R v Lazar

[2016] NSWSC 1462

Supreme Court

New South Wales

Medium Neutral Citation:	R v Lazar [2016] NSWSC 1462
Hearing dates:	10 October 2016
Date of orders:	14 October 2016
Decision date:	14 October 2016
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Grant bail to the applicant subject to the following conditions: (1) He is to be of good behaviour. (2) He is, upon release on bail, to reside and remain at Mosman Private Hospital Mood Disorders Unit at 11 Ellamatta Avenue, Mosman, undergo a comprehensive psychiatric assessment and accept all treatment recommendations made by his treating team. (3) He is not to leave the hospital otherwise than with the express permission on each occasion of Dr Henderson and only for such purpose as Dr Henderson approves for medical or other urgent needs. (4) He is to obey all reasonable directions given to him by Professor Woods and Dr Henderson and the reasonable directions of the staff of the hospital and accept all treatment. (5) He is to report by phone to the North Sydney Police Station daily and his presence is to be confirmed by a staff member of the hospital. He authorises Professor Woods, Dr Henderson and the staff of the hospital to notify the police of any breach or reasonable apprehension of the breach of these conditions, in which case, he may be arrested forthwith. (6) He is to appear at Central Local Court on 2 November 2016 by his legal representative and thereafter as required. (7) He should remain an in-patient of Mosman Private Hospital until his treating team consider he is appropriate for discharge into the community. (8) Prior to release from hospital he must apply to the Supreme Court for variation of bail conditions relating to his place of residence and reporting and is not to be released from the hospital until a new residential address is approved. (9) Following discharge, he must accept all recommended community follow-up arrangements made by his treating team. (10) He is not to associate or communicate or attempt to communicate by any means (except through his lawyer) with any Crown witnesses. (11) He is not to contact, approach, harass or intimidate in any way (including via third parties) any victims of any of his alleged offences. (12) He is to surrender his passport and not to apply for any new passport or travel document. (13) He is not to possess or operate a mobile telephone. (14) One (or more) acceptable person(s) is to deposit $10,000 and agree to forfeit that sum if the applicant fails to appear before court in accordance with the bail acknowledgment.
Catchwords:	BAIL – fraud – use carriage service to threaten harm – offences allegedly committed whilst on bail – show cause requirement – strength of Crown case – delays in bringing to trial – mental health concerns not addressed in custody – treatment available in outside facility
Legislation Cited:	Bail Act 2013 Criminal Code Act 1995 Crimes Act 1900
Cases Cited:	Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 R v S [2016] NSWCCA 189
Category:	Principal judgment
Parties:	Ian Lazar (Applicant) Crown (Respondent)
Representation:	Counsel: G James QC with C Parkin (Applicant)   Solicitors: Murphy’s Lawyers Inc (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2016/201800
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Ian David Lazar makes a release application pursuant to s 49 of the Bail Act 2013. A previous application was refused by Magistrate Farnan on 12 August 2016.

2. Mr Lazar was born in August 1971 and is currently 45 years of age. He has been charged with one count of use carriage service to threaten serious harm pursuant to s 474.15(2) of the Criminal Code Act 1995, one count of use carriage service to threaten to kill pursuant to s 474.15(1) of the Criminal Code and two counts of dishonestly obtain financial advantage or cause disadvantage pursuant to s 192E(1)(b) of the Crimes Act 1900 for which he is currently bail refused.

3. In brief outline of these offences, it is alleged that Mr Lazar made threats to Henry James, a business associate, sending him a number of threatening text messages including messages reading: “I will burn your house and your family” and “Your wife will be a widow when I slice your throat in front of her”.

4. It is further alleged that Mr Lazar provided copies of cheques to Gus Dib and Joanne Dib that could not be honoured, causing financial disadvantage to them in the amount of $560,000.

5. Finally, it is alleged that Mr Lazar told Melinda Barbaro that he could get her husband out of gaol in exchange for a sum of money. He also represented to her that there was a “hit” out on her husband and that he could provide protection if she paid him money. He persuaded her to sell her Mercedes Benz for $35,000 which she then gave to him.

