Plassaras v Director of Public Prosecutions (NSW)

[2018] NSWCCA 218

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Plassaras v Director of Public Prosecutions (NSW) [2018] NSWCCA 218
Hearing dates:	5 October 2018
Date of orders:	05 October 2018
Decision date:	05 October 2018
Before:	Basten JA at [1]; Johnson J at [2]; R A Hulme J at [3]
Decision:	Bail application refused
Catchwords:	APPEALS – application for bail – applicant charged with armed robbery offences – applicant on bail at time of offences – show cause offence – reasonably strong Crown case – applicant contended bail necessary for him to care for his mother – applicant’s mother diagnosed with dementia, diabetes and lung disease – applicant with long criminal record and multiple breaches of bail – paucity of evidence as to need for applicant to care for his mother – cause not shown.
Legislation Cited:	Bail Act 2013 (NSW), ss 16A, 16B, 17, 67, 74, 75 Crimes Act 1900 (NSW) s 98
Cases Cited:	Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 R v Kugor [2015] NSWCCA 14 Trinh v R [2016] NSWCCA 110 Viavattene v R [2018] NSWCCA 197
Category:	Principal judgment
Parties:	Nicholas Plassaras (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: Applicant self-represented Ms C Curtis (Respondent)   Solicitors: Solicitor for Public Prosecutions
File Number(s):	2018/248298

Judgment

1. BASTEN JA: If it were necessary to address the merits of this application, I would agree with the comprehensive reasons of R A Hulme J. In my view that is not necessary. I adhere to my observations with respect to the functions of this Court under the Bail Act 2013 (NSW), s 67(1)(e), in Trinh v R [2016] NSWCCA 110. In my view, the applicant having failed to identify, or seek to identify, any possible error in the approaches adopted by the judges in the Common Law Division before whom earlier applications came, or suggest that that the outcome of those applications was in any sense unreasonable, this Court should dismiss the application summarily on the basis that it had no reasonable prospect of success.

2. JOHNSON J: The reasons of R A Hulme J reflect my reasons for joining in the order made by the Court on 5 October 2018.

3. R A HULME J: Nicholas Plassaras applied for release on bail in relation to some charges that are pending in the Local Court. The Director of Public Prosecutions for New South Wales opposed the application. Following a hearing on 5 October 2018 the Court ordered that the application be refused. The following are my reasons for joining in the making of that order.

4. The applicant has been charged with robbery in company with wounding and armed robbery with wounding ("the robbery offences"). These are offences contrary to s 98 of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 25 years. The applicant was on bail at the time these offences are alleged to have been committed and so he was required to show cause why his detention was not justified: Bail Act, ss 16A and 16B(1)(h)(i).

5. The applicant was arrested for the robbery offences on 19 April 2018. He made a release application to the Local Court which was refused on 20 April 2018. He made a further release application to the Supreme Court but it was refused by Fullerton J on 5 July 2018. He made yet another release application to the Supreme Court which came before McCallum J on 29 August 2018. Her Honour refused to hear it because of the provisions of s 74 of the Bail Act that limit the circumstances in which a court which has refused an application can consider a subsequent application. The application was then directed to this Court which has jurisdiction to hear a bail application if, inter alia, "a bail decision has been made by … the Supreme Court": s 67(1)(e).

6. It is settled that the application must be heard de novo (afresh): s 75 of the Bail Act; R v Kugor [2015] NSWCCA 14 at [4]; Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 at [4]. Nevertheless, the Court may have regard to the findings of the judge at first instance: Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [8] (Beech-Jones J, Gleeson JA (at [1]) and Adams J (at [5]) agreeing); Trinh v R at [28] (Basten JA), [40] (McCallum J), [44] (Davies J); and Viavattene v R [2018] NSWCCA 197 at [3] (Hoeben CJ at CL, McCallum and Beech-Jones JJ).

The alleged offences

7. The robbery offences are alleged to have occurred on 4 April 2018. The two charges reflect different attributes of the one incident. It is alleged that there were two offenders acting in a joint criminal enterprise to rob the victim, and that the offender who carried out the physical attack was armed with (and used) a set of knuckle dusters.

8. The prosecution alleges that at about 4.30pm the applicant and a man called Green were in the applicant's car which was parked in the vicinity of the victim's home in Bronte. When the victim returned home from work at about 5.10pm he was approached by Green who was armed with the knuckle dusters and was wearing a wig and a hood for disguise. There was some verbal interaction between Green and the victim but then Green attacked the victim physically. Ultimately he demanded, and then snatched, the victim's car keys. He drove away in the victim's car; an Audi described as "a high-powered performance vehicle". The applicant drove away in the same direction in his car.

9. The victim was taken to hospital and received treatment for a fractured cheek bone and multiple deep lacerations to his face which required sutures. He underwent plastic surgery for a deep laceration to an ear.

