R v Isaac

[2023] NSWSC 22

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Isaac [2023] NSWSC 22

Hearing dates:

23 January 2023

Date of orders:

23 January 2023

Decision date:

31 January 2023

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

Bail is granted

Catchwords:

BAIL — Release Application — Consideration of s 22B of the Bail Act 2013 (NSW) — Where applicant satisfies “special circumstances” threshold — Where applicant’s wife brutally murdered — Where the applicant has a role in the arrangements for the care of his children — Bail granted

Legislation Cited:

Bail Act 2013 (NSW) ss 17, 18 and 22B

Crimes Act 1900 (NSW) s 93T(4A)

Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1) and 25(2)

Firearms Act 1996 (NSW) s 51(2A)

Cases Cited:

Bobbi v R [2021] NSWCCA 44

Director of Public Prosecutions (NSW) v Van Gestal [2022] NSWSC 973

Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247

El-Hilli and Melville v R [2015] NSWCCA 146

Gould v R (Cth) [2021] NSWCCA 27

R v Khayat (No 11) [2019] NSWSC 1320

R v Lago [2014] NSWSC 660

R v Naizmand [2016] NSWSC 836

R v Peter Tsallas [2017] NSWSC 64

R v Tsintzas [2017] NSWCCA 172

R v Watson [2017] ACTSC 311

Raad v R [2015] NSWSC 532

Category:

Principal judgment

Parties:

Mikkel Isaac (Applicant)
Rex (Respondent)

Representation:

Solicitors:
O Samin (Australian Criminal & Family Lawyers) (Applicant)
S Makin (Office of the Director of Public Prosecutions) (Respondent)

File Number(s):

2023/00021367

Judgment

1. The applicant, Mikkel Issac, pleaded guilty in the Local Court to several serious offences, including the following:

1. Supplying a prohibited drug not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”). The applicant supplied between 1000g and 1100g of cocaine;

2. Knowingly directing the activity of a criminal group, contrary to s 93T(4A) of the Crimes Act 1900 (NSW) (“Crimes Act”);

3. Supplying a pistol without a licence, contrary to s 51(2A) of the Firearms Act 1996 (NSW) (“Firearms Act”); and

4. Supplying a prohibited drug, namely, 8655.8g of cannabis, contrary to s 25(1) of the DMTA.

2. The proceedings are not yet listed for sentence. The parties agree that the sentencing proceedings will take place towards the end of July 2023.

3. The applicant was arrested on 10 March 2021 and has been in custody since that time. Given his plea of guilty, entered at the earliest opportunity, and his acknowledgement that the inevitable sentence will be a lengthy term of full-time imprisonment, he has not previously applied for bail.

4. On 23 January 2023, the applicant applied for bail in respect of the offences listed above. The Crown opposed bail. It was accepted that the applicant bears the onus of establishing “special or exceptional circumstances”, pursuant to s 22B of the Bail Act 2013 (NSW) (“Bail Act” or “the Act”).

5. I received evidence and heard submissions on 23 January 2023. On that date, I determined that bail should be granted. These are my reasons for that determination.

Special or Exceptional Circumstances

6. Section 22B of the Bail Act relevantly provides:

22B   Limitation regarding bail during period following conviction and before sentencing for certain offences

(1)  During the period following conviction and before sentencing for an offence for which the accused person will be sentenced to imprisonment to be served by full-time detention, a court—

(a)  on a release application made by the accused person—must not grant bail or dispense with bail, unless it is established that special or exceptional circumstances exist that justify the decision, or

(b)  on a detention application made in relation to the accused person—must refuse bail, unless it is established that special or exceptional circumstances exist that justify the decision.

(2)  If the offence is a show cause offence, the requirement that the accused person establish that special or exceptional circumstances exist that justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why the accused person’s detention is not justified.