6. At the time of the alleged commission of these offences, Mr Lazar was on bail for numerous other offences including several counts of fraud, stealing cattle, receiving stolen goods and attempting to pervert the course of justice.

Show cause requirement

7. Because these offences are serious indictable offences which were allegedly committed while the applicant was on bail, the Court must refuse bail unless Mr Lazar shows cause why his continued detention is not justified.

8. The show cause requirement can be met by relying on one or a series of circumstances: R v S [2016] NSWCCA 189 at [63]. It is the first part of a two stage test: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. However, the relevant considerations may overlap with the unacceptable risk test: Tikomaimaleya at [24].

9. Whether or not the accused has shown cause is a matter to be determined on the balance of probabilities: Bail Act s 32.

10. In this case, Mr Lazar submits first, that the prosecution case in relation to the charges and any alleged breaches of his bail conditions is weak. It is not necessary for present purposes to go into the details of this argument. Rather, it suffices to say that Mr Lazar contends that the evidence relating to his use of unauthorised mobile phones is circumstantial at best and that the vast majority of his phone calls were made on an approved phone. He also raises doubts about the credibility of the main witnesses. In relation to the first of the fraud charges, Mr Lazar contends that there is no prima facie case as the cheques were merely intended to be proof of funds and were not intended to be deposited. Furthermore the alleged victims, Mr and Mrs Dibb suffered no loss.

11. Secondly, counsel for the accused submits that his mental health is deteriorating and both his treating psychiatrist and a forensic psychologist who have each seen him on a number of occasions agree that he requires urgent treatment beyond that which Corrective Services can provide.

12. Thirdly, the accused submits that there is likely to be a substantial delay before his trial and that there is very little likelihood that the matter will be set down for trial before mid 2017. The accused has already spent five months in custody and faces the prospect of spending a further year on remand. By that time, he contends, his time served will exceed, or approach, any sentence or non-parole period likely to be imposed should he be convicted.

13. Fourthly, Mr Lazar has not previously breached his bail conditions in the nearly 18 months that he was at liberty on bail.

14. Fifthly, the matters are complex and the prosecution brief as it currently stands is over 12 volumes of material and will require detailed instructions to be obtained with lengthy meetings with his legal advisers which cannot, in all likelihood, be facilitated by Corrective Services. These difficulties will be exacerbated by his deteriorating mental health condition should he be kept in gaol.

15. Sixthly, Mr Lazar has no significant criminal record prior to this suite of offences that would militate against a grant of bail.

16. Finally, he has a sick child and his partner is having difficulty looking after the child by herself as well as meeting their financial obligations.

17. Taking all these matters into account, I am satisfied that Mr Lazar has demonstrated why his continued detention is not justified.

Unacceptable Risk

18. The Crown opposes bail citing three bail concerns: first, that there is a risk the applicant will commit a serious offence. Secondly, that there is a risk of danger to the victims, individuals and the community, and thirdly, that there is a risk that Mr Lazar may interfere with witnesses or evidence.

19. In support of this, the Crown rightly draws attention to the fact that the applicant was on bail for a number of offences at the time of the circumstances giving rise to the present proceedings. These matters, taken together with the present charges, point to an alleged pattern of fraudulent conduct over a significant period of time. Whilst the applicant has only a minor criminal record, there are now offences alleged against him relating to six different sets of circumstances. Furthermore, the applicant is also alleged to have had a number of criminal associates including a prosecution witness who was allegedly engaged by the applicant to assault a police officer who was investigating a matter relating to the applicant. The Crown submitted that the applicant shows a flagrant disregard for bail conditions imposed by the Courts.

20. Mr Lazar contends that there is no risk that he will commit a serious offence, as the proposed bail conditions would effectively prevent him from doing so. He maintains that the Crown case is weak and highlights the fact that he has been on bail for more than a year without incident, during which time police were presumably listening to his phone calls and found no evidence (aside from the evidence in relation to the present matters) that he had breached his bail conditions in any way.