10. Two days later the applicant, Green and a female were captured on CCTV as they exited the stolen Audi on a street in Earlwood. At this point the Audi had another set of number plates which had been stolen the previous day. The three entered the applicant's car and left the scene.

Strength of the prosecution case

11. Some argument appears to have been made in the hearing before Fullerton J suggesting that the prosecution case was a weak one because there was no forensic evidence to support the applicant's presence at the scene of the robbery at Bronte. But as her Honour observed (and is plain from the papers before the Court), there appears to be no doubt that the car in which the robbers waited for the arrival of the victim was the applicant's. Moreover, he told Fullerton J, "I am the only driver of that vehicle" and she recorded in her reasons that he did not contend that he had given the vehicle to anybody else or that it had been stolen.

12. Further supporting the prosecution case that the applicant was involved in a joint criminal enterprise with Green is the fact that the applicant was, apparently, captured on CCTV with Green at the scene of the stolen Audi being abandoned on a street in Earlwood two days later.

13. Despite the absence of forensic evidence, Fullerton J described the prosecution case as "a case of strength for the purposes of giving consideration to the show cause element". I agree.

Personal circumstances of the applicant relevant to the application

14. The applicant relied upon his mother's state of infirmity in support of his application. In support of previous applications the applicant relied upon letters from a general medical practitioner, Dr Josephine Wu. One such letter dated 11 July 2018 stated that the applicant's mother suffers from mild dementia; bilateral knee replacement; diet-controlled diabetes; and interstitial lung disease. The doctor advised that she requires regular help with daily living activities and close supervision as her dementia progresses. The letter included that the applicant had been his mother's main carer for at least the past 1.5 years as other family members were unavailable. The letter conveyed a request by the family that the applicant be made available to continue caring for his mother.

15. Fullerton J referred in her judgment to a letter from Dr Wu dated 21 May 2018, which seems likely to have been in similar terms to that referred to above. Her Honour recorded in her judgment that the applicant said that his sister, who lives permanently in America, had recently visited and had arranged for commercial care to be provided on regular occasions on a weekly or biweekly basis. Her Honour observed that Dr Wu appeared to be unaware of this. She also recorded that the applicant said he was in daily telephone contact with his mother.

16. Her Honour observed that there was no updated evidence as to the adequacy of the care that was being provided to the applicant's mother. There was nothing suggesting that the care that was being provided to her commercially and, potentially at least, from other community sources is not sufficient to address her needs.

17. A further letter by Dr Josephine Wu, dated 19 September 2018, was provided to this Court by the applicant's brother who attended the hearing. It provides essentially the same information about the ill-health and care needs of the applicant's mother as the previous letters although it adds that her dementia had become progressively worse over the past six months. It also adds that "one son has recently moved back home but needs to work full time and cannot devote a full day to be with his mother". The Court was advised that the applicant’s brother was soon to travel to Greece on family business and would be away for a fortnight.

The applicant's criminal and bail history

18. The applicant is aged 44. He has a criminal history which commenced with traffic offences in 1999 and criminal offending soon followed. He received a sentence of 3 months' imprisonment to be served by way of periodic detention in 2002 for various counts of assault, dangerous driving and menacing driving. He breached the periodic detention order and was required to serve the majority of the 3 months on a full-time custodial basis after it became necessary for a warrant to be issued for his arrest.

19. In September 2006 the applicant received a sentence of 2 years' imprisonment with a non-parole period of 1 year for assault occasioning actual bodily harm in company. I note that he was on a good behaviour bond for an offence of driving whilst disqualified at the time of that offence. That sentence was served concurrently with a 6 month sentence for assaulting a police officer in the execution of the officer's duty.

20. In December 2007 the applicant received a sentence of 2 years' imprisonment which was suspended upon him entering into a good behaviour bond. Drug testing was specified as a condition of his supervision. That sentence was in respect of an offence of aggravated breaking and entering with intent to commit a serious indictable offence, with offences of larceny and destroying or damaging property taken into account.

21. In March 2013 the applicant received a sentence of 2 years and 6 months with a non-parole period of 1 year for a drug supply offence. On 13 March 2015 his parole was revoked and he was required to serve the remainder of the parole period in custody.

22. There have been three occasions when the applicant has been before a court for breaching bail. On 2 March 2012 he was brought before a Local Court on a breach of bail and a bail order (unspecified) was made. Further breaches of bail occurred in relation to another matter in May 2017 and again in September 2017. That matter involved serious charges for which the applicant was ultimately acquitted in the District Court on 21 February 2018.

23. On 3 December 2015 the applicant was placed on an 18-month good behaviour bond for a driving offence but breached that bond by committing further, albeit minor, offences on 8 January 2016.

