesser degree perhaps, the commission of other serious offences. The question for the Court on this application is, therefore, at least in part, whether the relaxation of the house arrest condition addresses the bail concern to which Hamill J referred and which his Honour addressed in the imposition of the house arrest.

33. At the moment, the applicant is incapable of leaving his house at any time except for the purpose of attending court and reporting to Police. The residence is, as earlier stated, in Queensland, near Southport. If the applicant is to leave the residence for the purposes of attending Sydney for court hearings, it is necessary for the applicant to notify Police of that intention.

34. Further, in relation to the reporting requirement, the applicant is required to report twice daily, about which there are currently some difficulties because of the hours of operation of the Police Station closest to the applicant’s residence.

35. The applicant seeks a variation of the bail conditions by the deleting of the house arrest requirement and the imposition of a requirement for the applicant to be the subject of electronic monitoring by a company, which reports any unauthorised or inappropriate movement to Police.

36. There can be little doubt that the imposition of electronic monitoring, paid for by the applicant, is a condition that relates to or addresses a bail concern, being the risk of flight. The house arrest condition, currently imposed upon the applicant, is a condition which also addresses the risk of flight, but would seem, on its face, to address the risk of the commission of further serious offences and the protection of the community and witnesses.

37. The Court, as presently constituted, does not consider that the concern over the protection of witnesses would render the granting of bail an unacceptable risk. Nor is it probable that the applicant would commit an offence of the same or similar kind as that to which the charges relate. Other offences may be more probable.

38. The evidence before the Court is that, during the period on which the applicant has been on conditional liberty, the Police have checked on his compliance with the house arrest condition on one occasion only. That occasion was in the week prior to the listing of the bail variation application.

39. The house arrest arrangements, with the twice-daily reporting, allow the maximum period during daylight hours of 10 hours between reporting: 8 AM to 6 PM. Because the Police Station at which reporting occurs does not open beyond 4 PM, the practicality of that reporting allows eight hours of daylight time. If one included daylight and night hours, the maximum hours between reporting could be as much as 18 hours: between 4 PM and 10 AM.

40. The applicant’s passport is currently in the possession of authorities, in accordance with the conditions of bail. Neither of the maximum times between reporting has been utilised to attempt flight.

41. The applicant relies upon his compliance with the conditions over the past 12 months and the lack of any attempt to flee the jurisdiction (in this case Australia, it being a Commonwealth offence) to seek the deletion of the house arrest condition and to substitute electronic monitoring.

42. In a perfect situation, electronic monitoring would provide greater monitoring of the applicant and the capacity to check on compliance of the house arrest. The difficulty is that electronic monitoring is not perfect. The imperfections in electronic monitoring were the subject of cross-examination in the applicant’s application heard by Fullerton J and those imperfections were a matter upon which Fullerton J relied in denying the applicant bail.

43. Were this a bail decision and the question before the Court was whether or not bail would be granted, or continued detention justified, the Court, as presently constituted, would differ in its assessment from Hamill J. Rather, the approach would be more akin to that of Fullerton J in R v Mohr (No 1).

44. Of course, Hamill J was entitled to rely upon the discharge of the applicant by the Magistrate. Nevertheless, Fullerton J, prior to the finding of the Local Court, took the view that the Crown case was a strong one. Even in the decision of Hamill J in R v Mohr (No 2), his Honour accepted that the Crown case was a strong one.

45. It is difficult to understand how each of Fullerton J and Hamill J came to the view that the Crown case was a strong one respectively before and after the committal proceedings, yet the Local Court discharged the applicant at committal. I am told that the Local Court decision depended upon a particular aspect of the charge. Nevertheless, that aspect was an aspect that was capable of being considered by each of Fullerton J and Hamill J.

46. The Court has considered the material before it as to the strength of the Crown case. I reiterate the view of Fullerton J and Hamill J. The Crown case is a strong one.

47. In those circumstances, the applicant can expect to be convicted and have imposed upon him full-time custody of significant duration. As a consequence, the delay between December 2018 and February 2020 is not, in the relative sense, an undue delay.

48. During that time, the applicant will have the benefit of his legal representatives being able to observe the Crown case in the two trials of co-offenders. That advantage applies whether or not the applicant is the subject of home detention.

49. If the applicant were not the subject of home detention, then, subject to any condition that may be imposed, he would be free to attend the trials of each of the co-offenders. I make no comment as to whether that would be an appropriate course. Presumably, that is a situation which the trial judge can control and would control.

50. Ultimately and essentially, it is necessary for the Court to determine whether, on one hand, the house arrest condition is a condition that ameliorates more the unacceptable risk that otherwise would apply to the applicant’s attendance at his proceedings or, on the other hand, the electronic monitoring is more ameliorative. Were it not for the difficulties associated with electronic monitoring, I would consider the latter a better amelioration of risk.

51. However, as earlier stated, were the Court, as presently constituted, in the position of determining whether bail would be granted at all, it is unlikely that either condition would be imposed. In those circumstances, the view of the prosecutor as to which better precludes flight, house arrest or electronic monitoring, must be given great weight. That view was informed by the instructions from Police and other law enforcement agencies. That view is firmly to prefer house arrest.

52. I have taken into account the other issues raised by the applicant. In particular, I accept the depressing and stressful nature of the prohibition on work and the degree to which there has been adherence to the conditions during conditional liberty thus far. At the moment, there is no employment available. The desire to work is a general one that is not related to a chance of employment that is currently on offer. I appreciate the desire of the applicant to contribute to the cost of the proceedings and his upkeep, which are currently borne by his parents. The costs of litigation are not insubstantial.

30. Nevertheless, in all of the circumstances, it is appropriate to determine the application on the basis of that which better ameliorates the concern as to flight. In that regard the difficulties associated with the imposition of electronic monitoring, and the preference of the law enforcement agencies in informing the Court as to those difficulties, are decisive.

31. The application for variation is refused.

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Decision last updated: 14 December 2021