R v Ahmad Niazi
[2008] VMC 3
•14 April 2008
IN THE MAGISTRATES COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. X00951985
| Victoria Police | Informant |
| v | |
| Ahmad Niazi | Defendant |
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| MAGISTRATE: | S Garnett |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 April 2008 |
| DATE OF DECISION: | 14 April 2008 |
| CASE MAY BE CITED AS: | R v Ahmad Niazi |
| REASONS FOR DECISION |
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Catchwords: Criminal law – Bail Act 1997 – exceptional circumstances – unacceptable risk.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Combe | |
| For the Applicant | Mr Amad | |
| HIS HONOUR: |
1. On 11 April 2008 Mr Niazi was charged with;
i. On 10 April 2008 trafficking a drug of dependence in a quantity not less than a large commercial quantity applicable to that drug;
ii. possessing a drug of dependence on 10 April 2008;
iii. On 10 April 2008 conspiring with Tony Arslan to traffick a drug of dependence in a quantity not less than a large commercial quantity applicable to that drug;
iv. On 20 March 2008 conspiring with Tony Arslan to traffick a drug of dependence in a quantity that was not less than a large commercial quantity applicable to that drug;
v. On 10 April 2008 did possess a general category of a handgun that was not registered;
vi. On 10 April 2008 he trafficked amphetamines;
vii. On 10 April 2008 he possessed amphetamines.
2. Because of the serious nature of the charges, the Bail Act requires that bail be refused unless Mr Niazi demonstrates that “exceptional circumstances” exist. Even if “exceptional circumstances” exist, the Court is obliged to refuse bail if it is satisfied that there is an “unacceptable risk” that if Mr Niazi is released on bail he would:
- fail to answer bail; - commit offences while on bail; - endanger the safety or welfare of members of the public; or - obstruct the course of justice. 3. The Crown opposes bail on the basis that Mr Niazi is an “unacceptable risk” because he is a risk of:
- failing to appear; and - committing further offences if released on bail. 4. The burden of establishing “unacceptable risk” is on the Crown.
5. Mr Niazi contends that “exceptional circumstances” are established by the individual or combined effects of:
i. him being a carer of his aged and ill mother;
ii. his family circumstances;
iii. his lack of prior criminal history;
iv. the availability of sureties; and
v. the delay in the trial of the charges.
The case against Mr Niazi
6. Evidence was given on behalf of the Crown by Detective Senior Constable Vaughan who detailed the circumstances surrounding the investigation of Mr Niazi, which had been conducted over a 9-month period. He gave details of the telephone monitoring of the alleged supply of drugs between Mr Niazi and Mr Arslan, a search of Mr
Niazi’s home where a substantial amount of drugs were found together with a loaded firearm. He indicated that admissions had been made by Mr Niazi and that it was likely further charges would be laid.
7. The Crown contend that there is a strong case against Mr Niazi and that if convicted he will receive a significant custodial sentence.
“Exceptional Circumstances”
8. Mr Niazi is the carer of his elderly and ill mother for which he receives a centrelink benefit. A medical report of Dr Yiap was tendered confirming that he treats Shahbobo Niazi who is cared for by Mr Niazi and his wife. The report indicates and the evidence given by Mr Keshtiar, who is Mr Niazi’s nephew, confirms that Mr Niazi and his wife assist Shahbobo Niazi to walk, bathe, feed, dress, provide medication and transport her to medical appointments. The medical report indicates Mr Niazi’s mother suffers from diabetes, arthritic conditions and depression. Although I am informed that Mr Niazi’s father also suffers arthritis and that Mr Niazi and his wife are expecting their third child in the immediate future, I am not satisfied that being a carer of his mother or these other factors constitutes “exceptional circumstances”.
9. Mr Niazi also relies on the fact that he and his wife have two children aged 3 and 5 years and is expecting their third child shortly as an “exceptional circumstance”. Taken in isolation, it is not.
10. Mr Niazi’s lack of prior criminal history is a relevant factor as is the obvious consequence of this, that being there is no history of failing to comply with a grant of bail. These facts are relevant to both “exceptional circumstances” existing and whether Mr Niazi would be an “unacceptable risk” if granted bail.
11. I consider that the offer of considerable sureties is a fact to consider particularly in relation to whether he would be an “unacceptable risk” of failing to appear if released on bail.
| 12. | charges is of paramount importance when considering whether “exceptional |
I accept that a significant delay between now and the eventual trial of these a committal hearing will most probably not occur until mid 2009, and if committed, a trial will not occur until mid to late 2010. If bail is refused, Mr Niazi will be forced to remain in custody for in excess of 2 years prior to the charges being heard.
13. I was referred to the decisions of Her Honour Justice Hollingworth in Mustica v DPP 21 November 2006 and Barban 31 August 2007 and the decision of Mr Justice Bongiorno in Gray v DPP 16 January 2008. I am aware of these decisions.
| 14. |
It has always been the case that whether a delay is or is not so inordinate so as always been the right of an accused, such as Mr Niazi, to be tried without unreasonable delay. S 21 and S 25 of the Charter of Human Rights and Responsibilities Act 2006 enacts this right. An obvious distinguishing factor between this case and the circumstances in Gray’s case is that it was possible Mr Gray, if refused bail, would serve more time on remand while awaiting trial than any custodial sentence imposed by the court by way of sentence.
15. I find that in the circumstances of the present case that a delay of 18 months to 2 years to trial does constitute an “exceptional circumstance”.
“Unacceptable risk”
16. In relation to the “unacceptable risk” factors as raised by the Crown, I am not satisfied that they have been made out.
Failing to appear
17. Mr Niazi appears to have strong and close family ties. He lives with his parents, his wife and two young children. Furthermore, his wife is pregnant and due to give birth in the near future. Although currently unemployed, he has the opportunity of re-entering the workforce in the security industry where he has previously worked as confirmed in the letter tendered on his behalf from Michael Murray of Nitro Security.
18. In addition, I have been informed that substantial sureties are available by family members, which would result in dire financial consequences for them if bail were breached by Mr Niazi.
19. Obviously, he does not have a history of failing to appear.
Risk of re-offending
20. It was asserted he would continue to offend to maintain him and his family’s lifestyle. While assertions were made that Mr Niazi has and was in the midst of acquiring property and other assets of considerable value, no evidence, other than these assertions were provided to me.
21. While on the limited information I have heard, the Crown appear to have a strong case against Mr Niazi, his risk of future offending must be balanced against other circumstances, not limited to, but including:
- his lack of prior criminal history; - the consequences for him and his family if he commits further offences while
on bail; and- the fact remains; he is presumed innocent of these charges until pleading
guilty or proven guilty at trial.22. While the possibility of him committing further offences is not dismissed, I believe that having regard to the matters I have mentioned, together with the imposition of stringent bail conditions, the risk is small.
ORDERS:
23. Therefore, I will grant bail with the following conditions:
i. static address
ii. sureties totalling $250,000 to be posted by the appropriate family members, the details of which I will discuss with Mr Combe and Mr Amad;
iii. that he report to the Endeavour Hills Police Station daily between 6am and 9pm;
iv. that he surrender any passport held and not apply for any others;
v. that he not attend any points of international departure;
vi. that he not leave the State of Victoria;vii. that he not contact any witnesses for the prosecution other than the informant; and
viii. that he not associate or communicate with co-offenders.
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