24. The applicant was charged on 21 May 2017 with offences of stalking or intimidating (while still subject to the bond imposed on 3 December 2015). He was granted bail in respect of those matters by McCallum J on 29 August 2017. He was subject to that bail when he allegedly committed the robbery offences in April 2018. He has been in custody since his arrest on 19 April 2018.

25. The applicant had bail for the matters that were the subject of the acquittal earlier this year but it was revoked after he was charged with the stalk/intimidate matters. A further application for bail was refused by Walton J on 5 July 2017. One of the matters his Honour referred to in his judgment was the applicant's reliance, in part, upon his need to care for his mother who, at that stage, was about to have her second knee replacement.

26. A further application for bail in respect of that matter came before McCallum J on 29 August 2017. Her Honour was satisfied that the hurdle provided by s 74 of the Bail Act was overcome by material relating to the applicant's mother. She referred to a medical certificate which outlined much the same concerns as the aforementioned letters from Dr Josephine Wu (and it may well be that her Honour was provided with a similar such letter). She was persuaded to grant the application upon what appears to have been quite strict conditions in that she said:

"This is one of those cases in which there is a happy coincidence between a person's need for care and a bail applicant's need to undergo strict conditions of the bail requiring them to remain at home most of the time."

27. The stalk/intimidate charges are listed for hearing in the Local Court at Sutherland on 22 November 2018. The bail granted by McCallum J continues in force in respect of that matter.

Submissions

28. The Director contended that bail concerns set out in s 17(2) of the Act that are present in this case are that the applicant will fail to appear; that he will commit a serious offence; and that he will endanger the safety of the victim or the community.

29. As to the concern that the applicant will fail to appear in court, the prosecution argued that this arises from the strength of the prosecution case; the applicant's lengthy criminal history which includes occasions of non-compliance with conditional liberty; and the lengthy custodial sentence that would flow from conviction.

30. As to the risks of committing a serious offence and of endangering the safety of the victim or the community, the prosecution contended that being on conditional bail for the stalk/intimidate offences did not deter the applicant from committing the robbery offences. Further, the intimidation offences were committed while the applicant was on bail for earlier matters, albeit he was ultimately acquitted earlier this year. A concern for the safety of the victim was raised by reference to the fact that the perpetrators were waiting for him outside his home address together with the intimidation charges indicating the applicant's capacity for aggression when he feels aggrieved. (All of this assumes matters that remain to be proved, of course.)

31. The applicant countered these arguments by pointing to his attendance at court when required in relation to the matter which went to trial in the District Court in February this year and resulted in his acquittal. He also pointed to the fact that there was no suggestion of him having approached, let alone interfered with, any alleged victims in relation to previous matters or the outstanding stalk/intimidate matter.

32. The applicant based his case in respect of the show cause requirement primarily upon his need to resume the care of his mother. Presumably to confirm his prior role as her carer, he claimed to have documentation from Centrelink in relation to the cancellation of his carer's allowance consequent upon him going into custody.

Determination

33. The applicant is charged in relation to a very serious criminal matter for which, if convicted, he will likely receive a not insubstantial full-time custodial sentence.

34. The case against the applicant is of at least reasonable strength, as best such a matter can be assessed on the documentary material provided to the Court.

35. The applicant's criminal history, including prior breaches of conditional liberty, does not assist him; it clearly demonstrates a propensity for repeated criminal offending. The prior breaches of conditional liberty, including bail, justify scepticism about the applicant's compliance if bail were to be granted. In the course of his address to the Court the applicant appeared to have an excuse for every breach to a point that strained credulity.

36. The length of time the applicant may remain in custody until the robbery charges are finalised is likely to be significant. The matter is presently still in the Local Court, next listed for mention on 9 October 2018. At best, any trial in the District Court might not occur until the second half of next year. Of course, whether the matter in fact proceeds to trial remains to be seen.

37. No particular need in relation to preparation of his defence was identified in relation to the applicant needing to be at liberty.

38. No compelling case was made in respect of the main thrust of the applicant's case for bail: the asserted need for him to care for his mother. There was a paucity of evidence on the subject, particularly in relation to how his mother has been faring in the absence of the applicant over the past 6 months. There was mention in the proceedings before Fullerton J of a commercial care arrangement made by the applicant's sister but there was no evidence before this Court as to what that was and what happened to it. There was no evidence as to why a similar arrangement cannot be made again. There was no evidence as to whether any non-commercial community organisations have provided assistance, or could if approached. The applicant's brother has, apparently, done what he can but why that is inadequate was not shown. Nor was it shown why the brother cannot continue to provide assistance to his mother in the future and what efforts had been made to make an alternative arrangement during his imminent short absence from the country.

Conclusion

39. I was not satisfied that cause was shown why the applicant's detention is not justified.

40. For these reasons I agreed that the release application should be refused.

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Decision last updated: 07 February 2020