R v Ali-Ahmad

[2018] NSWSC 413

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ali-Ahmad [2018] NSWSC 413
Hearing dates:	16 March 2018
Date of orders:	05 April 2018
Decision date:	05 April 2018
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Application dismissed
Catchwords:	CRIME – bail – release application – where previous application refused by the Court – consideration of Bail Act 2013 s 74 – change of circumstances relevant to the grant of bail – availability of residential rehabilitation program – s 74 satisfied – applicant required to show cause why detention not justified – young age of applicant – potential for reform – Court not persuaded that applicant had satisfied show cause requirement – no evidence of drug or alcohol addiction to be addressed by rehabilitation – previous failures to appear – unacceptable risk of applicant committing further offences – application dismissed
Legislation Cited:	Bail Act 2013 Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	The Queen v Osenkowski (1982) 30 SASR 212
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	The Crown Ali Ali-Ahmad (Applicant)
Representation:	Counsel: D Laird (Crown) J Korn (Applicant)   Solicitors: Director of Public Prosecutions (Crown) Havas & Dib (Applicant)
File Number(s):	2017/388008

Judgment

1. Ali Ali-Ahmad, who is presently aged 21, has been in custody since 30 November 2017.

2. He has sought his release on bail in accordance with the provisions of the Bail Act 2013 (“the Act”).

3. The applicant was refused bail by N Adams J in this Court on 9 March 2018. At that time, her Honour indicated that the proposal with respect to bail was an unacceptable one because she was not satisfied that a particular proposed residential rehabilitation program was suitable in the circumstances. She indicated that she would regard any further application that was accompanied by a different proposal for residential rehabilitation as being a change in circumstances of a kind which would enable a further release application to be heard.

4. This current application does present a different proposal with respect to residential rehabilitation.

5. The Crown conceded that, having regard to her Honour’s remarks, and the nature of the current proposal, the applicant has demonstrated grounds for a further release application within the meaning of s 74 of the Act.

6. Accordingly, it is appropriate for this Court to hear and determine the application.

7. At the time of his arrest on 30 November 2017, with respect to the current charges upon which bail is sought, the applicant was on bail for a previous drug offence. As a result, by reason of the provisions of s 16B(1)(h)(ii) of the Act, the applicant is required to show cause why his detention is not justified.

Charges

8. The applicant has been charged with a number of offences. The first is an offence contrary to s 193B(2) of the Crimes Act 1900, of knowingly dealing with the proceeds of crime, namely, AU$469,740. The maximum penalty for such an offence is imprisonment for 15 years.

9. The second and third offences are two other charges of dealing with the proceeds of crimes in sums less than $15,000 contrary to s 193C(2) of the Crimes Act. These offences carry a maximum penalty of imprisonment for 3 years.

10. The fourth offence is a back-up offence to the first offence referred to in [8] above, of dealing with proceeds of crime contrary to s 193C(1) of the Crimes Act. The maximum penalty attaching to this offence is imprisonment for 5 years.

11. The fifth offence is one of knowingly participating in a criminal group assisting in crime, namely, in the supply of a prohibited drug, cocaine, contrary to s 93T(1A) of the Crimes Act. This offence carries a maximum penalty of 10 years.

12. The applicant was originally charged with a sixth offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, namely supplying a prohibited drug being 42 g of cocaine. However, the Court was informed that that charge was to be withdrawn as analysis has indicated that the substance is a cutting agent. There may or may not be a further charge with respect to this offence. This is a further reason why there are grounds for a further hearing pursuant to s 74 of the Act.

Prosecution Case

13. The applicant is alleged to be one of a group of 11 individuals involved in a criminal syndicate engaged in the supply of cocaine across Sydney. Investigations into the syndicate were commenced in May 2016 and the prosecution alleges that the applicant was one of the principals behind the syndicate. Much of the investigation is based upon information derived from telephone intercepts. One of those telephones was used exclusively by the applicant.

14. During the course of their investigation, the police made a number of calls to two identified mobile telephones and arranged for a supply of cocaine. In so doing, they were able to identify the calls made from the two telephone numbers to runners to complete the supply. The suppliers were the subject of covert surveillance and the product of the suppliers was subject to analysis.

15. In all, between July and November 2017, the police conducted 36 drug transactions netting a total amount of 25g. The police estimated that sum 4,000 drug transactions had occurred during that period, during which a large commercial quantity of cocaine was supplied, netting in excess of $1.2M.

