R v Darwiche

[2020] NSWSC 1865

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Darwiche [2020] NSWSC 1865

Hearing dates:

14 December 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

Conditional bail granted

Catchwords:

BAIL – Show cause – proposed home detention – and electronic monitoring – risk sufficiently ameliorated.

Legislation Cited:

Bail Act2013 (NSW), ss 16A, 17, 66

Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Evidence Act 1995 (NSW), s38

Category:

Principal judgment

Parties:

Hassan Darwiche (Applicant)
Regina (Respondent)

Representation:

Counsel:
I Lloyd QC (Applicant)
S Jaeger (Respondent)

Solicitors:
Hanna Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/00335988

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The applicant, Hassan Darwiche, applies for bail pursuant to s 66 of the Bail Act2013 (NSW) having been refused bail by the Local Court. The applicant is currently incarcerated on account of two sets of charges.

2. The first set of charges relates to conduct said to have occurred between 14 October 2019 and 11 December 2019 and comprises five offences: possess ammunition without holding licence and permit; assault occasioning actual bodily harm; two counts of common assault; and stalk and intimidate. The applicant was arrested for these offences on 12 December 2019 and, initially, granted bail. These charges are listed for hearing before the Bankstown Local Court on 3 May 2021.

3. The second set of charges is 23 charges relating to conduct said to have been committed between 26 April 2020 and 19 June 2020. Those charges are: unlawfully sell firearms three times or more within 12 months; participate in a criminal group-criminal activity; eight counts of supply prohibited firearm to an unauthorised person; six counts of supply pistol to persons who are not authorised to possess same; and seven counts of supply or give ammunition to person who is not authorised to possess. For obvious reasons, it seems some of those charges are backup charges to the principal charges.

4. The second set of charges is at the Local Court level and will be the subject of indictment, assuming, for present purposes, that the applicant is committed in relation to those charges. The matter came on for Bail hearing on 14 December 2020 and, at the time, was listed before the Local Court on 16 December 2020 for certification of the charges in relation to the second set of offences.

5. As stated above, the applicant was initially granted bail in relation to the first set of charges and the second set of offences were alleged to have been committed while the applicant was on bail. As a consequence of that circumstance, the provisions of s 16A of the Bail Act apply and the applicant is required to satisfy the Court that his continued incarceration is unjustified.

6. The applicant relies upon a number of factors going to the provisions of s 16A of the Bail Act. First, the applicant relies upon what is said to be a weak Crown case. The applicant submits that the deficiencies in the Crown case are that there is limited evidence going to the applicant's knowledge of the arrangements to supply the weapons, in circumstances where the Crown relies upon joint criminal enterprise.

7. Secondly, the applicant's wife has recently given birth to twins and there is a need for him to be home to assist in the care of the children. Thirdly, the applicant relies on unreasonable delay in the hearing of the matters as a result of the second set of offences not yet having had their charge certified and the likelihood that the trial will not occur until early or mid-2022. Fourthly, the applicant relies upon the stringency of the bail proposals he offers. Lastly, the applicant relies upon the substantial security that is proposed.

8. The bail proposal put forward by the applicant is, essentially, for house arrest with the provision of electronic monitoring to enforce compliance with that condition. There is a degree of irony associated with such a proposal.

9. The provisions of the show cause requirements prescribed by s 16A of the Bail Act require the applicant to show cause "why his … detention is not justified". A proposal that an applicant be subject to house arrest, on one view, accepts the need for the applicant to be detained.

10. Nevertheless, the Court takes the view that the detention to which s 16A of the Bail Act refers is detention in prison and accepts that a proposal for house arrest, assuming the Court is satisfied that such a requirement is enforceable or can be the subject of monitoring for compliance, is a matter that the Court can and should take into account in determining whether cause has been shown and whether, if cause has been shown, what may otherwise be unacceptable risks associated with the bail concerns have been appropriately ameliorated.

11. The Crown relies upon the show cause nature of the circumstances giving rise to the bail application and the seriousness of the offences of supplying prohibited pistols and firearms. The Court, as presently constituted, is on the record as to the seriousness of firearm offences and the comment that some sentencing has not reflected that seriousness.