7. Two themes arise from s 22 of the Bail Act, which are apposite. First, in cases involving show cause offences, the requirement to establish “special and exceptional circumstances” applies rather than the requirement that the applicant show cause why their detention is not justified as per ss 16A and 16B of the Bail Act. This suggests that the requirement to establish “special and exceptional circumstances” is at least as onerous as the requirement to show cause. It is well established that s 22 poses a “significant hurdle” to any grant of bail: see El-Hilli and Melville v R [2015] NSWCCA 146 at [11]; Gould v R (Cth) [2021] NSWCCA 27 at [29]. Second, the unacceptable risk test continues to apply to a bail decision made under s 22.

8. What must be shown is that there is some situation which is out of the ordinary, or unusual in some respect, which the applicant can point to as being special or exceptional. Harrison J considered the requirement for exceptional circumstances in R v Naizmand [2016] NSWSC 836 at [8] as follows:

“The expression 'exceptional circumstances' is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what I looked for are circumstances that are, or that appear to be, an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics.”

9. The authorities also show that the concept of exceptional circumstances is a flexible one which requires a case-by-case examination. Such circumstances may be constituted by a combination of matters together, features that are subjective to an applicant, features which bear upon the nature of the alleged offence(s), and features which emphasise that the applicant is otherwise a person who will answer bail: see R v Khayat (No 11) [2019] NSWSC 1320 at [14].

10. In Director of Public Prosecutions (NSW) v Van Gestal [2022] NSWSC 973, Garling J observed that the phrase “special or exceptional circumstances” is to be found in different places in the Bail Act. His Honour concluded that there is no reason that the phrase means different things in different parts of the Act. In Bobbi v R [2021] NSWCCA 44, Hamill J (with whom McFarlan JA and Walton J agreed) said that there was “…. no fetter on the things that might constitute ‘special or exceptional circumstances’”.

11. In R v Watson [2017] ACTSC 311, Penfold J, referring to the meaning of the words “special or exceptional circumstances”, said, at [42]:

“The words do not mean ‘unique or unprecedented or very rare’. It must, however, be something which distinguishes the applicant’s case from others, to take it out of the usual or ordinary case. An application must establish that there are some unusual or uncommon circumstances which must favour the granting of bail.”

12. It is conceded that the first limb of s 22B is made out. The applicant accepts that he will be sentenced to a lengthy term of imprisonment. His acknowledgement in that regard is the reason he has not previously applied for bail and has remained in custody for a period of over 22 months and 10 days.

13. The applicant contends, however, that there are “special or exceptional circumstances” that exist justifying the grant of bail. Whether “special or exceptional circumstances” exist involves a case-by-case determination.

The Evidence

14. The most atypical or abnormal circumstances have arisen in this case. The applicant’s wife was brutally murdered on 16 January 2023. The applicant and his wife have two children together, aged 18 months and three years respectively. These children are currently in the care of their grandfather, the deceased’s father. However, appropriate arrangements for their long-term care have not yet been made.

15. The applicant also has two children from a previous relationship who shared an extremely close relationship with their stepmother, the deceased. These children are in the care of their mother. They are distraught and in desperate need of their father’s support and assistance.

16. The date of the funeral has not yet been set, although it is anticipated it will take place within the next week. If the applicant were to remain in custody, he would not be able to attend his wife’s funeral and, importantly, provide support and comfort to his four children.

17. I accept that he is experiencing extreme distress and grief since becoming aware of the circumstances of his wife’s death. While the death of a loved one is a distressing experience under any circumstances, the circumstances of his wife’s death involve a brutal killing. Upon entering the deceased’s apartment, the police found her on the bed with injuries to her face and blood on the tiles throughout the unit. Two electrical cords were tied very tightly around her throat. It was apparent that a struggle had taken place.

18. Affidavit evidence provided by the applicant’s ex-partner confirms that the applicant is the biological father of their two children. The deceased had regular contact with those children, even after the applicant entered custody. The applicant’s ex-partner deposes that she was “absolutely shattered” by the news that the deceased had been murdered. The two children shared an extremely close relationship with the deceased and loved her dearly. They considered her a “second mum”. As soon as they were informed of the death, they immediately wanted to contact the applicant. The applicant’s ex-partner states that she did her best to facilitate contact between the applicant and his two older children. She also deposes that the applicant has always been “amazing to our children”. He has shown them love, care, and affection, and has always been there for them.