16. On 30 November 2017, the police attended the applicant’s premises to arrest him and to execute a search warrant. The police attempted entry by knocking. The door was not answered and, accordingly, the police forced entry. As they did they observed the applicant running from the premises carrying a satchel. He was seen to jump the fence at the rear of the premises and move into a nearby property, where he was detained. As he ran, the satchel was thrown away under a parked vehicle. When it was retrieved and opened, it was found to contain $9,955 in cash, two iPhones, one encrypted Blackberry phone and keys to a motor vehicle.

17. The police then searched the applicant’s residence. They seized a quantity of cutting agent, seven mobile telephones, vials and packets of steroids, 21g of green pills, digital scales and $11,530 in cash.

18. On searching the applicant’s bedroom, the police located a safe. The key to that safe was located in a bedside drawer in the bedroom. On opening the safe, the police found documents in the applicant’s name as well as $425,675 in cash. Upon investigation, the police established that 30 of the notes contained within that bundle of cash were notes used by the police to purchase a number of the deliveries of the cocaine.

19. As well, police recovered 13 credit cards in the applicant’s bedroom which were all in false names.

20. At the police station after his arrest, the applicant was offered the opportunity to participate in a recorded interview. He declined to do so. He is not to be criticised for this. His refusal to participate in an interview accorded with his legal right. The significance of that for present purposes is only that this court does not have the benefit of any explanation which the applicant may be able to give with respect to the prosecution case.

Previous Conduct

21. In April 2017, the Police observed the applicant to be the driver of a black Mercedes vehicle which was accelerating harshly, causing loss of traction in a carpark. When the Police vehicle entered the carpark and activated its warning lights and sirens to stop the vehicle, they observed the applicant alight from the driver’s side door and run away. A foot pursuit ensued with the applicant being apprehended at a nearby intersection. The applicant was asked to provide his driver’s licence. He said that he did not have a licence and provided the police with a false name and address. On 11 June 2017, the applicant was charged with an offence relating to the provision of false information.

22. The very next day, the applicant was stopped by Surry Hills Police in that area whilst driving a different motor vehicle. The police conducted a vehicle search and located AU$3,500 and 2.3 g of cocaine. The applicant was requested to provide a driver’s licence or any form of identification. He provided his details as being a person with a false name.

23. The applicant was arrested and charged with offences relating to dealing with the proceeds of crime and supplying a prohibited drug.

24. The matter was listed before the Downing Centre Local Court on 20 July 2017. The accused, who had been granted bail at the Surry Hills Police Station, failed to appear before Court on that day and as a result, an arrest warrant was issued. On 24 July 2017, the applicant was arrested and the warrant was executed. The matter was re-listed before the Downing Centre Local Court on 14 August 2017. The applicant failed to appear before the Court on that date and as a result, a further arrest warrant was issued. There is some material to suggest that the applicant’s non-appearance was a result of advice provided by his solicitor.

25. In summary, on two occasions when spoken to by police, the applicant has provided a false name and identification details. When the police attended at his residence to arrest him, he ran away to avoid arrest – as he had done on 20 April 2017, when the car which he was driving was stopped. When his bedroom was searched, 13 credit cards in false names were found.

Bail Concerns

26. The prosecution submitted that if the applicant is released on bail, there are unacceptable risk of him failing to appear at court when required and of his committing further serious offences.

Period of Detention

27. As earlier indicated, the applicant has been in custody since his arrest on 30 November 2017. He has not previously served any period of time in custody.

28. The proceedings are still before the Central Local Court and will be listed again on 10 April 2018.

29. The prosecution was ordered to serve their Brief of Evidence by 29 March 2018.

30. If, following the ordinary course in the Local Court, the proceedings are defended, then it is unlikely that the applicant would be committed for trial to the District Court much before 30 June 2018. If that were so, it is likely that the accused would face a trial in the District Court in the first half of 2019.

31. If the matter is not resolved earlier, it is likely that the applicant will spend between 18 and 21 months in custody prior to his trial.

Bail Proposal

32. The applicant seeks bail on strict conditions.

33. In essence, the applicant has the benefit of offers by seven members of his family, or friends, who are willing to offer a total of $2.79M by way monetary security to ensure that the applicant appears in court.