12. The current allegations involve the supply of that which has been described as "military style weapons" and the possession of same, together with the manufacturing of them. Nevertheless, at this stage, the charges are allegations and the applicant has not been proved to be guilty.

13. Otherwise, the Crown relies upon a number of factors, most of which are obvious, on the face of the charges. First, the applicant, if convicted, will face a significant term of imprisonment and the matter, being the second set of offences, is to be certified shortly.

14. Secondly, the Crown says the Crown case is not weak. Thirdly, the applicant does not suggest medical needs that require the applicant to be at liberty for treatment. Nor, in relation to the recent birth of his children, does the applicant suggest that they have needs above and beyond that of any newborn twins.

15. There is some suggestion in the material that the applicant has a need for "chiropractic treatment" and has asthma. I accept the Crown submission that, in and of themselves, those two matters do not show cause. While the underlying condition that might require chiropractic treatment may be such as to show cause, in and of itself the necessity for such treatment does not. The same can be said in relation to the use of an asthma inhaler. The NSW prison system is not without medical facilities.

16. As to the recent birth of the twins, the Crown submits that the applicant’s partner was pregnant at the time of the offending and, assuming for present purposes that the Court accepts that the Crown case is not weak, the offending would, assuming guilt, have occurred at a time when, if the applicant were apprehended in relation to the offending, require his imprisonment in the early stages of the life of the child or children to be born.

17. The applicant’s partner, according to the Crown, can reside with her mother and the only aspect that requires the applicant’s liberty is that it would assist in the care of the children, but it is not necessary and does not rise to the level of showing cause.

18. A further consideration raised by the applicant is the mental health of the applicant's mother which, again, the Crown submits does not rise to the level of showing cause. Indeed, there is nothing to suggest that the applicant's conditional liberty would be used to assist his mother.

19. Further, given what the Crown says are the criminal associations of the applicant, the surety, while a significant amount of money, does not overcome the prospects of flight and does not adequately mitigate against the risk associated with flight.

20. Fundamentally, the Crown relies upon the risk of non-appearance; the significant period in custody the applicant is facing should he be convicted; and the inadequacy of the proposed surety.

Facts

21. The applicant is 27 years of age, but his criminal history does not reveal any prior offending of a similar kind as that which is alleged in relation to these offences. Predominantly, the criminal history discloses driving offences of various levels of seriousness. The foregoing is not intended to suggest that the offences were simply traffic offences. There were offences such as driving recklessly/furiously and driving whilst disqualified.

22. Nevertheless, nothing in the criminal history, notwithstanding the allegations as to associations, reveals any offences of the kind with which the applicant is currently charged.

23. There are offences which disclose the use of drugs. One offence for the possession of prohibited drugs and another for driving whilst under the influence of drugs. Later offences, including as late as 2017, disclosed the applicant still possessing prohibited drugs.

24. Overwhelmingly, the applicant and the Crown have concentrated on the second set of charges. However, the Court should not lose sight of the first set of charges, which includes two counts of common assault and one count of stalk/intimidate in a domestic violence context.

25. Further, the applicant was charged with further apprehended violence order offences in or about 17 February 2020 and was, for that offence, placed on a Conditional Release Order (CRO) under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Thus, these offences and the breach of the AVO show a serious aspect of violence in a domestic context, which the Court ought to treat seriously and does treat seriously.

26. Nevertheless, the most serious charges are the firearm offences to which reference has already been made.

27. In the view of the Court, and notwithstanding the submissions of the applicant, the Crown case in relation to the firearm offences is a strong one.

28. The Police search of the applicant's house located ammunition. The Police search occurred after a significant domestic violence offence in which the victim reported the assault to Police. The victim, the applicant’s wife, has since, the Court has been told, recanted. Frankly, I pay little attention to that recanting. It is a not unusual circumstance in relation to domestic violence. The provisions of s 38 of the Evidence Act 1995 (NSW) will allow the original complaint to be before the Court; and I do not consider the domestic violence offences to be other than strong.