21. Finally, Mr Lazar has tendered two psychiatric reports, one from Dr Antony Henderson and one from Associate Professor Stephen Woods which outline his current mental state and his need for treatment.

22. Dr Henderson is Mr Lazar’s treating psychiatrist. He conducted an initial review of Mr Lazar on 20 September 2016 and then again on 4 October 2016. He states that during his initial review, Mr Lazar presented in a highly agitated, distractible and mood elevated state, expressing a number of grandiose ideas relating to his legal knowledge and photographic memory. He struggled to complete sentences and his account of his offending was largely incoherent. He reported feeling “up and down” and “irritable” and also reported experiencing fast thoughts and poor concentration. He was sleeping two hours of broken sleep per night, had reduced appetite and experienced 10kg of weight loss since custody. Dr Henderson gave a diagnosis of Bipolar II Disorder-hypomanic phase. He noted that Mr Lazar had ceased his mood stabiliser medication, Quetiapine, for some months prior to his arrest on the most recent set of charges. He also reported not having seen a psychiatrist for some time prior to his arrest. He denied having used alcohol or illicit drugs.

23. Mr Lazar was commenced on a combination of antipsychotic/mood stabiliser medications on 7 September 2016. On the day of his most recent assessment, 4 October, Mr Lazar appeared to have been unresponsive to this medication regime and he continued to demonstrate symptoms of hypomania.

24. Dr Henderson stated that “Mr Lazar’s current treatment setting may be contributing to his poor treatment response… This is despite Mr Lazar’s being on ‘protection’ within a mental health pod of the prison”.

25. Mr Lazar reported being threatened with a knife on two occasions and regularly taunted into fighting other inmates despite being in the mental health protection unit. Dr Henderson stated that the ongoing fear of assault is likely to be contributing to Mr Lazar’s illness progression and lack of response to treatment.

26. Dr Henderson recommended that if Mr Lazar were to be released on bail, and he accepted admission to Mosman Private Hospital Mood Disorders Unit, he should undergo a comprehensive psychiatric assessment and accept all treatment recommendations made by his treating team. He should remain an in-patient of Mosman Private Hospital until his treating team considered that he is appropriate for discharge into the community. Following discharge, he would have to accept all recommended community follow-up arrangements made by his treating team.

27. Professor Woods is a forensic psychologist who has prepared three reports on Mr Lazar’s health dated 16 January 2015, 29 August 2016 and 4 October 2016. Professor Woods described Mr Lazar’s condition in his 4 October report in the following terms:

“On presentation, Mr Lazar was again found to be of dishevelled appearance. His previously observed symptoms of mania, thought disorder and psychomotor agitation were felt to be more pronounced despite him having been commenced on Seroquel, 100mg nocte.

…

Treatment in a correctional facility … is not a viable option – indeed it would likely greatly aggravate his mental health.”

28. In his earlier report, dated 29 August 2016, he advised that:

“In my opinion, Mr Lazar’s current mental health is such that he is on the verge (if not already the case) of being unfit for trial. Further, and in the absence of placement in a hospital where he can receive treatment relevant to his specific needs, his mental state will further deteriorate.”

29. Both Dr Henderson and Professor Woods paint a picture of Mr Lazar’s deteriorating mental health condition which is exacerbated by the custodial environment in which he finds himself.

Consideration

30. Mr Lazar faces a number of very serious charges encompassing a broad scope of criminal conduct. Indeed, the 13 pending charges represent allegations of criminal conduct spanning six distinct occasions.

31. Whilst Mr Lazar contends that the Crown case in relation to each of the charges is weak, I have difficulty accepting this, taking into account the witness statements and the documentary evidence. I do however accept that there is some complexity to these matters, in particular the fraud charges.

32. The fact that these offences were allegedly committed whilst the accused was on bail is of particular concern, and would appear to demonstrate a flagrant disregard for bail conditions imposed by the Courts.

