R v Mark William Standen - [2010] NSWSC 1157

CITATION: R v Mark William Standen [2010] NSWSC 1157

HEARING DATE(S): 12 August 2010, 19 August 2010, 26 August 2010

JUDGMENT DATE :
1 September 2010

JUDGMENT OF: James J at 1

DECISION: Bail is refused on all charges

LEGISLATION CITED: Commonwealth Criminal Code - ss 11.5, 307.11
Drug Misuse and Trafficking Act NSW - ss 25(2), 33(3)
Commonwealth Crimes Act - s 42
Bail Act - s 22A(1)

CATEGORY: Principal judgment

CASES CITED: The Queen v LK; The Queen v RK (2010) 202 A Crim R 522
Ansari v The Queen (2010) 202 A Crim R 505
R v Kissner (Hunt CJ at CL, 17 January 1992)
Director of Public Prosecutions (Cth) v Germakian (2006) 166 A Crim R 201
R v Masters (1992) 26 NSWLR 450

PARTIES: Regina
Mark William Standen

FILE NUMBER(S): SC 2009/8922

COUNSEL: T Game SC, H Dhanji SC (Crown)
M Ierace SC (Accused)

SOLICITORS: Commonwealth DPP (Crown)
Gordon Elliot, Elliot Lawyers (Accused)

LOWER COURT DATE OF DECISION: 1 September 2010

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST
JAMES J
WEDNESDAY 1 SEPTEMBER 2010
2009/8922 REGINA v Mark William STANDEN

Judgment

1 HIS HONOUR: Mark William Standen applied for bail on three charges brought against him by the Commonwealth Director of Public Prosecutions. The application for bail was opposed by the Crown. Evidence on the application was adduced on 12 August and 19 August and submissions were made on 26 August. On 26 August I reserved my decision on the application.

2 On 23 October 2009 the applicant and an alleged co-offender Bakhos Jalalaty were indicted on the three charges for which a grant of bail is sought by the applicant, namely:

“1. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to import a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug the substance being a border controlled precursor, namely pseudoephedrine, and the quantity being a commercial quantity.

2. Between 1 June 2006 and 2 June 2008 at Sydney in the State of New South Wales and elsewhere did conspire with each other and divers others to supply an amount of a prohibited drug, to wit 300kgs of pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

3 When indicted on 23 October 2009 each of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mark William Standen

Details

AGLC: R v Mark William Standen [2010] NSWSC 1157
Case: [2010] NSWSC 1157
Decision Date: 1 September 2010

CaseChat Overview and Summary

Mark William Standen applied for bail on three charges brought against him by the Commonwealth Director of Public Prosecutions. The application for bail was opposed by the Crown. The court considered the strength of the Crown case against the applicant, the onerousness of the applicant's conditions of custody, the applicant's mental health, the need for the applicant to be at liberty for various purposes, and the ability to devise conditions of bail which would ensure the applicant's attendance at a trial. The court concluded that the applicant, if released on bail, would have a very strong incentive to abscond and that bail should be refused on all charges. The applicant has been charged with three offences, to two of which s 8A of the Bail Act applies. Consequently, the applicant is not to be granted bail for these offences unless he satisfies the court that bail should not be refused. The applicant is not to be granted bail for the third offence unless he satisfies the court that there are exceptional circumstances which justify the grant of bail. The court found that the Crown case against the applicant is strong, that the applicant's conditions of custody are onerous but necessary for his protection, that the applicant suffers from depression and episodes of anxiety, that his continuing imprisonment is one of the causes of his depression and is likely to exacerbate his depression, and that if the applicant was granted bail, he is likely to be subjected to stresses to which he is not subject while in prison, which might temporarily worsen his psychological state and functioning. The court also found that the applicant's capacity to play any significant role with respect to his 8-year old daughter would be severely constrained, even if he was granted bail, and that the proposed conditions of bail were incapable of preventing or even providing a major obstacle to the applicant absconding, if he was so minded. The court concluded that it should refuse bail on all charges.

Orders