29. Notwithstanding the finding of ammunition at the applicant's house, the charges arise, not from the search, but from a Police operation in which Police purchased firearms in exchange for cash by way of a controlled operation. The applicant and his co-accused are, as a consequence of that operation, alleged to have offered to supply 30 firearms. The co-offender, Mr Warideh was the main "front person" in relation to the controlled operation, but there were occasions when the applicant was present during the course of such sales.

30. The applicant relies upon the absence of direct evidence in which the applicant is, personally, selling or supplying the firearms or agreeing to the sale.

31. Nevertheless, the Crown case is, unsurprisingly, a circumstantial case, which relies upon surveillance of the applicant attending the house of the co-accused; driving in convoy; and acting as a lookout during the course of the firearm sales, which occurred at a shopping centre. It also relies upon the interception of communications; and surveillance devices in which the applicant discusses firearm sales and, it is said, counts cash and handles the firearms. Against the latter aspects of that evidence, the applicant submits that the recording does not, clearly or at all, identify the applicant as a person either counting cash or handling firearms.

32. In the course of the initial submissions by the Crown, the Crown relied upon the presence of the applicant's fingerprint on one of the bags of one of the firearms that was sold. However, that is the subject of a correction in which the fingerprint to which the Crown, mistakenly, referred was in fact the fingerprint of the co-accused.

33. There are, however, other aspects of circumstantial evidence which place the applicant at locations at which offending occurred, being the supply of the firearms. They include the location of the applicant being detected by reference to the applicant's mobile telephone; surveillance of the applicant attending at locations where the firearms were sold; and the firearms being flown into Bankstown airport by a person, another co-offender, whom the applicant met on two different occasions.

34. None of the foregoing would, in and of itself, prove guilt. Combined, a jury may or may not, properly instructed, find guilt. But it is open to find guilt and I am not prepared to categorise the Crown case as weak

35. The Crown relies upon one example of conduct on 7 May 2020, which is appropriate to recite. The applicant drove to the home of the co-accused, Mr Warideh. A few minutes later, the applicant and the co-accused emerge driving two separate cars. Each car was driven, in convoy, to Centro Bankstown, where the cars were parked, each accused being within sight of the other. Mr Warideh exited his car and sat with the applicant in the one car.

36. A short time later, a proposed buyer arrived at the scene, Mr Warideh approached the buyer, removed an M1 carbine rifle from the other car, along with 302 rounds of ammunition and sold it for $35,000 in cash. All of this was captured by physical surveillance. The applicant maintains that the foregoing does not disclose, in and of itself, a joint criminal enterprise for the supply of the rifle and ammunition. Nevertheless, it is significant evidence which, with other evidence, might be used to draw such an inference.

37. Similar surveillance evidence or related surveillance evidence is before the Court or summarised for the purposes of the bail application and relates to surveillance of the applicant in possession of what is said to be the results of the offences and/or supplying weapons in precisely the same manner as the example above, albeit different weapons and not necessarily rifles.

38. Of course, it could be a coincidence that the applicant was with Mr Warideh on each occasion when the firearms were sold and drove with him in two separate cars and kept Mr Warideh in sight during the course of the transactions. Nevertheless, as a matter of "plain common sense", an inference as to the involvement of the applicant is available to be drawn. Ultimately, it is a matter for a jury as to whether that inference is drawn at trial.

Proposed conditions

39. The Crown submits that the Court should not be confident that the conditions proposed would adequately mitigate the risks, which the Court takes to refer to the unacceptable risk associated with the bail concerns. The Crown deprecates, reasonably, the amounts of money proferred as surety, given the nature of the offending. With respect to the Crown, the submission does not adequately deal with the proposal for house arrest.

40. It is appropriate to summarise the major aspects of the proposed conditions. The Court has already referred to the offer of security, initially proposed of $480,000, and by the time of the hearing, was proposed to relate to a deposit of $515,000 with security. For obvious reasons, the conditions included passport surrender, restrictions on distance from points of international departure and non-association with co-accused.