33. Likewise, Mr Lazar’s criminal associations and his attempts to pervert the course of justice are especially concerning. This is so even though, as counsel for Mr Lazar submits, the substantive offences to which that charge relates were dismissed. That does not necessarily detract from the reliability of the case in relation to attempting to pervert the course of justice, nor does it ameliorate my particular concern in this application for bail.

34. I accept that the charges against Mr Lazar are voluminous. There is likely to be a significant delay until he comes to trial. Furthermore, he and his legal team will likely encounter significant difficulties in preparing for his case in the custodial setting. This is even more so given his mental health issues.

35. Mr Lazar has a diagnosis of Bipolar II Disorder-hypomanic phase. He unfortunately appears to have gone off his medication and withdrawn from psychiatric support services in the weeks and months leading up to his arrest. It is concerning to note that in the custodial setting his condition has not improved, even with the intervention of medication, and indeed, it appears to have deteriorated. Dr Henderson is of the view that being in custody, even in the mental health care unit, is significantly impeding his recovery. Professor Woods agrees. Mr Lazar has approval to enter the Mosman Private Hospital Mood Disorders Unit if released on bail and would have the considerable benefit of an experienced team of mental health care professionals overseeing his treatment.

36. It is tempting to see mental health treatment as the answer to all types of offending and some bail concerns. This is not without some basis, as very often accused persons are suffering from serious psychiatric disorders which have contributed to their offending and for which they do not receive adequate treatment in gaol. On the other hand, where an offender has demonstrated a repeated inclination towards criminal offending, even in the face of strict bail conditions imposed on him or her by the courts, the level of comfort that might be afforded to the courts by the prospect of medical intervention is diminished.

37. Notwithstanding this, in this case, it seems to me that the applicant is suffering a debilitating mental illness that has not improved in gaol and that could be resolved with the treatment options and oversight outside the custodial setting. It would appear from the facts before me that Mr Lazar’s alleged criminal conduct may at least partially be attributed to his illness, and he should have the opportunity to address it.

38. Accordingly, I propose to grant bail to the applicant subject to the following conditions:

1. He is to be of good behaviour.

2. He is, upon release on bail, to reside and remain at Mosman Private Hospital Mood Disorders Unit at 11 Ellamatta Avenue, Mosman, undergo a comprehensive psychiatric assessment and accept all treatment recommendations made by his treating team.

3. He is not to leave the hospital otherwise than with the express permission on each occasion of Dr Henderson and only for such purpose as Dr Henderson approves for medical or other urgent needs.

4. He is to obey all reasonable directions given to him by Professor Woods and Dr Henderson and the reasonable directions of the staff of the hospital and accept all treatment.

5. He is to report by phone to the North Sydney Police Station daily and his presence is to be confirmed by a staff member of the hospital. He authorises Professor Woods, Dr Henderson and the staff of the hospital to notify the police of any breach or reasonable apprehension of the breach of these conditions, in which case, he may be arrested forthwith.

6. He is to appear at Central Local Court on 2 November 2016 by his legal representative and thereafter as required.

7. He should remain an in-patient of Mosman Private Hospital until his treating team consider he is appropriate for discharge into the community.

8. Prior to release from hospital he must apply to the Supreme Court for variation of bail conditions relating to his place of residence and reporting and is not to be released from the hospital until a new residential address is approved.

9. Following discharge, he must accept all recommended community follow-up arrangements made by his treating team.

10. He is not to associate or communicate or attempt to communicate by any means (except through his lawyer) with any Crown witnesses.

11. He is not to contact, approach, harass or intimidate in any way (including via third parties) any victims of any of his alleged offences.

12. He is to surrender his passport and not to apply for any new passport or travel document.

13. He is not to possess or operate a mobile telephone.

14. One (or more) acceptable person(s) is to deposit $10,000 and agree to forfeit that sum if the applicant fails to appear before court in accordance with the bail acknowledgment.

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Decision last updated: 14 October 2016