19. The applicant’s ex-partner’s unchallenged evidence is that when she spoke to the applicant via telephone on 16 January 2023, he was devastated and distraught.

20. The applicant’s grandmother has also provided affidavit evidence, which is not challenged. She states that prior to 16 January 2023, neither the applicant nor the family ever considered applying for bail, given that they accepted that the applicant would be sentenced to a lengthy term of imprisonment. However, that was until the news that the deceased had been murdered in her apartment. The applicant’s grandmother states that the news has destroyed the family. They are in disbelief and “completely distraught and overwhelmed with grief”.

21. All four children, and particularly the older children, would benefit from the support of their father. Furthermore, it will be necessary for the applicant to make arrangements for the care of his two younger children to ensure that they are provided for whilst he serves his term of imprisonment once sentenced. The applicant, if released to bail, would reside with his grandmother, who would also welcome the two younger children.

22. The applicant’s uncle has also provided affidavit evidence confirming that both the applicant and the family understand that the applicant must be punished for his offences and will have to serve a further period of imprisonment. The applicant’s uncle states that it is difficult to describe the sadness and anguish that the family is experiencing following the news of the murder of the applicant’s wife. The grief is compounded by the fact that the two young children now have neither a mother nor father.

23. Together with his grandmother, the applicant would be supervised by his uncle on a 24-hour basis.

The Crown’s Position

24. The Crown submits that the applicant has failed to establish “special or exceptional circumstances”. While acknowledging that the circumstances of the death of the applicant’s wife are tragic, the need to be on bail to attend her funeral is said to fall short of being a “special or exceptional circumstance”.

25. Furthermore, the Crown relies upon a transcript of the evidence of the deceased (being evidence given during her sentencing proceedings on 30 September 2022) in which she was asked what arrangements would be made regarding the care of the two young children if she was incarcerated. She responded that her mother would be the main carer, and that her father and other grandmother would assist as much as possible.

26. These proceedings took place at a time when the applicant was in custody and, therefore, could not look after the children. As it transpired, the applicant’s wife was dealt with by way of an Intensive Correction Order and the children remained in her care. The Crown submits that the two younger children are currently in the care of their grandfather and the Court could be satisfied that this placement is an appropriate one. There is, therefore, no need for the applicant to be released so as to make arrangements for his children.

27. The Crown has also brought to my attention that Corrective Services have advised that the applicant could attend his wife’s funeral by way of audio-visual link (“AVL”).

Consideration

28. In determining whether the applicant has established “special or exceptional circumstances”, I have had regard to a combination of factors taken together, as opposed to assessing each factor individually to determine whether that factor, taken alone, establishes “special or exceptional circumstances”.

29. This is not a case where the applicant’s desire to attend his wife’s funeral is the sole factor relied upon to establish “special or exceptional circumstances”. I pause to note that, in the particular context of this case, where the applicant’s wife has been brutally murdered, leaving behind two young children and two older stepchildren, attending the funeral by way of AVL is a very poor substitute.

30. The age of COVID-19 has brought with it significant changes in the way people interact and attend events. The pandemic necessitated periods of isolation and lockdowns, social distancing, and the increased use of AVL facilities. Some of these measures remain, either for reasons of convenience, or efficiency. However, we should not be lulled into the false belief that the need for human interaction and solace, particularly in circumstances of tragedy and trauma, can be met by way of AVL.

31. The need to attend his wife’s funeral is only one of a number of factors relevant to a finding that the applicant has established “special or exceptional circumstances”. Having regard to the brutal killing of his wife, it is unsurprising that the applicant would experience considerable distress, shock, and disbelief. The evidence establishes that he is finding it difficult to deal with the grief sitting in a gaol cell by himself. It must be borne in mind that the shock and grief over his wife’s death is still palpable, given that the murder took place on 16 January 2023, some short time ago.

32. A second and compelling factor is the need for the applicant to support his children and make appropriate arrangements for the care of his two younger children, given their changed circumstances. Notwithstanding the fact that those children are in the care of their grandfather and/or other members of the family, the applicant, as their father, will be required to play a meaningful role in the arrangements for their care. This is particularly so given the evidence that he has been a devoted and committed parent.