34. As well, the applicant offers to wear an electronic monitoring device at all times, if released on bail.

35. Principal amongst the proposed bail conditions is that the applicant is to be admitted to Niagara Lodge to undertake a six month residential rehabilitation program. Niagara Lodge provides medium term accommodation for recovering alcohol and other drug dependent persons. The home is supervised by a live-in co-ordinator and staffed by volunteer ex-client alcohol and other drug counsellors. It caters solely for men aged between 21 and 39.

36. Niagara Lodge described its program in this way:

“[A participant] will spend 6 months with us working a living skills program and learning new social skills, communication, interaction with his peers, support groups, family values and health and education. He will be given the opportunity to return to the workforce after this and continue to live at the facility.

We support random urine testing and any breach of the rules by clients would be reported to the appropriate authority.

…

Our clients attend an external Alcoholics Anonymous or Narcotics Anonymous daily, attending meetings on the Central Coast.”

37. Elsewhere in the material provided, Niagara Lodge is described as a group home for alcohol and other drug-dependent persons. Its program is described as a totally abstinence-based program with “… the freedom of a halfway house and the structure and programs of a rehabilitation centre …”.

38. Its philosophy is described in this way:

“The aim of Niagara Lodge is to provide supported medium term accommodation for recovering alcohol and other drug dependent male persons in a semi-protected environment through our structured program designed to empower each client to become self-dependent.

We believe in helping people break their negative attachment to the environment from which they have established their former lifestyle by discovering new friendships, new coping mechanisms and new support networks.”

39. An observation of the ordinary day-time routine demonstrates that it is a program that has afternoon or evening curfews. It permits mobile telephones to be used at any time after the first two weeks. A participant is also allowed to have visits after two weeks, provided that the visitors are approved at house meetings. Employment is permitted after the first three months of residence, subject to adequate completion of the program. It is compulsory for participants to attend either AA or NA meetings every day for the first 90 days. Once a week participants are encouraged to attend an out of area meeting.

40. As well as the written material, in the course of the hearing I was asked to adjourn the final consideration of the application to enable some further evidence from Niagara Lodge to be put before the Court dealing with such things as whether those in charge of the program would contemplate not permitting a resident to have a mobile telephone. Further evidence was also to be obtained as to what supervision, if any, could be provided with respect to a three or four hour window each day in which residents are free to engage in a range of entirely unsupervised activities, including leaving the premises without having to account for their whereabouts. As it happened, no further material was provided to the Court.

Show Cause

41. The applicant’s submission with respect to the discharge of the show cause requirement was put by his counsel as relating to four matters.

42. The first matter upon which the applicant relied was that he is a young man, aged 21. The second matter, linked with the first, was that this is the first occasion upon which the applicant has been in custody. It was submitted that having regard to those two facts, it was desirable that the applicant not spend an extended period of time in custody awaiting any future trial.

43. The third matter upon which the applicant relied was a submission to the effect that, having regard to the applicant’s youth, the nature of his past criminal history and the present offences, he was said to be at the “cross‑roads”. This expression derives from The Queen v Osenkowski (1982) 30 SASR 212 at 212-213, where Chief Justice King, when discussing the purpose of Crown appeals against the inadequacy of a sentence, said:

“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”

44. Such a notion that leniency in a sentence might lead to reform has been applied in numerous cases involving the sentencing of offenders ever since. Particularly is this so with young offenders, who may be thought by a sentencing Judge to be capable of seeing the errors of their past ways and, either with or without assistance, embark upon a reformed life.

45. It seems from the oral submissions of counsel for the applicant that he relies upon such a principle here as being relevant to showing cause. As best as can be understood, counsel seemed to submit that when the applicant comes to be sentenced in the event of a conviction, or following a plea of guilty, having regard to his age and the nature of the offences, he was a person in respect of whom a “cross-roads” submission could properly be made. Further, it seems to be submitted that because he is such a person, having an opportunity now to engage in residential rehabilitation as part of being released on bail is a course to be preferred over his remaining in custody awaiting the disposition of the proceedings.

46. This submission was put seemingly on two bases: first, that such a program might assist in demonstrating to a sentencing Judge the likelihood of reform and, secondly, that similar considerations ought apply in a bail application involving a show cause requirement.

47. The fourth matter relied upon by the applicant as constituting a show cause requirement is the delay that will ensue before the final disposition of the applicant’s case. This is a matter which I have earlier addressed, is finding that any trial will be likely to be heard around the middle of 2019.