41. Most relevantly and strictly, the applicant has proposed that there be reporting to a Police station twice daily and house arrest, with some narrow, but obvious, exceptions, which house arrest is to be supervised by 24-hour electronic monitoring.

42. There is a combination of factors upon which the applicant relies for the purposes of showing cause and for the purpose of ameliorating the risk of serious offending or any danger to the public or any individual. Those factors are also said to ameliorate the risk of flight.

43. The Court rejects the submission that the Crown case is weak. That is not to say that the applicant will be found guilty, but they are two different concepts. As a consequence, I do not take into account any submission relating to the weakness of the Crown case.

44. Further, the Court accepts that the sum proposed to be deposited by way of security, which is significant by almost anybody's standards, has a diminished capacity to ameliorate the risk of flight in circumstances where the offences in question will, if guilt is found, give rise to a significant prison sentence and involve significant profits from the criminal enterprises said to have been conducted.

45. While the Crown has deprecated the submission as to the mental health of the applicant's mother, the material before the Court suggests that the applicant was significantly involved in the care of his mother prior to his arrest and that is a factor which the Court takes into account as another lawful reason to be at liberty.

46. The Court also takes into account the significant delay that will be occasioned between now and the conclusion of any trial for the second sequence of offences; and also takes into account the recent birth of the twins.

47. The difficulty with which the Court has struggled is the proposal for house arrest. The difficulty is occasioned by the history of domestic violence perpetrated by the applicant against his wife, in circumstances where it is proposed that the house arrest would occur in his own home, with his wife present and with the additional stressors associated with two newborn children. As already stated, the applicant's wife has recanted in relation to the charges. But, as I have also already commented, the Court has little regard to that recanting. The foregoing issues of domestic violence also affect the favourable treatment of the birth of the twins as an ameliorating factor.

48. Nevertheless, the combination of the factors accepted by the Court and to which the Court has already referred, satisfy the Court that the continued incarceration of the applicant in a prison is unjustified. As a consequence, the Court is required to deal with the bail concerns and whether the applicant poses an unacceptable risk which is unable to be ameliorated sufficiently to allow for conditional liberty.

49. Once the obstacle of the requirement to show cause has been satisfied, the Court, in my view, should operate on the presumption that a person, not yet found guilty, is entitled to conditional liberty, subject only to the bail concerns prescribed by s 17 and the assessment of an unacceptable risk.

50. There are risks associated with flight, given the resources available to the applicant and the seriousness of the charges which he faces. Further, given the nature of the allegations as to criminal involvement, there are significant concerns associated with the commission of a serious offence.

51. Further, in relation to the first set of charges, there are serious concerns associated with the safety of an individual or victim and, given the recanting, interference with evidence or witnesses.

52. Notwithstanding the foregoing, it seems to me that the proposals for the conditions on bail sufficiently ameliorate the otherwise unacceptable risks associated with the applicant's conditional liberty. In particular, the proposal for electronically monitored house arrest merely transfers the detention from the prison system to a private residence, yet allows the applicant to prepare better the case or cases for the criminal trials that he faces.

53. In all the circumstances, the Court grants bail in the following manner:

54. In the matter of R v Hassan Darwiche in relation to the charges of possess ammunition without holding licence and permit; assault occasioning actual bodily harm; two counts of common assault; and stalk/intimidate, said to have been committed between 14 October 2019 and 11 December 2019; and the further charges of: unlawfully sell firearms three times or more within 12 months; participate in a criminal group - criminal activity; eight counts of supply prohibited firearm to unauthorised person; six counts of supply pistol to person unauthorised to possess; and seven counts of supply or give ammunition to person not authorised, each of which are said to have been committed between 26 April 2020 and 19 June 2020, bail is granted subject to the following conditions:

Conditions of bail

55. The applicant is to enter into an agreement to observe the following requirements as to conduct while at liberty on bail:

1. The applicant is to report to the Bankstown Police station twice daily, being once between the hours of 6 AM and 10 AM and a second time between the hours of 4 PM and 8 PM.