33. I am persuaded that the applicant has established “special or exceptional circumstances” for the following combined reasons:

1. The need to support his children and to make appropriate arrangements for the care of his two younger children;

2. The need to attend his wife’s funeral; and

3. The need to access familial support and grief counselling.

Unacceptable Risk

34. I now turn to consider the unacceptable risk test. The Crown submits that in this matter, there are the following unacceptable risks:

1. The risk of failure to appear: s17(2)(a);

2. The risk of commission of a serious offence: s 17(2)(b); and

3. The risk to individuals and/or the community: s17(2)(c).

35. The risk to individuals and/or the community is premised on the nature and seriousness of the offences to which the applicant has pleaded guilty to. It is not submitted that the applicant poses an unacceptable risk of endangering the safety of a particular complainant or witness.

Legislative Framework

36. Section 19(1) of the Bail Act provides that: “a bail authority must refuse bail if the bail authority is satisfied, on the basis of an assessment of bail concerns under this Division, that there is an unacceptable risk”. Accordingly, in determining if there is an unacceptable risk, I must have regard to the bail concerns as set out in s 17(2) of the Bail Act.

37. In R v Lago [2014] NSWSC 660, Hamill J indicated that the provisions of the Bail Act cast an onus on the party who is opposed to the grant of bail. In relation to the assessment of unacceptable risk, his Honour stated at [8] – [9]:

"The concept of assessing risk of this kind has been considered in a number of cases in the context of legislation relating to bail in other states’’...see for example Williamson v DPP (2001) 1 Qd R 99; Dale v DPP [2009] VSCA 212; Woods v DPP [2014] VSC 1....

...The cases on bail recognise that "no grant of bail is risk free": see Williamson (supra) at [22]; Dale (supra) at [58]. In the Application of Haidy [2004] VSC 247, a decision under the Victorian bail legislation, Redlich J said:

"Bail when granted is not risk free. Williamson v DPP (QLD). As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP; Williamson v DPP (Qld)."

38. Unlike the show cause test, the unacceptable risk test, which is mandatory in any bail application, is highly proscriptive. Section 18(1) of the Bail Act sets out a list, which is both mandatory and exhaustive, of the factors to be considered by the bail authority in assessing bail concerns under s 17 of the Bail Act: see Raad v R [2015] NSWSC 532.

Section 18(1) Matters

39. I have considered the following matters pursuant to s 18(1) of the Bail Act:

1. The applicant is a 31-year-old man with strong family ties. If released to bail, he will be able to reside with his grandmother and uncle who will financially support him and supervise him;

2. The applicant does have a criminal record with a number of convictions, predominantly for driving offences. In 2014, he was sentenced to home detention for an offence of possessing an unauthorised prohibited firearm. However, since that time, he has not come under notice for firearm-related matters until the offending the subject of the sentencing proceedings;

3. The applicant has previously breached court orders, although largely in the context of driving offences. He has not previously been subject to onerous bail conditions that are proposed on this application; and

4. I accept that the applicant is vulnerable as a result of his current mental health in the circumstances surrounding the death of his wife.

40. In R v Tsintzas [2017] NSWCCA 172, N Adams J said:

“Estimation of risk is always difficult. I note the observation of McCallum J in R v SK; R v DK [2014] NSWSC 816 at [15] in this regard, ‘The Bail Act does not contemplate the absence of any risk if a person is released, but the informed balancing of risk’. I have undertaken that balancing exercise and, having regard in particular to the strict conditions advanced, I am satisfied that none of the bail concerns amounts to an unacceptable risk.”

41. An assessment of whether the risk is unacceptable also includes consideration of whether the risk can be mitigated by bail conditions: see R v Hamilton [2022] NSWSC 127 at [14]. The proposed conditions include reporting to police daily; a home detention condition; surrendering his passport; abstention conditions; and enforcement conditions.