48. One relevant factor in a show cause consideration is the strength of the Crown case. Leaving aside the drug charge which is not proceeding, the Crown case is a very strong one. The applicant concedes that it is. The applicant’s counsel also conceded that a custodial sentence is inevitable, or if not inevitable, that there is a very strong likelihood of a custodial sentence. In my view, a significant custodial sentence is inevitable.

49. Having regard to the strength of the Crown case and the emphasis placed by the applicant on the condition that he attend a residential rehabilitation course, it seems appropriate to seek out any evidence or other material that shows that the applicant is a drug addict, or else is addicted to alcohol such that it could be anticipated that any residential rehabilitation course would be appropriate for him. The applicant’s counsel did not put any such material before the Court. Nor was any material previously put before another court in respect of sentencing or otherwise, from which an inference could be drawn about the applicant’s current position put before this Court. Rather, the applicant’s counsel submitted that the Court should infer that he is drug addicted from the nature of his activities and his lifestyle, including the type of motor vehicle which he drove. Counsel called in aid a previous arrest where the applicant was charged with selling 2.3g of cocaine and being in possession of $3,500, as indicating that the quantity of drugs was consistent with a capacity for personal use. I have not the slightest doubt that that is so.

50. However, the facts and circumstances of that offence, which were before the Court, demonstrated not that the applicant was using the drugs, but rather that he was engaged in the process of selling them.

51. The applicant’s counsel submitted that in 2017, it was clear from all of the facts put before the Court that his client was living a hedonistic lifestyle engaged in ‘partying’, which the Court would find was a euphemism for excessive drug or alcohol use whilst he was in female company.

52. It was also submitted that the Court would infer from the affidavit of the applicant’s father, that the behaviour which is there recorded was consistent with a person who had consumed drugs.

53. Even allowing all of these matters as being accurate, the recreational use of one or more drugs on a basis, the frequency of which is entirely unknown, is not a proper basis for a conclusion that such is a person’s drug addiction that it would benefit them to attend a residential rehabilitation course.

54. It is also relevant to a show cause hearing to consider whether any conditions which may be imposed would address the bail concerns raised by the Crown.

55. In respect of a failure to appear, I think that conditions of bail which required regular reporting to a police station, the wearing of an electronic monitoring device and in combination, the agreement to forfeit large sums of money by members of his family, would together address the obvious risk of the applicant failing to appear.

44. However, the question of whether he would continue to commit further serious offences is in a different category. The nature of his offending is such that it was done in a highly sophisticated and organised way, beyond the day-to-day observation of those with whom he lived or his family members with whom he socialised and interacted. It was carried out in a way as to generate significant amounts of cash which was enjoyed by the applicant. He continued to carry out this conduct, including accumulating significant sums of money which were the proceeds of crime, notwithstanding that he was on bail conditions and that he had undertaken to a court that he would be of good behaviour.

45. Even allowing for the fitting of an electronic monitoring device and allowing for attendance at a residential rehabilitation course for a period of six months, it is difficult to see how the Court could have any confidence that this applicant would not continue to engage in the behaviour which he has engaged in the past.

46. Inevitably, considering what a person may do in the future is based on a consideration of what they have done in the past. In the past, this applicant has lied to police and given false identities in an attempt to evade his lawful obligations; ignored bail conditions which required him to be of good behaviour; and failed to heed any advice which his father and family had provided for him. He rather chose to engage in conduct which resulted in a significant financial reward for him without the need to undertake any hard work, or very much effort at all, and he did so by directing others to undertake much of the work.

47. As sympathetic as I am to people of a young age, and concerned as I am about the length of time the applicant will spend in custody prior to the final disposition of his proceedings, I am nevertheless wholly unpersuaded that the applicant has shown cause why his detention is not justified.

48. The Crown has a very strong case which, in my assessment will inevitably result in a significant custodial sentence for the applicant. The applicant’s past behaviour gives the Court no confidence that he would refrain from committing any further serious offences if bail is granted. The conditions proposed, strict though they are, would not in my view be adequate in this applicant’s case to make the risk of his commission of further serious offences an acceptable one.

49. The application is dismissed.

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Amendments

15 August 2024 - Publication restriction lifted.

Decision last updated: 15 August 2024