R v Barker, Jarrod

[2013] NSWSC 1934

Supreme Court

New South Wales

Medium Neutral Citation:	R v Barker, Jarrod [2013] NSWSC 1934
Hearing dates:	16 December 2013
Decision date:	19 December 2013
Before:	Harrison J
Decision:	Bail refused
Catchwords:	BAIL - Bail Act s 9(4) - applicant in custody subject to revocation of parole - bail refused
Legislation Cited:	Bail Act 1978 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Christopher Gibbs [2008] NSWSC 414
Category:	Principal judgment
Parties:	Regina (Crown) Jarrod Jack Barker (Applicant)
Representation:	Solicitors: Director of Public Prosecutions (Crown) Legal Aid (Applicant)
File Number(s):	2013/371840
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Jarrod Barker was sentenced for the offence of break and enter committed on 16 April 2010 to a term of imprisonment of 3 years commencing on 17 February 2012 and expiring on 16 February 2015 with a non-parole period of 18 months expiring on 16 August 2013. He was released on parole on 17 August 2013 subject to supervision.

1. On 15 November 2013 Mr Barker was arrested and charged with supplying crystal methylamphetamine on an ongoing basis and of knowingly participating in a criminal group on 2 November 2013. He was refused bail following his arrest. Those charges are due for mention in the Central Local Court on 13 January 2014.

1. As the result of his arrest Mr Barker's parole was also revoked on 5 December 2013. The Parole Board is due to review his status on 23 January 2014. He is in the meantime serving out the balance of his sentence subject to the outcome of his Parole Board review.

1. In anticipation of a favourable outcome on 23 January 2014, Mr Barker has filed an application for bail in respect of the most recent charges. It is accepted that he would not be entitled to be released prior to the date of his Parole Board review even if bail were granted.

1. Section 9(4) of the Bail Act 1978 provides as follows:

"9(4) A person is not entitled under this section to be granted bail in respect of an offence to which this section applies, if:

(a) the person is in custody serving a sentence of imprisonment in connection with some other offence, and

(b) the authorised officer or court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the firstmentioned offence would be granted."

1. Difficulties associated with a proper understanding and practical application of this provision have been commented upon before today: see, for example, R v Christopher Gibbs [2008] NSWSC 414. I find it extremely difficult to assess the likelihood that Mr Barker will be released on parole when next his status falls to be considered. His sentence expires on 16 February 2015. I have no way of knowing whether he will be required to serve out the balance of his sentence or be released on 23 January 2013 or some time in between.

1. In the present application there is no presumption in favour of bail for the reason that the offence of ongoing supply of a prohibited drug contrary to s 25A of the Drug Misuse and Trafficking Act 1985 is mentioned in s 9 of the Bail Act. Mr Barker is in addition charged with an indictable offence and has previously been convicted of indictable offences. These include a serious home invasion, numerous convictions for aggravated robbery, aggravated enter dwelling with intent, assault occasioning actual bodily harm, break and enter, goods in custody, malicious damage, resist police and other assaults. Moreover, at the time that Mr Barker is alleged to have committed the current offences he was at liberty on parole as earlier indicated.

1. The Crown case is arguably quite strong. It consists among other things of intercepted phone conversations involving Mr Barker on one view discussing the supply of drugs, surveillance, and CCTV footage and listening device product. The maximum penalty for the drug offence with which Mr Barker has been charged is 20 years imprisonment.

1. The difficulty presented by the s 9(4) assessment does not ultimately arise for consideration in the circumstances of this case. That is because I am not satisfied that this is a case in which bail should be granted.

1. Bail is refused.

**********