Consideration

42. I am not persuaded that the applicant poses an unacceptable risk of failing to appear. Although the offences are serious and the inevitable sentence will involve a further period in custody, the applicant entered pleas of guilty to these serious offences at the earliest opportunity. He has not previously applied for bail and accepts that he will be sentenced to a further term of imprisonment. The applicant’s grandmother has agreed to deposit $500,000, and to forfeit that amount if the applicant fails to appear before the Court in accordance with his bail. That is a sizeable surety.

43. Furthermore, and importantly, I accept that his primary concern at present is the welfare of his children. The evidence establishes that he has been a devoted father. There is no evidence to suggest that he would abandon his children in their time of greatest need.

44. Having regard to the nature and seriousness of the offending conduct, I accept that there are two legitimate bail concerns, namely, the risk of commission of a serious offence, and the risk of endangering individuals and/or the community by engaging in drug related criminal conduct. However, I have concluded that, given the extraordinary circumstances arising from the brutal murder of his wife, it is unlikely that he will be turning his mind to further criminal conduct. In addition, the applicant will be subject to onerous bail conditions that will be monitored and enforced by the police.

45. It is well recognised in this Court that bail decisions involve a discretionary evaluative judgment on a variety of factors about which, and within limits, reasonable minds may differ. Every bail application presents its own unique factual matrix, and the bail authority must have regard to such facts when making a determination under the Act: see Director of Public Prosecutions (NSW) v Zaiter [2016] NSWCCA 247 at [31]; R v Peter Tsallas [2017] NSWSC 64 at [21].

Determination

46. In the highly unusual and exceptional circumstances which exist in this case, I am persuaded to grant the release application and release the applicant on bail subject to stringent conditions.

47. Accordingly, I grant bail on the following conditions:

1. The applicant is to be of good behaviour.

2. The applicant must appear at court at any time when he is required by law to be at court.

3. The applicant must live at XXX and nowhere else.

4. The applicant is to report to XXX police station once daily between 6:00AM and 6:00PM.

5. The applicant is not to be absent from his residence unless it is in accordance with one of the following exemptions:

1. To attend directly to and from any court for which he is required to appear as specified in condition 2.

2. To attend directly to and from XXX police station for the purpose of reporting as specified in condition 4.

3. To attend to obtain medical treatment as per a pre-arranged appointment for himself or his children.

4. To attend directly to and from pre-arranged conferences with his legal representatives.

5. To travel directly to and from his wife’s funeral.

6. With respect to exemption a to e, and then only when he is in the direct company of his grandmother or uncle.

6. In the event that the applicant is asked to produce evidence to police to confirm his movements in accordance with the above exemptions, he is to do so.

7. In the event that the applicant has a passport, the applicant is to surrender his passport to New South Wales Police within 48 hours of his release. The applicant is not to apply for a new passport or travel document.

8. The applicant is not to go within 500 meters of any point of departure from the Commonwealth of Australia.

9. The applicant is not to use or be in possession of more than one mobile telephone service and SIM card, and is to provide the password or PIN code, service and IMEI numbers of that telephone to the Officer in Charge within 24 hours of taking or resuming possession of any such service.

10. The applicant is not to use or possess any encrypted device, or any means of communicating via encrypted applications, including, but not limited to, WhatsApp, Snapchat, Wickr, Viber, KIK Messenger, Facebook Messenger, or Telegram.

11. The applicant is not to possess or take any illegal or prescription drugs, except where the drug is lawfully prescribed for the applicant.

12. The applicant is not to consume alcohol or enter any licensed venue.

13. One or more acceptable persons are to deposit $500,000, by way of mortgage, and agree to forfeit that amount if the applicant fails to appear before the court in accordance with his bail.

14. The applicant is to present himself at the front door of the specified residential address at the direction of any police officer to confirm compliance with the home detention condition, drug abstention condition, and alcohol abstention condition.

15. The applicant is to undertake any non-invasive testing required by the direction of any police officer to confirm compliance with the drug abstention condition and alcohol abstention condition.

16. The applicant is to unlock his mobile phone and make it available for inspection at the request of a police officer to ensure compliance with his bail, namely, conditions 9 and 10.

Amendments

01 February 2023 - Inclusion of solicitors' names on cover sheet

Decision last updated: 01 February 2023