2. The applicant is to reside at 8 Richardson Avenue Padstow NSW and nowhere else.

3. The applicant is not to be absent from 8 Richardson Avenue Padstow NSW at any time or in any circumstances except for the following:

1. For the purpose of reporting to Bankstown Police station;

2. For the purpose of attending Court or a pre-arranged conference with his legal advisors;

3. On account of a medical emergency affecting the applicant, his mother, his wife or his children;

And in all of the circumstances referred to above and on any occasion that the applicant is absent from 8 Richardson Avenue Padstow, the applicant is to be in the company of his wife, Marisa Batti, or his mother, Ivy Darwiche.

4. In the case of attendance at court or a prearranged conference with his legal advisors, the applicant must, through his solicitor, provide notice in writing, i.e. by text, letter or email, to the Officer in Charge of the Investigation, Detective Adam Packer, at least 24 hours before any such appointment.

Otherwise, except in the case of a medical emergency to which reference has been made, the applicant will supply, at least three days prior to its commencement, a schedule of movements for the following week to the aforesaid Detective Adam Packer and the applicant shall not deviate from the aforesaid schedule of movements.

In the case of a medical emergency to which reference has been made, the applicant shall, where practical, notify Detective Adam Packer or the Officer in Charge at Bankstown Police station, of said medical emergency and the proposed absence from the applicant's residence and the proposed location at which he can be found, prior to leaving the premises and, where not practical, as soon as possible thereafter.

5. The applicant is to submit to 24-hour electronic monitoring, prior to his release from custody, in accordance with the regime outlined in the affidavit of Laura Windsor.

6. The applicant is to possess only one mobile telephone, the telephone number of which must be provided to the Officer in Charge of the Investigation within 1 hour of its receipt or 24 hours of release, whichever is later;

7. The applicant is to present at the door of the premises at any time, if requested so to do by a Police officer, Officer of Corrective Services or Probation and Parole, in circumstances where such request is not made with unreasonable frequency, bearing in mind, as well, the presence in the premises of two infants, or without a genuine belief that there is non-compliance with the house arrest condition.

8. The applicant is to appear, unless excused, at Bankstown Local Court on 3 May 2021 and at Burwood Local Court on 24 February 2021 and, on any other dates to which the matters are remanded.

9. Acceptable persons shall agree to forfeit $515,000, with security.

10. The applicant is not to approach or come within 500m of any point of interstate or international departure.

11. Prior to the applicant's release, the applicant's passport, if any, is to be surrendered to the Officer in Charge of the Investigation and the applicant is to undertake in writing that such is the only passport issued to him and that the applicant will not make any application for a fresh passport. If the applicant does not have a passport, the applicant is to undertake in writing to that effect, prior to his release.

12. The applicant is not to communicate, directly or indirectly (except through legal advisors) with Jehad Warideh, Nassreldine Cheikh or with any person of whom the applicant has received notice that the person is to be called, or is likely be called, by the Crown at the applicant's trial.

13. The applicant is not to associate in any way with Jehad Warideh or Nassreldine Cheikh.

14. The applicant is not to assault, molest, harass or otherwise interfere with Marisa Batti nor incite any other person so to do. The applicant is to abide by the terms of any operating Apprehended Violence Order.

15. The applicant is not to drink alcohol.

16. The applicant is not to take any prohibited or restricted drug, but only a drug that is prescribed by a qualified medical practitioner.

17. The applicant is to undertake any testing at the direction of any Police officer, Officer of Corrective Services or Probation and Parole to confirm compliance with the drug and alcohol conditions imposed. Such direction may not be given with unreasonable frequency and such testing may only be non-invasive and carried out with respect given to the applicant's privacy.

18. The Court directs that the applicant not be released except into the custody of his wife or mother or an Officer of Corrective Services for transportation directly from the correctional facility from which the applicant is released to the residence at 8 Richardson Avenue Padstow.

19. Bail is to be entered into before any person authorised under the Bail Act2013.

20. Bail is to be automatically revoked in the event of any breach of any one of these conditions and the applicant may thereupon be arrested by a Police officer.

21. The applicant is to be of good behaviour whilst on bail.

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Amendments

18 December 2020 - formatting update

Decision last updated: 18 December 2020